[Federal Register: December 15, 1995 (Volume 60, Number 241)]
[Proposed Rules ]
[Page 64475-64524]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 64475]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Part 361
The State Vocational Rehabilitation Services Program; Proposed Rule
[[Page 64476]]
DEPARTMENT OF EDUCATION
34 CFR Part 361
RIN 1820-AB12
The State Vocational Rehabilitation Services Program
AGENCY: Department of Education.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Secretary proposes to amend the regulations governing The
State Vocational Rehabilitation Services Program. These amendments are
needed to implement changes to the Rehabilitation Act of 1973 (Act)
made by the Rehabilitation Act Amendments of 1992, enacted on October
29, 1992, as amended by the 1993 technical amendments (hereinafter
collectively referred to as the 1992 Amendments).
DATES: Comments must be received on or before February 23, 1996.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Fredric K. Schroeder, U.S. Department of Education, 600
Independence Avenue SW., Room 3028, Mary E. Switzer Building,
Washington, D.C. 20202-2531. Comments transmitted by facsimile should
be sent to (202) 205-9772. Comments can be transmitted in an electronic
format either through the electronic bulletin board system (BBS) of the
Rehabilitation Services Administration (RSA) or through internet. The
internet address is ``State__VR@ed.gov''. The access number for the RSA
BBS is (202) 205-5574 for low speed (2400 BPS or lower) modems and
(202) 205-6174 for high speed (9600 BPS and higher) modems. Comments
can also be transmitted to the RSA BBS through Fedworld via internet
using the telnet command. Telnet to: ``Fedworld.gov''. All comments
transmitted in an electronic format should be sent to the following RSA
BBS mailbox: ``RSADPPES''. To facilitate the analysis of comments,
electronic transmission of comments is preferred. Also, comments should
be specific and identified by proposed regulatory citation. Comments
received by RSA after the due date for comments will not be considered.
A copy of any comments that concern information collection
requirements should also be sent to the Office of Management and Budget
at the address listed in the Paperwork Reduction Act section of this
preamble.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of
Education, 600 Independence Avenue SW., Room 3014, Mary E. Switzer
Building, Washington, D.C. 20202-2531. Telephone (202) 205-8831.
Individuals who use a telecommunications device for the deaf (TDD) may
call (202) 205-5538.
SUPPLEMENTARY INFORMATION: The State Vocational Rehabilitation Services
Program (program) is authorized by Title I of the Act (29 U.S.C. 701-
744). This program provides support to each State to assist it in
operating a comprehensive, coordinated, effective, efficient, and
accountable State program to assess, plan, develop, and provide
vocational rehabilitation (VR) services to individuals with
disabilities so that those individuals may prepare for and engage in
gainful employment, consistent with their strengths, resources,
priorities, concerns, abilities, capabilities, and informed choice. The
program supports the National Education Goal that, by the year 2000,
every adult American, including individuals with disabilities, will
possess the knowledge and skills necessary to compete in a global
economy and exercise the rights and responsibilities of citizenship.
Regulations for this program were last published in their entirety
on May 12, 1988 (53 FR 16978) to implement the 1986 amendments to the
Act and are codified in 34 CFR Part 361. In addition, a notice of
proposed rulemaking (NPRM) for this program was published on July 3,
1991 (56 FR 30620) (1991 NPRM), but it was never finalized.
In the 1991 NPRM, the Secretary proposed amendments to the
regulations for this program that were designed to reduce regulatory
burden on States and to place greater administrative discretion at the
State level. More specifically, the 1991 NPRM proposed to remove or
reduce certain State plan, paperwork, and reporting requirements not
mandated by statute, to clarify the regulations through more precise
definitions, and generally to simplify and condense the regulations. At
the request of the Congress, the proposed regulations in the 1991 NPRM
were not finalized because the Rehabilitation Act Amendments of 1992
were being developed at that time.
The 1992 Amendments made extensive changes to Title I of the Act
that have far-reaching implications for the program. One of the major
themes of the 1992 Amendments is the empowerment of individuals with
disabilities in terms of influence on the State plan and State
vocational rehabilitation policy through membership on the State
Rehabilitation Advisory Council or an independent commission and
increased participation in the development, implementation, and
evaluation of their individualized written rehabilitation programs
through informed choice. The statute also requires that designated
State units (DSUs) provide for the use of appropriate modes of
communication and accessible formats to ensure equal access for
individuals with disabilities who need this assistance.
A related theme is the integration of individuals with disabilities
into the full spectrum of American life. The 1992 Amendments requires
both that vocational rehabilitation services be provided in the most
integrated settings possible and that employment outcomes be in the
most integrated settings possible.
Another key theme of the 1992 Amendments is to improve access to
the vocational rehabilitation system. The amendments streamline the
process for making eligibility determinations by requiring the use of
existing information to the extent possible, by adding a presumption of
benefit from services, and by providing a 60-day time limit for making
eligibility determinations.
The 1992 Amendments also focuses on expanding and improving the
quality of services by requiring States to develop a strategic plan, by
requiring States to develop a comprehensive system of personnel
development to ensure that DSU personnel are adequately trained and
meet the State's highest standards, and by requiring the development of
standards and indicators to evaluate the performance of State programs.
The evaluation standards and performance indicators are being developed
separately and are not addressed in this NPRM.
Finally, the 1992 Amendments focuses on expanding and improving
services to certain groups of individuals with disabilities. The
amendments include new order of selection and eligibility provisions
that are designed to increase and improve services for individuals with
severe disabilities, particularly individuals with the most severe
disabilities. The amendments also contain new outreach requirements
that are designed to increase services to individuals with disabilities
who are members of groups that are currently unserved and underserved,
including members of minority groups. In addition, the amendments
contain provisions that are designed to increase coordination between
education agencies and DSUs to better serve individuals with
disabilities who are transitioning students.
This NPRM proposes changes to implement the 1992 Amendments to
Title I Parts A, B, and C of the Act (with the exception of the
strengthened order
[[Page 64477]]
of selection requirements in sections 12(d) and 101(a)(5)(A) of the
Act, the evaluation standards and performance indicator requirements in
section 106 of the Act, and the client assistance program requirements
in section 112 of the Act, which are being implemented in separate
rulemaking documents) and proposes to incorporate some of the changes
that were previously proposed in the 1991 NPRM to reduce the
administrative burden on States. This NPRM also proposes other changes
that the Secretary believes are important to update, consolidate,
clarify, and in other ways improve the regulations for this program.
Executive Order 12866 encourages Federal agencies to facilitate
meaningful participation in the regulatory development process.
Accordingly, prior to drafting this NPRM, RSA, on March 31, 1994, made
draft proposed regulations (draft regulations) available in accessible
formats, including an electronic format, to a broad spectrum of parties
for informal review and comment. Over 600 letters of comments on the
draft regulations were analyzed. RSA also gathered public input on the
draft regulations through public meetings held in Washington, D.C. on
April 19, May 12, and May 17, 1994; Chicago on April 26, 1994; and
Oakland, California on May 4 and May 5, 1994; and through public
teleconferences on April 20, May 13, May 18, and June 8, 1994. In
addition, three separate focus groups were convened in June 1994 to
allow for further discussion of three discrete issues: eligibility
under the program, informed choice in the selection of services and
service providers, and the standards related to the achievement and
maintenance of an employment outcome.
The following is a section-by-section summary of the regulations
proposed in this NPRM, including an explanation of the major
provisions, how they differ from the existing and the draft
regulations, and the reasons the Secretary is proposing them. In
addition, in order to clarify proposed organizational changes, the
summary identifies the sections of the current regulations, as well as
the sections of the statute, on which every section of the proposed
regulations is based.
Changes to the draft regulations that appear in this NPRM were made
in response to public comments received by RSA and input provided
during the public meetings, teleconferences, and focus groups.
Significant changes to the draft regulations are discussed in the
section-by-section summary. However, minor technical and structural
changes that do not significantly alter the provisions of the draft
regulations are not discussed.
In response to public commenters who viewed some of the paperwork
requirements in the draft regulations as unduly burdensome, the
Secretary has proposed in the NPRM eliminating or consolidating
documentation requirements wherever feasible. Those requirements that
would remain in the proposed regulations are considered essential to
the proper administration of the program. Paperwork requirements in the
following sections of the draft regulations have been removed or
reduced: Secs. 361.13(c), 361.19, 361.20(b), 361.21 (a) and (b),
361.22(a)(1), 361.29 (a)(2) and (a)(4), 361.33(b), 361.46, 361.47,
361.52, and 361.53(a)(3).
In addition, the draft regulations have been reviewed and revised
in accordance with the Department's principles for regulating, which
were developed as part of the Administration's regulatory reinvention
initiative under the National Performance Review II. The principles are
designed to ensure that the Department regulates in the most flexible,
most equitable, and least burdensome way possible. As a result of that
review, additional non-statutory requirements in the draft regulations
have been eliminated or modified to reduce paperwork or process
requirements on States and to increase State flexibility in meeting
statutory requirements. These proposed changes are identified in the
section-by-section summary.
The proposed regulations, like the draft regulations, provide
guidance through examples in the following three areas: permissible
expenses under the definition of ``maintenance''; permissible expenses
under the definition of ``transportation''; and meeting the final
eligibility criterion (an individual with a disability must require VR
services) under Sec. 361.42. Some public commenters on the draft
regulations opposed the use of examples on the grounds that they would
interfere with individual counselor judgment, whereas other commenters
supported their use as an effective means of ensuring that counselors
had ready access to information typically found in guidance materials.
By including the examples in the regulations, the Secretary intends to
make the regulations more comprehensive and useful. The Secretary
emphasizes, both here and throughout the section-by-section summary,
that the examples are provided solely for the purposes of illustration,
do not address all situations that a rehabilitation counselor may face,
and are not intended to preclude individual counselor judgment on a
case-by-case basis. The examples are merely guidance material to which
rehabilitation professionals can quickly refer.
References in the section-by-section summary to the ``proposed
regulations,'' as opposed to the ``draft regulations,'' refer to
regulatory provisions included in this NPRM.
Section-by-Section Summary
Section 361.1--Purpose
This proposed new section of the regulations would incorporate the
language in section 100(a)(2) of the statute, which emphasizes the goal
of gainful employment for individuals with disabilities and the
responsibility of States to operate comprehensive, coordinated,
effective, efficient, and accountable programs that are designed to
assess, plan, develop, and provide vocational rehabilitation services.
The Secretary interprets the statutory term ``gainful employment'' to
have the same meaning as the term ``employment outcome,'' as it is
defined in the proposed regulations.
Section 361.2--Eligibility for a Grant
This new section is proposed for clarification. A similar section
was proposed in the 1991 NPRM.
Section 361.3--Authorized Activities
This new section is proposed to clarify how the funds under this
program can be used. A similar section was proposed in the 1991 NPRM.
It also incorporates the new statutory provision in section 111(a)(1)
of the Act that funds may be used to develop and implement the
strategic plan.
Section 361.4--Applicable Regulations
This proposed section would revise Sec. 361.1(b)(1) of the existing
regulations to clarify that the reference to 34 CFR Part 74
(Administration of Grants to Institutions of Higher Education,
Hospitals, and Nonprofit Organizations) applies only to the award of
subgrants by vocational rehabilitation agencies to entities that are
not State or local governments or Indian tribal organizations and to
remove the reference to 34 CFR Part 78 (The Education Appeal Board)
because it has been deleted from the Education Department General
Administrative Regulations (EDGAR). In addition, the proposed section
would add references to 34 CFR Parts 80, 81, 82, 85, and 86 because
those parts have been added to EDGAR since the regulations for this
program were last revised, and they are applicable to this program.
[[Page 64478]]
Section 361.5--Applicable Definitions
This proposed section is taken from Sec. 361.1(c) of the existing
regulations. It has been revised to incorporate changes in the
definitions in section 7 of the Act that were made by the 1992
Amendments. The definitions are organized alphabetically and are
numbered for purposes of quick identification.
The following definitions from the current regulations are not
included in the proposed regulations since the terms have been removed
or replaced in the Act: ``employability,'' ``evaluation of vocational
rehabilitation potential,'' ``initial expenditure,'' ``rehabilitation
facility,'' and ``time-limited services.'' In addition, the term
``workshop'' is not used or defined in the proposed regulations.
Statutory definitions of the following terms have been added to the
proposed regulations without substantive change: ``assistive technology
device,'' ``assistive technology service,'' ``extended services,''
``impartial hearing officer,'' ``ongoing support services,'' ``personal
assistance services,'' ``rehabilitation technology,'' ``supported
employment,'' ``supported employment services,'' and ``transition
services. In addition, definitions of ``American Indian'' and ``State''
have been revised to reflect statutory changes made by the 1992
Amendments.
Definitions of the terms ``community rehabilitation program'' and
``employment outcome,'' which are defined in the Act, have been revised
to clarify or elaborate on the statutory definitions. The proposed
definition of ``community rehabilitation program'' incorporates the
definition in section 7(25) of the Act, but would add a definition of
the word ``program'' to clarify that community rehabilitation programs
do not include individual practitioners, such as physicians or physical
therapists, who provide VR services but are not affiliated with an
agency, organization, or institution that provides VR services as one
of its major functions. This clarification is based on the Secretary's
view that Congress did not intend for the assessment of the capacity
and effectiveness of community rehabilitation programs and related
requirements to include every individual person who provides VR
services. However, the Secretary interprets the term community
rehabilitation program and the associated requirements to apply to a
vocational rehabilitation services unit of a hospital. In addition, in
response to public comment on the draft regulations, the Secretary
proposes to broaden the meaning of the term ``program'' from an entity
that provides or facilitates the provision of VR services as its
primary function to an entity that provides or facilitates the
provision of VR services as one of its major functions. This change
would enable, for example, a local affiliate of the United Cerebral
Policy Foundation that provides VR services, in addition to
disseminating information and providing educational services, to be
considered a ``community rehabilitation program'' under the definition.
The proposed definition of ``employment outcome'' elaborates on the
definition in section 7(5) of the Act by incorporating into the
definition the concept in the Act that an employment outcome must be
consistent with an individual's strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice. The
proposed definition would replace the definition of ``employability''
in Sec. 361.1 of the existing regulations. In response to the draft
regulations, several commenters expressed concern about the scope of
permissible employment outcomes under the definition. Although the
proposed definition, unlike the current regulatory definition of
``employability,'' does not identify a full range of permissible
employment outcomes under the vocational rehabilitation services
program, the Secretary does not intend the proposed definition to
exclude any employment outcome that has been permitted in the past.
Thus, for example, homemaker, extended employment, and self-employment
remain acceptable employment outcomes. The proposed definition does,
however, recognize competitive employment as the optimal employment
outcome under the program, and language emphasizing this has been added
to the definition.
The Secretary proposes new definitions or revisions to the
definitions in the existing regulations for the following terms that
are not defined in the Act: ``administrative costs,'' ``applicant,''
``appropriate modes of communication,'' ``comparable services and
benefits,'' ``competitive employment,'' ``construction of a facility
for a public or nonprofit community rehabilitation program,''
``establishment, development, or improvement of a public or nonprofit
community rehabilitation program,'' ``establishment of a facility for a
public or nonprofit community rehabilitation program,'' ``extended
employment,'' ``family member,'' ``individual's representative,''
``integrated setting,'' ``maintenance,'' ``post-employment services,''
``transitioning student,'' and ``transportation.''
The proposed definition of ``administrative costs'' is based on
existing RSA subregulatory guidance and definitions of the term that
are used in other RSA programs. The definition, which is substantially
the same as the definition of ``administrative costs'' in the draft
regulations, lists, as examples, certain types of expenses that would
constitute administrative costs. Several commenters on the draft
regulations suggested adding other items to the definition. In
response, the Secretary has amended the definition of ``administrative
costs'' to clarify that the types of expenses listed in the definition
are intended only as examples and that other expenditures would be
considered administrative costs as long as those expenditures relate to
program planning, development, monitoring, and evaluation.
The Secretary proposes to define ``applicant'' for clarification by
referencing the requirements for submitting an application in
Sec. 361.41(b)(2) of the proposed regulations.
In response to public comment on the draft regulations, the
Secretary proposes to change the term ``special modes of
communication'' to ``appropriate modes of communication'' to ensure
consistency with the Americans with Disabilities Act (ADA). In
addition, the Secretary proposes to eliminate references in the
definition to individuals who are blind, deaf, or hearing-impaired to
clarify that the proposed definition is not limited by type of
disability and that it includes all appropriate modes of communication
necessary to enable any individual with a disability to comprehend
information being communicated.
Finally, the Secretary has expanded the list of examples of
communication services and materials in the proposed definition.
However, the Secretary does not consider the list to be all-inclusive
and emphasizes that other appropriate modes of communication not
specified in the proposed definition are also available.
The proposed definition of ``comparable services and benefits'' is
based on a definition of that term that was proposed in the 1991 NPRM.
It is intended to support the statutory purpose of conserving
rehabilitation funds, while ensuring the provision of appropriate and
timely services in lieu of those provided by the DSU. The proposed
definition revises the definition proposed in the 1991 NPRM to remove
private agencies (i.e., community, philanthropic, and other
[[Page 64479]]
private entities that are not VR service providers but do provide
financial or other assistance to individuals with disabilities to help
meet VR needs, such as scholarship assistance from a local Lions Club)
as one of the sources of comparable services and benefits because the
Secretary interprets the reference in the statute to ``other programs''
to mean other public programs. In addition, the Secretary believes it
would be too burdensome to require State agencies to determine the
availability of comparable services and benefits from private agencies
prior to providing services and benefits under this program. The
Secretary would, however, continue to encourage State agencies to use
services and benefits that are available from private agencies to the
extent they are known. In response to public comment on the draft
regulations, the Secretary has further amended the term by clarifying
that comparable services and benefits must be available ``within a
reasonable period of time'' and must be commensurate with the services
that the individual would otherwise receive from the VR agency.
In response to public comment on the draft regulations, the
Secretary has consolidated the definitions of ``competitive
employment'' and ``competitive work'' from the draft regulations into a
single proposed definition of ``competitive employment.'' The
consolidated definition recognizes that integration (i.e., an
employment outcome in an integrated job setting) is an element of
competitive employment, rather than a separate concept. It would
establish a general requirement that individuals must receive
compensation that is at or above the minimum wage, but not less than
the prevailing community wage for non-disabled individuals performing
the same or similar work.
The consolidated definition would apply to supported employment as
well as to other kinds of competitive employment outcomes. Under the
proposed definition, however, an employment outcome in a supported
employment setting in which an individual receives wages below the
minimum wage in accordance with section 14(c) of the Fair Labor
Standards Act (FLSA) (i.e., wages based on individual productivity)
would no longer be considered competitive employment. Although this
proposed change would represent a significant departure from
longstanding RSA regulatory policy, the Secretary agrees with those
public commenters who suggested that competitive employment outcomes
should be limited to those in which individuals are compensated at or
above the minimum wage. In addition, this proposed change is consistent
with section 101(a)(16) of the Act, which requires DSUs annually to
review and reevaluate the status of each individual in an employment
setting under section 14(c) of the FLSA in order to determine the
individual's readiness for competitive employment. This statutory
requirement indicates that supported employment settings in which
individuals are compensated below minimum wage in accordance with the
FLSA do not constitute competitive employment. The Secretary also notes
that the proposed change would have the effect of requiring individuals
in supported employment to earn at least the minimum wage in order to
receive services under Title VI, Part C of the Act. Finally, so that
the impact of this proposed change can be appropriately evaluated, the
Secretary requests public comment on the extent to which individuals
currently in supported employment earn less than the minimum wage.
The proposed definition of the term ``construction of a facility
for a public or nonprofit community rehabilitation program'' is based
on the definition of the term ``construction of a rehabilitation
facility'' in Sec. 361.1(c) of the existing regulations and the
definition of the term ``construction'' in section 7(1) of the Act. The
proposed regulations also incorporate the 1992 Amendments, which
replaced the concept of rehabilitation facilities with ``community
rehabilitation programs.'' The word ``facility'' is used in the
proposed regulations only to refer to a ``building'' or ``structure.''
In addition, the Secretary proposes to fold into this definition all
authorized construction expenditures under this program, which are
currently contained in Sec. 361.74(a) of the existing regulations.
The Secretary proposes to define the term ``eligible individual''
for clarification throughout the regulations by referencing the basic
eligibility criteria in proposed Sec. 361.42(a).
The proposed definition of the term ``establishment, development,
or improvement of a public or nonprofit community rehabilitation
program'' elaborates on the statutory definition of the term
``establishment of a community rehabilitation program'' by
incorporating all of the types of expenditures for which a State unit
can receive Federal financial participation. These provisions are taken
from Sec. 361.73(a) of the existing regulations and include the
limitations on staffing costs initially proposed in the 1991 NPRM.
The Secretary proposes to define separately the term
``establishment of a facility for a public or nonprofit community
rehabilitation program'' for purposes of clarification. The proposed
definition covers only those authorized activities contained in the
definition of ``establishment, development, or improvement of a public
or nonprofit community rehabilitation program'' that involve
facilities. In response to public comment about these three terms, the
Secretary wishes to emphasize that funds under this program cannot be
used to support community rehabilitation programs that are profitmaking
organizations.
In response to public comment on the draft regulations, the
Secretary has amended the proposed definition of the term ``extended
employment'' to clarify that it means work in a non-integrated or
sheltered setting for a public or private nonprofit agency or
organization that provides compensation in accordance with the Fair
Labor Standards Act as well as any on-the-job support services the
individual might require. In response to several commenters who
expressed concern with language in the draft definition that stated
that some individuals in extended employment ``are not ready for
competitive employment,'' the Secretary has modified the proposed
definition to clarify that the purpose of extended employment is to
enable individuals to continue to train or otherwise prepare for
competitive employment, unless the individual makes an informed choice
to remain in extended employment.
In response to public comment, the definition of the term ``family
member'' has been revised to mean any individual (1) who is a relative
or guardian, or who lives in the same household as an applicant or
eligible individual regardless of their interpersonal relationship; (2)
who has a substantial interest in the well-being of that individual;
and (3) who needs vocational rehabilitation services to enable the
applicant or eligible individual to achieve an employment outcome.
In response to public comment on the draft regulations, the
Secretary proposes to amend the definition of the term ``impartial
hearing officer'' to clarify that a member of the DSU's rehabilitation
advisory council may not serve as an impartial hearing officer for that
same DSU. Under the proposed definition, however, a member of the State
Rehabilitation Advisory Council could serve as an impartial hearing
officer in cases involving another DSU within the same State. For
example, a member of the State Rehabilitation
[[Page 64480]]
Advisory Council for a State unit serving individuals who are blind
would not be precluded, solely on the basis of that membership, from
serving as an impartial hearing officer in cases involving the State
unit that serves individuals other than individuals with visual
disabilities.
The Secretary proposes to include the term ``individual with a most
severe disability'' in the definitions to clarify that States are
required to define the term as a subset of and consistent with the
definition of the statutory term ``individual with a severe
disability.''
The Secretary proposes to define the term ``individual's
representative,'' consistent with the list of potential representatives
in the Act, so that the defined term, rather than the long list of
potential representatives, can be referenced throughout the
regulations. In response to public comment on the draft regulations,
the Secretary proposes to amend the definition to clarify that it means
any representative chosen by an applicant or eligible individual,
including a parent, guardian, other family member, or advocate, unless
a representative has been appointed by a court to represent the
interests of the individual, in which case the court-appointed
representative is the individual's representative.
The proposed definition of the term ``integrated setting'' is
designed to implement the intent of the statute that individuals
receive VR services and achieve employment outcomes in the most
integrated settings possible, consistent with the individual's informed
choice. In the draft regulations the term was defined broadly to mean a
setting in which the majority of individuals with whom individuals with
disabilities interact meaningfully, excluding service providers, are
non-disabled individuals. In response to public comment on the draft
regulations, the Secretary proposes to amend the term by requiring that
applicants or eligible individuals need only be given the opportunity
to interact with non-disabled individuals, excluding service providers,
on a regular basis for a setting to be considered integrated. This
proposed change would permit employment at a center for independent
living, for example, to be considered integrated as long as the
employee has the opportunity to regularly interact with non-disabled
persons, even though the Act requires that a majority of a center's
employees be disabled. The proposed definition also applies to
supported employment placements. A separate definition of
``integration'' for supported employment placements is, therefore, no
longer needed and is not included in the proposed regulations.
``Maintenance'' would be defined to clarify that it includes living
expenses (e.g., food, shelter, and clothing) only to the extent that
they are in excess of an individual's normal expenses and that it is
available only for eligible individuals and individuals receiving
extended evaluation services. The proposed definition reflects
statutory language in section 103(a)(5) of the Act that limits the
provision of maintenance to ``additional costs while participating in
rehabilitation.'' The Secretary considers an individual to be
participating in rehabilitation if the individual is receiving services
under an individualized written rehabilitation program (IWRP) or under
a written plan for providing extended evaluation services. The
provision of maintenance must be tied to other needed services.
Maintenance, however, cannot be used to pay the expenses of all
applicants receiving assessment services, as several commenters urged.
As discussed later in the definitions section of the preamble, the
Secretary believes, however, that the short-term costs of food and
shelter of applicants who are required to travel to receive assessment
services, and who are not receiving extended evaluation services, could
be covered as a transportation expense. In addition, the Secretary
proposes a note following the proposed definition of maintenance that
provides examples of permissible maintenance expenses. The last example
was added in response to public comment and indicates that maintenance
can be used to cover the costs of food, shelter, and clothing of
homeless or recently deinstitutionalized individuals until other
financial assistance can be secured for those costs. The Secretary
emphasizes that the examples are provided solely for the purposes of
illustration and do not preclude designated State units from providing
maintenance in other appropriate situations.
In response to public comment on the draft regulations, the
Secretary proposes to amend the definition of the term ``ongoing
support services'' by removing the requirement that the assessment of
an individual's employment stability include one monthly contact with
the individual's employer whenever the IWRP of an individual in
supported employment provides for off-site monitoring. The Secretary
emphasizes, however, that contacts with employers are authorized as
follow-up services under paragraph (iii)(F) of the proposed definition
and could be provided as often as necessary to reinforce a supported
employment placement.
In response to public comment on the draft regulations, the
Secretary proposes to amend the definition of the term ``physical and
mental restoration service'' by deleting from the proposed definition
certain services that are not specifically identified in the statute.
For example, ``convalescent or nursing home care'' has been deleted
since it is not specified in section 103(a)(4) of the Act and is viewed
as a type of long-term care rather than a restoration service.
In response to public comment on the draft regulations, the
Secretary proposes to amend the definition of the term ``physical or
mental impairment'' to mean an injury, disease, or other condition that
materially limits, or if not treated will result in materially
limiting, mental or physical functioning.
The Secretary proposes to define ``post-employment services'' based
on existing subregulatory guidance. In response to public comment on
the draft regulations, the Secretary has amended the proposed
definition to clarify that post-employment services are any vocational
rehabilitation services for individuals that are provided subsequent to
the achievement of an employment outcome and that are necessary to
enable the individual to maintain, regain, or advance in employment
consistent with the individual's strengths, resources, priorities,
concerns, abilities, capabilities, and interests. In addition, the
Secretary proposes to amend the note following the proposed definition
in order to further explain the circumstances under which post-
employment services may be provided.
In response to public comment on the draft regulations, the
Secretary has amended the definition of the term ``substantial
impediment to employment,'' as used in the criteria for determining
eligibility under Sec. 361.42(a)(1), to mean a physical or mental
impairment that hinders (rather than ``prevents'') an individual from
preparing for, entering into, engaging in, or retaining employment
consistent with the individual's abilities and capabilities. The
Secretary proposes to delete the provision in the draft regulations
that the impairment hinder the individual from employment that is
consistent with the individual's interests. The purpose of this change
is to clarify that an individual with an impairment who is not
interested in his or her current employment does not, based on that
lack of interest alone, have a substantial impediment to employment.
In response to public comment on the draft regulations and
consistent with section 103(a)(14) of the Act, the
[[Page 64481]]
Secretary proposes to amend the definition of the term ``transition
services'' to clarify that transition services must promote or
facilitate the accomplishment of long-term rehabilitation goals and
intermediate rehabilitation objectives identified in the transitioning
student's IWRP.
In response to public commenters who sought further clarification
of the term ``transitioning student'' in the draft regulations, the
Secretary proposes to define the term to mean a student who is eligible
to receive vocational rehabilitation services and is receiving
``transition services'' as defined in the regulations.
The Secretary proposes to define the term ``transportation'' on the
basis of existing subregulatory guidance. In addition, the Secretary
has included a note following the proposed definition that provides
examples of permissible transportation expenses. One of these examples
covers the short-term, travel-related expenses (i.e., food and shelter)
of applicants receiving assessment services. These expenses, as
discussed previously, cannot be provided under the maintenance
authority. The Secretary also emphasizes that these examples are
provided solely for the purposes of illustration and do not preclude
DSUs from providing transportation costs in other appropriate
situations.
Finally, the following nomenclature changes from the Act have been
incorporated into the definitions and throughout the regulations:
references to all forms of the word ``handicap'' have been changed to
the corresponding form of the word ``disability;'' certain references
to the word ``disability'' have been replaced by the word
``impairment'' (e.g., physical or mental impairment); and the word
``client'' has been removed and replaced with other appropriate terms,
including ``applicant,'' ``eligible individual,'' ``individual,'' or
``individual with a disability.''
The Secretary also notes that proposed changes to supported
employment definitions included in this NPRM would also affect those
definitions in 34 CFR Parts 363, 376, and 380.
Section 361.10--Submission, Approval, and Disapproval of the State Plan
Proposed Sec. 361.10 contains certain requirements from Secs. 361.2
and 361.3 of the existing regulations relating to the purpose,
duration, development, submission, and approval of the State plan. Many
of the other requirements in Secs. 361.2 and 361.3 of the existing
regulations have been relocated to other sections of the proposed
regulations because they deal with the substance and administration of
the State plan. Proposed Sec. 361.10 also incorporates the new
statutory provision that authorizes the Secretary to approve the
submission of a State plan for a period other than three years if it
corresponds to the period required for another plan required under
Federal law. Proposed paragraph (j) of this section provides the
procedures for disapproval of the State plan. The procedural
protections would be the same as those that are currently provided when
the Secretary withholds funds.
Paragraphs (e) and (f) of Sec. 361.2 of the existing regulations,
which contain provisions regarding the designation of and transition to
a new State agency or State unit, would be removed from the proposed
regulations. The 1991 NPRM proposed removal of these requirements
because of the paperwork burden, and they have been omitted in this
NPRM for the same reason.
Section 361.11--Withholding of Funds
Proposed Sec. 361.11 revises Sec. 361.4 of the existing regulations
to make withholding hearings under this program subject to the
jurisdiction of and the procedural requirements governing the
Department's Office of Administrative Law Judges in EDGAR, 34 CFR Part
81, rather than program specific hearing procedures in current
Secs. 361.170 through 361.186, which would be repealed. This is
consistent with the changes proposed in the 1991 NPRM.
Section 361.12--Methods of Administration
This proposed section is taken from Sec. 361.10 of the existing
regulations. The proposed regulations add a clause to clarify that
proper and efficient administration of the State plan includes
procedures to ensure accurate data collection and financial
accountability.
Section 361.13--State Agency for Administration
This proposed section consolidates information contained in
Secs. 361.5, 361.6, and 361.8 of the existing regulations regarding the
designation of the State agency, the organizational level and status of
the State unit, and the full-time director requirement.
In an effort to reduce the regulatory burden and increase State
flexibility in accordance with the Department's principles for
regulating, the Secretary proposes to delete the requirement in
Sec. 361.13(a)(1)(i) of the draft regulations and Sec. 361.5(b)(1) of
the current regulations that a designated State agency that has as its
major function vocational rehabilitation or vocational and other
rehabilitation of individuals with disabilities also ``have the
authority, subject to the supervision of the Governor, if appropriate,
to define the scope of the program within the provisions of State and
Federal law and to direct its administration without external
administrative controls.'' Elimination of this non-statutory
requirement, which applies currently to only one of the three sole
State agency options identified in the regulations, is intended to
increase State flexibility in locating and administering its vocational
rehabilitation program.
Several commenters on the draft regulations requested clarification
of the requirement in Sec. 361.13(b)(1)(iii) that at least 90 percent
of the State unit staff work full-time on the rehabilitation work of
the organizational unit, which must be primarily concerned with
vocational rehabilitation or vocational rehabilitation and other
rehabilitation. This requirement means that if the organizational unit
provides other rehabilitation services, in addition to vocational
rehabilitation, the 90 percent staffing requirement applies to all unit
staff providing rehabilitation services, not to just the vocational
rehabilitation staff. ``Other rehabilitation'' includes, but is not
limited to, other programs that provide medical, psychological,
educational, or social services to individuals with disabilities. For
example, a State unit with 90 percent of its staff working on
independent living services, programs for the developmentally disabled,
disabled children's services, services for individuals who are deaf or
hearing-impaired, services for individuals who are blind or visually
impaired, Social Security disability determinations, or some other type
of program related to individuals with disabilities, in addition to
vocational rehabilitation, would satisfy the 90 percent requirement.
