[Federal Register: January 17, 2001 (Volume 66, Number 11)]
[Rules and Regulations]
[Page 4379-4435]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja01-17]
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Part VI
Department of Education
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34 CFR Part 361
State Vocational Rehabilitation Services Program; Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 361
RIN 1820-AB50
State Vocational Rehabilitation Services Program
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the State
Vocational Rehabilitation Services Program. These amendments implement
changes to the Rehabilitation Act of 1973 made by the Rehabilitation
Act Amendments of 1998 that were contained in Title IV of the Workforce
Investment Act of 1998 (WIA), enacted on August 7, 1998, and as further
amended in 1998 by technical amendments in the Reading Excellence Act
and the Carl D. Perkins Vocational and Applied Technology Education Act
Amendments of 1998 (hereinafter collectively referred to as the 1998
Amendments).
DATES: These regulations are effective February 16, 2001. However,
affected parties do not have to comply with the information collection
requirements in Secs. 361.10, 361.12, 361.13, 361.14, 361.15, 361.16,
361.17, 361.18, 361.19, 361.20, 361.21, 361.22, 361.23, 361.24, 361.25,
361.26, 361.27, 361.28, 361.29, 361.30, 361.31, 361.32, 361.34, 361.35,
361.36, 361.37, 361.38, 361.40, 361.41, 361.46, 361.47, 361.48, 361.49,
361.50, 361.51, 361.52, 361.53, 361.54, 361.55, 361.57, 361.60 and
361.62 until the Department of Education publishes in the Federal
Register the control numbers assigned by the Office of Management and
Budget (OMB) to these information collection requirements. Publication
of the control numbers notifies the public that OMB has approved these
information collection requirements under the Paperwork Reduction Act
of 1995.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of
Education, 400 Maryland Avenue, SW., room 3014, Mary E. Switzer
Building, Washington, DC 20202-2531. Telephone (202) 205-8831. If you
use a telecommunications device for the deaf (TDD), you may call (202)
205-5538.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mincey, Director, Alternate Formats
Center, U.S. Department of Education, 400 Maryland Avenue, SW., room
1000, Mary E. Switzer Building, Washington, DC 20202-2531. Telephone
(202) 260-9895. If you use a telecommunications device for the deaf
(TDD), you may call the Federal Information Relay Service (FIRS) at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION: The State Vocational Rehabilitation Services
Program (VR program) is authorized by Title I of the Rehabilitation Act
of 1973, as amended (Act) (29 U.S.C. 701-744). The VR program provides
support to each State to assist it in operating a statewide
comprehensive, coordinated, effective, efficient, and accountable State
program, as an integral part of a statewide workforce investment
system, to assess, plan, develop, and provide vocational rehabilitation
(VR) services for individuals with disabilities so that those
individuals may prepare for and engage in gainful employment consistent
with their strengths, priorities, concerns, abilities, capabilities,
interests, and informed choice.
On February 28, 2000, we published a notice of proposed rulemaking
(NPRM) for this part in the Federal Register (65 FR 10620). In the
preamble to the NPRM, we discussed on pages 10620 through 10630 the
major changes proposed to the regulations in 34 CFR part 361 as a
result of the 1998 Amendments. These included the following:
Streamlining the regulatory requirements pertaining to the
State plan for the VR program by changing several State plan
descriptions or assurances to program requirements that need not be
addressed in the State plan. These proposed changes were intended to
reduce the paperwork burden associated with the development of the
State plan.
Amending the regulations to reflect the responsibilities
of the designated state unit (DSU or State unit) as a required partner
in the One-Stop service delivery system (One-Stop system) established
under Title I of the WIA, Pub. L. 105-22. For example, we proposed
amending Sec. 361.4 to include among the regulations applicable to the
VR program the One-Stop system requirements in 20 CFR part 662 and the
civil rights requirements in 29 CFR part 37. In addition to these
changes and, as noted later, amending other sections of the current
regulations to reflect requirements in WIA, we discuss in some detail
in the preamble to the NPRM (65 FR 10620 and 10621) the relationship
between the VR program, the One-Stop system in general, and persons
with disabilities. We suggest that you refer to that discussion for
additional guidance in coordinating between One-Stop system components.