The Secretary also notes that Federal funds under this program may be
used only to pay the salaries of the State unit staff that are working
full-time or part-time on vocational rehabilitation.
In accordance with the Department's principles for regulating, the
Secretary also proposes to delete the requirement in Sec. 361.13(c) of
the draft regulations and Sec. 361.6(a) of the current regulations that
the State plan describe the organizational structure of the State
agency and its organizational units. The Secretary instead would rely
on an assurance, required by statute, that a State agency that is
required to have a vocational rehabilitation unit locate that
[[Page 64482]]
unit at an organizational level comparable to other organizational
units within the State agency. This proposed change is intended to
reduce paperwork burdens on State agencies in developing their State
plans.
The Secretary is not proposing any substantive changes in paragraph
(d) of this section to the requirements in current Sec. 361.5(e) with
regard to the responsibility of the designated State unit for
administration of the vocational rehabilitation program, but is
soliciting public comment on the need for changes.
The current regulations specify certain program functions or
activities (determinations of eligibility, development of IWRPs, and
decisions regarding the provision of services) that must be the
responsibility of the DSU and that cannot be delegated to any other
agency or individual. This non-delegation provision has been
interpreted by RSA to mean that the DSU must carry out these functions
or activities using its own staff. The draft proposed regulations,
consistent with RSA subregulatory policy, specified additional program
functions that must be carried out by the DSU: determinations that
service recipients have achieved appropriate employment outcomes, the
formulation and implementation of program policy, and the allocation
and expenditure of program funds. The draft proposed regulations also
would have strengthened the role of the State unit by requiring that
the unit have a substantial role in all decisions affecting the
administration of the VR program whenever management functions within
the State agency are centralized.
Public comment on these draft proposed changes was neither
extensive nor consistent. Some State VR directors supported a
strengthening of the role and authority of the DSU but thought the
draft proposed regulations were not strong enough, while other
commenters thought the regulations were too prescriptive and believed
that the only program function that must be carried out directly by DSU
staff is eligibility determinations.
In light of the mixed public comment received thus far and the
Administration's regulatory reinvention initiative, which is intended
to increase State flexibility in administering Federally funded
programs whenever permitted by statute, the Department is soliciting
additional public comment on the following questions: Should the
regulations expand or otherwise clarify essential program functions for
which the DSU must be responsible in order to meet the statutory
requirement in section 101(a)(2)(A) that it be responsible for the VR
program? Must these essential program functions be carried out by DSU
staff or should the regulations provide States as much flexibility as
possible to determine how to carry out these functions as long as the
DSU retains administrative oversight in these areas? Any changes made
to provide increased flexibility to States would not require DSUs to
change their current administrative practices but would provide States
additional flexibility to restructure, consolidate, or contract out
program operations as long as the DSU retains ultimate responsibility.
Section 361.14--Substitute State Agency
This proposed section revises certain requirements regarding the
selection of a substitute State agency (Sec. 361.7 of the existing
regulations) in order to simplify the process and reduce the paperwork
burden. The existing regulations permit applications from a potentially
unlimited number of substitute State agency applicants, from which the
Secretary selects the substitute State agency based on detailed
criteria in the existing regulations. The proposed regulations place
the authority and responsibility for the selection of a substitute
State agency on the State so that the Secretary would need only to
review and approve a State plan from one substitute State agency prior
to providing funds.
Section 361.15--Local Administration
This proposed section simplifies Sec. 361.9 of the current
regulations by removing the requirements related to a written agreement
between a sole local agency and the State unit in order to reduce the
paperwork burden on States. It proposes to replace the written
agreement requirements with assurances from the State unit in the State
plan relating to the administration and supervision of a sole local
agency.
Section 361.16--Establishment of an Independent Commission or a State
Rehabilitation Advisory Council
This proposed new section implements the new requirements related
to the State Rehabilitation Advisory Council (Council) in section
101(a)(36) of the Act. The proposed section clarifies that a State does
not need to establish a Council or meet the requirements related to a
Council if the State agency is a consumer-controlled independent
commission. The proposed section also clarifies that if the State has a
separate State agency for individuals who are blind, four options
regarding the possible combinations of the two State agencies exist.
Although only three options are identified in the Act, the section-by-
section analysis of the Act in the Conference Report clarifies that the
fourth option, a mirror image of the third combination identified in
the Act, is also acceptable. This option is contained in proposed
paragraph (b)(4) of this section.
Section 361.17--Requirements for a State Rehabilitation Advisory
Council
This proposed new section incorporates the new statutory
requirements in section 105 of the Act with the clarification that the
director of the DSU is a nonvoting member of the State Rehabilitation
Advisory Council. Since the purpose of the Council is to advise the
State unit, and the statute is clear that the director is an ex-officio
member of the Council, the Secretary does not believe that Congress
intended that the director of the State unit provide advice to herself
or himself by voting on Council decisions. Similarly, the Secretary has
clarified the regulations to state that any employee of the designated
State agency may serve only as a nonvoting member of the Council.
Several commenters on the draft regulation sought clarification
with respect to the appointment of Council representatives from the
Client Assistance Program (CAP) and the Statewide Independent Living
Council (SILC). In response, the Secretary proposes to amend the
regulations to clarify that the role of the CAP and SILC is to
recommend to the Governor, or other appropriate appointment authority
designated by State law, Council representatives for their respective
organizations. Based on these recommendations, the Governor or other
State-designated authority determines who will be the Council
appointees, since the statute clearly vests appointment authority in
those entities. The Secretary also notes that those individuals
recommended for Council membership by the CAP or SILC need not be CAP
or SILC members.
In addition, in response to public comment on the draft
regulations, the Secretary emphasizes that, although the Council must
be composed of at least 13 members (unless the State qualifies for an
exception under paragraph (b)(4) of this section), a State is not
precluded from having more than 13 individuals serve on its Council.
The Secretary also encourages States to consider appointing Council
members from minority backgrounds consistent with the 1992 Amendments
to the Act, which emphasizes outreach
[[Page 64483]]
to individuals from minority backgrounds and the need for
rehabilitation programs to better reflect the culturally diverse
population of the United States.
Finally, in response to public comment on the draft regulations,
the Secretary proposes to amend the annual reporting requirements of
the Council by requiring the Council to submit to the Governor, or
other appropriate State entity, and to the Secretary an annual report
of the status of the State's vocational rehabilitation programs within
90, rather than 60, days from the end of the fiscal year and by
requiring that the report be available through appropriate modes of
communication.
Section 361.18--Comprehensive System of Personnel Development
This proposed new section incorporates the new statutory
requirements in sections 101(a)(7) and 101(a)(35) of the Act. The
requirements in section 101(a)(7) of the Act are virtually identical to
requirements for a comprehensive system of personnel development under
the Individuals with Disabilities Education Act (IDEA). For this
reason, this section of the proposed regulations closely tracks the
regulations implementing the IDEA requirements (34 CFR 300.380 through
300.383), with modifications to better reflect the context of the State
Vocational Rehabilitation Services Program.
Some commenters on the draft regulations questioned the basis for
requiring the involvement of the State Rehabilitation Advisory Council
in the development of personnel standards. The Act requires that the
Council generally advise the State unit in connection with the carrying
out of its programmatic responsibilities. In addition, the State agency
is required to consult, and seek advice from, the Council on issues
affecting the development of the State plan. Because an effective
system of personnel development is an essential part of the State plan
and a critical element to the success of the State Vocational
Rehabilitation Services Program, the Secretary considers it necessary
for the Council to participate in the development of State personnel
standards.
Paragraph (a) of this section requires that the State plan include,
on an annual basis, a description of a system for collecting and
analyzing personnel data. Several commenters on the draft regulations
expressed concern about the amount of data that must be provided to the
Secretary under this provision. In response, the Secretary emphasizes
that, although annual data collection and analysis requirements are
statutorily imposed, the proposed regulations require only that the
State plan include a description of the system used to collect the data
on personnel needs and personnel development and do not require the
State to submit the actual data to the Secretary.
In response to public comment on the draft regulations, the
Secretary proposes to broaden the definition of the term ``highest
requirements in the State applicable to that profession or
discipline,'' as used in the development and maintenance of personnel
standards by the State, to mean the highest entry-level academic degree
or equivalent experience needed to meet any national- or State-
recognized certification, licensing, registration, or other comparable
requirements that apply to a profession or discipline. The purpose of
this change is to recognize that some States base their personnel
standards, in part, on relevant work experience by substituting
equivalent work experience for certain academic credentials. State
standards of this type would meet this definition. This change,
however, would not allow work experience to substitute for academic
requirements if the existing State standard is based only on academic
credentials.
The Secretary also believes that permitting States to base highest
personnel standards in the State on equivalent experience, as well as
on academic degrees, stresses the significance of relevant work
experience and will diversify further the pool from which qualified
personnel can be selected.
Several commenters on the draft regulations suggested areas of
training in addition to rehabilitation technology that should be
required in the regulations as part of the State's program of staff
development. The Secretary believes that the specific training areas
for staff development adopted by a State unit must be based on the
particular needs of that State unit. The Secretary recognizes, however,
that staff development may include, but is not limited to, training
with respect to the requirements of the Americans with Disabilities
Act, IDEA, and Social Security incentive programs, training to
facilitate informed choice under this program, and training to improve
the provision of services to culturally diverse populations. A
provision to this effect has been added to the proposed regulations.
In response to public comment on the draft regulations, the
Secretary proposes to change the reference in paragraph (e) of this
section from ``special communication needs personnel'' to ``personnel
to address individual communication needs'' and has clarified this
provision by requiring the State unit to describe in the State plan how
it includes among its personnel, or obtains the services of,
individuals able to communicate in the native languages of applicants
and eligible individuals who have limited English speaking ability.
That personnel may include State agency staff, family members of an
applicant or eligible individual, community volunteers, and other
individuals able to communicate in the appropriate native language. The
State unit also must describe how it ensures that appropriate modes of
communication are used for all applicants and eligible individuals.
In response to public comment on the draft regulations, the
Secretary wishes to stress the importance of requiring in the State
plan a description of the State's personnel performance evaluation
system that facilitates, and does not impede, the purposes and policies
of the vocational rehabilitation services program outlined in the Act.
More precisely, the proposed regulations require that the evaluation
system further the statutory policy of serving individuals with the
most severe disabilities. In support of this requirement, the Senate
Committee on Labor and Human Resources states in its report that it
``is concerned that in some States, procedures used for evaluating
performance of counselors may have the unintended consequence of
providing a disincentive to serve individuals with the most severe
disabilities and those clients requiring complex services.'' The
performance evaluation system required under the Act and included in
the proposed regulations is designed to address these disincentives.
The Secretary proposes to modify paragraph (g) of this section to
track section 101(a)(7)(A)(ii) of the Act, which requires the State
agency to describe the activities it will undertake to coordinate its
comprehensive system of personnel development with personnel
development under IDEA. This proposed change is intended to increase
the flexibility of State agencies to implement the most effective
procedures for coordinating the development of personnel under both
statutes. An example of how a State may address this coordination
requirement would be to establish a joint continuing education program
for both DSU personnel and personnel under IDEA that deals with the
provision of VR services, including transition services, to
transitioning students.
[[Page 64484]]
Section 361.19--Affirmative Action for Individuals With Disabilities
This proposed section, which is based on section 101(a)(6)(A) of
the Act and Sec. 361.15 of the existing regulations, requires the State
agency to take affirmative action to employ and advance in employment
qualified individuals with disabilities. In accordance with the
Department's principles for regulating, the Secretary proposes to
delete the non-statutory requirement in the draft regulations and the
current regulations that the State unit develop an affirmative action
plan that provides for specific goals, action steps, timetables,
evaluation criteria for measuring progress, and complaint and
enforcement procedures. By not requiring a formal affirmative action
plan or specifying the minimum requirements a State must incorporate
into that plan, the proposed provision would give State agencies
greater flexibility to take those steps it considers most appropriate
for increasing the number of qualified individuals with disabilities
that it employs or advances in employment. The proposed changes also
would reduce State paperwork burdens.
Section 361.20--State Plan Development
This proposed section revises Sec. 361.18 of the existing
regulations to implement new requirements in section 101(a)(23) of the
Act.
Consistent with section 101(a)(23) of the Act, paragraph (a)(1) of
this section of the regulations would require the State unit to conduct
public meetings throughout the State to provide all segments of the
public, including interested groups, organizations, and individuals, an
opportunity to comment on the State plan prior to its development and
to comment on any revisions to the State plan. In accordance with the
Department's principles for regulating, the Secretary believes that
States should have the latitude to develop their own procedures for
ensuring that interested parties are afforded a meaningful opportunity
to comment on the State plan before it is developed and when it is
revised. Additionally, in order to satisfy the statutory requirement
that the State unit, prior to conducting public meetings throughout the
State, provide appropriate and sufficient notice of the public
meetings, the proposed regulations would require the State unit to
follow notice requirements established under State law or, in the
absence of those requirements, to consult with the State Rehabilitation
Advisory Council to develop notice procedures. The proposed regulations
would not impose any specific minimum Federal requirements for what
constitutes ``appropriate and sufficient notice.''
In response to those commenters who sought regulatory clarification
of the public participation and notice requirements of this section,
the Secretary provides the following examples as suggested ways a DSU
might meet these requirements. A State unit could satisfy the public
participation requirement, for example, by soliciting input from the
public before developing a preliminary draft State plan and making the
preliminary draft plan available to the public 30 days prior to the
public meetings. An example of ``appropriate and sufficient notice'' of
public meetings would be notice that is provided at least 30 days prior
to a public meeting through various media available to the general
public, such as newspapers and public service announcements, and
through specific contacts with appropriate constituency groups and
organizations identified by the State unit, in consultation with the
State Rehabilitation Advisory Council. An example of how a State unit
could meet the statutory requirement that it ``conduct public meetings
throughout the State,'' would be to hold public meetings in at least
two different geographic locations that are among the State's most
densely populated areas and at sites that are accessible to individuals
with disabilities.
Some commenters on the draft regulations suggested that larger
States be required to hold a greater number of public meetings than
smaller States, while other commenters suggested that States make use
of emerging technologies that enable individuals to participate in
public meetings without having to be in attendance. The Secretary
encourages each State to hold as many public meetings as are necessary
to ensure meaningful participation of all interested persons and
organizations in that State. The Secretary also urges States to
consider using alternative or emerging technologies that allow for
wider public participation. The proposed regulations are intended to
provide each State with the flexibility to choose the manner in which
it conducts public meetings (e.g., in person, satellite broadcasts,
teleconferences, or a combination thereof) as long as the meetings are
truly interactive and are designed to maximize the opportunity for
meaningful participation.
The proposed section also would implement the new statutory
provision in section 105(c)(2) of the Act that requires the State
Rehabilitation Advisory Council to advise the State unit on the
preparation of the State plan by requiring the State unit to consult
with the Council in the development of the State plan. Finally, the
proposed section implements the new statutory requirement in section
101 (a)(32) of the Act that the State plan describe the manner in which
it will modify State policy and procedures in response to consumer
satisfaction surveys.
Section 361.21--Consultations Regarding the Administration of the State
Plan
This proposed section is also taken from Sec. 361.18 of the
existing regulations. It incorporates section 101(a)(18) of the Act,
including the new statutory requirement regarding consultation with the
director of the CAP. It would also require consultation with the State
Rehabilitation Advisory Council, consistent with the Council functions
in new section 105(c) of the Act. It proposes to remove provisions in
the existing regulations that list examples of matters of general
policy development and implementation. Finally, this proposed section,
as well as the previous section, would implement new section 101(a)(32)
of the Act, which requires the State plan to describe the manner in
which the State will modify State policy and procedures in response to
consumer satisfaction surveys.
Section 361.22--Cooperation With Agencies Responsible for Transitioning
Students
This proposed new section combines Sec. 361.19(b) of the existing
regulations, which requires the State plan to provide for the
coordination of services for individuals who are eligible both for
vocational rehabilitation services and for services under IDEA, with
the new statutory provisions in sections 101(a)(11) and (a)(24) of the
Act. The new statutory provisions require formal interagency agreements
to facilitate the transfer of responsibilities for transitioning
students who are receiving special education services from the agency
responsible for providing a free appropriate public education to the
State unit responsible for providing vocational rehabilitation
services. In addition, proposed paragraph (b) of this section
implements the new requirement in section 101(a)(30) of the Act
regarding the availability of vocational rehabilitation services to
students who are individuals with
[[Page 64485]]
disabilities and who are not in special education programs.
Some commenters on the draft regulations viewed the required
content of formal interagency agreements between State units and State
educational agencies as unduly burdensome. In response, the Secretary
proposes to amend the regulations to require that formal interagency
agreements need only identify provisions for determining State lead
agencies and qualified personnel responsible for transition services,
in addition to identifying those policies and practices that can be
coordinated between the agencies, including eligibility standards,
referral policies, outreach procedures, and evaluation procedures. The
formal interagency agreement may, as appropriate, identify available
resources, the financial responsibilities of each agency, dispute
resolution procedures, and other cooperative policies.
Other commenters expressed concern that the draft regulations
required State agencies to shoulder more of the responsibility for
transitioning students than is contemplated under the Act. In response,
the Secretary proposes to add a note in the regulations to clarify the
roles of the rehabilitation and educational agencies in facilitating
the transition of students who are eligible for VR services. As stated
by the Senate Committee on Labor and Human Resources, the role of the
State agency is primarily one of planning for the student's years after
leaving school.
Section 361.23--Cooperation With Other Public Agencies
This proposed section is taken from paragraphs (a), (c), and (d) of
Sec. 361.19 of the existing regulations and has been revised to
incorporate the new requirements in section 101(a)(11) of the Act
regarding the content of formal interagency cooperative agreements. The
proposed section is also reorganized to clarify that the long list of
programs under existing Sec. 361.19(a) refers to Federal, State, and
local public programs and agencies providing services related to the
rehabilitation of individuals with disabilities.
Section 361.24--Coordination With the Statewide Independent Living
Council
This proposed new section incorporates the new requirement in
section 101(a)(33) of the Act that the State unit coordinate and
establish working relationships with the Statewide Independent Living
Council and independent living centers within the State.
Section 361.25--Statewideness
This proposed new section contains the requirement in Sec. 361.2(a)
of the existing regulations that the State plan be in effect in all
political subdivisions of the State.
Section 361.26--Waiver of Statewideness
This proposed section revises Sec. 361.12 of the existing
regulations to clarify that a waiver of statewideness is necessary if
the State unit wants to provide through local financing increased
services or an expanded scope of services that is different from the
services available statewide. The procedural requirements relating to a
request for a waiver would remain substantially the same.
Section 361.27--Shared Funding and Administration of Joint Programs
This proposed section revises Sec. 361.11 of the existing
regulations to clarify that these programs involve shared funding and
administrative responsibility, that a request for the Secretary's
approval must be included in the State plan, and that a request for
waiver of statewideness also must be included in the State plan, if
necessary. The proposed regulations would also remove the specific
requirements relating to a written agreement that are in the existing
regulations. The 1991 NPRM proposed to remove the written agreement
requirements as part of the effort to reduce paperwork burden, and the
requirements are omitted in this NPRM for the same reason.
Section 361.28--Third-Party Cooperative Arrangements Involving Funds
From Other Agencies
This proposed section revises Sec. 361.13 of the existing
regulations to reduce the requirements related to third-party
cooperative arrangements, including the requirements for a written
agreement, an annual program budget, and an annual review of program
operations. The proposed regulations would also clarify that
applicants, as well as eligible individuals, can receive services under
these cooperative arrangements. This section would be placed
organizationally in the regulations next to the proposed section on
shared funding and administration to emphasize the differences between
joint programs and third-party cooperative arrangements.
Some commenters on the draft regulations suggested that third-party
cooperative arrangements be jointly administered by the State unit and
the cooperating agency, i.e., administered in the same way as joint
programs under proposed Sec. 361.27. In response, the Secretary notes
that section 101(a)(2) of the Act requires the designated State unit to
be responsible for the vocational rehabilitation program. Third-party
cooperative arrangements provide a framework for cooperating agencies
to provide vocational rehabilitation services and contribute to the
State's non-Federal financial share under the program. Thus, third-
party arrangements are considered part of the vocational rehabilitation
program for which the State unit must retain administrative
responsibility. In contrast, State units that are parties to joint
programs share funding and administrative responsibility with other
agencies.
In response to public comment on the draft regulations, the
Secretary has clarified that services provided by the cooperating
agency under a cooperative arrangement must either be new services that
have a vocational rehabilitation focus or existing services that have
been modified, adapted, expanded, or reconfigured to have a VR focus.
These requirements are consistent with longstanding RSA subregulatory
guidance.
Section 361.29--Statewide Studies and Evaluations
This proposed section revises and expands Sec. 361.17 of the
existing regulations to identify and clarify the timelines for all of
the study and evaluation requirements, some of which are currently
contained in other sections. It also expands the requirement in
Sec. 361.2(a)(2)(i) of existing regulations that the State plan
describe changes in policy resulting from the statewide studies and the
annual evaluation to also require a description of activities
undertaken and changes in the State plan, the strategic plan, and plan
amendments that result from the studies and evaluations. Proposed
paragraph (d) of this section incorporates the new requirement in
section 105(c)(2) of the Act regarding the role of the State
Rehabilitation Advisory Council in the preparation of the statewide
studies and evaluation.
Section 361.30--Services to Special Groups of Individuals With
Disabilities
This proposed section combines Secs. 361.37 and 361.38 of the
existing regulations regarding special services for civil employees of
the United States and for American Indians, along with paragraph (c) of
Sec. 361.36 of the existing regulations, which provides for special
consideration for public safety officers. In addition, the Secretary
proposes to clarify in this section that special consideration means
that a public safety
[[Page 64486]]
officer would receive priority for services over other individuals in
the same priority category of an order of selection. The proposed
section would also incorporate the statutory definitions of ``criminal
act'' and ``public safety officer'' from section 7 of the Act.
Section 361.31--Utilization of Community Resources
This proposed section is substantially the same as Sec. 361.56 of
the existing regulations. It has been relocated to group it with other
utilization sections in the part of the regulations that contains
general administration requirements, rather than in the part of the
regulations that addresses provision of services requirements.
Section 361.32--Utilization of Profitmaking Organizations for On-The-
Job Training in Connection With Selected Projects
This proposed section revises Sec. 361.57 of the existing
regulations to increase State unit flexibility by authorizing, rather
than requiring, a State unit to use profitmaking organizations if it
determines that those organizations are better qualified to provide
needed services than nonprofit agencies, organizations, or facilities
in the State.
Section 361.33--Utilization of Community Rehabilitation Programs
This proposed section revises Secs. 361.21 and 361.22 of the
existing regulations and replaces the term ``rehabilitation
facilities'' with the term ``community rehabilitation programs,''
consistent with the 1992 Amendments. It also incorporates changes in
the State plan requirements in sections 101(a)(5) and 101(a)(15) of the
Act and new requirements in sections 101(a)(27) and 101(a)(28) of the
Act.
In accordance with the Department's principles for regulating, the
Secretary proposes to eliminate current non-statutory requirements for
a rehabilitation facilities plan and for an inventory of community
rehabilitation programs and requirements in the draft regulations for a
justification in the State plan for using funds for the support of
community rehabilitation programs, including the construction of
facilities, and for a prioritized list in the State plan of proposed
activities. The removal of these provisions would substantially reduce
paperwork burdens on designated State units.
Section 361.34--Supported Employment Plan
This proposed new section incorporates sections 101(a)(25) and
635(a) of the Act, which require a State to assure that it has an
acceptable plan for providing supported employment services and to
submit that plan as a State plan supplement.
Section 361.35--Strategic Plan
This proposed new section would require that the strategic plan to
expand and improve vocational rehabilitation services be provided as a
supplement to the State plan. Section 101(a)(34)(A) of the Act requires
the State plan to include an assurance that the State has a strategic
plan to expand vocational rehabilitation services in accordance with
Part C of Title I. In addition, section 120 of the Act requires States
to submit their strategic plans to the Secretary prior to receiving
funding under Part B of the Act, which includes the allotment for this
program. The Secretary believes that requiring the strategic plan as a
supplement to the State plan is the simplest and least burdensome
approach.
Section 361.36--Reserved
This section is reserved for the order of selection regulations,
which are being implemented in a separate rulemaking document.
Section 361.37--Establishment and Maintenance of Information and
Referral Resources
The provision proposed in the draft regulations was substantially
the same as Sec. 361.20 of the existing regulations. However,
commenters on both the draft regulations and the July 16, 1993 NPRM on
order of selection have requested that State units operating under an
order of selection be permitted to provide non-purchased services
(e.g., information and referral) to eligible individuals who do not
qualify for services under the State unit's priority categories. An
order of selection is required under section 101(a)(5)(A) of the Act if
a State unit determines that it is unable to provide services to all
eligible individuals who apply for services. In response to public
comment, the Secretary proposes to address this concern by amending the
regulations to authorize any State unit that has implemented an order
of selection to establish an expanded information and referral program
that includes the provision of job referral services to eligible
individuals who are not being served under a State unit's order of
selection, provided that certain State plan requirements are met. These
requirements include a description in the State plan of the level of
commitment of staff and other resources for this purpose and an
assurance that in carrying out this program, the State unit will not
use case services funds that are needed to provide VR services to
eligible individuals who are able to be served under the State unit's
order of selection.
Section 361.38--Protection, Use, and Release of Personal Information
This proposed section is substantially the same as Sec. 361.49 of
the existing regulations with the clarification in proposed paragraph
(e)(3) that a State unit is required to release personal information if
required by Federal regulations or Federal law.
In addition, some commenters on the draft regulations expressed
concern that the State unit could release harmful personal information
to a representative not chosen by the applicant or eligible individual.
In response, the Secretary has clarified that the State unit may
release information that it determines to be harmful to the individual
only to a third party chosen by the individual, which may include,
among others, an advocate, a family member, or a qualified medical or
mental health professional.
In response to public comment on the draft regulations, the
Secretary also proposes to amend the regulations by clarifying that
State units shall release personal information in response to an
``order issued by a judicial officer.'' The Secretary believes that the
use of the term ``judicial order'' in both the current and draft
regulations is confusing and that the clarification is necessary to
ensure that a judge, magistrate, or other authorized judicial officer
appropriately weighs the factors necessitating release of personal
information against the individual's rights to privacy and protection
from unauthorized use before ordering a State unit to release the
information.
In addition, the proposed section has been relocated to group it
with other sections of the regulations that contain the administrative
requirements since it does not relate to the provision and scope of
services.
While the confidentiality of personal information from applicants
and eligible individuals under this program is considered essential to
protect individual privacy, the Secretary specifically requests public
comment on whether the provisions of this section are unduly burdensome
or inconsistent with State laws governing the protection, use, or
release of personal information.
Section 361.39--State-Imposed Requirements
This proposed section is taken from Sec. 361.25 of the existing
regulations. The
[[Page 64487]]
draft regulations would have required State units to identify State-
imposed requirements at the public meetings to develop and revise the
State plan. In response to public comment, the Secretary proposes to
clarify this section of the regulations by requiring State units to
identify upon request those regulations and policies relating to the
administration or operation of the vocational rehabilitation program
that are State-imposed. In making these changes the Secretary
recognizes that the scope of State-imposed requirements is broader than
those included in the State plan and that the Act requires the
application of any State rule or policy relating to the administration
or operation of the vocational rehabilitation program to be identified
as a State-imposed requirement. The proposed section would require
State units to identify those requirements upon request, including, but
not limited to, requests made at public meetings.
Section 361.40--Reports
This proposed section is substantially the same as Sec. 361.23 of
the current regulations, except that it would add cross-references to
sections 13, 14, and 101(a)(10) of the Act to distinguish the reporting
requirements under this section from the reporting requirements related
to statewide studies and evaluations under proposed Sec. 361.29.
Section 361.41--Processing Referrals and Applications
This section expands Sec. 361.30 of the current regulations to
incorporate the new statutory requirement in section 102(a)(5)(A) of
the Act that an eligibility determination be made within 60 days of the
date on which an application is submitted, with limited exceptions. The
Secretary proposes to require the State unit to establish timelines for
making good faith efforts to contact individuals who have been referred
for services to minimize delay at the pre-application stage.
Under the draft regulations, an individual was considered to have
``submitted an application'' if the individual, or the individual's
representative, as appropriate, had submitted a completed agency
application or a signed written request for services. In an effort to
ensure that agencies are provided with all information necessary to
make eligibility determinations, some commenters on the draft
regulations stated that completion of an agency application should be
the sole method for requesting services. In contrast, other commenters
supported the use of alternative methods for requesting services as a
means of avoiding unnecessary delays if a particular application form
was not used. In response, the Secretary proposes to clarify the
regulations by interpreting the term ``submitted an application'' to
include any request for services as long as the individual has provided
information necessary for the DSU to initiate an assessment to
determine eligibility and priority for services. Once an individual or
the individual's representative, as appropriate, requests services, it
is expected that State units will make good faith efforts to obtain
this information as quickly as possible. For example, if a potential
applicant has requested services in writing, the State unit may need to
telephone the individual in order to obtain the necessary information
in a timely manner. In addition, the proposed regulations require State
units to make application forms readily available throughout the State.
Section 361.42--Assessment for Determining Eligibility and Priority for
Services
This section combines Secs. 361.31 and 361.32 of the existing
regulations, which are the sections on eligibility and preliminary
diagnostic study. The 1992 Amendments combined in the statute all of
the evaluation steps that are currently required by those sections and
by Secs. 361.33 and 361.40 of the existing regulations into one
assessment for determining eligibility and vocational rehabilitation
needs, which is defined in section 7(22) of the Act. The Secretary
proposes to divide that assessment into two steps in the regulations--
an assessment for determining eligibility and priority for services,
addressed in this section, and an assessment for determining vocational
rehabilitation needs through the development of the IWRP, addressed by
proposed Sec. 361.45.
In response to public comment on the draft regulations, the
Secretary proposes to amend this section by requiring that the
assessment for determining eligibility and priority for services be
conducted in the most integrated setting possible, consistent with the
individual's needs and informed choice.
Proposed paragraph (a) of this section incorporates the changes in
the eligibility criteria that were made by the 1992 Amendments,
including the presumption that an individual with an impairment that
constitutes a substantial impediment to employment can benefit from
vocational rehabilitation services, the presumption that Social
Security beneficiaries meet the first two eligibility criteria, and the
new requirement that an individual with a disability require vocational
rehabilitation services in order to achieve an employment outcome
consistent with the individual's strengths, resources, priorities,
concerns, abilities, capabilities, and informed choice.
Some commenters questioned the absence of a regulatory provision
identifying who is qualified to determine the existence of a physical
or mental impairment. Section 361.32 of the existing regulations
requires that the preliminary diagnostic study, for purposes of
determining an individual's eligibility for services, must include
medical information and, in the case of individuals with mental and
emotional disorders, an examination by a physician or by a licensed or
certified psychologist. Proposed paragraph (a)(1)(i) of this section is
based on amendments to section 103(a) of the Act, which substituted the
standard that ``qualified personnel in accordance with State licensure
laws'' make these determinations in lieu of particular medical
professionals. The proposed regulatory provision broadens this concept
to also encompass individuals who are certified under State law and
individuals licensed or certified under State regulations. The
Secretary believes that this broader interpretation is necessary to
ensure that existing data and determinations made by other agencies,
particularly education agencies, are used by DSUs in determining
whether an individual is an individual with a disability under section
7(8)(A) of the Act or an individual with a severe disability under
section 7(15)(A) of the Act. Under the proposed regulations, the
determination of who is qualified to determine the existence of an
impairment will vary from State to State depending on State licensure
and certification requirements. Although the proposed regulations do
not require a medical diagnosis for a DSU to determine that an
impairment exists, the Secretary anticipates that in most instances
those determinations will be supported by medical documentation.
Paragraph (a)(2) of Sec. 361.42 in the draft regulations required a
DSU to presume that an applicant can benefit in terms of an employment
outcome unless it determines, based on clear and convincing evidence,
that the applicant is incapable of benefitting from VR services as a
result of the severity of his or her disability. In response to public
comment, the Secretary proposes to delete the phrase ``as a result of
the severity of his or her disability'' from the NPRM in order to
clarify that individuals may be found incapable of
[[Page 64488]]
benefitting from VR services for reasons other than severity of
disability. This change is consistent with section 102(a)(4)(A) of the
Act. Nevertheless, the Secretary expects that the overwhelming majority
of determinations under this requirement will be based on the severity
of the individual's disability and specifically requests public
commenters to identify reasons other than severity of disability that
would support a determination that an individual is incapable of
benefitting from VR services. If a determination that an individual
cannot benefit from VR services is based on the severity of the
individual's disability, section 102(a)(4)(B) of the Act and proposed
paragraph (d)(1) of this section would also require the DSU to conduct
an extended evaluation before reaching this conclusion. Finally, the
Secretary proposes to further amend paragraph (a)(2) of this section to
clarify that the presumption of benefit applies only to those
applicants who meet the first two eligibility criteria.
In response to public comment on paragraph (b)(1) of this section
of the draft regulations, the Secretary proposes to amend the
regulations to prohibit States from imposing any duration of residence
requirement for the receipt of services on any applicant who is
present, rather than resides, in the State. The amended provision
closely tracks the statutory language of section 101(a)(14) of the Act.
Paragraph (c) of this section incorporates the new statutory
provisions that require the State unit to use existing data, to the
extent possible, to determine eligibility and vocational rehabilitation
needs.
Some public commenters on the draft regulations inquired as to the
scope of vocational rehabilitation services that DSUs must provide
during an extended evaluation. In response, the Secretary proposes to
amend the regulations to require the State unit to develop a written
plan during the extended evaluation period for determining eligibility
and for determining the nature and scope of services required to
achieve an employment outcome. The provision of services under the plan
must be limited to those services needed to make these two
determinations. It should be noted that this change represents a
departure from the current regulations, which required DSUs to develop
an IWRP for individuals in extended evaluation. The Act, however,
requires only that IWRPs be developed for eligible individuals. The
written plan requirements of this section are, therefore, intended to
lessen the burden on State units of developing IWRPS for individuals in
an extended evaluation, while ensuring that the specific services to be
provided during an extended evaluation are clearly identified.
The proposed regulations also contain a note on clear and
convincing evidence that is based on legislative history from the
Senate Committee Report. In response to public comment, the Secretary
proposes to amend the note to clarify that determinations under the
``clear and convincing evidence'' standard must be made on a case-by-
case basis.
Finally, the Secretary views the new eligibility criterion that an
individual must require vocational rehabilitation services in order to
achieve or retain an employment outcome as a limiting factor that is
intended to screen out individuals who can prepare for, enter into,
engage in, or retain gainful employment consistent with their
strengths, resources, priorities, concerns, abilities, and capabilities
without assistance from the vocational rehabilitation program. The
proposed regulations contain a second note that provides several
examples for guidance to State agencies regarding situations in which
an individual may or may not require vocational rehabilitation
services. The Secretary emphasizes that the examples are provided
solely for the purposes of illustration, do not address all situations
under which an individual may be eligible or ineligible for services,
and are not intended to substitute for individual counselor judgment on
a case-by-case basis.
Section 361.43--Procedures for Ineligibility Determination
The Secretary proposes this new section to consolidate overlapping
provisions relating to procedures for ineligibility determinations that
are currently contained in several different sections of the
regulations. Specifically, it would consolidate paragraph (e) of
current Sec. 361.34, which contains termination provisions for an
extended evaluation to determine rehabilitation potential, paragraph
(c) of current Sec. 361.35, which contains the requirements for a
certification of ineligibility, and paragraph (d) of current
Sec. 361.40, which contains the requirements regarding review of
ineligibility determinations.
The Secretary proposes to require DSUs to review all ineligibility
determinations once within 12 months unless exceptions apply. In
response to public comment on the draft regulations, the Secretary also
proposes to amend paragraph (d) of this section to clarify that each
year after the initial review, DSUs must, upon request, review any
ineligibility determination that is based on the inability of the
individual to achieve an employment outcome.
Section 361.44--Closure Without Eligibility Determination
The Secretary proposes to create this new section from the
provisions contained in paragraph (e) of Sec. 361.35 of the current
regulations, which is the section that contains the certification
requirements. Although the certification requirements have been removed
from the proposed regulations because they overlap with the
documentation requirements in the case record (referred to as record of
services in proposed Sec. 361.47), the substantive requirements related
to closure without an eligibility determination are substantially the
same as they are in existing Sec. 361.35(e).
In response to public comment on the draft regulations, the
Secretary has clarified the regulations to authorize the State unit to
close an applicant's case if the applicant declines to participate in,
or is unavailable to complete, an assessment for determining
eligibility and priority for services. In either situation, the State
unit is required to make a reasonable number of attempts to contact the
individual or, if appropriate, the individual's representative prior to
closing the applicant's case.
Sec. 361.45--Development of the Individualized Written Rehabilitation
Program
In response to public comment, this section, entitled ``Assessment
for determining vocational rehabilitation needs'' in the draft
regulations, has been renamed for purposes of clarification. The
Secretary believes this proposed retitling better reflects the full
scope of requirements under the IWRP development process, of which the
assessment represents an essential part. The Secretary also proposes to
clarify the purpose clause under paragraph (a) of this section for the
same reason.
This proposed section would combine the provisions in Secs. 361.33
and 361.40 of the current regulations regarding thorough diagnostic
study and IWRP procedures. It incorporates new statutory requirements
created by the 1992 Amendments, including requirements regarding
informed choice, integrated settings, and the use of existing data.
Some public commenters suggested that the term ``counseling and
guidance'' be defined in the proposed regulations. The Secretary
declines to define the term, but proposes to revise paragraph (b)(1) of
this section to
[[Page 64489]]
emphasize the development of a counseling and guidance relationship
between the vocational rehabilitation counselor and the individual
during assessment. That relationship is intended as a means of
fostering collaboration between the counselor and the individual in
identifying, preparing for, and achieving meaningful vocational
outcomes for the individual. The Secretary envisions that the
counselor, based on his or her expertise, will provide the individual
with comprehensive information relevant to the individual needs of the
individual and that the counselor and individual will jointly discuss
the values, needs, desires, and realities facing both individuals. It
also should be noted that, in response to public comment, the Secretary
has deleted the requirement in the draft regulations that counseling
and guidance be provided throughout the development and implementation
of the IWRP. As discussed in the following paragraph, IWRPs are
developed on an individual basis, and while some individuals may
request or require counseling and guidance services throughout the
development and implementation of their IWRPs, others may not. By
making this change, the Secretary emphasizes that the provision of
counseling and guidance during the development and implementation of
the IWRP is dependent on the particular circumstances affecting each
individual.
Several commenters on the draft regulations were concerned that
this section required State units to impose strict timelines for
developing IWRPs without considering the particular needs of the
individual. In response, the Secretary proposes to amend the
regulations to require State units to establish and implement standards
for the prompt development of IWRPs, including timelines that take
individual needs into consideration. The Secretary agrees that the
development of the IWRP is a highly individualized process and must be
conducted in a manner consistent with the individual's strengths,
priorities, concerns, abilities, capabilities, and career interests.
Nevertheless, the Secretary believes that these timelines, which are
not absolute and operate as guidelines, are consistent with the
legislative intent that individuals with disabilities receive services
as quickly as possible and, therefore, are necessary to guard against
delays in the development of the IWRP once an individual is determined
eligible for VR services.
Section 361.46--Content of the IWRP
This proposed section contains the IWRP content requirements, which
are in Sec. 361.41 of the existing regulations.
Several commenters on the draft regulations viewed certain
requirements under this section and Sec. 361.47 (Record of services) as
duplicative of one another and, therefore, unduly burdensome. In
response, the Secretary proposes to reduce the paperwork requirements
in each section of the regulations by eliminating certain requirements
that are non-statutory or redundant. The Secretary emphasizes, however,
that the elimination of certain documentation requirements in these
sections is intended solely as a means of reducing paperwork burdens on
the State unit and does not diminish the responsibility of the State
unit to fully develop the IWRP and to be able to document or otherwise
support its determinations affecting each individual should those
determinations be questioned within the context of a compliance review
or audit. Each IWRP content or record of services requirement
eliminated from the draft regulations is, the Secretary believes,
sufficiently addressed elsewhere in the regulations.
For example, the Secretary proposes to delete the requirement that
the IWRP include statements supporting the basis on which individuals
are determined eligible or ineligible for services. The Secretary
agrees that those statements are burdensome given comparable case
record requirements in proposed Sec. 361.47 (a) and (b) that the State
unit maintain documentation supporting determinations of eligibility
and ineligibility.
In paragraph (c) of this section, the Secretary proposes to clarify
the regulations by consolidating the IWRP content requirements that
relate to post-employment services.
Some public commenters on the draft regulations suggested that the
State unit attach the Individualized Education Plan (IEP) to the IWRP,
rather than summarize the IEP, when coordinating with education
agencies to serve transitioning students. In response, the Secretary
emphasizes that the Secretary does not consider coordination between
the IWRP and IEP to represent a documentation requirement. Rather, the
requirement in the draft regulations that the IWRP include a summary of
the transitioning student's IEP was intended to ensure that the State
unit review the vocational goals, rehabilitation objectives, and nature
and scope of services identified in the transitioning student's IEP
during the course of developing the IWRP. Requiring that review is
consistent with the legislative intent that State units coordinate with
education agencies to serve transitioning students in the most
effective and efficient manner possible. In an effort to clarify the
regulations, however, the Secretary proposes to amend this section to
require the State unit to ensure that the transitioning student's IWRP
is consistent with the student's IEP in terms of goals, objectives, and
services. Although the IWRP need not include a summary or an attached
copy of the IEP, it is expected that, for transitioning students, State
units will closely review the IEP in the course of IWRP development. In
addition, the Secretary proposes to amend Sec. 361.47(f) to require the
State unit to maintain documentation from the needs assessment to
support the goals, objectives, and services identified in the IWRP and
in the IEP of transitioning students.
Finally, in response to public comment, the Secretary proposes to
add paragraph (e) to this section to require State units to ensure that
a determination that an individual is ineligible for services after an
IWRP has been developed is made in accordance with the procedures in
proposed Sec. 361.43 and is included as an amendment to the IWRP.
Section 361.47--Record of Services
This proposed section revises Sec. 361.39 of the existing
regulations. References to the ``case record'' would be replaced with
the term ``record of services'' to discourage characterizing
individuals with disabilities as ``cases.'' The proposed section would
incorporate the choice and integration requirements in the 1992
Amendments.
As previously discussed, the Secretary has significantly revised
this section to reduce paperwork requirements in response to commenters
on the draft regulations who viewed many of the record of services
requirements as unduly burdensome or duplicative of other requirements
in the regulations.
In response to public comment, the Secretary proposes to simplify
paragraphs (a) and (b) of this section to require State units to
maintain documentation to support determinations of eligibility or non-
eligibility made in accordance with proposed Sec. 361.42 or
Sec. 361.43. The Secretary also proposes to require State units to
include, as part of an individual's record, documentation supporting
the determination that an individual has a severe or most severe
disability. This requirement is
[[Page 64490]]
particularly important to support an individual's receipt of services
from a State unit operating under an order of selection or to support
the individual's placement in a supported employment setting. In
addition, this requirement is consistent with the intent of the Act to
expand and improve services to individuals with the most severe
disabilities.
In paragraph (d) of this section, the Secretary proposes to
simplify the requirements relating to extended evaluations by requiring
State units to maintain documentation to support the need for an
extended evaluation and to support the periodic assessments conducted
during the extended evaluation. Documentation maintained under this
paragraph would also include the written plan developed during the
extended evaluation in accordance with Sec. 361.42(d)(3).
In an effort to better coordinate rehabilitation services for
transitioning students, the Secretary also proposes to amend paragraph
(f) of this section to specify that the State unit must document the
development of the individual's long-term vocational goal, intermediate
rehabilitation objectives, and nature and scope of services, as
identified in the transitioning student's IWRP and IEP.
Finally, the Secretary proposes to delete a number of requirements
from the draft regulations on the basis that the requirements are
unduly burdensome or unnecessarily duplicative of other provisions in
the regulations. For example, because the IWRP is included as part of
the individual's record of services that must be maintained under this
section, requirements that are duplicative of IWRP content requirements
in proposed Sec. 361.46 have been deleted from the record of services.
For each record of services requirement that the Secretary considers
duplicative of other requirements in the regulations, specific
references to those other requirements are provided.
Accordingly, the Secretary proposes to delete the following
documentation requirements from this section of the draft regulations:
(1) Documentation of the manner in which the individual was provided
information necessary to make informed choices as to vocational goals,
rehabilitation services, and service providers (addressed by
Sec. 361.46(a)(6) and Sec. 361.52). (2) Documentation of the manner in
which the individual was provided information regarding the level of
integration of service provision and job placement options (addressed
by Sec. 361.46(a)(7)(iii) and Sec. 361.52). (3) Documentation
supporting the determination that the clinical status of the individual
is stable or slowly progressive if physical and mental restoration
services are provided (addressed by Sec. 361.46(a)(3)). (4)
Documentation to support any decision to provide services to family
members (addressed by Sec. 361.46(a)(3)). (5) Documentation relating to
the individual's participation in the cost of any vocational
rehabilitation services, the eligibility of the individual for any
comparable services and benefits, and the availability and use of those
comparable service and benefits (addressed by Sec. 361.46(a)(7)). (6)
Documentation that the individual has been advised of the
confidentiality of all information pertaining to the individual and
that any information about the individual has been released with the
individual's informed written consent (addressed by Sec. 361.46(a)(7)
and Sec. 361.38). (7) Documentation of any plans to provide post-
employment services after the employment outcome has been achieved
(addressed by Sec. 361.46(c)). (8) Documentation of any review of the
determination that an individual is no longer capable of achieving an
employment outcome after services under an IWRP have already been
provided (addressed by Sec. 361.43(d)).
The Secretary is particularly interested in public comment on
whether the proposed provisions cover all key decision points in the
rehabilitation process for which documentation is needed.
Section 361.48--Scope of Vocational Rehabilitation Services for
Individuals With Disabilities
This proposed section revises Sec. 361.42 of the existing
regulations.
The phrase ``counseling and guidance'' in the current regulations
has been changed in proposed Sec. 361.48(a)(3) to ``vocational
counseling and guidance'' in order to clarify that counseling and
guidance services that are provided as discrete vocational
rehabilitation services are vocational in nature and specifically
designed to assist the individual in reaching an employment outcome.
Vocational counseling and guidance is, therefore, distinguishable from
the more generalized counseling and guidance that an individual may
need at any point during the rehabilitation process in connection with
the provision of services.
A number of paragraphs from the current regulatory section have
been revised to remove definitional text, and definitions for those
services have been added to proposed Sec. 361.5. For example, proposed
Sec. 361.48(a)(5), providing for physical and mental restoration
services, has been revised to remove all definitional material, which
is now in proposed Sec. 361.5(b)(35). Proposed paragraph (a)(7) of this
section, providing for maintenance, has been modified to remove the
current regulatory provisions that describe maintenance in terms of
subsistence or basic living expenses, and a proposed definition of
maintenance has been included in proposed Sec. 361.5(b)(31) to clarify
that maintenance costs are those expenses that are in excess of normal
living expenses and that are necessitated by participation in a
vocational rehabilitation program. Similarly, proposed paragraph (a)(8)
of this section provides for transportation in connection with the
rendering of any vocational rehabilitation service, and a definition of
transportation has been added to proposed Sec. 361.5(b)(49), which
clarifies that transportation must be necessary to enable an applicant
or eligible individual to participate in a program of vocational
rehabilitation services. This change was proposed in the 1991 NPRM.
Proposed paragraph (a)(9) of this section clarifies that the
services available to family members are vocational rehabilitation
services necessary to enable the applicant or eligible individual to
achieve an employment outcome.
Some commenters on the draft regulations requested that the
provision of ``note-taking services'' not be limited to individuals who
are deaf or blind. In response, the Secretary agrees that note-taking
services should be available to any eligible individual in need of
those services to achieve an employment outcome. Therefore, the
Secretary proposes to delete ``note-taking'' from proposed paragraphs
(a)(10) and (a)(11) of this section and emphasizes that these services
are available under proposed paragraph (a)(20) of this section as
``other services'' whenever necessary for an eligible individual to
achieve an employment outcome.
Proposed paragraph (a)(13) of this section, which provides for job
search, placement assistance, and job retention services, clarifies the
scope of services currently available under existing paragraph (a)(12)
of Sec. 361.42, which provides for placement in suitable employment.
Proposed paragraphs (a)(14) and (a)(15) of this section incorporate new
requirements in the statute for supported employment and personal
assistance services. Proposed paragraph (a)(16) of this section revises
the paragraph in the existing regulations on post-employment services
by
[[Page 64491]]
referring to the proposed definition of post-employment services in
Sec. 361.5(b)(37). That definition incorporates the language in the
1992 Amendments regarding advancement in employment and individual
choice. Finally, proposed paragraph (a)(18) of this section revises the
paragraph in the existing regulations on rehabilitation engineering
services, consistent with the 1992 Amendments, to provide for
rehabilitation technology services.
Section 361.49--Scope of Vocational Rehabilitation Services for Groups
of Individuals With Disabilities
This proposed section would consolidate provisions from several
sections of the existing regulations, including the definition of
vocational rehabilitation services for the benefit of groups of
individuals in Sec. 361.1(c) of the existing regulations and
Secs. 361.50, 361.51, 361.52, and 361.53 of the existing regulations.
In addition, it would incorporate new requirements imposed by the 1992
Amendments, such as replacing the concept of the ``establishment of a
rehabilitation facility'' with the concept of the ``establishment,
development, or improvement of a public or other nonprofit community
rehabilitation program,'' restricting the construction of a
rehabilitation facility to special circumstances, and adding the newly
authorized service of technical assistance and support services for
businesses that are not subject to the Americans with Disabilities Act
and are seeking to employ individuals with disabilities.
In response to public comment on the draft regulations, the
Secretary proposes to amend paragraph (a)(5) of this section to clarify
that the establishment of small business enterprises operated by
individuals with the most severe disabilities under the State unit's
supervision includes vending facilities established under the Randolph-
Sheppard program. In addition, the Secretary proposes to amend this
paragraph to clarify that management services and supervision in
support of a small business enterprise may be provided by the State
unit beyond the initial establishment period of six months. The
Secretary also proposes to clarify the draft regulations to state that
initial stock and supplies and operational costs for small business
enterprises may be provided only during the initial six-month
establishment period. These changes are consistent with section
103(b)(1) of the Act, as well as with the Randolph-Sheppard Act and its
implementing regulations in 34 CFR Part 395.
Section 361.50--Written Policies Governing the Provision of Services
This section contains material from paragraph (b) of Sec. 361.42 of
the existing regulations, which requires written State policies on the
scope of vocational rehabilitation services for individuals, and
Sec. 361.44 of the existing regulations, which is the section on
authorization of services. The Secretary proposes to require that a
State unit have policies regarding the provision of services for groups
of individuals with disabilities, as well as the availability of
services for individuals with disabilities.
In the draft regulations, this proposed section incorporated new
provisions, based on existing policy and subregulatory guidance, to
clarify that no absolute caps or limits, in terms of location, cost, or
duration, could be placed on the availability of services that would
effectively deny an individual a necessary service. Although these
provisions are maintained in the proposed regulations, some public
commenters were concerned that insufficient emphasis was placed on the
requirement that policies governing the provision of services must be
designed to meet the rehabilitation needs of each individual served by
the State unit. In response, the Secretary proposes to amend the
regulations to specify that the policies required to be developed under
this section must ensure that the provision of services is based on the
individual's rehabilitation needs as identified in the IWRP. As in the
draft regulations, the proposed section would also prohibit State units
from arbitrarily limiting the nature or scope of vocational
rehabilitation services needed by any eligible individual to achieve an
employment outcome.
Some commenters on the draft regulations opposed the ability of
State units to establish preferences for in-State services on the basis
that those preferences are inconsistent with principles of individual
choice. In response, the Secretary proposes to amend the regulations to
permit individuals to choose out-of-State services over in-State
services. However, if an individual selects an out-of-State service at
a higher cost than an in-State service, if either service would meet
the individual's rehabilitation needs, the designated State unit would
be required to pay only an amount equal to the cost of the in-State
service.
The draft regulations would have required State units to provide
written authorization of services either before or at the same time as
the purchase of services, except in emergency situations when oral
authorization, followed by prompt written confirmation, was permitted.
In response to those commenters on the draft regulations who believed
that the State unit should have greater flexibility in developing
policies governing the authorization of services to individuals, the
Secretary proposes to simplify the regulations to require State units
to establish policies related to the timely authorization of services,
including conditions under which verbal authorization can be given.
Section 361.51--Written Standards for Facilities and Providers of
Services
This proposed section would incorporate Sec. 361.45 of the existing
regulations, would expand the requirement for standards to ensure
accessibility of facilities, and would require new standards regarding
qualified personnel and fraud, waste, and abuse, consistent with the
1992 Amendments.
In response to public comment on the draft regulations, the
Secretary interprets the accessibility of facilities requirement
broadly so as not to prevent any individual with a disability,
including the multi-chemically disabled, from receiving services at a
facility. In response to public comment, the Secretary also proposes to
amend the qualified personnel requirements in paragraph (b)(1) of this
section to reflect the personnel standards included in the State
agency's comprehensive system of personnel development under section
361.18(c).
Section 361.52--Opportunity To Make Informed Choices Regarding the
Selection of Services and Providers
This proposed new section would implement section 12(e)(1) of the
Act, which was added by the 1992 Amendments and requires the Secretary
to promulgate regulations establishing criteria pertaining to the
selection of vocational rehabilitation services and providers by an
individual with a disability.
In response to public comment on the draft regulations, the
Secretary proposes to amend this section of the regulations to clarify
that the concept of informed choice applies to all aspects of the
vocational rehabilitation process, including the selection of
vocational goals, intermediate objectives, VR services, and service
providers. This provision is closely related to the requirement in
proposed Sec. 361.46(a)(6) that the IWRP include a statement from the
individual describing the manner in which the individual exercised
informed choice in selecting among
[[Page 64492]]
alternative goals, objectives, services, providers, and methods used to
procure or provide services. The proposed regulations also would
require that the State unit consult with its State Rehabilitation
Advisory Council, if it has one, when developing its policies for
facilitating informed choice.
Several commenters opposed the requirement in the draft regulations
that State units develop indicators regarding the quality of service
providers on the basis that such a requirement is overly burdensome and
likely to lead to disputes, and potentially litigation, between State
units and providers of VR services. In response, the Secretary proposes
to amend the regulations to require State units to provide individuals,
or assist individuals in acquiring, information necessary to make an
informed choice about the specific services, including the providers of
those services, that are needed to achieve the individual's vocational
goal. Thus, it is expected that State units will provide, or facilitate
access to, information concerning cost and accessibility of services,
level of consumer satisfaction with services, qualifications of service
providers, and other information necessary to enable the individual to
make an informed choice among alternative services and providers.
It should also be noted that in response to public comment and in
the interest of reducing the burden on State units, the proposed
regulations would not require DSUs to provide a list of available
services and the potential providers of those services to each
individual. Lists of this type, as well as resource materials such as
consumer satisfaction surveys, are, however, included in the
regulations as examples of possible sources of information that may be
used by DSUs to satisfy the information requirements of this section.
Section 361.53--Availability of Comparable Services and Benefits
This proposed section revises Sec. 361.47(b) of the existing
regulations.
As provided for in the draft regulations, the availability of
comparable services and benefits is based on whether services and
benefits exist under another program for the individual and whether the
individual is eligible for those services or benefits. However, the use
of comparable services and benefits under the draft regulations was
dependent upon whether the comparable services and benefits were
``currently available'' to the individual. In response to public
commenters who expressed confusion as to the meaning of this phrase,
the Secretary proposes to delete the word ``currently'' from this
section and to amend the regulations to require DSUs to use comparable
services and benefits if available to the eligible individual within a
reasonable period of time that is appropriate for the achievement of
the intermediate rehabilitation objectives identified in the
individual's IWRP. What constitutes a reasonable period of time would
vary according to the services identified in each individual's IWRP. By
making this change, the Secretary emphasizes that the use of comparable
services and benefits should not unreasonably delay the individual in
meeting his or her rehabilitation objectives.
In the event comparable services and benefits exist but are not
available to the individual within a reasonable period of time, the
proposed regulations would require the State unit to provide VR
services during the interim period until they become available. In an
effort to respond to public comment and reduce the burden on DSUs, the
Secretary proposes to delete the requirement in the draft regulations
that State units obtain reimbursement for any overlap in benefits once
the comparable services and benefits become available.
In response to public comment on the draft regulations, the
Secretary also proposes to revise the regulations to clarify that a
determination as to the availability of comparable services and
benefits is not required in connection with the provision of those
services listed under paragraph (b) of this section. Although DSUs are
free to provide these services without pursuing the availability of
comparable services and benefits, the Secretary encourages State units
to use known comparable services and benefits whenever possible in
order to maximize the use of funds provided under this program.
In response to public comment on the draft regulations, the
Secretary also proposes to amend paragraph (b) of this section by
including taped texts and computer accessible formats (sometimes
referred to as E-text) among those services for which comparable
services and benefits do not need to be sought. This addition is
consistent with the Act's legislative history, specifically Conference
Report No. 102-973.
Section 361.54--Participation of Individuals in Cost of Services Based
on Financial Need
This proposed section is taken from Sec. 361.47(a) of the existing
regulations. It would clarify the requirements that a State unit must
meet if it chooses to consider the financial need of individuals to
determine the extent of their participation in the cost of vocational
rehabilitation services. The Secretary proposes to clarify the draft
regulations to require State units to ensure that its policies
governing financial need be applied uniformly to all individuals in
similar circumstances. The Secretary interprets this provision, which
is modeled after existing regulations, to require a State unit to apply
its financial needs test to each individual in need of a service
covered by the test without regard to the type of the individual's
disability. The proposed regulations would also clarify that this
uniform application requirement does not prohibit setting different
levels of need for different geographic regions in the State, but
requires uniform application of the standard to all individuals within
each geographic region or to all individuals within the State if the
State unit does not establish geographical differentials. Finally, the
proposed regulations would clarify that the level of an individual's
financial participation in the cost of VR services must be reasonable,
based on the individual's financial need and ability to pay, and must
not be so high as to effectively deny the individual a necessary
service.
Section 361.55--Review of Extended Employment in Community
Rehabilitation Programs or Other Employment Under Section 14(c) of the
Fair Labor Standards Act
This proposed section is taken, in part, from Sec. 361.58 of the
existing regulations. In addition to the review of extended employment
outcomes, the 1992 Amendments require the review of employment outcomes
in which the individual is compensated in accordance with section 14(c)
of the Fair Labor Standards Act to determine the individual's needs and
interests related to competitive employment. This section would also
incorporate the emphasis in the 1992 Amendments on employment and
training in integrated settings and would elaborate on the meaning of
the ``maximum effort'' required of State units in the existing
regulations to clarify that State units are required to provide
services to promote movement from extended employment to integrated
employment.
Section 361.56--Individuals Determined To Have Achieved an Employment
Outcome
This proposed section, which has been renamed to conform to the
changes discussed in the following paragraphs, is taken from
Sec. 361.43 of the existing regulations. It has been revised to make
the requirements in the current
[[Page 64493]]
regulations more outcome-oriented, rather than process-oriented, and to
incorporate the new statutory emphases on choice and integrated
settings.
In an effort to better reflect whether an individual has
successfully achieved an employment outcome, the draft regulations
would have extended the period for which an employment outcome must be
maintained from 60 to 180 days. Several commenters, however, opposed
the 180-day standard as unduly burdensome and inconsistent with
individual choice. Some commenters believed that the standard for
closing an individual's case should be based on the particular
circumstances of the individual's employment situation, while others
indicated that the determination as to whether the individual is
successfully employed should be made jointly by the individual, the
rehabilitation counselor or coordinator, and, in some cases, the
employer. In response to these comments and to the views expressed by
members of the focus group that discussed this issue, the Secretary
proposes to delete the draft requirement that an employment outcome
must be maintained for 180 days. In its place, the Secretary proposes a
standard under which the individual must maintain the employment
outcome for the duration of any probationary period that the employer
has established for its employees, or, if the employer does not have an
established probationary period, for a period of at least 90 days. In
addition, the individual and the rehabilitation counselor or
coordinator must agree that the employment outcome is satisfactory and
that the individual is performing well on the job. Like the draft
regulations, this section would also require the State unit to assure
that the employment outcome is in the most integrated setting possible
and is consistent with the individual's abilities, capabilities,
interests, and informed choice. Finally, in response to public comment,
the Secretary proposes to amend this section to require that the
provision of services under the individual's IWRP contribute to, rather
than result in, the achievement of the employment outcome.
The proposed standard, like that in the draft regulations, is
intended to strengthen the current minimum 60-day standard for
maintaining a job placement in an effort to better reflect whether an
individual has, in fact, successfully achieved an employment outcome.
The Secretary agrees with those commenters who suggested that
achievement of an employment outcome should be based, in part, on the
stability of the individual's employment. In addition, the proposed
changes from the current regulations are also intended to condition the
achievement of an employment outcome on the satisfaction of the
individual, the counselor, and the employer. The Secretary believes
that the best measure of an employer's satisfaction with an
individual's job performance is whether the individual has met the
employer's probationary period. For those individuals whose employers
have not established a customary probationary period, the Secretary
views the 90-day minimum as an adequate safeguard to ensure that the
individual is performing well and is likely to maintain the employment
outcome. Consistent with the Act's emphasis on informed choice, the
proposed regulations would also base the decision that an individual
has achieved an employment outcome on the individual's, as well as the
counselor's or coordinator's, satisfaction with the employment outcome.
The Secretary emphasizes that a satisfactory employment outcome, at a
minimum, must meet the provisions of this section, and the Secretary is
particularly interested in public comment concerning whether further
standards for defining ``satisfactory'' should be developed at the
Federal level.
The Secretary is continuing to consider issues concerning outcome
measures for the vocational rehabilitation program, including the
proposed time standard in these regulations for maintaining a job
placement in order to achieve an employment outcome (the duration of
the employer's probationary period or, in the absence of an employer
policy in this area, at least 90 days). The Secretary believes that the
high level of Federal funding for this program--over 78 percent--
warrants close attention to accountability measures to ensure that
employment outcomes are maintained over time. The Secretary is
particularly interested in receiving comments on whether the proposed
job retention standard is strong enough to achieve this result.
The Secretary is also interested in receiving comments about the
relationship between closure requirements for the vocational
rehabilitation program and other programs, including those under the
Job Training Partnership Act (13 weeks), the Social Security
beneficiary rehabilitation program (9 months of substantial gainful
activity), and other State manpower development and job training
programs. Finally, the Secretary is interested in comments on the
impact of the proposed new employment outcome standard and whether, in
comparison to the current standard, it would likely increase or
decrease the number of individuals with disabilities achieving long-
term employment outcomes.
Section 361.57--Review of Rehabilitation Counselor and Coordinator
Determinations
This proposed section is taken from Sec. 361.48 of the existing
regulations.
In accordance with the Department's principles for regulating, the
Secretary proposes to delete all non-statutory timelines from this
section of the draft regulations. In place of specific time limits, the
proposed regulations would require each DSU, in consultation with its
State Rehabilitation Advisory Council, if it has one, to develop
reasonable timelines for key stages of the appeal process to ensure
that appeals are handled promptly. Specifically, DSU's would be
required to develop timelines to ensure that hearings are held within a
reasonable time after an individual's request for review, that the
initial decision of the impartial hearing officer is rendered within a
reasonable time after the hearing is completed, and that the final
decision of the DSU director is rendered within a reasonable time after
notifying the individual of the director's intent to review the initial
decision. These changes are intended to provide DSU's with increased
flexibility to develop appropriate timelines, while protecting
individuals against unreasonable delays in the review process. Like the
current regulations, this proposed provision also would permit a DSU to
establish an informal process to resolve a request for review without
conducting a formal hearing, but would require the DSU to conduct a
hearing within the relevant State-developed timeline if informal
resolution is unsuccessful. The Secretary particularly requests public
comment on whether a specific overall time limit for completing the
entire formal review process (e.g., 125 days) should be required under
the regulations.
This section would incorporate the requirement in the 1992
Amendments that prohibits the State unit from instituting a suspension,
reduction, or termination of services pending a final State hearing
determination unless the agency has evidence that the services were
obtained through fraud, misrepresentation, collusion, or criminal
conduct on the part of the individual, or the individual so requests.
The Secretary interprets this provision to mean that services may be
suspended, reduced, or terminated
[[Page 64494]]
pending a final determination if there is ``substantial evidence'' of
that conduct.