Amending Sec. 361.5 to include a new definition of the
term ``fair hearing board,'' a revised definition of ``physical or
mental impairment,'' a new definition of the term ``qualified and
impartial mediator,'' and several new statutory definitions found in
WIA, including ``local workforce investment board,'' ``State workforce
investment board,'' and ``Statewide workforce investment system.''
Amending Sec. 361.10 to require that each State submit its
State plan for the VR program on the same date that it submits either a
State plan under section 112 of WIA or a State unified plan under
section 501 of that Act.
Amending Sec. 361.13 to expand the list of activities that
are the responsibility of the DSU.
Amending Sec. 361.18(c) to require, as appropriate, DSUs
to address in a written plan their retraining, recruitment, hiring, and
other strategies to ensure that their personnel meet the statutory
standards related to the comprehensive system of personnel development.
Amending Sec. 361.22 to reflect new statutory requirements
that foster the transition of students from educational to VR services.
Amending Sec. 361.23 to reflect both the VR program's
responsibilities as a partner of the One-Stop system under WIA and the
requirements in the 1988 Amendments related to interagency coordination
between the VR program and other components of the statewide workforce
investment system under WIA.
Amending Sec. 361.26 to reflect the authority of States to
use geographically earmarked funds without requesting a waiver of
statewideness.
Amending Sec. 361.29 to guide States in developing a
required comprehensive, forward-thinking plan for administering and
improving their VR programs.
Conforming Sec. 361.30 solely to the requirement in the
Act that DSUs provide VR services to eligible American Indians to the
same extent as other significant populations of individuals with
disabilities.
Amending Sec. 361.31 to conform to the requirement in the
Act that the DSU establish cooperative agreements with private
nonprofit VR service providers.
Removing Sec. 361.33 of the current regulations (regarding
the use, assessment, and support of community rehabilitation programs)
since these requirements are addressed in other
[[Page 4381]]
regulatory sections and reserving this section for future use.
Amending Sec. 361.35 to reflect the requirement in section
101(a)(18) of the Act that the State reserve a portion of its allotment
under section 110 of the Act to further innovation and expansion of its
VR program.
Amending Sec. 361.36 to incorporate the requirement in the
1998 Amendments that individuals who do not meet the State's order of
selection criteria for receiving services be provided access to the
DSU's information and referral system under Sec. 361.37.
Amending Sec. 361.37 to reflect new requirements in the
Act for referring individuals, including eligible individuals who do
not meet the State's order of selection criteria for receiving
services, to those components of the statewide workforce investment
system best suited to meet an individual's employment needs.
Amending Sec. 361.42 to implement new requirements in the
Act regarding presumptive eligibility for Social Security recipients
and beneficiaries and the use of trial work experiences as part of the
assessment for determining eligibility, to revise regulatory
requirements concerning extended evaluations, and to identify the type
of personnel who must conduct eligibility determinations.
Amending Sec. 361.45 to implement new requirements in the
Act that expand an eligible individual's options for developing the
Individualized Plan for Employment (IPE), enable individuals to receive
technical assistance in developing their IPEs, specify the information
that the DSU must provide to the eligible individual during IPE
development, and detail applicable procedural requirements.
Amending Sec. 361.47 to require the States to determine,
with input from the State Rehabilitation Councils, the type of
documentation that they will maintain for each applicant and eligible
individual to meet the content items that must be included in each
individual's record of services.
Amending Sec. 361.52 to implement the expanded authority
in the Act requiring that applicants and eligible individuals be able
to exercise informed choice throughout the rehabilitation process.
Amending Sec. 361.53 to require interagency agreements
between the DSU and other appropriate public entities to ensure that
eligible individuals with disabilities receive, in a timely manner,
necessary services to which each party to the agreement has an
obligation, or the authority, to contribute.
Amending Sec. 361.54 to expand the list of VR services
exempt from State financial needs tests to include interpreter services
for individuals who are deaf or hard of hearing, reader services for
individuals who are blind, and personal assistant services. Also, this
section was amended to prohibit States from applying financial needs
tests to individuals receiving Supplemental Security Income (SSI) or
Social Security Disability Insurance (SSDI).
Re-titling and Amending Sec. 361.56 to better reflect the
requirements that must be met before the State unit can close the
record of services for an individual who has achieved an employment
outcome.