This proposed section also incorporates the requirement in the 1992
Amendments that the director not overturn or modify the decision of an
impartial hearing officer unless the director concludes, based on clear
and convincing evidence, that the decision of the impartial hearing
officer is clearly erroneous because it is ``contrary to Federal or
State law, including policy.'' The Secretary interprets this statutory
language to include a decision that is contrary to the approved State
plan, the Act, or Federal or State vocational rehabilitation
regulations or policy.
It should be noted that the Secretary has changed the term
``calendar day'' from the draft regulations to ``day'' in the proposed
regulations in response to public commenters who inquired as to the
difference in meaning between the two terms. Procedural time limits in
this section and throughout the regulations are, therefore, measured in
terms of ``days,'' which the Secretary intends to mean ``calendar
days'' rather than ``working days.''
Finally, in response to public comment on the draft regulations,
the Secretary proposes to add to paragraph (f) of this section a
requirement that the DSU inform applicants and eligible individuals of
the manner in which it selects impartial hearing officers.
Section 361.60--Matching Requirements
This proposed new section would clarify the matching requirements
by consolidating all of the Federal and non-Federal share provisions.
Proposed paragraph (a) of this section contains the general Federal
share provision, which is in Sec. 361.86(a) of the existing regulations
and was revised by the 1992 Amendments to be 78.7 percent. Proposed
paragraph (a) of this section also contains the 50 percent Federal
share provision for construction projects, which is in Sec. 361.74(b)
of the existing regulations, and the 90 percent Federal share provision
for innovation and expansion grant activities, which is addressed in
Sec. 361.153 of the existing regulations.
In accordance with the Department's principles for regulating, the
Secretary proposes to simplify the requirements relating to the non-
Federal share in the draft regulations by removing from the regulations
a list of permissible sources of expenditures to meet the non-Federal
share and instead cross-referencing the applicability of the matching
or cost sharing requirements in 34 CFR 80.24 of EDGAR with certain
exceptions. The proposed regulations would specify that third party in-
kind contributions, which are a permissible source of matching funds
under EDGAR, may not be used as part of the non-Federal share under the
VR program. In addition, the proposed regulations would continue, but
clarify, existing regulatory requirements that prohibit earmarked
donations that benefit the donor from being used to meet the non-
Federal share. The Secretary wishes to emphasize that the changes
proposed with regard to meeting the non-Federal share would not
prohibit the use of any funding sources that are currently allowable.
Section 361.61--Limitation on Use of Funds for Construction
Expenditures
This proposed new section sets out in a separate section the
requirement in paragraph (d) of Sec. 361.85 of the existing regulations
that no more than 10 percent of a State's allotment may be used for
construction.
Section 361.62--Maintenance of Effort Requirements
This proposed section is taken from Sec. 361.86 of the existing
regulations. It incorporates provisions in the 1992 Amendments, which
changed the standard on which the maintenance of effort level is based
from the average of the three prior fiscal years to the second prior
fiscal year. It also folds into the same section a separate maintenance
of effort requirement relating to the construction of facilities that
is contained in both Sec. 361.52(e) and Sec. 361.85(d) of the existing
regulations. This proposed section clarifies the procedures the
Secretary follows for determining whether maintenance of effort
requirements have been met and for reducing the amount payable in the
case of a maintenance of effort deficit if there is a separate State
agency for vocational rehabilitation services for individuals who are
blind.
Section 361.63--Program Income
This proposed new section consolidates in one place all of the
provisions related to program income. Proposed paragraph (a) of this
section incorporates the definition of program income from EDGAR (34
CFR 80.25(b)). Proposed paragraph (b) of this section incorporates
existing subregulatory guidance regarding the sources of program
income. Proposed paragraph (c)(1) of this section incorporates the
general EDGAR requirement that program income must be used in the
program in which it is earned, but makes an exception for Social
Security reimbursements as provided in section 108 of the Act. Proposed
paragraph (c)(1) of this section would clarify that program income is
considered earned when it is received.
In response to public comment on the draft regulations, the
Secretary proposes to delete from proposed paragraph (c)(3)(ii) of this
section the requirement that the State notify the Secretary prior to
using the deduction method for accounting for program income. By
removing this condition, the Secretary emphasizes that the State is
free either to use program income to expand its vocational
rehabilitation program or to deduct it from its total allowable costs,
without seeking prior Federal approval.
Proposed paragraph (c)(4) of this section would clarify that
program income may not be used to meet the non-Federal share
requirement.
Section 361.64--Obligation of Federal Funds and Program Income
This proposed new section incorporates the amendment to section 19
of the Act, which clarifies that both Federal funds, including
reallotted funds, and program income from all sources may be carried
over for obligation from the year in which the funds are received until
the end of the following year.
In response to public comments on the draft regulations, the
Secretary proposes to amend paragraph (b) of this section to clarify
that the State unit may carry over any portion of unobligated Federal
funds that it has matched by obligating non-Federal funds during the
fiscal year for which the Federal funds were appropriated. This
clarification is consistent with section 19 of the Act, which allows
for carryover of Federal funds ``to the extent'' that recipients comply
with Federal share requirements.
Section 361.65--Allotment and Payment of Federal Funds for Vocational
Rehabilitation Services
This proposed section is taken from Secs. 361.85 and 361.87 of the
existing regulations.
Section 361.70--Purpose of the Strategic Plan
This proposed section implements new section 120 of the Act, which
makes grants under Part B of the Act, as well as innovation and
expansion grants under Part C of the Act, contingent on the preparation
and submission of a statewide strategic plan.
Section 361.71--Procedures for Developing the Strategic Plan
This proposed new section implements new section 122 of the Act,
which requires the State to hold public forums and meet with members of
the
[[Page 64495]]
State Rehabilitation Advisory Council and the Statewide Independent
Living Council prior to developing the strategic plan. The Secretary
interprets the public forum requirement in the statute to require the
same procedures for public input on the strategic plan that are
required for the development of the State plan under Sec. 361.20 of the
proposed regulations.
Section 361.72--Content of the Strategic Plan
This proposed new section incorporates the new requirements in
section 121 of the Act with no substantive changes.
Section 361.73--Use of Funds
This proposed new section incorporates the requirements in new
sections 101(a)(34)(B) and 123 of the Act. The Secretary interprets
101(a)(34)(B) to require that at least 1.5 percent of the funds
received under Part B of the Act be used for the activities identified
in section 123. The Secretary has clarified that all funds received
under Part C of the Act must be used for activities identified in a
State's strategic plan, which may include, but are not limited to, the
activities identified in section 123 of the Act.
Section 361.74--Allotment of Federal Funds
This proposed new section incorporates by reference the
requirements of new section 124 of the Act without substantive change.
Executive Order 12866
1. Assessment of Costs and Benefits
These proposed regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those determined by the
Secretary to be necessary for administering this program effectively
and efficiently. Burdens specifically associated with information
collection requirements, if any, are identified and explained elsewhere
in this preamble under the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has
determined that the benefits of the proposed regulations justify the
costs. A further discussion of the potential costs and benefits of
these proposed regulations is contained in the summary at the end of
this section of the preamble.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
To assist the Department in complying with the specific
requirements of Executive Order 12866, the Secretary invites comment on
whether there may be further opportunities to reduce any potential
costs or increase potential benefits resulting from these proposed
regulations without impeding the effective and efficient administration
of the program.
Summary of potential benefits relative to potential costs of the
regulatory provisions discussed previously in this preamble:
The Secretary believes that the NPRM would substantially improve
The State VR Services Program and would yield substantial benefits in
terms of program management, efficiency, and effectiveness. The
Secretary also believes that the proposed regulations represent the
least burdensome way to implement the 1992 Amendments to Title I of the
Act and fulfill important policy objectives that the Secretary
considers essential to the success of the program. As stated previously
in this preamble, the NPRM has been revised consistent with the
Department's principles for regulating, which were developed during the
Administration's regulatory reinvention initiative, to further reduce
paperwork or process requirements and to enhance the flexibility of
DSUs to meet non-statutory requirements. Increased flexibility of DSUs
and other benefits resulting from the proposed regulations are
discussed in the following paragraphs of this section and throughout
the section-by-section summary of the preamble.
Improved Organization of Regulations
The NPRM would substantially reorganize and clarify the current
program regulations in order to make the regulations easier to
understand and more useful. In response to requests from members of the
vocational rehabilitation community, the proposed regulations also
would include definitions of a number of previously undefined terms,
including ``comparable services and benefits,'' ``maintenance,'' and
``post-employment services.''
Notes and Examples
The Secretary has provided additional clarifying information in the
proposed regulations through the use of notes and examples. Many
commenters to the draft regulations stated that they find this
information more accessible and more useful when it is included in the
regulations rather than issued separately by RSA as subregulatory
guidance. As stated previously throughout this preamble, the Secretary
emphasizes that the limited notes and examples in the proposed
regulations are purely illustrative and are not intended to restrict
State flexibility.
Reduction of Grantee Burden
Non-statutory paperwork requirements have been eliminated or
consolidated throughout the NPRM in an effort to reduce the regulatory
burden on States. For example, previously duplicative requirements
under Sec. 361.46 (Content of the IWRP) and Sec. 361.47 (Record of
services) have been consolidated to reduce the paperwork burden on
States and to ensure efficient administration of the program. A list of
other sections in which paperwork burden on grantees has been removed
or reduced in response to public comment on the draft regulations
precedes the section-by-section summary in this preamble. Also,
additional burden-reducing steps taken by the Secretary in accordance
with the Department's principles for regulating are explained
throughout the section-by-section summary in the preamble. For example,
the proposed deletion of the requirement that the State plan describe
the organizational structure of the State agency and its organizational
units is discussed under Sec. 361.13 (State agency for administration)
in the section-by-section summary. Those paperwork requirements that
would remain in the proposed regulations are considered essential to
the proper administration of the program.
Enhanced Protections for Individuals With Disabilities
The proposed regulations include provisions intended to ensure that
individuals with disabilities are not improperly denied necessary VR
services. In particular, Sec. 361.50 (Written policies governing the
provision of services) would require DSUs to ensure that the provision
of VR services for an eligible individual is based on the individual's
particular rehabilitation needs and would prevent DSUs from arbitrarily
limiting the nature or scope of vocational rehabilitation services
needed by any eligible individual to achieve an employment outcome. In
addition, Sec. 361.54 (Participation of individuals in cost of services
based on financial need) would require DSUs to
[[Page 64496]]
apply a State financial needs test to each individual in need of a
service covered by the test without regard to type of disability. This
section would also require DSUs to ensure that the level of an
individual's financial participation in the cost of VR services is
reasonable, based on the individual's ability to pay, and not so high
as to effectively deny the individual a necessary service.
Increased Flexibility of Grantees to Satisfy Statutory Requirements
A number of provisions in the proposed regulations have been
revised in an effort to enhance the flexibility of States in meeting
specific statutory requirements. For example, proposed Sec. 361.20
(State plan development) would allow States to determine what
constitutes appropriate and sufficient notice under the Act for
purposes of providing notice of public meetings on State plan
development. Although the proposed regulations would not impose any
specific minimum Federal requirements for what constitutes
``appropriate and sufficient notice,'' the section-by-section summary
of this proposed section identifies suggested ways a DSU might meet
these requirements. Similarly, Sec. 361.52 (Opportunity to make
informed choices regarding the selection of services and providers) of
the proposed regulations identifies possible methods a DSU may follow
or sources of information a DSU may maintain to ensure that each
eligible individual is afforded an opportunity, as required under the
Act, to make an informed choice in selecting vocational rehabilitation
services and providers. Finally, proposed Sec. 361.57 (Review of
rehabilitation counselor and coordinator determinations) would allow
States to establish their own timelines for key stages of the
statutorily-mandated fair hearing process.
Additional Benefits
The proposed regulations reflect the policy in the 1992 Amendments
of ensuring that individuals are provided necessary information through
appropriate modes of communication to enable them to participate in a
rehabilitation program or to influence DSU rehabilitation policy
development. For example, proposed Sec. 361.20(d) requires a DSU, in
developing its State plan, to provide, through appropriate modes of
communication, the notices of the public meetings, any materials
furnished prior to or during the public meetings, and the approved
State plan.
2. Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following: (1) Are the requirements in the proposed regulations
clearly stated? (2) Do the regulations contain technical terms or other
wording that interferes with their clarity? (3) Does the format of the
regulations (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce their clarity? Would the regulations
be easier to understand if they were divided into more (but shorter)
sections? (A ``section'' is preceded by the symbol ``Sec. '' and a
numbered heading; for example, Sec. 361.5 Applicable definitions.) (4)
Is the description of the regulations in the ``Supplementary
Information'' section of this preamble helpful in understanding the
regulations? How could this description be more helpful in making the
regulations easier to understand? (5) What else could the Department do
to make the regulations easier to understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 600 Independence Avenue, S.W. (Room 5100, FB-10B),
Washington, D.C. 20202-2241.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
Because these proposed regulations would affect only States and
State agencies, the regulations would not have an impact on small
entities. States and State agencies are not defined as ``small
entities'' in the Regulatory Flexibility Act.
Paperwork Reduction Act of 1995
Sections 361.10, 361.13, 361.14, 361.15, 361.16, 361.17, 361.18,
361.19, 361.20, 361.21, 361.22, 361.26, 361.27, 361.29, 361.33, 361.34,
361.35, 361.37, 361.40, 361.46, 361.48, 361.49, 361.50, 361.51, 361.52,
361.54, 361.57, 361.71, and 361.72 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education has submitted a copy of
these sections to the Office of Management and Budget (OMB) for its
review.
Collection of Information: The State Vocational Rehabilitation Services
Program
States are eligible to apply for grants under these regulations.
The information to be collected includes State plan assurances and
descriptions to meet statutory requirements. The Department needs and
uses the information to review State plans to determine whether they
can be approved. Approval of a State plan is necessary to receive a
grant under this program.
All information is to be collected and reported once every three
years, with the exception of the following information, which is
required annually: advice provided by the State Rehabilitation Advisory
Council under Sec. 361.16; collection and analysis of data on qualified
personnel needs and personnel development under Sec. 361.18; analysis
of characteristics of individuals determined to be ineligible for
services and reasons for their ineligibility, evaluation of the
effectiveness of the State's vocational rehabilitation program, any
changes adopted in State policy or in the State plan as a result of
statewide studies and the annual program evaluation, and the methods
used to expand and improve vocational rehabilitation services to
individuals with the most severe disabilities under Sec. 361.29;
revisions to the supported employment plan under Sec. 361.34; a
description of the manner in which rehabilitation technology services
will be provided throughout the rehabilitation process, the personnel
training that will be provided to facilitate the provision of
rehabilitation technology services, and the manner in which personal
assistance services will be provided to individuals with disabilities
under Sec. 361.48. Annual reporting and recordkeeping burden for this
collection of information is estimated to average 221.2 hours per
response for 82 respondents, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 18,138.4
hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, D.C. 20503; Attention: Laura Oliven.
[[Page 64497]]
The Department considers comments by the public on these proposed
collections of information in--
* Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
* Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
* Enhancing the quality, usefulness, and clarity of the
information to be collected; and
* Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Invitation to Comment: Interested persons are invited to submit
comments and recommendations regarding these proposed regulations.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in Room 3214, 330 C Street SW., Washington, D.C., between the
hours of 8:30 a.m. and 4:00 p.m., Monday through Friday of each week
except Federal holidays.
Assessment of Educational Impact
The Secretary particularly requests comments on whether the
proposed regulations in this document would require transmission of
information that is being gathered by or is available from any other
agency or authority of the United States.
List of Subjects in 34 CFR Part 361
Reporting and recordkeeping requirements, State-administered grant
program--education, Vocational rehabilitation.
Dated: August 28, 1995.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number 84.126--The State
Vocational Rehabilitation Services Program)
The Secretary proposes to amend Title 34 of the Code of Federal
Regulations by revising Part 361 to read as follows:
PART 361--THE STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
Subpart A--General
Sec.
361.1 Purpose.
361.2 Eligibility for a grant.
361.3 Authorized activities.
361.4 Applicable regulations.
361.5 Applicable definitions.
Subpart B--State Plan for Vocational Rehabilitation Services
361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.
State Plan Content: Administration
361.12 Methods of administration.
361.13 State agency for administration.
361.14 Substitute State agency.
361.15 Local administration.
361.16 Establishment of an independent commission or a State
Rehabilitation Advisory Council.
361.17 Requirements for a State Rehabilitation Advisory Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 State plan development.
361.21 Consultations regarding the administration of the State
plan.
361.22 Cooperation with agencies responsible for transitioning
students.
361.23 Cooperation with other public agencies.
361.24 Coordination with the Statewide Independent Living Council.
361.25 Statewideness.
361.26 Waiver of statewideness.
361.27 Shared funding and administration of joint programs.
361.28 Third-party cooperative arrangements involving funds from
other public agencies.
361.29 Statewide studies and evaluations.
361.30 Services to special groups of individuals with disabilities.
361.31 Utilization of community resources.
361.32 Utilization of profitmaking organizations for on-the-job
training in connection with selected projects.
361.33 Utilization of community rehabilitation programs.
361.34 Supported employment plan.
361.35 Strategic plan.
361.36 [Reserved].
361.37 Establishment and maintenance of information and referral
resources.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports.
State Plan Content: Provision and Scope of Services
361.41 Processing referrals and applications.
361.42 Assessment for determining eligibility and priority for
services.
361.43 Procedures for ineligibility determination.
361.44 Closure without eligibility determination.
361.45 Development of the individualized written rehabilitation
program.
361.46 Content of the individualized written rehabilitation
program.
361.47 Record of services.
361.48 Scope of vocational rehabilitation services for individuals
with disabilities.
361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
361.50 Written policies governing the provision of services.
361.51 Written standards for facilities and providers of services.
361.52 Opportunity to make informed choices regarding the selection
of services and providers.
361.53 Availability of comparable services and benefits.
361.54 Participation of individuals in cost of services based on
financial need.
361.55 Review of extended employment in community rehabilitation
programs or other employment under section 14(c) of the Fair Labor
Standards Act.
361.56 Individuals determined to have achieved an employment
outcome.
361.57 Review of rehabilitation counselor or coordinator
determinations.
Subpart C--Financing of State Vocational Rehabilitation Programs
361.60 Matching requirements.
361.61 Limitation on use of funds for construction expenditures.
361.62 Maintenance of effort requirements.
361.63 Program income.
361.64 Obligation of Federal funds and program income.
361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
[[Page 64498]]
Subpart D--Strategic Plan for Innovation and Expansion of Vocational
Rehabilitation Services
361.70 Purpose of the strategic plan.
361.71 Procedures for developing the strategic plan.
361.72 Content of the strategic plan.
361.73 Use of funds.
361.74 Allotment of Federal funds.
Authority: 29 U.S.C. 711(c), unless otherwise noted.
Subpart A--General
Sec. 361.1 Purpose.
Under the State Vocational Rehabilitation Services Program
(program), the Secretary provides grants to assist States in operating
a comprehensive, coordinated, effective, efficient, and accountable
program that is designed to assess, plan, develop, and provide
vocational rehabilitation services for individuals with disabilities,
consistent with their strengths, resources, priorities, concerns,
abilities, capabilities, and informed choice, so that they may prepare
for and engage in gainful employment.
(Authority: Sections 12(c) and 100(a)(2) of the Act; 29 U.S.C.
711(c) and 720(a)(2))
Sec. 361.2 Eligibility for a grant.
Any State that submits to the Secretary a State plan that meets the
requirements of section 101(a) of the Act and this part is eligible for
a grant under this program.
(Authority: Section 101(a) of the Act; 29 U.S.C. 721(a))
Sec. 361.3 Authorized activities.
The Secretary makes payments to a State to assist in--
(a) The costs of providing vocational rehabilitation services under
the State plan;
(b) Administrative costs under the State plan; and
(c) The costs of developing and implementing the strategic plan.
(Authority: Section 111(a)(1) of the Act; 29 U.S.C. 731(a)(1))
Sec. 361.4 Applicable regulations.
The following regulations apply to this program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR Part 74 (Administration of Grants to Institutions of
Higher Education, Hospitals, and Nonprofit Organizations), with respect
to subgrants to entities that are not State or local governments or
Indian tribal organizations.
(2) 34 CFR Part 76 (State-Administered Programs).
(3) 34 CFR Part 77 (Definitions that Apply to Department
Regulations).
(4) 34 CFR Part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(5) 34 CFR Part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments), except for
Sec. 80.24(a)(2).
(6) 34 CFR Part 81 (General Education Provisions Act-Enforcement).
(7) 34 CFR Part 82 (New Restrictions on Lobbying).
(8) 34 CFR Part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants)).
(9) 34 CFR Part 86 (Drug-Free Schools and Campuses).
(b) The regulations in this part 361.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
Sec. 361.5 Applicable definitions.
(a) Definitions in EDGAR. The following terms used in this part are
defined in 34 CFR 77.1:
Department
EDGAR
Fiscal year
Nonprofit
Private
Public
Secretary
(b) Other definitions. The following definitions also apply to this
part:
(1) Act means the Rehabilitation Act of 1973 (29 U.S.C. 701 et
seq.), as amended.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(2) Administrative costs under the State plan means expenses
related to program planning, development, monitoring, and evaluation,
including, but not limited to, quality assurance; budgeting,
accounting, financial management, statistical systems, and related data
processing; providing information about the program to the public;
technical assistance to other State agencies, private nonprofit
organizations, and businesses and industries; the State Rehabilitation
Advisory Council and other advisory committees; professional
organization membership dues for State unit employees; the removal of
architectural barriers in State agency offices and facilities;
operating and maintaining State unit facilities, equipment, and
grounds; supplies; administration of the comprehensive system of
personnel development, including personnel administration,
administration of affirmative action plans, and training and staff
development; administrative salaries, including clerical and other
support staff salaries, in support of these functions; travel costs
related to carrying out the program, other than travel costs related to
the provision of services; and legal expenses required in the
administration of the program.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(3) American Indian means an individual who is a member of an
Indian tribe.
(Authority: Section 7(20) of the Act; 29 U.S.C. 706(20))
(4) Applicant means an individual who submits an application for
vocational rehabilitation services in accordance with
Sec. 361.41(b)(2).
(Authority: Section 12(c) of the Act; 29 U.S.C.711 (c))
(5) Appropriate modes of communication means specialized media
systems and devices for individuals with disabilities that enable an
individual to comprehend and respond to information that is being
communicated. Appropriate modes of communication include, but are not
limited to, the use of interpreters, open and closed captioned videos,
specialized telecommunications services and audio recordings, Brailled
and large print materials, materials in electronic formats, and
augmentative communication devices.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(6) Assistive technology device means any item, piece of equipment,
or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve
the functional capabilities of an individual with a disability.
(Authority: Section 7(23) of the Act; 29 U.S.C. 706(23))
(7) Assistive technology service means any service that directly
assists an individual with a disability in the selection, acquisition,
or use of an assistive technology device, including--
(i) The evaluation of the needs of an individual with a disability,
including a functional evaluation of the individual in his or her
customary environment;
(ii) Purchasing, leasing, or otherwise providing for the
acquisition by an individual with a disability of an assistive
technology device;
(iii) Selecting, designing, fitting, customizing, adapting,
applying, maintaining, repairing, or replacing assistive technology
devices;
[[Page 64499]]
(iv) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing education and rehabilitation plans and programs;
(v) Training or technical assistance for an individual with a
disability or, if appropriate, the family members, guardians,
advocates, or authorized representatives of the individual; and
(vi) Training or technical assistance for professionals (including
individuals providing education and rehabilitation services),
employers, or others who provide services to, employ, or are otherwise
substantially involved in the major life functions of individuals with
disabilities, to the extent that training or technical assistance is
necessary to the achievement of an employment outcome by an individual
with a disability.
(Authority: Sections 7(24) and 12(c) of the Act; 29 U.S.C. 706(24)
and 711(c))
(8) Community rehabilitation program.
(i) Community rehabilitation program means a program that provides
directly or facilitates the provision of one or more of the following
vocational rehabilitation services to individuals with disabilities to
enable those individuals to maximize their opportunities for
employment, including career advancement:
(A) Medical, psychiatric, psychological, social, and vocational
services that are provided under one management.
(B) Testing, fitting, or training in the use of prosthetic and
orthotic devices.
(C) Recreational therapy.
(D) Physical and occupational therapy.
(E) Speech, language, and hearing therapy.
(F) Psychiatric, psychological, and social services, including
positive behavior management.
(G) Assessment for determining eligibility and vocational
rehabilitation needs.
(H) Rehabilitation technology.
(I) Job development, placement, and retention services.
(J) Evaluation or control of specific disabilities.
(K) Orientation and mobility services for individuals who are
blind.
(L) Extended employment.
(M) Psychosocial rehabilitation services.
(N) Supported employment services and extended services.
(O) Services to family members if necessary to enable the applicant
or eligible individual to achieve an employment outcome.
(P) Personal assistance services.
(Q) Services similar to the services described in paragraphs (A)
through (P) of this definition.
(ii) For the purposes of this definition, the word program means an
agency, organization, or institution, or unit of an agency,
organization, or institution, that provides directly or facilitates the
provision of vocational rehabilitation services as one of its major
functions.
(Authority: Sections 7(25) and 12(c) of the Act; 29 U.S.C. 706(25)
and 711(c))
(9) Comparable services and benefits means services and benefits
that are--
(i) Provided or paid for, in whole or in part, by other Federal,
State, or local public agencies, by health insurance, or by employee
benefits;
(ii) Available to the individual within a reasonable period of time
in accordance with Sec. 361.53; and
(iii) Commensurate to the services that the individual would
otherwise receive from the vocational rehabilitation agency.
(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C.
711(c) and 721(a)(8))
(10) Competitive employment means work--
(i) In the competitive labor market that is performed on a full-
time or part-time basis in an integrated setting; and
(ii) For which an individual is compensated at or above the minimum
wage, but not less than the prevailing wage for the same or similar
work in the local community performed by individuals who are not
disabled.
(Authority: Sections 7(5), 7(18), and 12(c) of the Act; 29 U.S.C.
706(5), 706(18), and 711(c))
(11) Construction of a facility for a public or nonprofit community
rehabilitation program means--
(i) The acquisition of land in connection with the construction of
a new building for a community rehabilitation program;
(ii) The acquisition of existing buildings;
(iii) The remodeling, alteration, or renovation of existing
buildings;
(iv) The construction of new buildings and expansion of existing
buildings;
(v) Architect's fees, site surveys, and soil investigation, if
necessary, in connection with the construction project;
(vi) The acquisition of initial fixed or movable equipment of any
new, newly acquired, newly expanded, newly remodeled, newly altered, or
newly renovated buildings that are to be used for community
rehabilitation program purposes; and
(vii) Other direct expenditures appropriate to the construction
project, except costs of off-site improvements.
(Authority: Sections 7(1) and 12(c) of the Act; 29 U.S.C. 706(1) and
711(c))
(12) Designated State agency or State agency means the sole State
agency, designated in accordance with Sec. 361.13(a), to administer, or
supervise local administration of, the State plan for vocational
rehabilitation services. The term includes the State agency for
individuals who are blind, if designated as the sole State agency with
respect to that part of the plan relating to the vocational
rehabilitation of individuals who are blind.
(Authority: Sections 7(3)(A) and 101(a)(1)(A) of the Act; 29 U.S.C.
706(3)(A) and 721(a)(1)(A))
(13) Designated State unit or State unit means either--
(i) The State agency vocational rehabilitation bureau, division, or
other organizational unit that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities and that is responsible for the administration of the
vocational rehabilitation program of the State agency, as required
under Sec. 361.13(b); or
(ii) The independent State commission, board, or other agency that
has vocational rehabilitation, or vocational and other rehabilitation,
as its primary function.
(Authority: Sections 7(3)(B) and 101(a)(2)(A) of the Act; 29 U.S.C.
706(3)(B) and 721(a)(2)(A))
(14) Eligible individual means an applicant for vocational
rehabilitation services who meets the eligibility requirements of
Sec. 361.42(a).
(Authority: Sections 7(8)(a) and 102(a)(1) of the Act; 29 U.S.C.
706(8) and 722(a)(1))
(15) Employment outcome means, with respect to an individual,
entering or retaining full-time or, if appropriate, part-time
competitive employment in the integrated labor market to the greatest
extent practicable; supported employment; or any other type of
employment that is consistent with an individual's strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice.
(Authority: Sections 7(5) and 12(c) of the Act; 29 U.S.C. 706(5) and
711(c))
(16) Establishment, development, or improvement of a public or
nonprofit community rehabilitation program means--
(i) The establishment of a facility for a public or nonprofit
community
[[Page 64500]]
rehabilitation program as defined in paragraph (b)(17) of this section;
(ii) Staffing, if necessary to establish, develop, or improve a
community rehabilitation program for a maximum period of four years,
with Federal financial participation available at the applicable
matching rate for the following levels of staffing costs:
(A) 100 percent of staffing costs for the first year.
(B) 75 percent of staffing costs for the second year.
(C) 60 percent of staffing costs for the third year.
(D) 45 percent of staffing costs for the fourth year; and
(iii) Other expenditures related to the establishment, development,
or improvement of a community rehabilitation program that are necessary
to make the program functional or increase its effectiveness, but are
not ongoing operating expenses of the program.
(Authority: Sections 7(6) and 12(c) of the Act; 29 U.S.C. 706(6) and
711(c))
(17) Establishment of a facility for a public or nonprofit
community rehabilitation program means--
(i) The acquisition of an existing building, and if necessary the
land in connection with the acquisition, if the building has been
completed in all respects for at least one year prior to the date of
acquisition and the Federal share of the cost of the acquisition is not
more than $300,000;
(ii) The remodeling or alteration of an existing building, provided
the estimated cost of remodeling or alteration does not exceed the
appraised value of the existing building;
(iii) The expansion of an existing building, provided that--
(A) The existing building is complete in all respects;
(B) The total size in square footage of the expanded building,
notwithstanding the number of expansions, is not greater than twice the
size of the existing building;
(C) The expansion is joined structurally to the existing building
and does not constitute a separate building; and
(D) The costs of the expansion do not exceed the appraised value of
the existing building;
(iv) Architect's fees, site survey, and soil investigation, if
necessary in connection with the acquisition, remodeling, alteration,
or expansion of an existing building; and
(v) The acquisition of fixed or movable equipment, including the
costs of installation of the equipment, if necessary to establish,
develop, or improve a community rehabilitation program.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(18) Extended employment means work in a non-integrated or
sheltered setting for a public or private nonprofit agency or
organization that provides compensation in accordance with the Fair
Labor Standards Act and any needed support services to an individual
with a disability to enable the individual to continue to train or
otherwise prepare for competitive employment, unless the individual
through informed choice chooses to remain in extended employment.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(19) Extended services, as used in the definition of ``Supported
employment,'' means ongoing support services and other appropriate
services that are needed to support and maintain an individual with a
most severe disability in supported employment and that are provided by
a State agency, a private nonprofit organization, employer, or any
other appropriate resource, from funds other than funds received under
this part, 34 CFR part 363, 34 CFR part 376, or 34 CFR part 380, after
an individual with a most severe disability has made the transition
from support provided by the designated State unit.
(Authority: Section 7(27) of the Act; 29 U.S.C. 706(27))
(20) Extreme medical risk means a probability of substantially
increasing functional impairment or death if medical services,
including mental health services, are not provided expeditiously.
(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C.
711(c) and 721(a)(8))
(21) Family member, for purposes of receiving vocational
rehabilitation services in accordance with Sec. 361.48(a)(9), means an
individual--
(i) Who either--
(A) Is a relative or guardian of an applicant or eligible
individual; or
(B) Lives in the same household as an applicant or eligible
individual;
(ii) Who has a substantial interest in the well-being of that
individual; and
(iii) Whose receipt of vocational rehabilitation services is
necessary to enable the applicant or eligible individual to achieve an
employment outcome.
(Authority: Sections 12(c) and 103(a)(3) of the Act; 29 U.S.C.
711(c) and 723(a)(3))
(22) Impartial hearing officer.
(i) Impartial hearing officer means an individual who--
(A) Is not an employee of a public agency (other than an
administrative law judge, hearing examiner, or employee of an
institution of higher education);
(B) Is not a member of the State Rehabilitation Advisory Council
for the designated State unit;
(C) Has not been involved in previous decisions regarding the
vocational rehabilitation of the applicant or eligible individual;
(D) Has knowledge of the delivery of vocational rehabilitation
services, the State plan, and the Federal and State regulations
governing the provision of services;
(E) Has received training with respect to the performance of
official duties; and
(F) Has no personal, professional, or financial interest that would
be in conflict with the objectivity of the individual.
(ii) An individual shall not be considered to be an employee of a
public agency for the purposes of this definition solely because the
individual is paid by the agency to serve as a hearing officer.
(Authority: Section 7(28) of the Act; 29 U.S.C. 706(28))
(23) Indian tribe means any Federal or State Indian tribe, band,
rancheria, pueblo, colony, or community, including any Alaskan native
village or regional village corporation (as defined in or established
pursuant to the Alaska Native Claims Settlement Act).
(Authority: Section 7(21) of the Act; 29 U.S.C. 706(21))
(24) Individual who is blind means a person who is blind within the
meaning of the applicable State law.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(25) Individual with a disability, except in Secs. 361.17(a), (b),
(c), and (j), 361.19, 361.20, and 361.51(b)(2), means an individual--
(i) Who has a physical or mental impairment;
(ii) Whose impairment constitutes or results in a substantial
impediment to employment; and
(iii) Who can benefit in terms of an employment outcome from the
provision of vocational rehabilitation services.
(Authority: Section 7(8)(A) of the Act; 29 U.S.C. 706(8)(A))
(26) Individual with a disability, for purposes of Secs. 361.17
(a), (b), (c), and (j), 361.19, 361.20, and 361.51(b)(2), means an
individual--
[[Page 64501]]
(i) Who has a physical or mental impairment that substantially
limits one or more major life activities;
(ii) Who has a record of such an impairment; or
(iii) Who is regarded as having such an impairment.
(Authority: Section 7(8)(B) of the Act; 29 U.S.C. 706(8)(B))
(27) Individual with a most severe disability means an individual
with a severe disability who meets the designated State unit's criteria
for an individual with a most severe disability. This criteria must be
consistent with the requirements in Sec. 361.36(c)(3).
(Authority: Section 101(a)(5) of the Act; 29 U.S.C. 721(a)(5))
(28) Individual with a severe disability means an individual with a
disability--
(i) Who has a severe physical or mental impairment that seriously
limits one or more functional capacities (such as mobility,
communication, self-care, self-direction, interpersonal skills, work
tolerance, or work skills) in terms of an employment outcome;
(ii) Whose vocational rehabilitation can be expected to require
multiple vocational rehabilitation services over an extended period of
time; and
(iii) Who has one or more physical or mental disabilities resulting
from amputation, arthritis, autism, blindness, burn injury, cancer,
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease,
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental
retardation, mental illness, multiple sclerosis, muscular dystrophy,
musculo-skeletal disorders, neurological disorders (including stroke
and epilepsy), spinal cord conditions (including paraplegia and
quadriplegia), sickle cell anemia, specific learning disability, end-
stage renal disease, or another disability or combination of
disabilities determined on the basis of an assessment for determining
eligibility and vocational rehabilitation needs to cause comparable
substantial functional limitation.
(Authority: Section 7(15)(A) of the Act; 29 U.S.C. 708(15)(A))
(29) Individual's representative means any representative chosen by
an applicant or eligible individual, including a parent, guardian,
other family member, or advocate, unless a representative has been
appointed by a court to represent the individual, in which case the
court-appointed representative is the individual's representative.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(30) Integrated setting, with respect to the provision of services
or an employment outcome, means a setting typically found in the
community in which applicants or eligible individuals have the
opportunity to interact on a regular basis with non-disabled
individuals other than non-disabled individuals who are providing
services to those applicants or eligible individuals.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(31) Maintenance means monetary support provided to an eligible
individual or an individual receiving extended evaluation services for
those living expenses, such as food, shelter, and clothing, that are in
excess of the normal living expenses of the individual and that are
necessitated by the individual's participation in a program of
vocational rehabilitation services.
(Authority: Sections 12(c) and 103(a)(5) of the Act; 29 U.S.C.
711(c) and 723(a)(5))
Note: The following are examples of expenses that would meet the
definition of maintenance.
Example: The cost of a uniform or other suitable clothing that
is required for an individual's job placement or job seeking
activities.
Example: The cost of short-term shelter that is required in
order for an individual to participate in vocational training at a
site that is not within commuting distance of an individual's home.
Example: The initial one-time costs, such as a security deposit
or charges for the initiation of utilities, that are required in
order for an individual to relocate for a job placement.
Example: The costs of food, clothing, and shelter for homeless
or recently deinstitutionalized individuals until other financial
assistance is secured for those costs.
(32) Nonprofit, with respect to a community rehabilitation program,
means a community rehabilitation program carried out by a corporation
or association, no part of the net earnings of which inures, or may
lawfully inure, to the benefit of any private shareholder or individual
and the income of which is exempt from taxation under section 501(c)(3)
of the Internal Revenue Code of 1954.
(Authority: Section 7(10) of the Act; 29 U.S.C. 706(10))
(33) Ongoing support services, as used in the definition of
``Supported employment''--
(i) Means services that are--
(A) Needed to support and maintain an individual with a most severe
disability in supported employment;
(B) Identified based on a determination by the designated State
unit of the individual's needs as specified in an individualized
written rehabilitation program; and
(C) Furnished by the designated State unit from the time of job
placement until transition to extended services, unless post-employment
services are provided following transition, and thereafter by one or
more extended services providers throughout the individual's term of
employment in a particular job placement or multiple placements if
those placements are being provided under a program of transitional
employment;
(ii) Must include an assessment of employment stability and
provision of specific services or the coordination of services at or
away from the worksite that are needed to maintain stability based on--
(A) At a minimum, twice-monthly monitoring at the worksite of each
individual in supported employment; or
(B) If under special circumstances, especially at the request of
the individual, the individualized written rehabilitation program
provides for off-site monitoring, twice-monthly meetings with the
individual;
(iii) Consist of--
(A) Any particularized assessment supplementary to the
comprehensive assessment of rehabilitation needs described in this
part;
(B) The provision of skilled job trainers who accompany the
individual for intensive job skill training at the work site;
(C) Job development and placement;
(D) Social skills training;
(E) Regular observation or supervision of the individual;
(F) Follow-up services including regular contact with the
employers, the individuals, the parents, family members, guardians,
advocates or authorized representatives of the individuals, and other
suitable professional and informed advisors, in order to reinforce and
stabilize the job placement;
(G) Facilitation of natural supports at the worksite;
(H) Any other service identified in the scope of vocational
rehabilitation services for individuals, described in Sec. 361.48; or
(I) Any service similar to the foregoing services.
(Authority: Sections 7(33) and 12(c) of the Act; 29 U.S.C. 706(33)
and 711(c))
(34) Personal assistance services means a range of services
provided by one or more persons designed to assist an individual with a
disability to perform daily living activities on or off the job that
the individual would typically perform without assistance if
[[Page 64502]]
the individual did not have a disability. The services must be
necessary to the achievement of an employment outcome and may be
provided only while the individual is receiving other vocational
rehabilitation services. The services may include training in managing,
supervising, and directing personal assistance services.
(Authority: Sections 7(11) and 103(a)(15) of the Act; 29 U.S.C.
706(11) and 29 U.S.C. 723)
(35) Physical and mental restoration services means--
(i) Corrective surgery or therapeutic treatment that is likely,
within a reasonable period of time, to correct or modify substantially
a stable or slowly progressive physical or mental impairment that
constitutes a substantial impediment to employment;
(ii) Diagnosis of and treatment for mental or emotional disorders
by qualified personnel in accordance with State licensure laws;
(iii) Dentistry;
(iv) Nursing services;
(v) Necessary hospitalization (either inpatient or outpatient care)
in connection with surgery or treatment and clinic services;
(vi) Drugs and supplies;
(vii) Prosthetic, orthotic, or other assistive devices, including
hearing aids;
(viii) Eyeglasses and visual services, including visual training,
and the examination and services necessary for the prescription and
provision of eyeglasses, contact lenses, microscopic lenses, telescopic
lenses, and other special visual aids prescribed by personnel that are
qualified in accordance with State licensure laws;
(ix) Podiatry;
(x) Physical therapy;
(xi) Occupational therapy;
(xii) Speech or hearing therapy;
(xiii) Mental health services;
(xiv) Treatment of either acute or chronic medical complications
and emergencies that are associated with or arise out of the provision
of physical and mental restoration services, or that are inherent in
the condition under treatment;
(xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial
kidneys, and supplies; and
(xvi) Other medical or medically related rehabilitation services.
(Authority: Sections 12(c) and 103(a)(4) of the Act; 29 U.S.C.
711(c) and 723(a)(4))
(36) Physical or mental impairment means an injury, disease, or
other condition that materially limits, or if not treated will probably
result in materially limiting, mental or physical functioning.
(Authority: Sections 7(8)(A) and 12(c) of the Act; 29 U.S.C.
706(8)(A) and 711(c))
(37) Post-employment services means one or more of the services
identified in Sec. 361.48 that are provided subsequent to the
achievement of an employment outcome and that are necessary for an
individual to maintain, regain, or advance in employment, consistent
with the individual's strengths, resources, priorities, concerns,
abilities, capabilities, and interests.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
Note: Post-employment services are intended to ensure that the
employment outcome remains consistent with the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
and interests. These services are available to meet rehabilitation
needs that do not require a complex and comprehensive provision of
services and, thus, should be limited in scope and duration. If more
comprehensive services are required, then a new rehabilitation
effort should be considered. Post-employment services are to be
provided under an amended individualized written rehabilitation
program; thus, a re-determination of eligibility is not required.
The provision of post-employment services is subject to the same
requirements in this part as the provision of any other vocational
rehabilitation service. Post-employment services are available to
assist an individual to maintain employment, e.g., the individual's
employment is jeopardized because of conflicts with supervisors or
co-workers and the individual needs mental health services and
counseling to maintain the employment; to regain employment, e.g.,
the individual's job is eliminated through reorganization and new
placement services are needed; and to advance in employment, e.g.,
the employment is no longer consistent with the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
and interests.
(38) Rehabilitation engineering means the systematic application of
engineering sciences to design, develop, adapt, test, evaluate, apply,
and distribute technological solutions to problems confronted by
individuals with disabilities in functional areas, such as mobility,
communications, hearing, vision, and cognition, and in activities
associated with employment, independent living, education, and
integration into the community.
(Authority: Sections 7(13) and 12(c) of the Act; 29 U.S.C. 706(13)
and 711(c))
(39) Rehabilitation technology means the systematic application of
technologies, engineering methodologies, or scientific principles to
meet the needs of, and address the barriers confronted by, individuals
with disabilities in areas that include education, rehabilitation,
employment, transportation, independent living, and recreation. The
term includes rehabilitation engineering, assistive technology devices,
and assistive technology services.
(Authority: Section 7(13) of the Act; 29 U.S.C. 706(13))
(40) Reservation means a Federal or State Indian reservation,
public domain Indian allotment, former Indian reservation in Oklahoma,
and land held by incorporated Native groups, regional corporations, and
village corporations under the provisions of the Alaska Native Claims
Settlement Act.
(Authority: Section 130(c) of the Act; 29 U.S.C. 750(c))
(41) Sole local agency means a unit or combination of units of
general local government or one or more Indian tribes that has the sole
responsibility under an agreement with, and the supervision of, the
State agency to conduct a local or tribal vocational rehabilitation
program, in accordance with the State plan.
(Authority: Section 7(9) of the Act; 29 U.S.C. 706(9))
(42) State means any of the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, the United States Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
(Authority: Section 7(16) of the Act; 29 U.S.C. 706(16))
(43) State plan means the State plan for vocational rehabilitation
services or the vocational rehabilitation services part of a
consolidated rehabilitation plan under Sec. 361.10(c).
(Authority: Sections 12(c) and 101 of the Act; 29 U.S.C. 711(c) and
721)
(44) Substantial impediment to employment means that a physical or
mental impairment (in light of attendant medical, psychological,
vocational, educational, and other related factors) hinders an
individual from preparing for, entering into, engaging in, or retaining
employment consistent with the individual's abilities and capabilities.
(Authority: Sections 7(8)(A) and 12(c) of the Act; 29 U.S.C.
706(8)(A) and 711(c))
(45) Supported employment means--
(i) Competitive employment in an integrated setting with ongoing
support services for individuals with the most severe disabilities--
(A) For whom competitive employment has not traditionally occurred
or for whom competitive
[[Page 64503]]
employment has been interrupted or intermittent as a result of a severe
disability; and
(B) Who, because of the nature and severity of their disabilities,
need intensive supported employment services from the designated State
unit and extended services after transition in order to perform this
work; or
(ii) Transitional employment for individuals with the most severe
disabilities due to mental illness.
(Authority: Section 7(18) of the Act; 29 U.S.C. 706(18)(A))
(46) Supported employment services means ongoing support services
and other appropriate services needed to support and maintain an
individual with a most severe disability in supported employment that
are provided by the designated State unit--
(i) For a period of time not to exceed 18 months, unless under
special circumstances the eligible individual and the rehabilitation
counselor or coordinator jointly agree to extend the time in order to
achieve the rehabilitation objectives identified in the individualized
written rehabilitation program; and
(ii) Following transition, as post-employment services that are
unavailable from an extended services provider and that are necessary
to maintain or regain the job placement or advance in employment.
(Authority: Sections 7(34) and 12(c) of the Act; 29 U.S.C. 706(34)
and 711(c))
(47) Transition services means a coordinated set of activities for
a student designed within an outcome-oriented process that promotes
movement from school to post-school activities, including postsecondary
education, vocational training, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, or community participation. The coordinated set of
activities must be based upon the individual student's needs, taking
into account the student's preferences and interests, and must include
instruction, community experiences, the development of employment and
other post-school adult living objectives, and, if appropriate,
acquisition of daily living skills and functional vocational
evaluation. Transition services must promote or facilitate the
accomplishment of long-term rehabilitation goals and intermediate
rehabilitation objectives identified in the student's individualized
written rehabilitation program (IWRP).
(Authority: Section 7(35) and 103(a)(14) of the Act; 29 U.S.C.
706(35) and 723(a)(14))
(48) Transitional employment, as used in the definition of
``Supported employment,'' means a series of temporary job placements in
competitive work in integrated settings with ongoing support services
for individuals with the most severe disabilities due to mental
illness. In transitional employment, the provision of ongoing support
services must include continuing sequential job placements until job
permanency is achieved.
(Authority: Sections 7(18) and 12(c) of the Act; 29 U.S.C. 706(18)
and 711(c))
(49) Transitioning student means a student who is an eligible
individual in accordance with the requirements of Sec. 361.42(a)(1) and
who is receiving transition services as defined in paragraph (b)(47) of
this section.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
(50) Transportation means travel and related expenses that are
necessary to enable an applicant or eligible individual to participate
in any vocational rehabilitation service.
(Authority: Sections 12(c) and 103(a)(10) of the Act; 29 U.S.C.
711(c) and 723(a)(10))
Note: The following are examples of expenses that would meet the
definition of transportation.
Example: Travel and related expenses for a personal care
attendant or aide if the services of that person are necessary to
enable the applicant or eligible individual to travel to participate
in any vocational rehabilitation service.
Example: Short-term travel-related expenses, such as food and
shelter, incurred by an applicant participating in evaluation or
assessment services that necessitates travel.
Example: Relocation expenses incurred by an eligible individual
in connection with a job placement that is a significant distance
from the eligible individual's current residence.
Example: The purchase and repair of vehicles, including vans,
but not the modification of these vehicles, as modification would be
considered a rehabilitation technology service.
(51) Vocational rehabilitation services--
(i) If provided to an individual, means those services listed in
Sec. 361.48; and
(ii) If provided for the benefit of groups of individuals, also
means those services listed in Sec. 361.49.
(Authority: Sections 103(a) and (b) of the Act; 29 U.S.C. 723(a) and
(b))
Subpart B--State Plan for Vocational Rehabilitation Services
Sec. 361.10 Submission, approval, and disapproval of the State plan.
(a) Purpose. In order for a State to receive a grant under this
part, the designated State agency shall submit to the Secretary, and
obtain approval of, a State plan that contains a description of the
State's vocational rehabilitation services program, the plans and
policies to be followed in carrying out the program, and other
information requested by the Secretary, in accordance with the
requirements of this part.
(b) Separate part relating to rehabilitation of individuals who are
blind. If a separate State agency administers or supervises the
administration of a separate part of the State plan relating to the
rehabilitation of individuals who are blind, that part of the State
plan must separately conform to all requirements under this part that
are applicable to a State plan.
(c) Consolidated rehabilitation plan. The State may choose to
submit a consolidated rehabilitation plan that includes the State plan
for vocational rehabilitation services and the State's plan for its
program for persons with developmental disabilities. The State planning
and advisory council for developmental disabilities and the agency
administering the State's program for persons with developmental
disabilities must concur in the submission of a consolidated
rehabilitation plan. A consolidated rehabilitation plan must comply
with, and be administered in accordance with, the Act and the
Developmental Disabilities Assistance and Bill of Rights Act, as
amended.
(d) Public participation. The State shall develop the State plan
with input from the public, through public meetings, in accordance with
the requirements of Sec. 361.20.
(e) Duration. The State plan must cover a three-year period or,
with the prior approval of the Secretary, some other period that
corresponds to the period for which the State submits a plan under
another Federal law, such as Part B of the Individuals with
Disabilities Education Act (IDEA).
(f) Submission of the State plan. The State shall submit the State
plan to the Secretary for approval--
(1) No later than July 1 of the year preceding the first fiscal
year for which the State plan is submitted; or
(2) With the prior approval of the Secretary, no later than the
date on which the State is required to submit a State plan under
another Federal law.
[[Page 64504]]
(g) Revisions to the State plan. The State shall submit to the
Secretary for approval revisions to the State plan in accordance with
the requirements of this part and 34 CFR 76.140.
(h) Interim State plan. The Secretary may require a State to submit
an interim State plan for a period of less than three years following a
reauthorization of the Act and prior to the publication of final
regulations.
(i) Approval. The Secretary approves a State plan and revisions to
the State plan that conform to the requirements of this part and
section 101(a) of the Act.
(j) Disapproval. The Secretary disapproves a State plan that does
not conform to the requirements of this part and section 101(a) of the
Act, in accordance with the following procedures:
(1) Informal resolution. Prior to disapproving a State plan, the
Secretary attempts to resolve disputes informally with State officials.
(2) Notice. If, after reasonable effort has been made to resolve
the dispute, no resolution has been reached, the Secretary provides
notice to the State agency of the intention to disapprove the State
plan and of the opportunity for a hearing.
(3) State plan hearing. If the State agency requests a hearing, the
Secretary designates one or more individuals, either from the
Department or elsewhere, not responsible for or connected with the
administration of this program, to conduct a hearing in accordance with
the provisions of 34 CFR Part 81, Subpart A.
(4) Initial decision. The hearing officer issues an initial
decision in accordance with 34 CFR 81.41.
(5) Petition for review of an initial decision. The State agency
may seek the Secretary's review of the initial decision in accordance
with 34 CFR 81.42.
(6) Review by the Secretary. The Secretary reviews the initial
decision in accordance with 34 CFR 81.43.
(7) Final decision of the Department. The final decision of the
Department is made in accordance with 34 CFR 81.44.
(8) Judicial review. A State may appeal the Secretary's decision to
disapprove the State plan by filing a petition for review with the
United States Court of Appeals for the circuit in which the State is
located, in accordance with section 107(d) of the Act.
(Authority: Sections 6, 101(a) and (b), and 107(d) of the Act; 29
U.S.C. 705, 721(a) and (b), and 727(d))
Sec. 361.11 Withholding of funds.
(a) Basis for withholding. The Secretary may withhold or limit
payments under sections 111, 124, or 632(a) of the Act, as provided by
section 107(c) and (d) of the Act, if the Secretary determines that--
(1) The State plan, including the supported employment supplement
and the strategic plan supplement, has been so changed that it no
longer conforms with the requirements of this part or 34 CFR part 363;
or
(2) In the administration of the State plan, there has been a
failure to comply substantially with any provision of that plan or a
program improvement plan established in accordance with section 106 of
the Act.
(b) Informal resolution. Prior to withholding or limiting payments
in accordance with this section, the Secretary attempts to resolve
disputed issues informally with State officials.
(c) Notice. If, after reasonable effort has been made to resolve
the dispute, no resolution has been reached, the Secretary provides
notice to the State agency of the intention to withhold or limit
payments and of the opportunity for a hearing.
(d) Withholding hearing. If the State agency requests a hearing,
the Secretary designates one or more individuals, either from the
Department or elsewhere, not responsible for or connected with the
administration of this program, to conduct a hearing in accordance with
the provisions of 34 CFR part 81, subpart A.
(e) Initial decision. The hearing officer issues an initial
decision in accordance with 34 CFR 81.41.
(f) Petition for review of an initial decision. The State agency
may seek the Secretary's review of the initial decision in accordance
with 34 CFR 81.42.
(g) Review by the Secretary. The Secretary reviews the initial
decision in accordance with 34 CFR 81.43.
(h) Final decision of the Department. The final decision of the
Department is made in accordance with 34 CFR 81.44.
(i) Judicial review. A State may appeal the Secretary's decision to
withhold or limit payments by filing a petition for review with the
U.S. Court of Appeals for the circuit in which the State is located, in
accordance with section 107(d) of the Act.
(Authority: Sections 101(b), 107(c), and 107(d) of the Act; 29
U.S.C. 721(b), 727(c)(1) and (2), and 727(d))
State Plan Content: Administration
Sec. 361.12 Methods of administration.
The State plan must assure that the State agency, and the
designated State unit if applicable, employs methods of administration
found necessary by the Secretary for the proper and efficient
administration of the plan and for carrying out all functions for which
the State is responsible under the plan and this part. These methods
must include procedures to ensure accurate data collection and
financial accountability.
(Authority: Section 101(a)(6) of the Act; 29 U.S.C. 721(a)(6))
Sec. 361.13 State agency for administration.
(a) Designation of State agency. The State plan must designate a
State agency as the sole State agency to administer the State plan, or
to supervise its administration in a political subdivision of the State
by a sole local agency, in accordance with the following requirements:
(1) General. Except as provided in paragraphs (a)(2) and (3) of
this section, the State plan must provide that the designated State
agency is one of the following types of agencies:
(i) A State agency that is an independent State commission, board,
or other agency that has as its major function vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities.
(ii) The State agency administering or supervising the
administration of education or vocational education in the State,
provided that it includes a vocational rehabilitation unit as provided
in paragraph (b) of this section.
(iii) A State agency that includes a vocational rehabilitation
unit, as provided in paragraph (b) of this section, and at least two
other major organizational units, each of which administers one or more
of the State's major programs of public education, public health,
public welfare, or labor.
(2) American Samoa. In the case of American Samoa, the State plan
must designate the Governor.
(3) Designated State agency for individuals who are blind. If a
State commission or other agency that provides assistance or services
to individuals who are blind is authorized under State law to provide
vocational rehabilitation services to individuals who are blind, and
this commission or agency is primarily concerned with vocational
rehabilitation or includes a vocational rehabilitation unit as provided
in paragraph (b) of this section, the State plan may designate that
agency as the sole State agency to administer the part of the plan
under which vocational rehabilitation services are provided for
individuals who are blind or to supervise its administration in a
political subdivision of the State by a sole local agency.
(b) Designation of State unit. (1) If the designated State agency
is of the type
[[Page 64505]]
specified in paragraph (a)(1)(ii) or (a)(1)(iii) of this section, or if
the designated State agency specified in paragraph (a)(3) of this
section does not have as its major function vocational rehabilitation
or vocational and other rehabilitation of individuals with
disabilities, the State plan must assure that the agency (or each
agency if two agencies are designated) includes a vocational
rehabilitation bureau, division, or unit that--
(i) Is primarily concerned with vocational rehabilitation or
vocational and other rehabilitation of individuals with disabilities
and is responsible for the administration of the State agency's
vocational rehabilitation program under the State plan, including those
responsibilities specified in paragraph (d) of this section;
(ii) Has a full-time director;
(iii) Has a staff, at least 90 percent of whom are employed full
time on the rehabilitation work of the organizational unit; and
(iv) Is located at an organizational level and has an
organizational status within the State agency comparable to that of
other major organizational units of the agency or, in the case of an
agency described in paragraph (a)(1)(ii) of this section, is so located
and has that status or has a director who is the executive officer of
the State agency.
(2) In the case of a State that has not designated a separate State
agency for individuals who are blind, as provided for in paragraph
(a)(3) of this section, the State may assign responsibility for the
part of the plan under which vocational rehabilitation services are
provided to individuals who are blind to one organizational unit of the
designated State agency and may assign responsibility for the rest of
the plan to another organizational unit of the designated State agency,
with the provisions of paragraph (b)(1) of this section applying
separately to each of these units.
(c) Responsibility for administration. The State plan must assure
that all decisions affecting eligibility for vocational rehabilitation
services, the nature and scope of available services, and the provision
of these services are made by the designated State unit or the sole
local agency under the supervision of the State unit. This
responsibility may not be delegated to any other agency or individual.
(Authority: Sections 101(a)(1) and 101(a)(2) of the Act; 29 U.S.C.
721(a)(1) and 721(a)(2))
Sec. 361.14 Substitute State agency.
(a) General provisions.
(1) If the Secretary has withheld all funding from a State under
Sec. 361.11, the State may designate another agency to substitute for
the designated State agency in carrying out the State's program of
vocational rehabilitation services.
(2) Any public or nonprofit private organization or agency within
the State or any political subdivision of the State is eligible to be a
substitute agency.
(3) The substitute agency shall submit a State plan that meets the
requirements of this part.
(4) The Secretary makes no grant to a substitute agency until the
Secretary approves its plan.
(b) Substitute agency matching share. The Secretary does not make
any payment to a substitute agency unless it has provided assurances
that it will contribute the same matching share as the State would have
been required to contribute if the State agency were carrying out the
vocational rehabilitation program.
(Authority: Section 107(c)(3) of the Act; 29 U.S.C. 727(c)(3))
Sec. 361.15 Local administration.
(a) If the State plan provides for local administration, it must--
(1) Identify each local agency;
(2) Assure that each local agency is under the supervision of the
designated State unit and is the sole local agency responsible for the
administration of the program within the political subdivision that it
serves; and
(3) Describe the methods each local agency will use to administer
the vocational rehabilitation program, in accordance with the State
plan.
(b) A separate local agency serving individuals who are blind may
administer that part of the plan relating to vocational rehabilitation
of individuals who are blind, under the supervision of the designated
State unit for individuals who are blind.
(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))
Sec. 361.16 Establishment of an independent commission or a State
Rehabilitation Advisory Council.
(a) General requirement. Except as provided in paragraph (b) of
this section, the State plan must contain one of the following two
assurances:
(1) An assurance that the State agency is an independent State
commission that--
(i) Is primarily concerned with vocational rehabilitation or
vocational and other rehabilitation services, in accordance with
Sec. 361.13(a)(1)(i);
(ii) Is consumer-controlled by persons who--
(A) Are individuals with physical or mental impairments that
substantially limit major life activities; and
(B) Represent individuals with a broad range of disabilities;
(iii) Includes individuals representing family members, advocates,
and authorized representatives of individuals with mental impairments;
and
(iv) Conducts a review and analysis of the effectiveness of and
consumer satisfaction with vocational rehabilitation services and
providers in the State, in accordance with the provisions in
Sec. 361.17(h)(3).
(2) An assurance that--
(i) The State has established a State Rehabilitation Advisory
Council (Council) that meets the requirements of Sec. 361.17;
(ii) The designated State unit seeks and seriously considers, on a
regular and ongoing basis, advice from the Council regarding the
development, implementation, and amendment of the State plan, the
strategic plan, and other policies and procedures of general
applicability pertaining to the provision of vocational rehabilitation
services in the State;
(iii) The designated State unit transmits to the Council--
(A) All plans, reports, and other information required under the
Act to be submitted to the Secretary;
(B) Copies of all written policies, practices, and procedures of
general applicability provided to or used by rehabilitation personnel;
and
(C) Copies of due process hearing decisions in a manner that
preserves the confidentiality of the participants in the hearings; and
(iv) The State plan summarizes annually the advice provided by the
Council, including recommendations from the annual report of the
Council, the survey of consumer satisfaction, and other reports
prepared by the Council, and the State agency's response to the advice
and recommendations, including the manner in which the State will
modify its policies and procedures based on the survey of consumer
satisfaction and explanations of reasons for rejecting any advice or
recommendations of the Council.
(b) Exception for separate State agency for individuals who are
blind. In the case of a State that designates a separate State agency,
under Sec. 361.13(a)(3), to administer the part of the State plan under
which vocational rehabilitation services are provided to individuals
who are blind, the State plan must contain one of the following four
assurances:
(1) An assurance that an independent commission in accordance with
paragraph (a)(1) of this section is responsible under State law for
[[Page 64506]]
operating or overseeing the operation of the vocational rehabilitation
program of both the State agency that administers the part of the State
plan under which vocational rehabilitation services are provided to
individuals who are blind and the State agency that administers the
remainder of the State plan.
(2) An assurance that--
(i) An independent commission that is consumer-controlled by, and
represents the interests of, individuals who are blind and conducts a
review and analysis of the effectiveness of and consumer satisfaction
with vocational rehabilitation services and providers, in accordance
with the provisions of Sec. 361.17(h)(3), is responsible under State
law for operating, or overseeing the operation of, the vocational
rehabilitation program in the State for individuals who are blind; and
(ii) An independent commission that is consumer-controlled in
accordance with paragraph (a)(1)(i) of this section and conducts a
review and analysis of the effectiveness of and consumer satisfaction
with vocational rehabilitation services and providers, in accordance
with Sec. 361.17(h)(3), is responsible under State law for operating,
or overseeing the operation of, the vocational rehabilitation program
in the State for all individuals with disabilities, except individuals
who are blind.
(3) An assurance that--
(i) An independent commission that is consumer-controlled by, and
represents the interests of, individuals who are blind and that
conducts a review and analysis of the effectiveness of and consumer
satisfaction with vocational rehabilitation services and providers, in
accordance with Sec. 361.17(h)(3), is responsible under State law for
operating, or overseeing the operation of, the vocational
rehabilitation program in the State for individuals who are blind; and
(ii) The State has established a State Rehabilitation Advisory
Council that meets the criteria in Sec. 361.17 and carries out the
duties of a Council with respect to functions for, and services
provided to, individuals with disabilities, except for individuals who
are blind.
(4) An assurance that--
(i) An independent commission that is consumer-controlled in
accordance with paragraph (a)(1)(i) of this section and conducts a
review and analysis of the effectiveness of and consumer satisfaction
with vocational rehabilitation services and providers, in accordance
with the provisions of Sec. 361.17(h)(3), is responsible under State
law for operating or overseeing the operation of the vocational
rehabilitation services for all individuals in the State, except
individuals who are blind; and
(ii) The State has established a State Rehabilitation Advisory
Council that meets the criteria in Sec. 361.17 and carries out the
duties of a Council with respect to functions for, and services
provided to, individuals who are blind.
(Authority: Sections 101(a)(32) and 101(a)(36) of the Act; 29 U.S.C.
721(a)(32) and 721(a)(36))
Sec. 361.17 Requirements for a State Rehabilitation Advisory Council.
If the State plan contains an assurance that the State has
established a Council under Sec. 361.16(a)(2), (b)(3)(ii), or
(b)(4)(ii), the State plan must also contain an assurance that the
Council meets the following requirements:
(a) Appointment. (1) The members of the Council shall be--
(i) Appointed by the Governor; or
(ii) If State law vests appointment authority in an entity other
than, or in conjunction with, the Governor (such as one or more houses
of the State legislature or an independent board that has general
appointment authority), appointed by that entity or entities.
(2) The appointing authority shall select members of the Council
after soliciting recommendations from representatives of organizations
representing a broad range of individuals with disabilities and
organizations interested in individuals with disabilities.
(b) Composition. (1) General. Except as provided in paragraph
(b)(3) of this section, the Council shall be composed of at least 13
members, including--
(i) At least one representative of the Statewide Independent Living
Council, who must be the chairperson of, or other individual
recommended by, the Statewide Independent Living Council;
(ii) At least one representative of a parent training and
information center established pursuant to section 631(e)(1) of IDEA;
(iii) At least one representative of the Client Assistance Program
(CAP), established under 34 CFR part 370, who must be the director of,
or other individual recommended by, the CAP;
(iv) At least one vocational rehabilitation counselor with
knowledge of and experience with vocational rehabilitation programs who
serves as an ex officio, nonvoting member if employed by the designated
State agency;
(v) At least one representative of community rehabilitation program
service providers;
(vi) Four representatives of business, industry, and labor;
(vii) Representatives of disability groups that include a cross
section of--
(A) Individuals with physical, cognitive, sensory, and mental
disabilities; and
(B) Parents, family members, guardians, advocates, or authorized
representatives of individuals with disabilities who have difficulty
representing themselves due to their disabilities;
(viii) Current or former applicants for, or recipients of,
vocational rehabilitation services; and
(ix) The director of the designated State unit as an ex officio,
nonvoting member.
(2) Employees of the designated State agency. Employees of the
designated State agency may serve only as nonvoting members of the
Council.
(3) Composition of a separate Council for a separate State agency
for individuals who are blind. Except as provided in paragraph (b)(4)
of this section, if the State establishes a separate Council for a
separate State agency for individuals who are blind, that Council
must--
(i) Conform with all of the composition requirements for a Council
under paragraph (b)(1) of this section, except the requirements in
paragraph (b)(1)(vii), unless the exception in paragraph (b)(4) of this
section applies; and
(ii) Include--
(A) At least one representative of a disability advocacy group
representing individuals who are blind; and
(B) At least one parent, family member, guardian, advocate, or
authorized representative of an individual who is blind, has multiple
disabilities, and has difficulty representing himself or herself due to
disabilities.
(4) Exception. If State law in effect on October 29, 1992 requires
a separate Council under paragraph (b)(3) of this section to have fewer
than 13 members, the separate Council is deemed to be in compliance
with the composition requirements in paragraphs (b)(1)(vi) and
(b)(1)(viii) of this section if it includes at least one representative
who meets the requirements for each of those paragraphs.
(c) Majority. A majority of the Council members shall be
individuals with disabilities who are not employed by the designated
State unit.
(d) Chairperson. The chairperson shall be--
(1) Selected by the members of the Council from among the voting
members of the Council, subject to the veto power of the Governor; or
[[Page 64507]]
(2) If the Governor does not have veto power pursuant to State law,
selected by the Governor, or by the Council if required by the
Governor, from among the voting members of the Council.
(e) Terms of appointment. (1) Each member of the Council shall be
appointed for a term of no more than three years and may serve for no
more than two consecutive full terms.
(2) A member appointed to fill a vacancy occurring prior to the end
of the term for which the predecessor was appointed shall be appointed
for the remainder of the predecessor's term.
(3) The terms of service of the members initially appointed must be
for varied numbers of years to ensure that terms expire on a staggered
basis.
(f) Vacancies. (1) A vacancy in the membership of the Council must
be filled in the same manner as the original appointment.
(2) No vacancy affects the power of the remaining members to
execute the duties of the Council.
(g) Conflict of interest. No member of the Council shall cast a
vote on any matter that would provide direct financial benefit to the
member or the member's organization or otherwise give the appearance of
a conflict of interest under State law.
(h) Functions. The Council shall--
(1) Review, analyze, and advise the designated State unit regarding
the performance of the State unit's responsibilities under this part,
particularly responsibilities related to--
(i) Eligibility, including order of selection;
(ii) The extent, scope, and effectiveness of services provided; and
(iii) Functions performed by State agencies that affect or
potentially affect the ability of individuals with disabilities to
achieve rehabilitation goals and objectives under this part;
(2) Advise and, at the discretion of the State agency, assist the
State unit in the preparation of applications, the State plan, the
strategic plan, and amendments to the plans, reports, needs
assessments, and evaluations required by this part;
(3) To the extent feasible, conduct a review and analysis of the
effectiveness of, and consumer satisfaction with--
(i) The functions performed by State agencies and other public and
private entities responsible for serving individuals with disabilities;
and
(ii) The vocational rehabilitation services provided by State
agencies and other public and private entities responsible for
providing vocational rehabilitation services to individuals with
disabilities from funds made available under the Act or through other
public or private sources;
(4) Prepare and submit to the Governor, or appropriate State
entity, and to the Secretary no later than 90 days after the end of the
Federal fiscal year an annual report on the status of vocational
rehabilitation programs operated within the State and make the report
available to the public through appropriate modes of communication;
(5) Coordinate with other councils within the State, including the
Statewide Independent Living Council established under 34 CFR part 364,
the advisory panel established under section 613(a)(12) of IDEA, the
State Planning Council described in section 124 of the Developmental
Disabilities Assistance and Bill of Rights Act, and the State mental
health planning council established under section 1916(e) of the Public
Health Service Act;
(6) Advise the designated State agency and provide for coordination
and the establishment of working relationships between the designated
State agency and the Statewide Independent Living Council and centers
for independent living within the State; and
(7) Perform other comparable functions, consistent with the purpose
of this part, that the Council determines to be appropriate.
(i) Resources.
(1) The Council, in conjunction with the designated State unit,
shall prepare a plan for the provision of resources, including staff
and other personnel, that may be necessary for the Council to carry out
its functions under this part.
(2) In implementing the resources plan, the Council must rely on
existing resources to the maximum extent possible.
(3) Any disagreements between the designated State unit and the
Council regarding the amount of resources necessary must be resolved by
the Governor or other appointing entity, consistent with paragraphs
(i)(1) and (2) of this section.
(4) The Council shall, consistent with State law, supervise and
evaluate the staff and personnel that are necessary to carry out its
functions.
(5) Those staff and personnel that are assisting the Council in
carrying out its functions may not be assigned duties by the designated
State unit or any other agency or office of the State that would create
a conflict of interest.
(j) Meetings. The Council shall--
(1) Convene at least four meetings a year to conduct Council
business that are publicly announced, open and accessible to the
public, including individuals with disabilities, unless there is a
valid reason for an executive session; and
(2) Conduct forums or hearings, as appropriate, that are publicly
announced, open and accessible to the public, including individuals
with disabilities.
(k) Compensation. Funds appropriated under Title I of the Act,
except funds to carry out sections 112 and 130 of the Act, may be used
to compensate and reimburse the expenses of Council members in
accordance with section 105(g) of the Act.
(Authority: Section 105 of the Act; 29 U.S.C. 725)
Sec. 361.18 Comprehensive system of personnel development.
The State plan must describe the procedures and activities the
State agency will undertake to establish and maintain a comprehensive
system of personnel development designed to ensure an adequate supply
of qualified rehabilitation personnel, including professionals and
paraprofessionals, for the designated State unit. If the State agency
has a State Rehabilitation Advisory Council, this description must, at
a minimum, provide for the involvement of the Council in the
development of personnel standards in accordance with paragraph (c) of
this section. This description must also conform with the following
requirements:
(a) Data system on personnel and personnel development. The State
plan must describe the development and maintenance of a system by the
State agency for collecting and analyzing on an annual basis data on
qualified personnel needs and personnel development, in accordance with
the following requirements:
(1) Data on qualified personnel needs must include--
(i) The number of personnel who are employed by the State agency in
the provision of vocational rehabilitation services in relation to the
number of individuals served, broken down by personnel category;
(ii) The number of personnel currently needed by the State agency
to provide vocational rehabilitation services, broken down by personnel
category; and
(iii) Projections of the number of personnel, broken down by
personnel category, who will be needed by the State agency to provide
vocational rehabilitation services in the State in five years based on
projections of the number of individuals to be served, including
individuals with severe disabilities, the number of personnel
[[Page 64508]]
expected to retire or leave the field, and other relevant factors.
(2) Data on personnel development must include--
(i) A list of the institutions of higher education in the State
that are preparing vocational rehabilitation professionals, by type of
program;
(ii) The number of students enrolled at each of those institutions,
broken down by type of program; and
(iii) The number of students who graduated during the prior year
from each of those institutions with certification or licensure, or
with the credentials for certification or licensure, broken down by the
personnel category for which they have received, or have the
credentials to receive, certification or licensure.
(b) Plan for recruitment, preparation, and retention of qualified
personnel. The State plan must describe the development, updating, and
implementation of a plan to address the current and projected needs for
personnel who are qualified in accordance with paragraph (c) of this
section. The plan must identify the personnel needs based on the data
collection and analysis system described in paragraph (a) of this
section and must provide for the coordination and facilitation of
efforts between the designated State unit and institutions of higher
education and professional associations to recruit, prepare, and retain
personnel who are qualified in accordance with paragraph (c) of this
section, including personnel from minority backgrounds and personnel
who are individuals with disabilities.
(c) Personnel standards. (1) The State plan must include the State
agency's policies and describe the procedures the State agency will
undertake to establish and maintain standards to ensure that
professional and paraprofessional personnel needed within the State
unit to carry out this part are appropriately and adequately prepared
and trained, including--
(i) Standards that are consistent with any national or State-
approved or recognized certification, licensing, registration, or other
comparable requirements (including State personnel requirements) that
apply to the profession or discipline in which that category of
personnel is providing vocational rehabilitation services; and
(ii) To the extent those standards are not based on the highest
requirements in the State applicable to that profession or discipline,
the steps the State is currently taking and the steps the State plans
to take to retrain or hire personnel to meet standards that are based
on the highest requirements in the State, including measures to notify
State unit personnel, the institutions of higher education identified
under paragraph (a)(2)(i) of this section, and other public agencies of
these steps and the timelines for taking each step.
(2) As used in this section--
(i) ``Highest requirements in the State applicable to that
profession or discipline'' means the highest entry-level academic
degree or equivalent experience needed for any national or State-
approved or recognized certification, licensing, registration, or other
comparable requirements that apply to that profession or discipline.
The current requirements of all State statutes and regulations of other
agencies in the State applicable to that profession or discipline must
be considered and must be kept on file by the designated State unit and
available to the public.
(ii) ``Profession or discipline'' means a specific occupational
category, including any paraprofessional occupational category, that--
(A) Provides rehabilitation services to individuals with
disabilities;
(B) Has been established or designated by the State; and
(C) Has a specified scope of responsibility.
(d) Staff development. (1) The State plan must include the State
agency's policies and describe the procedures and activities the State
agency will undertake to ensure that all personnel employed by the
State unit receive appropriate and adequate training, including a
description of--
(i) A system of staff development for rehabilitation professionals
and paraprofessionals within the State unit, particularly with respect
to rehabilitation technology; and
(ii) Procedures for acquiring and disseminating to rehabilitation
professionals and paraprofessionals within the designated State unit
significant knowledge from research and other sources, including
procedures for providing training regarding the amendments to the
Rehabilitation Act of 1973 made by the Rehabilitation Act Amendments of
1992.
(2) The specific training areas for staff development must be based
on the needs of each State unit and may include, but are not limited
to, training with respect to the requirements of the Americans with
Disabilities Act, IDEA, and Social Security work incentive programs,
training to facilitate informed choice under this program, and training
to improve the provision of services to culturally diverse populations.
(e) Personnel to address individual communication needs. The State
plan must describe how the State unit--
(1) Includes among its personnel, or obtains the services of,
individuals able to communicate in the native languages of applicants
and eligible individuals who have limited English speaking ability; and
(2) Includes among its personnel, or obtains the services of,
individuals able to communicate with applicants and eligible
individuals in appropriate modes of communication.
(f) Performance evaluation system. The State plan must describe how
the system for evaluating the performance of rehabilitation counselors,
coordinators, and other personnel used in the State unit facilitates,
and in no way impedes, the accomplishment of the purpose and policy of
the program as described in sections 100(a)(2) and 100(a)(3) of the
Act, including the policy of serving, among others, individuals with
the most severe disabilities.
(g) Coordination with personnel development under IDEA. The State
plan must describe the procedures and activities the State agency will
undertake to coordinate its comprehensive system of personnel
development under the Act with personnel development under IDEA.
(Authority: Sections 101 (a)(7) and (a)(35) of the Act; 29 U.S.C.
721 (a)(7) and (35))
Note: Under the Act and the regulations in this part, the State
agency is required to collect and analyze data regarding personnel
needs by type or category of personnel. The personnel data must be
collected and analyzed according to personnel category breakdowns
that are based on the major categories of staff in the State unit.
Similarly, the data from institutions of higher education must be
broken down by type of program to correspond as closely as possible
with the personnel categories of the State unit.
Sec. 361.19 Affirmative action for individuals with disabilities.
The State plan must assure that the State agency takes affirmative
action to employ and advance in employment qualified individuals with
disabilities.
(Authority: Section 101(a)(6)(A) of the Act; 29 U.S.C. 721(a)(6)(A))
Sec. 361.20 State plan development.
(a) Public participation requirements. (1) Plan development and
revisions. The State plan must assure that the State unit conducts
public meetings throughout the State to provide all segments of the
public, including interested groups, organizations, and individuals, an
opportunity to comment on the State plan prior to its
[[Page 64509]]
development and to comment on any revisions to the State plan.
(2) Notice requirements. The State plan must assure that the State
unit, prior to conducting public meetings, provides appropriate and
sufficient notice throughout the State of the meetings in accordance
with--
(i) State law governing public meetings; or
(ii) In the absence of State law governing public meetings,
procedures developed by the State unit in consultation with the State
Rehabilitation Advisory Council.
(3) Plan revisions based on consumer satisfaction surveys. The
State plan must describe the manner in which the State plan will be
revised based on the results of consumer satisfaction surveys conducted
by the State Rehabilitation Advisory Council under Sec. 361.17(h)(3) or
by the State agency if it is an independent commission in accordance
with the requirements of Sec. 361.16.
(b) Special consultation requirements. The State plan must assure
that, as appropriate, the State unit actively consults in the
development and revision of the State plan with the CAP director, the
State Rehabilitation Advisory Council, and, as appropriate, those
Indian tribes, tribal organizations, and native Hawaiian organizations
that represent significant numbers of individuals with disabilities
within the State.
(c) Summary of public comments. The State plan must include a
summary of the public comments on the State plan, including comments on
revisions to the State plan and the State unit's response to those
comments.
(d) Appropriate modes of communication. The State unit shall
provide, through appropriate modes of communication, the notices of the
public meetings, any materials furnished prior to or during the public
meetings, and the approved State plan.
(Authority: Sections 101(a)(20), 101(a)(23), 101(a)(32), and
105(c)(2) of the Act; 29 U.S.C. 721(a)(20), (23), and (32) and
725(c)(2))
Sec. 361.21 Consultations regarding the administration of the State
plan.
(a) The State plan must assure that, in connection with matters of
general policy development and implementation arising in the
administration of the State plan, the State unit seeks and takes into
account the views of--
(1) Individuals who receive vocational rehabilitation services or,
as appropriate, the individuals' representatives;
(2) Personnel working in the field of vocational rehabilitation;
(3) Providers of vocational rehabilitation services;
(4) The CAP director; and
(5) The State Rehabilitation Advisory Council, if the State has a
Council.
(b) The State plan must specifically describe the manner in which
the State unit will take into account the views regarding State policy
and administration of the State plan that are expressed in the consumer
satisfaction surveys conducted by the State Rehabilitation Advisory
Council under Sec. 361.17(h)(3) or by the State agency if it is an
independent commission in accordance with the requirements of
Sec. 361.16(a)(1).
(Authority: Sections 101(a)(18), 101(a)(32), and 105(c)(2) of the
Act; 29 U.S.C. 721(a)(18), 721(a)(32), and 725(c)(2))
Sec. 361.22 Cooperation with agencies responsible for transitioning
students.
(a) Transitioning students who are receiving special education
services. (1) General. The State plan must contain plans, policies, and
procedures that are designed to facilitate the transition of students
who are receiving special education services from the provision of a
free appropriate public education under the responsibility of an
educational agency to the provision of vocational rehabilitation
services under the responsibility of the designated State unit. These
plans, policies, and procedures must be designed to facilitate the
development and accomplishment of long-term rehabilitation goals,
intermediate rehabilitation objectives, and goals and objectives
related to enabling a transitioning student to live independently
before leaving a school setting, to the extent the goals and objectives
are included in an individualized education program of the
transitioning student.
(2) Formal interagency agreement. The State plan must assure that
the State unit enters into formal interagency agreements with the State
education agency and, as appropriate, with local education agencies,
that are responsible for the free appropriate public education of
transitioning students who are receiving special education services.
(i) Formal interagency agreements must, at a minimum, identify--
(A) Policies, practices, and procedures that can be coordinated
between the agencies, including definitions, standards for eligibility,
policies and procedures for making referrals, procedures for outreach
to and identification of youth who are receiving special education
services and are in need of transition services, and procedures and
timeframes for evaluation and follow-up of those transitioning
students; and
(B) The roles of each agency, including provisions for determining
State lead agencies and qualified personnel responsible for transition
services.
(ii) Formal interagency agreements may, as appropriate, identify--
(A) Available resources, including sources of funds for the
development and expansion of services;
(B) The financial responsibility of each agency in providing
services to transitioning students who are receiving special education
services, consistent with State law;
(C) Procedures for resolving disputes between the agencies that are
parties to the agreement; and
(D) All other components necessary to ensure meaningful cooperation
among agencies, including procedures to facilitate the development of
local teams to coordinate the provision of services to individuals,
sharing data, and coordinating joint training of staff in the provision
of transition services.
Note: The following excerpt from page 33 of Senate Report No.
102-357 further clarifies the provision of transition services by
the State vocational rehabilitation agency:
The committee intends that students with disabilities who are
eligible for, and who need, vocational rehabilitation services will
receive those services as soon as possible, consistent with Federal
and State law. These provisions are not intended in any way to shift
the responsibility of service delivery from education to
rehabilitation during the transition years. School officials will
continue to be responsible for providing a free and appropriate
public education as defined by the IEP. The role of the
rehabilitation system is primarily one of planning for the student's
years after leaving school. (S. Rep. No. 357, 102d Cong., 2d. Sess.
33 (1992))
(b) Transitioning students who are not receiving special education
services. The State plan must contain plans, policies, and procedures,
including cooperation with appropriate agencies, designed to ensure
that transitioning students who are not receiving special education
services have access to and can receive vocational rehabilitation
services, if appropriate, and to ensure outreach to and identification
of those individuals.
(Authority: Sections 101(a)(11)(C), 101(a)(24) and 101(a)(30) of the
Act; 29 U.S.C. 721 (a)(11), (a)(24), and (a)(30))
Sec. 361.23 Cooperation with other public agencies.
(a) Coordination of services with vocational education and Javits-
Wagner-O'Day programs. The State plan must assure that specific
arrangements or
[[Page 64510]]
agreements are made for the coordination of services for any individual
who is eligible for vocational rehabilitation services and is also
eligible for services under the Carl D. Perkins Vocational and Applied
Technology Education Act or the Javits-Wagner-O'Day Act.
(b) Cooperation with other Federal, State, and local public
agencies providing services related to the rehabilitation of
individuals with disabilities. (1) The State plan must assure that the
State unit cooperates with other Federal, State, and local public
agencies providing services related to the rehabilitation of
individuals with disabilities, including, as appropriate, establishing
interagency working groups or entering into other interagency
cooperative agreements with, and using the services and facilities of--
(i) Federal agencies providing services related to the
rehabilitation of individuals with disabilities, including the Social
Security Administration, the Office of Workers' Compensation Programs
of the Department of Labor, and the Department of Veterans Affairs; and
(ii) State and local public agencies providing services related to
the rehabilitation of individuals with disabilities, including State
and local public agencies administering the State's social services and
financial assistance programs and other State programs for individuals
with disabilities, such as the State's developmental disabilities
program, veterans programs, health and mental health programs,
education programs (including adult education, higher education, and
vocational education programs), workers' compensation programs, job
training and placement programs, and public employment offices.
(2) Interagency cooperation under paragraph (b)(1) of this section,
to the extent practicable, must provide for training for staff of the
agencies as to the availability, benefits of, and eligibility standards
for vocational rehabilitation services.
(3) Interagency cooperation under paragraph (b)(1) of this section
also must identify policies, practices, and procedures that can be
coordinated among the agencies (particularly definitions, standards for
eligibility, the joint sharing and use of evaluations and assessments,
and procedures for making referrals); identify available resources and
define the financial responsibility of each agency for paying for
necessary services (consistent with State law) and procedures for
resolving disputes between agencies; and include all additional
components necessary to ensure meaningful cooperation and coordination.
(c) Reciprocal referral services with a separate agency for
individuals who are blind. If there is a separate State unit for
individuals who are blind, the State plan must assure that the two
State units establish reciprocal referral services, use each other's
services and facilities to the extent feasible, jointly plan activities
to improve services in the State for individuals with multiple
impairments, including visual impairments, and otherwise cooperate to
provide more effective services, including, if appropriate, entering
into a written cooperative agreement.
(Authority: Sections 101(a)(11) and 101(a)(22) of the Act; 29 U.S.C.
721(a)(11) and 721(a)(22))
Sec. 361.24 Coordination with the Statewide Independent Living
Council.
The State plan must assure that the State unit will coordinate and
establish working relationships with the Statewide Independent Living
Council established under 34 CFR part 364 and with independent living
centers within the State.
(Authority: Section 101(a)(33) of the Act; 29 U.S.C. 721(a)(33))
Sec. 361.25 Statewideness.
The State plan must assure that services provided under the State
plan will be available in all political subdivisions of the State,
unless a waiver of statewideness is requested and approved in
accordance with Sec. 361.26.
(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))
Sec. 361.26 Waiver of statewideness.
(a) Availability. The State unit may provide services in one or
more political subdivisions of the State that increase services or
expand the scope of services that are available statewide under the
State plan if--
(1) The non-Federal share of the cost of these services is met from
funds provided by a local public agency, including funds contributed to
a local public agency by a private agency, organization, or individual;
(2) The services are likely to promote the vocational
rehabilitation of substantially larger numbers of individuals with
disabilities or of individuals with disabilities with particular types
of impairments; and
(3) The State includes in its State plan, and the Secretary
approves, a request for a waiver of the statewideness requirement, in
accordance with the requirements of paragraph (b) of this section.
(b) Request for waiver. The request for a waiver of statewideness
must--
(1) Identify the types of services to be provided;
(2) Contain a written assurance from the local public agency that
it will make available to the State unit the non-Federal share of
funds;
(3) Contain a written assurance that State unit approval will be
obtained for each proposed service before it is put into effect; and
(4) Contain a written assurance that all other State plan
requirements, including a State's order of selection requirements, will
apply to all services approved under the waiver.
(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))
Sec. 361.27 Shared funding and administration of joint programs.
(a) In order to carry out a joint program involving shared funding
and administrative responsibility with another State agency or a local
public agency to provide services to individuals with disabilities, the
designated State unit must request approval from the Secretary in the
State plan.
(b) If a proposed joint program does not comply with the
statewideness requirement in Sec. 361.25, the State unit shall obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))
Sec. 361.28 Third-party cooperative arrangements involving funds from
other public agencies.
(a) If the designated State unit enters into a third-party
cooperative arrangement for providing or administering vocational
rehabilitation services with another State agency or a local public
agency that is furnishing part or all of the non-Federal share, the
State plan must assure that--
(1) The services provided by the cooperating agency are not the
customary or typical services provided by that agency but are new
services that have a vocational rehabilitation focus or existing
services that have been modified, adapted, expanded, or reconfigured to
have a vocational rehabilitation focus;
(2) The services provided by the cooperating agency are only
available to applicants for, or recipients of, services from the
designated State unit;
(3) Program expenditures and staff providing services under the
cooperative arrangement are under the administrative supervision of the
designated State unit; and
[[Page 64511]]
(4) All State plan requirements, including a State's order of
selection, will apply to all services provided under the cooperative
program.
(b) If a third party cooperative agreement does not comply with the
statewideness requirement in Sec. 361.25, the State unit shall obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))
Sec. 361.29 Statewide studies and evaluations.
(a) Statewide studies. The State plan must assure that the State
unit conducts continuing statewide studies to determine the current
needs of individuals with disabilities within the State and the best
methods to meet those needs. The continuing statewide studies, at a
minimum, must include--
(1) A triennial comprehensive assessment, as part of the
development of the State plan, of the rehabilitation needs of
individuals with severe disabilities who reside in the State;
(2) A review of the effectiveness of outreach procedures used to
identify and serve individuals with disabilities who are minorities and
individuals with disabilities who are unserved and underserved by the
vocational rehabilitation system;
(3) An annual analysis of the characteristics of individuals
determined to be ineligible for services and the reasons for the
ineligibility determinations; and
(4) A review of a broad variety of methods to provide, expand, and
improve vocational rehabilitation services to individuals with the most
severe disabilities, including individuals receiving supported
employment services under 34 CFR Part 363.
(b) Annual evaluation. The State plan must assure that the State
unit conducts an annual evaluation of the effectiveness of the State's
vocational rehabilitation program in providing vocational
rehabilitation and supported employment services, especially to
individuals with the most severe disabilities. The annual evaluation
must analyze the extent to which--
(1) The State has achieved the goals and priorities established in
the State plan and annual amendments to the plan;
(2) The State has achieved the objectives of the strategic plan and
revisions to the plan developed under Subpart D of this part;
(3) The State is in compliance with the evaluation standards and
performance indicators established by the Secretary, pursuant to
section 106 of the Act; and
(4) The State unit has adopted and is implementing procedures and
activities to improve staff effectiveness and has made reasonable
progress toward meeting the personnel standards established in
accordance with Sec. 361.18(c).
(c) Reporting requirements. (1) The State plan must describe
annually those changes that have been adopted in policy, in the State
plan and its amendments, and in the strategic plan and its amendments
as a result of the statewide studies and the annual program evaluation.
(2) The State plan must contain an annual description of the
methods used to expand and improve vocational rehabilitation services
to individuals with the most severe disabilities, including the State
unit's criteria for determining which individuals are individuals with
the most severe disabilities.
(3) The State unit shall submit summaries or copies of the
statewide studies and the annual evaluations as attachments to the
State plan.
(d) Role of the State Rehabilitation Advisory Council. The State
plan must assure that the State unit seeks the advice of the State
Rehabilitation Advisory Council, if the State has a Council, regarding
the continuing statewide studies and the annual evaluation and, at the
discretion of the State agency, seeks assistance from the Council in
the preparation and analysis of the studies and evaluation.
(Authority: Sections 101(a)(5) (A) and (B), 101(a)(9)(D), 101(a)(15)
(B) and (D), 101(a)(19), and 105(c)(2) of the Act; 29 U.S.C. 721(a)
(5), (9), (15), and (19) and 725(c)(2))
Sec. 361.30 Services to special groups of individuals with
disabilities.
(a) Civil employees of the United States. The State plan must
assure that vocational rehabilitation services are available to civil
employees of the U.S. Government who are disabled in the line of duty,
under the same terms and conditions applied to other individuals with
disabilities.
(b) Public safety officers. (1) The State plan must assure that
special consideration will be given to those individuals with
disabilities whose disability arose from an impairment sustained in the
line of duty while performing as a public safety officer and the
immediate cause of that impairment was a criminal act, apparent
criminal act, or a hazardous condition resulting directly from the
officer's performance of duties in direct connection with the
enforcement, execution, and administration of law or fire prevention,
firefighting, or related public safety activities.
(2) For the purposes of paragraph (b) of this section, ``special
consideration'' for States under an order of selection means that those
public safety officers who meet the requirements of paragraph (b)(1) of
this section must receive priority for services over other eligible
individuals in the same priority category of the order of selection.
(3) For the purposes of paragraph (b) of this section, ``criminal
act'' means any crime, including an act, omission, or possession under
the laws of the United States, a State, or a unit of general local
government that poses a substantial threat of personal injury,
notwithstanding that by reason of age, insanity, intoxication, or
otherwise, the person engaging in the act, omission, or possession was
legally incapable of committing a crime.
(4) For the purposes of paragraph (b) of this section, ``public
safety officer'' means a person serving the United States or a State or
unit of local government, with or without compensation, in any activity
pertaining to--
(i) The enforcement of the criminal laws, including highway patrol,
or the maintenance of civil peace by the National Guard or the Armed
Forces;
(ii) A correctional program, facility, or institution if the
activity is potentially dangerous because of contact with criminal
suspects, defendants, prisoners, probationers, or parolees;
(iii) A court having criminal or juvenile delinquent jurisdiction
if the activity is potentially dangerous because of contact with
criminal suspects, defendants, prisoners, probationers, or parolees; or
(iv) Firefighting, fire prevention, or emergency rescue missions.
(c) American Indians. (1) The State plan must assure that
vocational rehabilitation services are provided to American Indians
with disabilities residing in the State to the same extent that these
services are provided to other significant groups of individuals with
disabilities residing in the State.
(2) The State plan also must assure that the designated State unit
continues to provide vocational rehabilitation services, including, as
appropriate, services traditionally used by Indian tribes, to American
Indians with disabilities who reside on reservations and are eligible
for services by a special tribal program under 34 CFR part 371.
(Authority: Sections 7, 101(a)(13), 101(a)(20), and 130(b)(3) of the
Act; 29 U.S.C. 706, 721(a)(13), 721(a)(20), and 750(b)(3))
[[Page 64512]]
Sec. 361.31 Utilization of community resources.
The State plan must assure that, in providing vocational
rehabilitation services, public or other vocational or technical
training programs or other appropriate community resources are used to
the maximum extent feasible.
(Authority: Section 101(a)(12)(A) of the Act; 29 U.S.C.
721(a)(12)(A))
Sec. 361.32 Utilization of profitmaking organizations for on-the-job
training in connection with selected projects.
The State plan must assure that the State unit has the authority to
enter into contracts with profitmaking organizations for the purpose of
providing on-the-job training and related programs for individuals with
disabilities under the Projects With Industry program, 34 CFR part 379,
if it has been determined that they are better qualified to provide
needed services than nonprofit agencies, organizations, or programs in
the State.
(Authority: Section 101(a)(21) of the Act; 29 U.S.C. 721(a)(21))
Sec. 361.33 Utilization of community rehabilitation programs.
(a) The State plan must assure that the designated State unit uses
community rehabilitation programs to the maximum extent feasible to
provide vocational rehabilitation services in the most integrated
settings possible, consistent with the informed choices of the
individuals.
(b) The State plan must contain a description of--
(1) The capacity and effectiveness of community rehabilitation
programs, including programs under the Javits-Wagner-O'Day Act, based
on the utilization patterns of those programs; and
(2) The methods used to ensure the appropriate use of community
rehabilitation programs, including methods for entering into agreements
with the operators of those programs and for entering into cooperative
agreements with private nonprofit vocational rehabilitation service
providers.
(Authority: Sections 101(a)(5)(A), 101(a)(12)(B), 101(a)(15)(B),
101(a)(27), and 101(a)(28) of the Act; 29 U.S.C. 721(a) (5), (12),
(15), (27), and (28))
Sec. 361.34 Supported employment plan.
(a) The State plan must assure that the State has an acceptable
plan under 34 CFR part 363 that provides for the use of funds under
that part to supplement funds under this part for the cost of services
leading to supported employment.
(b) The supported employment plan, including annual revisions, must
be submitted as a supplement to the State plan.
(Authority: Sections 101(a)(25) and 635(a) of the Act; 29 U.S.C.
721(a)(25))
Sec. 361.35 Strategic plan.
(a) The State plan must assure that the State--
(1) Has developed and implemented a strategic plan for expanding
and improving vocational rehabilitation services for individuals with
disabilities on a statewide basis in accordance with subpart D of this
part; and
(2) Will use at least 1.5 percent of its allotment under this
program for expansion and improvement activities in accordance with
Sec. 361.73(b).
(b) The strategic plan must be submitted as a supplement to the
State plan.
(Authority: Sections 101(a)(34) and 120 of the Act; 29 U.S.C.
721(a)(34) and 740)
Sec. 361.36 [Reserved]
Sec. 361.37 Establishment and maintenance of information and referral
resources.
(a) General provisions. The State plan must assure that--
(1) The designated State unit will establish and maintain
information and referral programs adequate to ensure that individuals
with disabilities within the State are given accurate information about
State vocational rehabilitation services, independent living services,
vocational rehabilitation services available from other agencies,
organizations, and community rehabilitation programs, and, to the
extent possible, other Federal and State services and programs that
assist individuals with disabilities, including client assistance and
other protection and advocacy programs;
(2) The State unit will refer individuals with disabilities to
other appropriate Federal and State programs that might be of benefit
to them; and
(3) The State unit will use existing information and referral
systems in the State to the greatest extent possible.
(b) Appropriate modes of communication. The State plan further must
assure that information and referral programs use appropriate modes of
communication.
(c) Special Circumstances. If the State unit is operating under an
order of selection for services, the State unit may elect to establish
an expanded information and referral program that includes referral for
job placements for those eligible individuals who are not in the
priority category or categories to receive vocational rehabilitation
services under the State's order of selection. If a State unit elects
to establish this kind of program, the State plan must include--
(1) A description of how the expanded information and referral
program will be established and how it will function, including the
level of commitment of State unit staff and resources;
(2) An assurance that, in carrying out this program, the State unit
will not use case services funds that are needed to provide vocational
rehabilitation services under individualized written rehabilitation
programs for eligible individuals in the priority category or
categories receiving services under the State unit's order of
selection; and
(3) A description of the method to be used by the State unit to
track the results of the expanded information and referral program,
including the State unit's procedures for identifying those eligible
individuals who achieve an employment outcome through participation in
the expanded information and referral program.
(Authority: Section 101(a)(22) of the Act; 29 U.S.C. 721(a)(22))
Sec. 361.38 Protection, use, and release of personal information.
(a) General provisions.
(1) The State plan must assure that the State agency and the State
unit will adopt and implement policies and procedures to safeguard the
confidentiality of all personal information, including photographs and
lists of names. These policies and procedures must assure that--
(i) Specific safeguards protect current and stored personal
information;
(ii) All applicants and eligible individuals and, as appropriate,
those individuals' representatives, service providers, cooperating
agencies, and interested persons are informed through appropriate modes
of communication of the confidentiality of personal information and the
conditions for accessing and releasing this information;
(iii) All applicants or their representatives are informed about
the State unit need to collect personal information and the policies
governing its use, including--
(A) Identification of the authority under which information is
collected;
(B) Explanation of the principal purposes for which the State unit
intends to use or release the information;
(C) Explanation of whether providing requested information to the
State unit is mandatory or voluntary and the
[[Page 64513]]
effects of not providing requested information;
(D) Identification of those situations in which the State unit
requires or does not require informed written consent of the individual
before information may be released; and
(E) Identification of other agencies to which information is
routinely released;
(iv) An explanation of State policies and procedures affecting
personal information will be provided to each individual in that
individual's native language or through the appropriate mode of
communication; and
(v) These policies and procedures provide no fewer protections for
individuals than State laws and regulations.
(2) The State unit may establish reasonable fees to cover
extraordinary costs of duplicating records or making extensive searches
and shall establish policies and procedures governing access to
records.
(b) State program use. All personal information in the possession
of the State agency or the designated State unit must be used only for
the purposes directly connected with the administration of the
vocational rehabilitation program. Information containing identifiable
personal information may not be shared with advisory or other bodies
that do not have official responsibility for administration of the
program. In the administration of the program, the State unit may
obtain personal information from service providers and cooperating
agencies under assurances that the information may not be further
divulged, except as provided under paragraphs (c), (d), and (e) of this
section.
(c) Release to applicants and eligible individuals. (1) Except as
provided in paragraphs (c)(2) and (c)(3) of this section, if requested
in writing by an applicant or eligible individual, the State unit shall
release all requested information in that individual's record of
services to the individual or the individual's representative in a
timely manner.
(2) Medical, psychological, or other information that the State
unit determines may be harmful to the individual may not be released
directly to the individual, but must be provided through a third party
chosen by the individual, which may include, among others, an advocate,
a family member, or a qualified medical or mental health professional.
(3) If personal information has been obtained from another agency
or organization, it may be released only by, or under the conditions
established by, the other agency or organization.
(d) Release for audit, evaluation, and research. Personal
information may be released to an organization, agency, or individual
engaged in audit, evaluation, or research only for purposes directly
connected with the administration of the vocational rehabilitation
program, or for purposes that would significantly improve the quality
of life for applicants and eligible individuals and only if the
organization, agency, or individual assures that--
(1) The information will be used only for the purposes for which it
is being provided;
(2) The information will be released only to persons officially
connected with the audit, evaluation, or research;
(3) The information will not be released to the involved
individual;
(4) The information will be managed in a manner to safeguard
confidentiality; and
(5) The final product will not reveal any personal identifying
information without the informed written consent of the involved
individual or the individual's representative.
(e) Release to other programs or authorities. (1) Upon receiving
the informed written consent of the individual or, if appropriate, the
individual's representative, the State unit may release personal
information to another agency or organization for its program purposes
only to the extent that the information may be released to the involved
individual or the individual's representative and only to the extent
that the other agency or organization demonstrates that the information
requested is necessary for its program.
(2) Medical or psychological information that the State unit
determines may be harmful to the individual may be released if the
other agency or organization assures the State unit that the
information will be used only for the purpose for which it is being
provided and will not be further released to the individual.
(3) The State unit shall release personal information if required
by Federal law or regulations.
(4) The State unit shall release personal information in response
to investigations in connection with law enforcement, fraud, or abuse,
unless expressly prohibited by Federal or State laws or regulations,
and in response to an order issued by a judicial officer.
(5) The State unit also may release personal information in order
to protect the individual or others if the individual poses a threat to
his or her safety or to the safety of others.
(Authority: Sections 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C.
711(c) and 721(a)(6)(A))
Sec. 361.39 State-imposed requirements.
The State plan must assure that the designated State unit
identifies upon request those regulations and policies relating to the
administration or operation of its vocational rehabilitation program
that are State-imposed, including any regulations or policy based on
State interpretation of any Federal law, regulations, or guideline.
(Authority: Section 17 of the Act; 29 U.S.C. 716)
Sec. 361.40 Reports.
The State plan must assure that the State unit--
(a) Will submit reports in the form and detail and at the time
required by the Secretary, including reports required under sections
13, 14, and 101(a)(10) of the Act; and
(b) Will comply with any requirements necessary to ensure the
correctness and verification of those reports.
(Authority: Section 101(a)(10) of the Act; 29 U.S.C. 721(a)(10))
State Plan Content: Provision and Scope of Services
Sec. 361.41 Processing referrals and applications.
(a) Referrals. The State plan must assure that the designated State
unit has established and implemented standards for the prompt and
equitable handling of referrals of individuals for vocational
rehabilitation services. The standards must include timelines for
making good faith efforts to inform these individuals of application
requirements and to gather information necessary to initiate an
assessment for determining eligibility and priority for services.
(b) Applications. (1) The State plan must assure that once an
individual has submitted an application for vocational rehabilitation
services, an eligibility determination will be made within 60 days,
unless--
(i) Exceptional and unforeseen circumstances beyond the control of
the agency preclude a determination within 60 days and the individual
is so notified and agrees that an extension of time is warranted; or
(ii) An extended evaluation is necessary, in accordance with
Sec. 361.42(d).
(2) An individual is considered to have submitted an application
when the individual or the individual's representative, as appropriate,
has completed and signed an agency application form or has otherwise
requested services and has provided
[[Page 64514]]
information necessary to initiate an assessment to determine
eligibility and priority for services.
(3) The designated State unit shall ensure that its application
forms are widely available throughout the State.
(Authority: Sections 101(a)(6)(A) and 102(a)(5)(A) of the Act; 29
U.S.C. 721(a)(6)(A) and 722(a)(5)(A))
Sec. 361.42 Assessment for determining eligibility and priority for
services.
The State plan must assure that, in order to determine whether an
individual is eligible for vocational rehabilitation services and the
individual's priority under an order of selection for services (if the
State is operating under an order of selection), the designated State
unit will conduct an assessment for determining eligibility and
priority for services. The assessment must be conducted in the most
integrated setting possible, consistent with the individual's needs and
informed choice, and in accordance with the following provisions:
(a) Eligibility requirements. (1) Basic requirements. The State
plan must assure that the State unit's determination of an applicant's
eligibility for vocational rehabilitation services is based only on the
following requirements:
(i) A determination that the applicant has a physical or mental
impairment, as determined by qualified personnel licensed or certified
in accordance with State law or regulation.
(ii) A determination that the applicant's physical or mental
impairment constitutes or results in a substantial impediment to
employment for the applicant.
(iii) A determination, in accordance with paragraph (a)(2) of this
section, that the applicant can benefit in terms of an employment
outcome from the provision of vocational rehabilitation services.
(iv) A determination that the applicant requires vocational
rehabilitation services to prepare for, enter into, engage in, or
retain gainful employment consistent with the applicant's strengths,
resources, priorities, concerns, abilities, capabilities, and informed
choice.
(2) Presumption of benefit. The State plan must assure that the
designated State unit will presume that an applicant who meets the
eligibility requirements in paragraphs (a)(1) (i) and (ii) of this
section can benefit in terms of an employment outcome unless it
determines, based on clear and convincing evidence, that the applicant
is incapable of benefitting in terms of an employment outcome from
vocational rehabilitation services.
(3) Limited presumption for Social Security beneficiaries. The
State plan must assure that, if an applicant has appropriate evidence,
such as an award letter, that establishes the applicant's eligibility
for Social Security benefits under Title II or Title XVI of the Social
Security Act, the designated State unit will presume that the
applicant--
(i) Meets the eligibility requirements in paragraphs (a)(1) (i) and
(ii) of this section; and
(ii) Has a severe physical or mental impairment that seriously
limits one or more functional capacities in terms of an employment
outcome.
(b) Prohibited factors. The State plan must assure that--
(1) No duration of residence requirement is imposed that excludes
from services any applicant who is present in the State;
(2) No applicant or group of applicants is excluded or found
ineligible solely on the basis of the type of disability;
(3) The eligibility requirements are applied without regard to the
age, gender, race, color, creed, or national origin of the applicant;
and
(4) The eligibility requirements are applied without regard to the
particular service needs or anticipated cost of services required by an
applicant or the income level of an applicant or applicant's family.
(c) Review and assessment of data for eligibility determination.
Except as provided in paragraph (d) of this section, the designated
State unit shall base its determination of each of the basic
eligibility requirements in paragraph (a) of this section on--
(1) A review and assessment of existing data, including counselor
observations, education records, information provided by the individual
or the individual's family, information used by the Social Security
Administration, and determinations made by officials of other agencies;
and
(2) To the extent existing data do not describe the current
functioning of the individual or are unavailable, insufficient, or
inappropriate to make an eligibility determination, an assessment of
additional data resulting from the provision of vocational
rehabilitation services, including assistive technology devices and
services and worksite assessments, that are necessary to determine
whether an individual is eligible.
(d) Extended evaluation for individuals with severe disabilities.
(1) Prior to any determination that an individual with a severe
disability is incapable of benefitting from vocational rehabilitation
services in terms of an employment outcome because of the severity of
that individual's disability, the State unit shall conduct an extended
evaluation to determine whether or not there is clear and convincing
evidence to support such a determination.
(2) During the extended evaluation period, which may not exceed 18
months, vocational rehabilitation services must be provided in the most
integrated setting possible, consistent with the informed choice of the
individual.
(3) During the extended evaluation period, the State unit shall
develop a written plan for determining eligibility and for determining
the nature and scope of services required to achieve an employment
outcome. The State unit may provide during this period only those
services that are necessary to make these two determinations.
(4) The State unit shall assess the individual's progress as
frequently as necessary, but at least once every 90 days, during the
extended evaluation period.
(5) The State unit shall terminate extended evaluation services at
any point during the 18-month extended evaluation period if the State
unit determines that--
(i) There is sufficient evidence to conclude that the individual
can benefit from the provision of vocational rehabilitation services in
terms of an employment outcome; or
(ii) There is clear and convincing evidence that the individual is
incapable of benefitting from vocational rehabilitation services in
terms of an employment outcome.
(e) Data for determination of priority for services under an order
of selection. If the State unit is operating under an order of
selection for services, as provided in Sec. 361.36, the State unit
shall base its priority assignments on--
(1) A review of the data that was developed under paragraphs (c)
and (d) of this section to make the eligibility determination; and
(2) An assessment of additional data, to the extent necessary.
(Authority: Sections 7(22)(A)(ii), 7(22)(C)(iii), 101(a)(9)(A),
101(a)(14), 101(a)(31), 102(a)(1), 102(a)(2), 102(a)(3), and
102(a)(4) of the Act; 29 U.S.C. 706(22)(A)(ii), 706(22)(C)(iii),
721(a)(9)(a), 721(a)(14), 721(a)(31), 722(a)(1), 722(a)(2),
722(a)(3), and 722(a)(4))
Note: ``Clear and convincing evidence'' means that the
designated State unit must have a high degree of certainty before it
can conclude that an individual is incapable of benefitting from
services in terms of an employment outcome. The ``clear and
convincing'' standard constitutes the highest standard used in our
civil system of law and
[[Page 64515]]
is to be individually applied on a case-by-case basis. The term
``clear'' means unequivocal. Given these requirements, a review of
existing information generally would not provide clear and
convincing evidence. For example, the use of an intelligence test
result alone would not constitute clear and convincing evidence.
Clear and convincing evidence might include a description of
assessments, including situational assessments and supported
employment assessments, from service providers who have concluded
that they would be unable to meet the individual's needs due to the
severity of the individual's disability. The demonstration of
``clear and convincing evidence'' must include, if appropriate, a
functional assessment of skill development activities, with any
necessary supports (including assistive technology), in real life
settings.
Note: Under the statute and paragraph (a)(1)(iv) of Sec. 361.42,
an individual with a disability is not eligible for vocational
rehabilitation services if the individual does not require the
services to prepare for, enter, engage in, or retain gainful
employment. The following examples illustrate how an individual with
a disability may or may not meet this final eligibility criterion.
The examples are purely illustrative, do not address all possible
circumstances, and are not intended to substitute for individual
counselor judgment. State units shall determine eligibility for
vocational rehabilitation services on a case-by-case basis, taking
into account those individual circumstances relating to an
individual's strengths, resources, priorities, concerns, abilities,
and capabilities.
Example: An individual with a disability who is not currently
employed and is unable to obtain employment consistent with the
individual's abilities and capabilities would likely meet this
eligibility criterion.
Example: An individual with a disability who is already employed
in a setting consistent with the individual's abilities and
capabilities, but who desires to change jobs for reasons unrelated
to the individual's disability, would likely not meet this
eligibility criterion.
Example: An individual with a disability who is already
employed, but not in a setting consistent with the individual's
abilities and capabilities, and who desires to obtain new employment
that is consistent with his or her abilities and capabilities, would
meet this eligibility criterion.
Example: An individual with a disability who is currently
employed, but is in jeopardy of losing that employment due to
disability-related factors (e.g., the individual's disability is
progressive and results in additional functional limitations), would
meet this eligibility criterion.
Example: An individual with a disability who was previously
employed in a setting consistent with the individual's abilities and
capabilities, who lost that employment for reasons unrelated to the
disability, and whose job skills are transferable would likely not
meet this eligibility criterion.
Example: An individual with a disability whose disability is of
a temporary nature (e.g., an allowed Social Security beneficiary who
has been assigned a diaried date (date of a follow-up review to
determine whether the individual has recovered medically) because
his or her disability is expected to improve within 12 months) might
not meet this eligibility criterion.
Sec. 361.43 Procedures for ineligibility determination.
The State plan must assure that if the State unit determines that
an applicant is ineligible for vocational rehabilitation services or
determines that an individual receiving services under an
individualized written rehabilitation program is no longer eligible for
services, the State unit shall--
(a) Make the determination only after providing an opportunity for
full consultation with the individual or, as appropriate, with the
individual's representative;
(b) Inform the individual in writing, or by appropriate modes of
communication, of the ineligibility determination, including the
reasons for that determination, the requirements under this section,
and the means by which the individual may express and seek remedy for
any dissatisfaction, including the procedures for review of a
determination by the rehabilitation counselor or coordinator in
accordance with Sec. 361.57;
(c) Provide the individual with a description of services available
from a client assistance program established under 34 CFR part 370 and
information on how to contact that program; and
(d) Review the ineligibility determination--
(1) Within 12 months, unless the individual has refused the review,
is no longer present in the State, or the individual's whereabouts are
unknown; or
(2) In the case of an ineligibility determination based on a
determination that the individual is incapable of achieving an
employment outcome, within 12 months in accordance with paragraph
(d)(1) of this section and annually thereafter if requested by the
individual or, if appropriate, by the individual's representative.
(Authority: Sections 101(a)(9)(D), 102(a)(6), and 102(c) of the Act;
29 U.S.C. 721(a)(9), 722(a)(6), and 722(c))
Sec. 361.44 Closure without eligibility determination.
The State plan must assure that the State unit may not close an
applicant's case prior to making an eligibility determination unless
the applicant declines to participate in, or is unavailable to complete
an assessment for determining eligibility and priority for services,
and the State unit has made a reasonable number of attempts to contact
the applicant or, if appropriate, the applicant's representative to
encourage the applicant's participation.
(Authority: Sections 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C.
711(c) and 721(a)(6))
Sec. 361.45 Development of the individualized written rehabilitation
program.
(a) Purpose. The State plan must assure that the State unit
conducts an assessment for determining vocational rehabilitation needs
for each eligible individual or, if the State is operating under an
order of selection, for each eligible individual to whom the State is
able to provide services. The purpose of this assessment is to
determine the long-term vocational goal, intermediate rehabilitation
objectives, and the nature and scope of vocational rehabilitation
services to be included in the IWRP, which must be designed to achieve
an employment outcome that is consistent with the individual's unique
strengths, priorities, concerns, abilities, capabilities, and career
interests.
(b) Procedural requirements. The State plan must assure that--
(1) The IWRP is developed jointly, agreed to, and signed by the
vocational rehabilitation counselor or coordinator and the individual
or, as appropriate, the individual's representative within the
framework of a counseling and guidance relationship;
(2) The State unit has established and implemented standards for
the prompt development of IWRPs for the individuals identified under
paragraph (a) of this section, including timelines that take into
consideration the needs of the individual;
(3) The State unit advises each individual or, as appropriate, the
individual's representative of all State unit procedures and
requirements affecting the development and review of an IWRP, including
the availability of appropriate modes of communication;
(4) In developing an IWRP for a transitioning student, the State
unit considers the student's individualized education program;
(5) The State unit reviews the IWRP with the individual or, as
appropriate, the individual's representative as often as necessary, but
at least once each year to assess the individual's progress in meeting
the objectives identified in the IWRP;
(6) The State unit incorporates into the IWRP any revisions that
are necessary to reflect changes in the individual's vocational goal,
intermediate objectives, or vocational rehabilitation needs, after
obtaining the agreement and signature of the individual or, as
appropriate, the
[[Page 64516]]
agreement and signature of the individual's representative; and
(7) The State unit promptly provides each individual or, as
appropriate, the individual's representative, a copy of the IWRP and
its amendments in the native language, or appropriate mode of
communication, of the individual or, as appropriate, of the
individual's representative.
(c) Data for preparing the IWRP.
(1) Preparation without comprehensive assessment. To the extent
possible, the vocational goal, intermediate objectives, and the nature
and scope of rehabilitation services to be included in the individual's
IWRP must be determined based on the data used for the assessment of
eligibility and priority for services under Sec. 361.42.
(2) Preparation based on comprehensive assessment.
(i) If additional data are necessary to prepare the IWRP, the
designated State unit shall conduct a comprehensive assessment of the
unique strengths, resources, priorities, interests, and needs,
including the need for supported employment services of an eligible
individual, in the most integrated setting possible, consistent with
the informed choice of the individual.
(ii) The comprehensive assessment must be limited to information
that is necessary to identify the rehabilitation needs of the
individual and develop the IWRP and may, to the extent needed,
include--
(A) An analysis of pertinent medical, psychiatric, psychological,
neuropsychological, and other pertinent vocational, educational,
cultural, social, recreational, and environmental factors, and related
functional limitations, that affect the employment and rehabilitation
needs of the individual;
(B) An analysis of the individual's personality, career interests,
interpersonal skills, intelligence and related functional capacities,
educational achievements, work experience, vocational aptitudes,
personal and social adjustments, and employment opportunities;
(C) An appraisal of the individual's patterns of work behavior and
services needed to acquire occupational skills and to develop work
attitudes, work habits, work tolerance, and social and behavior
patterns suitable for successful job performance; and
(D) An assessment, through provision of rehabilitation technology
services, of the individual's capacities to perform in a work
environment, including in an integrated setting, to the maximum extent
feasible and consistent with the individual's informed choice.
(iii) In preparing a comprehensive assessment, the State unit shall
use, to the maximum extent possible and appropriate and in accordance
with confidentiality requirements, existing information, including
information that is provided by the individual, the family of the
individual, and education agencies.
(Authority: Sections 7(22)(B), 102(b)(1)(A), and 102(b)(2); 29
U.S.C. 706(5), 721(a)(9), 722, and 723(a)(1))
Sec. 361.46 Content of the individualized written rehabilitation
program.
(a) General requirements. The State plan must assure that each IWRP
includes, as appropriate, statements concerning--
(1) The specific long-term vocational goal, which must be based on
the assessment for determining vocational rehabilitation needs,
including the individual's career interests, and must be, to the extent
appropriate and consistent with the informed choice of the individual,
in an integrated setting;
(2) The specific and measurable intermediate rehabilitation
objectives related to the attainment of the long-term vocational goal,
based on the assessment for determining vocational rehabilitation needs
and consistent with the informed choice of the individual;
(3) The specific rehabilitation services under Sec. 361.48 to be
provided to achieve the established intermediate rehabilitation
objectives, including, if appropriate, rehabilitation technology
services and on-the-job and related personal assistance services;
(4) The projected dates for the initiation of each vocational
rehabilitation service, the anticipated duration of each service, and
the projected date for the achievement of the individual's vocational
goal;
(5) A procedure and schedule for periodic review and evaluation of
progress toward achieving intermediate rehabilitation objectives based
upon objective criteria and a record of these reviews and evaluations;
(6) How, in the words of the individual or, as appropriate, in the
words of the individual's representative, the individual was--
(i) Informed about and involved in choosing among alternative
goals, objectives, services, providers, and methods used to procure or
provide services; and
(ii) Provided information regarding the availability and
qualifications of alternative providers of services;
(7) The terms and conditions for the provision of vocational
rehabilitation services, including--
(i) The responsibilities of the individual in implementing the
IWRP;
(ii) The extent of the individual's participation in the cost of
services;
(iii) The extent to which goods and services will be provided in
the most integrated settings possible, consistent with the informed
choices of the individual;
(iv) The extent to which comparable services and benefits are
available to the individual under any other program; and
(v) The entity or entities that will provide the services and the
process used to provide or procure the services;
(8) The rights of the individual under this part and the means by
which the individual may express and seek remedy for any
dissatisfaction, including the opportunity for a review of
rehabilitation counselor or coordinator determinations under
Sec. 361.57;
(9) The availability of a client assistance program established
under 34 CFR part 370; and
(10) The basis on which the individual has been determined to have
achieved an employment outcome.
(b) Supported employment placements. The State plan must assure
that the IWRP for individuals with the most severe disabilities for
whom a vocational goal in a supported employment setting has been
determined to be appropriate will also contain--
(1) A description of the supported employment services to be
provided by the State unit; and
(2) A description of the extended services needed and
identification of the source of extended services or, in the event that
identification of the source is not possible at the time the IWRP is
developed, a statement explaining the basis for concluding that there
is a reasonable expectation that services will become available.
(c) Post-employment services. The State plan must assure that the
IWRP for each individual contains statements concerning--
(1) The expected need for post-employment services, based on an
assessment during the development of the IWRP;
(2) A reassessment of the need for post-employment services prior
to the determination that the individual has achieved an employment
outcome;
(3) A description of the terms and conditions for the provision of
any post-employment services, including the anticipated duration of
those services, subsequent to the achievement of an employment outcome
by the individual; and
[[Page 64517]]
(4) If appropriate, a statement of how post-employment services
will be provided or arranged through cooperative agreements with other
service providers.
(d) Coordination of services for transitioning students. The State
plan must assure that the IWRP for a transitioning student is
coordinated with the individualized education program (IEP) for that
individual in terms of the goals, objectives, and services identified
in the IEP.
(e) Ineligibility. The State plan must assure that the decision
that an individual is not capable of achieving an employment outcome
and is no longer eligible to receive services under an IWRP is made in
accordance with the requirements in Sec. 361.43. The decision, and the
reasons on which the decision was based, must be included as an
amendment to the IWRP.
(Authority: Sections 101(a)(9), 102(b)(1), 102(c), and 635(b)(6) of
the Act; 29 U.S.C. 721(a)(9), 722, and 795n)
Sec. 361.47 Record of services.
The State plan must assure that the designated State unit maintains
for each applicant or eligible individual a record of services that
includes, to the extent pertinent, the following documentation:
(a) If an applicant has been determined to be an eligible
individual, documentation supporting that determination in accordance
with the requirements in Sec. 361.42.
(b) If an applicant has been determined to be ineligible,
documentation supporting that determination in accordance with the
requirements of Sec. 361.43.
(c) Documentation supporting the determination that an individual
has a severe disability or a most severe disability.
(d) If an individual with a severe disability requires an extended
evaluation in order to determine whether the individual is an eligible
individual, documentation supporting the need for an extended
evaluation, documentation supporting the periodic assessments conducted
during the extended evaluation, and the written plan developed during
the extended evaluation, in accordance with the requirements in
Sec. 361.42(d).
(e) The IWRP, and any amendments to the IWRP, containing the
information required under Sec. 361.46.
(f) In accordance with Sec. 361.45(a), documentation supporting the
development of the long-term vocational goal, intermediate
rehabilitation objectives, and nature and scope of services included in
the individual's IWRP and, for individuals who are transitioning
students, in the individual's IEP.
(g) In the event that an individual's IWRP provides for services or
a job placement in a non-integrated setting, a justification for that
non-integrated setting.
(h) Documentation of the reason for terminating services to an
individual and, if an individual has achieved an employment outcome,
the basis on which the requirements of Sec. 361.56 were determined to
be met.
(i) Documentation concerning any action and decision resulting from
a request by an individual for review of a rehabilitation counselor or
coordinator determination under Sec. 361.57.
(Authority: Sections 101(a)(6) and 101(a)(9) of the Act; 29 U.S.C.
721(a)(6) and 721(a)(9))
Sec. 361.48 Scope of vocational rehabilitation services for
individuals with disabilities.
(a) The State plan must assure that, as appropriate to the
vocational rehabilitation needs of each individual and consistent with
each individual's informed choice, the following vocational
rehabilitation services are available:
(1) Assessment for determining eligibility and priority for
services in accordance with Sec. 361.42.
(2) Assessment for determining vocational rehabilitation needs in
accordance with Sec. 361.45.
(3) Vocational counseling and guidance.
(4) Referral and other services necessary to help applicants and
eligible individuals secure needed services from other agencies and to
advise those individuals about client assistance programs established
under 34 CFR part 370.
(5) Physical and mental restoration services in accordance with the
definition of that term in Sec. 361.5(b)(35).
(6) Vocational and other training services, including personal and
vocational adjustment training, books, tools, and other training
materials, except that no training or training services in an
institution of higher education (universities, colleges, community or
junior colleges, vocational schools, technical institutes, or hospital
schools of nursing) may be paid for with funds under this part unless
maximum efforts have been made by the State unit to secure grant
assistance in whole or in part from other sources to pay for that
training.
(7) Maintenance, in accordance with the definition of that term in
Sec. 361.5(b)(31).
(8) Transportation in connection with the rendering of any
vocational rehabilitation service and in accordance with the definition
of that term in Sec. 361.5(b)(50).
(9) Vocational rehabilitation services to family members of an
applicant or eligible individual if necessary to enable the applicant
or eligible individual to achieve an employment outcome.
(10) Interpreter services for individuals who are deaf and tactile
interpreting services for individuals who are deaf-blind.
(11) Reader services, rehabilitation teaching services, and
orientation and mobility services for individuals who are blind.
(12) Recruitment and training services to provide new employment
opportunities in the fields of rehabilitation, health, welfare, public
safety, law enforcement, and other appropriate public service
employment.
(13) Job search and placement assistance and job retention
services.
(14) Supported employment services in accordance with the
definition of that term in Sec. 361.5(b)(46).
(15) Personal assistance services in accordance with the definition
of that term in Sec. 361.5(b)(34).
(16) Post-employment services in accordance with the definition of
that term in Sec. 361.5(b)(37).
(17) Occupational licenses, tools, equipment, initial stocks, and
supplies.
(18) Rehabilitation technology in accordance with the definition of
that term in Sec. 361.5(b)(39), including vehicular modification,
telecommunications, sensory, and other technological aids and devices.
(19) Transition services in accordance with the definition of that
term in Sec. 361.5(b)(47).
(20) Other goods and services determined necessary for the
individual with a disability to achieve an employment outcome.
(b) The State plan also must describe annually--
(1) The manner in which a broad range of rehabilitation technology
services will be provided at each stage of the rehabilitation process
and on a statewide basis;
(2) The training that will be provided to vocational rehabilitation
counselors, client assistance personnel, and other related services
personnel on the provision of rehabilitation technology services; and
(3) The manner in which on-the-job and other related personal
assistance services will be provided to assist individuals while they
are receiving vocational rehabilitation services, including a
description of strategies for developing statewide capacity to provide
those services to an increasing number of individuals to improve their
employment potential.
[[Page 64518]]
(Authority: Sections 101(a)(5)(C), 101(a)(26), and 103(a) of the
Act; 29 U.S.C. 721(a)(5)(C), 721(a)(26), and 723(a))
Sec. 361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
(a) The State plan may also provide for the following vocational
rehabilitation services for the benefit of groups of individuals with
disabilities:
(1) The establishment, development, or improvement of a public or
other nonprofit community rehabilitation program that is used to
provide services that promote integration and competitive employment,
including under special circumstances, the construction of a facility
for a public or nonprofit community rehabilitation program. Examples of
``special circumstances'' include the destruction by natural disaster
of the only available center serving an area or a State determination
that construction is necessary in a rural area because no other public
agencies or private nonprofit organizations are currently able to
provide services to individuals.
(2) Telecommunications systems that have the potential for
substantially improving vocational rehabilitation service delivery
methods and developing appropriate programming to meet the particular
needs of individuals with disabilities, including telephone,
television, satellite, tactile-vibratory devices, and similar systems,
as appropriate.
(3) Special services to provide recorded material for individuals
who are blind, captioned television, films or video cassettes for
individuals who are deaf, tactile materials for individuals who are
deaf-blind, and other special services that provide information through
tactile, vibratory, auditory, and visual media.
(4) Technical assistance and support services, such as job site
modification and other reasonable accommodations, to businesses that
are not subject to Title I of the Americans with Disabilities Act of
1990 and that are seeking to employ individuals with disabilities.
(5) In the case of small business enterprises operated by
individuals with the most severe disabilities under the supervision of
the State unit, including enterprises established under the Randolph-
Sheppard program, management services and supervision, initial stocks
and supplies, and initial operating expenses, in accordance with the
following requirements:
(i) ``Management services and supervision'' includes inspection,
quality control, consultation, accounting, regulating, in-service
training, and related services provided on a systematic basis to
support and improve small business enterprises operated by individuals
with the most severe disabilities. ``Management services and
supervision'' may be provided throughout the operation of the small
business enterprise.
(ii) ``Initial stocks and supplies'' includes those items necessary
to the establishment of a new business enterprise during the initial
establishment period, which shall not exceed six months.
(iii) Costs of establishing a small business enterprise may include
operational costs during the initial establishment period, which shall
not exceed six months.
(iv) If the State plan provides for these services, it must contain
an assurance that only individuals with the most severe disabilities
will be selected to participate in this supervised program.
(v) If the State plan provides for these services and the State
unit chooses to set aside funds from the proceeds of the operation of
the small business enterprises, the State plan also must assure that
the State unit maintains a description of the methods used in setting
aside funds and the purposes for which funds are set aside. Funds may
be used only for small business enterprises purposes, and benefits that
are provided to operators from set-aside funds must be provided on an
equitable basis.
(6) Other services that promise to contribute substantially to the
rehabilitation of a group of individuals but that are not related
directly to the IWRP of any one individual. Examples of those other
services might include the purchase or lease of a bus to provide
transportation to a group of applicants or eligible individuals or the
purchase of equipment or instructional materials that would benefit a
group of applicants or eligible individuals.
(b) If the State plan provides for vocational rehabilitation
services for groups of individuals, the State plan must assure that the
designated State unit maintains information to ensure the proper and
efficient administration of those services in the form and detail and
at the time required by the Secretary, including the types of services
provided, the costs of those services, and, to the extent feasible,
estimates of the numbers of individuals benefitting from those
services.
(Authority: Section 103(b) of the Act; 29 U.S.C. 711(c), 723(b),
721(a)(6))
Sec. 361.50 Written policies governing the provision of services.
The State plan must assure that the State unit develops and
maintains written policies covering the nature and scope of each of the
vocational rehabilitation services specified in Sec. 361.48 and
Sec. 361.49 and the criteria under which each service is provided. The
policies must ensure that the provision of services is based on the
rehabilitation needs of each individual as identified in that
individual's IWRP. The written policies may not establish any arbitrary
limits on the nature and scope of vocational rehabilitation services to
be provided to the individual to achieve an employment outcome. The
policies must be developed in accordance with the following provisions:
(a) Out-of-State services. (1) The State unit may establish a
preference for in-State services, provided that the preference does not
effectively deny an individual a necessary service. If the individual
chooses an out-of-State service at a higher cost than an in-State
service, if either service would meet the individual's rehabilitation
needs, the designated State unit is not responsible for those costs in
excess of the cost of the in-State service.
(2) The State unit may not establish an absolute prohibition on the
provision of out-of-State services.
(b) Payment for services. (1) The State unit shall establish and
maintain written policies to govern the rates of payment for all
purchased vocational rehabilitation services.
(2) The State unit may establish a reasonable fee schedule designed
to ensure the lowest reasonable cost to the program for each service,
provided that the schedule is--
(i) Not so low as to effectively deny an individual a necessary
service; and
(ii) Not absolute and permits exceptions so that individual needs
can be addressed.
(3) The State unit may not place absolute dollar limits on specific
service categories or on the total services provided to an individual.
(c) Duration of services. (1) The State unit may establish
reasonable time periods for the provision of services provided that the
time periods are--
(i) Not so short as to effectively deny an individual a necessary
service; and
(ii) Not absolute and permit exceptions so that individual needs
can be addressed.
(2) The State unit may not establish absolute time limits on the
provision of specific services or on the provision of services to an
individual. The duration of each service needed by an individual must
be determined on an individual basis and reflected in that individual's
IWRP.
[[Page 64519]]
(d) Authorization of services. The State unit shall establish
policies related to the timely authorization of services, including
conditions under which verbal authorization can be given.
(Authority: Sections 12(c), 12(e)(2)(A), and 101(a)(6) of the Act
and 29 U.S.C. 711(c), 711(e)(2)(A), and 721(a)(6))
Sec. 361.51 Written standards for facilities and providers of
services.
The State plan must assure that the designated State unit
establishes, maintains, makes available to the public, and implements
written minimum standards for the various types of facilities and
providers of services used by the State unit in providing vocational
rehabilitation services, in accordance with the following requirements:
(a) Accessibility of facilities. Any facility in which vocational
rehabilitation services are provided must be accessible to individuals
receiving services and must comply with the requirements of the
Architectural Barriers Act of 1968, the Uniform Accessibility Standards
and their implementing regulations in 41 CFR part 101, subpart 101-
19.6, the American National Standards Institute, No. A117.1-1986, the
Americans with Disabilities Act of 1990, and section 504 of the Act.
(b) Personnel standards. (1) Qualified personnel. Providers of
vocational rehabilitation services shall use qualified personnel, in
accordance with any applicable national or State-approved or recognized
certification, licensing, registration or other comparable requirements
(including State personnel requirements) that apply to the profession
or discipline in which that category of personnel is providing
vocational rehabilitation services.
(2) Affirmative action. Providers of vocational rehabilitation
services shall take affirmative action to employ and advance in
employment qualified individuals with disabilities.
(3) Special communication needs personnel. Providers of vocational
rehabilitation services shall--
(i) Include among their personnel, or obtain the services of,
individuals able to communicate in the native languages of applicants
and eligible individuals who have limited English speaking ability; and
(ii) Ensure that appropriate modes of communication for all
applicants and eligible individuals are used.
(c) Fraud, waste, and abuse. Providers of vocational rehabilitation
services shall have adequate and appropriate policies and procedures to
prevent fraud, waste, and abuse.
(Authority: Sections 12(e)(2) (B), (D), and (E) and 101(a)(6)(B) of
the Act; 29 U.S.C. 711(e) and 721(a)(6)(B))
Sec. 361.52 Opportunity to make informed choices regarding the
selection of services and providers.
The State plan must describe the manner in which the State unit
will provide each applicant, including individuals who are receiving
services during an extended evaluation, and each eligible individual
the opportunity to make informed choices throughout the vocational
rehabilitation process in accordance with the following requirements:
(a) Each State unit, in consultation with its State Rehabilitation
Advisory Council, if it has one, shall develop and implement policies
and procedures that enable each individual to make an informed choice
with regard to the selection of a long-term vocational goal,
intermediate rehabilitation objectives, vocational rehabilitation
services, including assessment services, and service providers.
(b) In developing an individual's IWRP, the State unit shall
provide the individual, or assist the individual in acquiring,
information necessary to make an informed choice about the specific
services, including the providers of those services, that are needed to
achieve the individual's vocational goal. This information must
include, at a minimum, information relating to the cost, accessibility,
and duration of potential services, the level of consumer satisfaction
with those services, the qualifications of potential service providers,
the types of services offered by those providers, and the degree to
which services are provided in integrated settings.
(c) In providing, or assisting the individual in acquiring, the
information required under paragraph (b) of this section, the State
unit may use, but is not limited to, the following methods or sources
of information:
(1) State or regional lists of services and service providers.
(2) Periodic consumer satisfaction surveys and reports.
(3) Referrals to other consumers, local consumer groups, or
disability advisory councils qualified to discuss the services or
service providers.
(4) Relevant accreditation, certification, or other information
relating to the qualifications of service providers.
(Authority: Sections 12(e)(1) and 12(e)(2)(C) of the Act; 29 U.S.C.
711(e))
Sec. 361.53 Availability of comparable services and benefits.
(a) The State plan must assure that--
(1) Prior to providing any vocational rehabilitation services to an
eligible individual, or to members of the individual's family, except
those services listed in paragraph (b) of this section, the State unit
shall determine whether comparable services and benefits exist under
any other program and whether those services and benefits are available
to the individual;
(2) If comparable services or benefits exist under any other
program and are available to the eligible individual within a
reasonable period of time so that the intermediate rehabilitation
objectives of the individual's IWRP can be met, the State unit shall
use those comparable services or benefits to meet, in whole or in part,
the cost of vocational rehabilitation services; and
(3) If comparable services or benefits exist under any other
program, but are not available to the individual within a reasonable
period of time, the State unit shall provide vocational rehabilitation
services until those comparable services and benefits become available.
(b) A prior determination of the availability of comparable
services and benefits is not required in connection with the provision
of any of the following services:
(1) Assessment for determining eligibility and priority for
services.
(2) Assessment for determining vocational rehabilitation needs.
(3) Vocational counseling, guidance, and referral services.
(4) Vocational and other training services, such as personal and
vocational adjustment training, books (including alternative format
books accessible by computer and taped books), tools, and other
training materials in accordance with Sec. 361.48(a)(6).
(5) Placement services.
(6) Rehabilitation technology.
(7) Post-employment services consisting of the services listed
under paragraphs (b) (1) through (6) of this section.
(c) The requirements of paragraph (a) of this section also do not
apply if--
(1) The determination of the availability of comparable services
and benefits under any other program would delay the provision of
vocational rehabilitation services to any individual who is determined
to be at extreme medical risk, based on medical evidence provided by an
appropriate qualified medical professional; or
(2) An immediate job placement would be lost due to a delay in the
[[Page 64520]]
provision of comparable services and benefits.
(Authority: Section 101(a)(8) of the Act; 29 U.S.C. 721(a)(8))
Sec. 361.54 Participation of individuals in cost of services based on
financial need.
(a) No Federal requirement. There is no Federal requirement that
the financial need of individuals be considered in the provision of
vocational rehabilitation services.
(b) State unit requirements. (1) The State unit may choose to
consider the financial need of eligible individuals or individuals who
are receiving services during an extended evaluation for purposes of
determining the extent of their participation in the costs of
vocational rehabilitation services, other than those services
identified in paragraph (b)(3) of this section.
(2) If the State unit chooses to consider financial need--
(i) It shall maintain written policies covering the determination
of financial need;
(ii) The State plan must specify the types of vocational
rehabilitation services for which the unit has established a financial
needs test;
(iii) The policies must be applied uniformly to all individuals in
similar circumstances;
(iv) The policies may require different levels of need for
different geographic regions in the State, but must be applied
uniformly to all individuals within each geographic region; and
(v) The policies must ensure that the level of an individual's
participation in the cost of vocational rehabilitation services is--
(A) Reasonable;
(B) Based on the individual's financial need; and
(C) Not so high as to effectively deny the individual a necessary
service.
(3) The State plan must assure that no financial needs test is
applied and no financial participation is required as a condition for
furnishing the following vocational rehabilitation services:
(i) Assessment for determining eligibility and priority for
services, except those non-assessment services that are provided during
an extended evaluation for an individual with a severe disability under
Sec. 361.42(d).
(ii) Assessment for determining vocational rehabilitation needs.
(iii) Vocational counseling, guidance, and referral services.
(iv) Placement services.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
Sec. 361.55 Review of extended employment in community rehabilitation
programs or other employment under section 14(c) of the Fair Labor
Standards Act.
The State plan must assure that the State unit--
(a) Reviews and re-evaluates at least annually the status of each
individual determined by the State unit to have achieved an employment
outcome in an extended employment setting in a community rehabilitation
program or other employment setting in which the individual is
compensated in accordance with section 14(c) of the Fair Labor
Standards Act. This review or re-evaluation must include input from the
individual or, in an appropriate case, the individual's representative
to determine the interests, priorities, and needs of the individual for
employment in, or training for, competitive employment in an integrated
setting in the labor market;
(b) Makes maximum effort, including the identification of
vocational rehabilitation services, reasonable accommodations, and
other support services, to enable the eligible individual to benefit
from training in, or to be placed in employment in, an integrated
setting; and
(c) Provides services designed to promote movement from extended
employment to integrated employment, including supported employment,
independent living, and community participation.
(Authority: Section 101(a)(16) of the Act; 29 U.S.C. 721(a)(16))
Sec. 361.56 Individuals determined to have achieved an employment
outcome.
The State plan must assure that an individual is determined to have
achieved an employment outcome only if the following requirements are
met:
(a) The provision of services under the individual's IWRP has
contributed to the achievement of the employment outcome.
(b) The employment outcome is consistent with the individual's
abilities, capabilities, interests, and informed choice.
(c) The employment outcome is in the most integrated setting
possible, consistent with the individual's informed choice.
(d) The individual has maintained the employment outcome for the
duration of the probationary period established by the employer for its
employees or, if the employer does not have an established probationary
period, for a period of at least 90 days.
(e) The individual and the rehabilitation counselor or coordinator
consider the employment outcome to be satisfactory and agree that the
individual is performing well on the job.
(Authority: Sections 12(c), 101(a)(6), and 106(a)(2) of the Act; 29
U.S.C. 711(c), 721(a)(6), and 726(a)(2))
Sec. 361.57 Review of rehabilitation counselor or coordinator
determinations.
The State plan must contain procedures established by the director
of the designated State unit to ensure that any applicant or eligible
individual who is dissatisfied with any determinations made by a
rehabilitation counselor or coordinator concerning the furnishing or
denial of services may request timely review of those determinations.
The procedures established by the director of the State unit must be in
accordance with the following provisions:
(a) Informal resolution. The State unit may establish an informal
process to resolve a request for review without conducting a formal
hearing. However, a State's informal process must be conducted and
concluded within the time period established under paragraph (c)(1) of
this section for holding a formal hearing. If informal resolution is
not successful, a formal hearing must be conducted by the end of this
same period, unless the parties jointly agree to a delay.
(b) Formal hearing procedures. Except as provided in paragraph (e)
of this section, the State unit shall establish formal review
procedures that provide that--
(1) A hearing by an impartial hearing officer, selected in
accordance with paragraph (d) of this section, must be held within the
time period established under paragraph (c)(1) of this section, unless
informal resolution was achieved prior to the expiration of the time
period or the parties jointly agreed to a delay;
(2) The State unit may not institute a suspension, reduction, or
termination of services being provided under an IWRP pending a final
determination of the formal hearing under this paragraph or informal
resolution under paragraph (a) of this section, unless the individual
or, in an appropriate case, the individual's representative so requests
or the agency has evidence that the services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of
the individual;
(3) The individual or, if appropriate, the individual's
representative shall be afforded an opportunity to present additional
evidence, information, and witnesses to the impartial hearing officer,
to be represented by counsel or other appropriate advocate, and to
examine all witnesses and other
[[Page 64521]]
relevant sources of information and evidence;
(4) The impartial hearing officer shall make a decision based on
the provisions of the approved State plan, the Act, and Federal and
State vocational rehabilitation regulations and policies and shall
provide to the individual or, if appropriate, the individual's
representative and to the director of the designated State unit a full
written report of the findings and grounds for the decision within the
time period established under paragraph (c)(2) of this section;
(5) If the director of the designated State unit decides to review
the decision of the impartial hearing officer, the director shall
notify in writing the individual or, if appropriate, the individual's
representative of that intent within 20 days of the mailing of the
impartial hearing officer's decision;
(6) If the director of the designated State unit fails to provide
the notice required by paragraph (b)(5) of this section, the impartial
hearing officer's decision becomes a final decision;
(7) The decision of the director of the designated State unit to
review any impartial hearing officer's decision must be based on
standards of review contained in written State unit policy;
(8) If the director of the designated State unit decides to review
the decision of the impartial hearing officer, the director shall
provide the individual or, if appropriate, the individual's
representative an opportunity to submit additional evidence and
information relevant to the final decision;
(9) The director may not overturn or modify a decision, or part of
a decision, of an impartial hearing officer that supports the position
of the individual unless the director concludes, based on clear and
convincing evidence, that the decision of the impartial hearing officer
is clearly erroneous because it is contrary to the approved State plan,
the Act, or Federal or State vocational rehabilitation regulations or
policy;
(10) The director of the designated State unit shall make a final
decision and provide a full report in writing of the decision, and of
the findings and grounds for the decision, to the individual or, if
appropriate, the individual's representative within the time period
established under paragraph (c)(3) of this section;
(11) The director of the designated State unit may not delegate
responsibility to make any final decision to any other officer or
employee of the designated State unit; and
(12) Except for the time limitations established in paragraphs
(b)(5) and (c)(1) of this section, each State's review procedures may
provide for reasonable time extensions for good cause shown at the
request of a party or at the request of both parties.
(c) Timelines. Each State unit, in consultation with its State
Rehabilitation Advisory Council, if it has one, shall develop and
implement reasonable timelines for the prompt handling of appeals,
including, at a minimum, timelines for--
(1) Holding a formal hearing after an individual's request for
review;
(2) Rendering the decision of the impartial hearing officer after
completion of the formal hearing; and
(3) Rendering the final decision of the director of the designated
State unit after providing notice of intent to review the decision of
the impartial hearing officer in accordance with paragraph (b)(5) of
this section.
(d) Selection of impartial hearing officers. Except as provided in
paragraph (e) of this section, the impartial hearing officer for a
particular case must be selected--
(1) From among the pool of persons qualified to be an impartial
hearing officer, as defined in Sec. 361.5(b)(22), who are identified by
the State unit, if the State unit is an independent commission, or
jointly by the designated State unit and the State Rehabilitation
Advisory Council, if the State has a Council; and
(2)(i) On a random basis; or
(ii) By agreement between the director of the designated State unit
and the individual or, if appropriate, the individual's representative.
(e) State fair hearing board. The provisions of paragraphs (b),
(c), and (d) of this section are not applicable if the State has a fair
hearing board that was established before January 1, 1985, that is
authorized under State law to review rehabilitation counselor or
coordinator determinations and to carry out the responsibilities of the
director of the designated State unit under this section.
(f) Informing affected individuals. The State unit shall inform,
through appropriate modes of communication, all applicants and eligible
individuals of--
(1) Their right to review under this section, including the names
and addresses of individuals with whom appeals may be filed; and
(2) The manner in which an impartial hearing officer will be
selected consistent with the requirements of paragraph (d) of this
section.
(g) Data collection. The director of the designated State unit
shall collect and submit, at a minimum, the following data to the
Secretary for inclusion each year in the annual report to Congress
under section 13 of the Act:
(1) The number of appeals to impartial hearing officers and the
State director, including the type of complaints and the issues
involved.
(2) The number of decisions by the State director reversing in
whole or in part a decision of the impartial hearing officer.
(3) The number of decisions affirming the position of the
dissatisfied individual assisted through the client assistance program,
when that assistance is known to the State unit.
(Authority: Sections 102(b) and 102(d) of the Act; 29 U.S.C. 722(b)
and 722(d))
Subpart C--Financing of State Vocational Rehabilitation Programs
Sec. 361.60 Matching requirements.
(a) Federal share. (1) General. Except as provided in paragraphs
(a)(2) and (a)(3) of this section, the Federal share for expenditures
made by the State unit under the State plan, including expenditures for
the provision of vocational rehabilitation services, administration of
the State plan, and the development and implementation of the strategic
plan, is 78.7 percent.
(2) Construction projects. The Federal share for expenditures made
for the construction of a facility for community rehabilitation program
purposes may not be more than 50 percent of the total cost of the
project.
(3) Innovation and expansion grant activities. The Federal share
for the cost of innovation and expansion grant activities funded by
appropriations under Part C of Title I of the Act is 90 percent.
(b) Non-Federal share. (1) General. Except as provided in
paragraphs (b)(2) and (b)(3) of this section, expenditures made under
the State plan to meet the non-Federal share under this section must be
consistent with the provisions of 34 CFR 80.24.
(2) Third party in-kind contributions. Third party in-kind
contributions specified in 34 CFR 80.24(a)(2) may not be used to meet
the non-Federal share under this section.
(3) Contributions by private entities. Expenditures made from
contributions by private organizations, agencies, or individuals that
are deposited in the account of the State agency or sole local agency
in accordance with State law and that are earmarked, under a condition
imposed by the contributor, may be used as part of the non-Federal
share under this section if the following requirements are met:
(i) The funds are earmarked for meeting in whole or in part the
State's
[[Page 64522]]
share for establishing a community rehabilitation program or
constructing a particular facility for community rehabilitation program
purposes.
(ii) If the funds are earmarked for any other purpose under the
State plan, the expenditures do not benefit in any way the donor, an
individual to whom the donor is related by blood or marriage or with
whom the donor has a close personal relationship, or an individual,
entity, or organization with whom the donor shares a financial
interest. The Secretary does not consider a donor's receipt from the
State unit of a grant, subgrant, or contract with funds allotted under
this part to be a benefit for the purposes of this paragraph if the
grant, subgrant, or contract is awarded under the State's regular
competitive procedures.
(Authority: Sections 7(7), 101(a)(3), and 104 of the Act; 29 U.S.C.
706(7), 721(a)(3) and 724)
Note: The Secretary notes that contributions may be earmarked in
accordance with paragraph (b)(3)(ii) of this section for providing
particular services (e.g., rehabilitation technology services);
serving individuals with certain types of disabilities (e.g.,
individuals who are blind), consistent with the State's order of
selection, if applicable; providing services to special groups that
State or Federal law permits to be targeted for services (e.g.,
transitioning students), consistent with the State's order of
selection, if applicable; or carrying out particular types of
administrative activities permissible under State law. Contributions
also may be restricted to particular geographic areas to increase
services or expand the scope of services that are available
statewide under the State plan. However, if a contribution is
earmarked for a restricted geographic area, expenditures from that
contribution may be used to meet the non-Federal share requirement
only if the State unit requests and the Secretary approves a waiver
of statewideness, in accordance with Sec. 361.26.
Sec. 361.61 Limitation on use of funds for construction expenditures.
No more than 10 percent of a State's allotment for any fiscal year
under section 110 of the Act may be spent on the construction of
facilities for community rehabilitation program purposes.
(Authority: Section 101(a)(17)(A) of the Act; 29 U.S.C.
721(a)(17)(A))
Sec. 361.62 Maintenance of effort requirements.
(a) General requirements. (1) The Secretary reduces the amount
otherwise payable to a State for a fiscal year by the amount by which
the total expenditures from non-Federal sources under the State plan
for the previous fiscal year were less than the total of those
expenditures for the fiscal year two years prior to the previous fiscal
year. For example, for fiscal year 1996, a State's maintenance of
effort level is based on the amount of its expenditures from non-
Federal sources for fiscal year 1994. Thus, if the State's non-Federal
expenditures in 1996 are less than they were in 1994, the State has a
maintenance of effort deficit, and the Secretary reduces the State's
allotment in 1997 by the amount of that deficit.
(2) If, at the time the Secretary makes a determination that a
State has failed to meet its maintenance of effort requirements, it is
too late for the Secretary to make a reduction in accordance with
paragraph (a)(1) of this section, then the Secretary recovers the
amount of the maintenance of effort deficit through audit disallowance.
(b) Specific requirements for construction of facilities. If the
State plan provides for the construction of a facility for community
rehabilitation program purposes, the amount of the State's share of
expenditures for vocational rehabilitation services under the plan,
other than for the construction of a facility for community
rehabilitation program purposes or the establishment of a facility for
community rehabilitation purposes, must be at least equal to the
expenditures for those services for the second prior fiscal year. If a
State fails to meet the requirements of this paragraph, the Secretary
recovers the amount of the maintenance of effort deficit through audit
disallowance.
(c) Separate State agency for vocational rehabilitation services
for individuals who are blind. If there is a separate part of the State
plan administered by a separate State agency to provide vocational
rehabilitation services for individuals who are blind--
(1) Satisfaction of the maintenance of effort requirements under
paragraphs (a) and (b) of this section are determined based on the
total amount of a State's non-Federal expenditures under both parts of
the State plan; and
(2) If a State fails to meet any maintenance of effort requirement,
the Secretary reduces the amount otherwise payable to the State for
that fiscal year under each part of the plan in direct relation to the
amount by which expenditures from non-Federal sources under each part
of the plan in the previous fiscal year were less than they were for
that part of the plan for the fiscal year two years prior to the
previous fiscal year.
(d) Waiver or modification. (1) The Secretary may waive or modify
the maintenance of effort requirement in paragraph (a)(1) of this
section if the Secretary determines that a waiver or modification is
necessary to permit the State to respond to exceptional or
uncontrollable circumstances, such as a major natural disaster or a
serious economic downturn, that--
(i) Cause significant unanticipated expenditures or reductions in
revenue; and
(ii) Result in--
(A) A general reduction of programs within the State; or
(B) The State making substantial expenditures in the vocational
rehabilitation program for long-term purposes due to the one-time costs
associated with the construction of a facility for community
rehabilitation program purposes, the establishment of a facility for
community rehabilitation program purposes, or the acquisition of
equipment.
(2) The Secretary may waive or modify the maintenance of effort
requirement in paragraph (b) of this section or the 10 percent
allotment limitation in Sec. 361.61 if the Secretary determines that a
waiver or modification is necessary to permit the State to respond to
exceptional or uncontrollable circumstances, such as a major natural
disaster, that result in significant destruction of existing facilities
and require the State to make substantial expenditures for the
construction of a facility for community rehabilitation program
purposes or the establishment of a facility for community
rehabilitation program purposes in order to provide vocational
rehabilitation services.
(3) A written request for waiver or modification, including
supporting justification, must be submitted to the Secretary as soon as
the State determines that an exceptional or uncontrollable circumstance
will prevent it from making its required expenditures from non-Federal
sources.
(Authority: Sections 101(a)(17) and 111(a)(2) of the Act; 29 U.S.C.
721(a)(17) and 731(a)(2))
Sec. 361.63 Program income.
(a) Definition. Program income means gross income received by the
State that is directly generated by an activity supported under this
part.
(b) Sources. Sources of program income include, but are not limited
to, payments from the Social Security Administration for rehabilitating
Social Security beneficiaries, payments received from workers'
compensation funds, fees for services to defray part or all of the
costs of services provided to particular individuals, and income
generated by a State-operated community rehabilitation program.
[[Page 64523]]
(c) Use of program income. (1) Except as provided in paragraph
(c)(2) of this section, program income, whenever earned, must be used
for the provision of vocational rehabilitation services, the
administration of the State plan, and developing and implementing the
strategic plan. Program income is considered earned when it is
received.
(2) Payments provided to a State from the Social Security
Administration for rehabilitating Social Security beneficiaries may
also be used to carry out programs under Part B of Title I of the Act
(client assistance), Part C of Title I of the Act (innovation and
expansion), Part C of Title VI of the Act (supported employment) and
Title VII of the Act (independent living).
(3) The State is authorized to treat program income as--
(i) An addition to the grant funds to be used for additional
allowable program expenditures, in accordance with 34 CFR 80.25(g)(2);
or
(ii) A deduction from total allowable costs, in accordance with 34
CFR 80.25(g)(1).
(4) Program income may not be used to meet the non-Federal share
requirement under Sec. 361.60.
(Authority: Section 108 of the Act; 29 U.S.C. 728; 34 CFR 80.25)
Sec. 361.64 Obligation of Federal funds and program income.
(a) Except as provided in paragraph (b) of this section, any
Federal funds, including reallotted funds, that are appropriated for a
fiscal year to carry out a program under this part that are not
obligated by the State unit by the beginning of the succeeding fiscal
year and any program income received during a fiscal year that is not
obligated by the State unit by the beginning of the succeeding fiscal
year must remain available for obligation by the State unit during that
succeeding fiscal year.
(b) Federal funds appropriated for a fiscal year remain available
for obligation in the succeeding fiscal year only to the extent that
the State unit met the matching requirement for those Federal funds by
obligating, in accordance with 34 CFR 76.707, the non-Federal share in
the fiscal year for which the funds were appropriated.
(Authority: Section 19 of the Act; 29 U.S.C. 718)
Sec. 361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
(a) Allotment. (1) The allotment of Federal funds for vocational
rehabilitation services for each State is computed in accordance with
the requirements of section 110 of the Act, and payments are made to
the State on a quarterly basis, unless some other period is established
by the Secretary.
(2) If the State plan designates one State agency to administer, or
supervise the administration of, the part of the plan under which
vocational rehabilitation services are provided for individuals who are
blind and another State agency to administer the rest of the plan, the
division of the State's allotment is a matter for State determination.
(b) Reallotment. (1) The Secretary determines not later than 45
days before the end of a fiscal year which States, if any, will not use
their full allotment.
(2) As soon as possible, but not later than the end of the fiscal
year, the Secretary reallots these funds to other States that can use
those additional funds during the current or subsequent fiscal year,
provided the State can meet the matching requirement by obligating the
non-Federal share of any reallotted funds in the fiscal year for which
the funds were appropriated.
(3) Funds reallotted to another State are considered to be an
increase in the recipient State's allotment for the fiscal year for
which the funds were appropriated.
(Authority: Sections 110 and 111 of the Act; 29 U.S.C. 730 and 731)
Subpart D--Strategic Plan for Innovation and Expansion of
Vocational Rehabilitation Services
Sec. 361.70 Purpose of the strategic plan.
The State shall prepare a statewide strategic plan, in accordance
with Sec. 361.71, to develop and use innovative approaches for
achieving long-term success in expanding and improving vocational
rehabilitation services, including supported employment services,
provided under the State plan, including the supported employment
supplement to the State plan required under 34 CFR part 363.
(Authority: Section 120 of the Act; 29 U.S.C. 740)
Sec. 361.71 Procedures for developing the strategic plan.
(a) Public input. (1) The State unit shall meet with and receive
recommendations from members of the State Rehabilitation Advisory
Council, if the State has a Council, and the Statewide Independent
Living Council prior to developing the strategic plan.
(2) The State unit shall solicit public input on the strategic plan
prior to or at the public meetings on the State plan, in accordance
with the requirements of Sec. 361.20.
(3) The State unit shall consider the recommendations received
under paragraphs (a)(1) and (a)(2) of this section and, if the State
rejects any recommendations, shall include a written explanation of the
reasons for those rejections in the strategic plan.
(4) The State unit shall develop a procedure to ensure ongoing
comment from the Council or Councils, if applicable, as the plan is
being implemented.
(b) Duration. The strategic plan must cover a three-year period.
(c) Revisions. The State unit shall revise the strategic plan on an
annual basis to reflect the unit's actual experience over the previous
year and input from the State Rehabilitation Advisory Council, if the
State has a Council, individuals with disabilities, and other
interested parties.
(d) Dissemination. The State unit shall disseminate widely the
strategic plan to individuals with disabilities, disability
organizations, rehabilitation professionals, and other interested
persons and shall make the strategic plan available in accessible
formats and appropriate modes of communication.
(Authority: Section 122 of the Act; 29 U.S.C. 742)
Sec. 361.72 Content of the strategic plan.
The strategic plan must include--
(a) A statement of the mission, philosophy, values, and principles
of the vocational rehabilitation program in the State;
(b) Specific goals and objectives for expanding and improving the
system for providing vocational rehabilitation services;
(c) Specific multi-faceted and systemic approaches for
accomplishing the objectives, including interagency coordination and
cooperation, that build upon state-of-the-art practices and research
findings and that implement the State plan and the supplement to the
State plan submitted under 34 CFR part 363;
(d) A description of the specific programs, projects, and
activities funded under this subpart, including how the programs,
projects, and activities accomplish the objectives of the subpart, and
the resource allocation and budget for the programs, projects, and
activities; and
(e) Specific criteria for determining whether the objectives have
been achieved, including an assurance that the State will conduct an
annual evaluation to determine the extent to which the objectives have
been achieved and, if specific objectives have not been achieved, the
reasons that the objectives have not been achieved and a description of
alternative approaches that will be taken.
[[Page 64524]]
(Authority: Section 121 of the Act; 29 U.S.C. 741)
Sec. 361.73 Use of funds.
(a) A State unit shall use all grant funds received under Title I,
Part C of the Act to carry out programs and activities that are
identified under the State's strategic plan, including but not limited
to those programs and activities that are identified in paragraph (b)
of this section.
(b) A State unit shall use at least 1.5 percent of the funds
received under section 111 of the Act to carry out one or more of the
following types of programs and activities that are identified in the
State's strategic plan:
(1) Programs to initiate or expand employment opportunities for
individuals with severe disabilities in integrated settings that allow
for the use of on-the-job training to promote the objectives of Title I
of the Americans with Disabilities Act of 1990.
(2) Programs or activities to improve or expand the provision of
employment services in integrated settings to individuals with sensory,
cognitive, physical, and mental impairments who traditionally have not
been served by the State vocational rehabilitation agency.
(3) Programs or activities to maximize the ability of individuals
with disabilities to use rehabilitation technology in employment
settings.
(4) Programs or activities that assist employers in accommodating,
evaluating, training, or placing individuals with disabilities in the
workplace of the employer consistent with the provisions of the Act and
Title I of the Americans with Disabilities Act of 1990. These programs
or activities may include short-term technical assistance or other
effective strategies.
(5) Programs or activities that expand and improve the extent and
type of an individual's involvement in the review and selection of his
or her training and employment goals.
(6) Programs or activities that expand and improve opportunities
for career advancement for individuals with severe disabilities.
(7) Programs, projects, or activities designed to initiate, expand,
or improve working relationships between vocational rehabilitation
services provided under Title I of the Act and independent living
services provided under Title VII of the Act.
(8) Programs, projects, or activities designed to improve
functioning of the system for delivering vocational rehabilitation
services and to improve coordination and working relationships with
other State agencies and local public agencies, business, industry,
labor, community rehabilitation programs, and centers for independent
living, including projects designed to--
(i) Increase the ease of access to, timeliness of, and quality of
vocational rehabilitation services through the development and
implementation of policies, procedures, systems, and interagency
mechanisms for providing vocational rehabilitation services;
(ii) Improve the working relationships between State vocational
rehabilitation agencies and other State agencies, centers for
independent living, community rehabilitation programs, educational
agencies involved in higher education, adult basic education, and
continuing education, and businesses, industry, and labor
organizations, in order to create and facilitate cooperation in--
(A) Planning and implementing services; and
(B) Developing an integrated system of community-based vocational
rehabilitation services that includes appropriate transitions between
service systems; and
(iii) Improve the ability of professionals, advocates, business,
industry, labor, and individuals with disabilities to work in
cooperative partnerships to improve the quality of vocational
rehabilitation services and job and career opportunities for
individuals with disabilities.
(9) Projects or activities that ensure that the annual evaluation
of the effectiveness of the program in meeting the goals and objectives
in the State plan, including the system for evaluating the performance
of rehabilitation counselors, coordinators, and other personnel used in
the State, facilitates and does not impede the accomplishment of the
purpose of this part, including serving individuals with the most
severe disabilities.
(10) Projects or activities to support the initiation, expansion,
and improvement of a comprehensive system of personnel development.
(11) Programs, projects, or activities to support the provision of
training and technical assistance to individuals with disabilities,
business, industry, labor, community rehabilitation programs, and
others regarding the implementation of the Rehabilitation Act
Amendments of 1992, of Title V of the Act, and of the Americans with
Disabilities Act of 1990.
(12) Projects or activities to support the funding of the State
Rehabilitation Advisory Council and the Statewide Independent Living
Council.
(Authority: Sections 101(a)(34)(B) and 123 of the Act; 29 U.S.C.
721(a)(34)(B) and 743)
Sec. 361.74 Allotment of Federal funds.
(a) The allotment and any reallotment of Federal funds under Title
I, Part C of the Act are computed in accordance with the requirements
of section 124 of the Act.
(b) If at any time the Secretary determines that any amount will
not be expended by a State in carrying out the purpose of this subpart,
the Secretary makes that amount available to one or more other States
that the Secretary determines will be able to use additional amounts
during the fiscal year. Any amount made available to any State under
this paragraph of this section is regarded as an increase in the
State's allotment for that fiscal year.
(Authority: Section 124 of the Act; 29 U.S.C. 744)
[FR Doc. 95-30344 Filed 12-14-95; 8:45 am]
BILLING CODE 4000-01-P