Amending Sec. 361.57 to implement new requirements in the
1998 Amendments regarding mediation and administrative review of
disputes regarding the provision of VR services to applicants or
eligible individuals.
Amending Sec. 361.60 to reflect the elimination of
statutory authority for the innovation and expansion grant program and
to implement new statutory provisions regarding the use of
geographically limited earmarked funds as part of the State's non-
Federal share.
These final regulations contain several significant changes from
the NPRM. We fully explain each of these changes in the Analysis of
Comments and Changes in the appendix at the end of these final
regulations.
Analysis of Comments and Changes
In response to our invitation in the NPRM, 109 parties submitted
comments on the proposed regulations. An analysis of the comments and
of the changes in the regulations since publication of the NPRM is
published as an appendix at the end of these final regulations.
We discuss substantive issues under the sections of the regulations
to which they pertain. Generally, we do not address technical and other
minor changes--and suggested changes that the law does not authorize
the Secretary to make.
National Education Goals
The eight National Education Goals focus the Nation's education
reform efforts and provide a framework for improving teaching and
learning.
These regulations address the National Education Goal that 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.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order, we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those we have determined to
be necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, we have determined that
the benefits of the final regulations justify the costs.
We also have determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
Summary of Potential Costs and Benefits
We discussed the potential costs and benefits of these final
regulations in the preamble to the NPRM (65 FR 10630 and 10631) and
throughout the section-by-section analysis (65 FR 10621 through 10630).
Our analysis of potential costs and benefits generally remains the same
as in the NPRM, although we include additional discussion of potential
costs and benefits in the Appendix to these final regulations titled
Analysis of Comments and Changes.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and
[[Page 4382]]
responsibilities among the various levels of government.
These regulations implement various statutory changes to the State
Vocational Rehabilitation Services Program. We do not believe that
these regulations have federalism implications as defined in Executive
Order 13132 or that they preempt State law. Accordingly, the Secretary
has determined that these regulations do not contain policies that have
federalism implications.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use PDF you must have Adobe Acrobat Reader, which is available
free at either of the previous sites. If you have questions about using
PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-
888-293-6498; or in the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://
www.access.gpo.gov/nara/index.html
(Catalog of Federal Domestic Assistance Number: 84.126 State
Vocational Rehabilitation Services Program)
List of Subjects in 34 CFR Part 361
Reporting and recordkeeping requirements, State-administered grant
program--education, Vocational rehabilitation.
Dated: December 7, 2000.
Richard W. Riley,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
title 34 of the Code of Federal Regulations by revising part 361 to
read as follows:
PART 361--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 and Other Requirements for Vocational
Rehabilitation Services
361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.
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 Council.
361.17 Requirements for a State Rehabilitation Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 Public participation requirements.
361.21 Consultations regarding the administration of the State
plan.
361.22 Coordination with education officials.
361.23 Requirements related to the statewide workforce investment
system.
361.24 Cooperation and coordination with other entities.
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 assessment; annual estimates; annual State goals
and priorities; strategies; and progress reports.
361.30 Services to American Indians.
361.31 Cooperative agreements with private nonprofit organizations.
361.32 Use of profitmaking organizations for on-the-job training in
connection with selected projects.
361.33 [Reserved.]
361.34 Supported employment State plan supplement.
361.35 Innovation and expansion activities.
361.36 Ability to serve all eligible individuals; order of
selection for services.
361.37 Information and referral services.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports.
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 plan for employment.
361.46 Content of the individualized plan for employment.
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 for
individuals with disabilities.
361.51 Standards for facilities and providers of services.
361.52 Informed choice.
361.53 Comparable services and benefits.
361.54 Participation of individuals in cost of services based on
financial need.
361.55 Annual review of individuals in extended employment or other
employment under special certificate provisions of the Fair Labor
Standards Act.
361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
361.57 Review of determinations made by designated State unit
personnel.
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.
Subpart D--[Reserved]
Subpart E--Evaluation Standards and Performance Indicators
361.80 Purpose.
361.81 Applicable definitions.
361.82 Evaluation standards.
361.84 Performance indicators.
361.86 Performance levels.
361.88 Reporting requirements.
361.89 Enforcement procedures.
Authority: 29 U.S.C. 709(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
statewide comprehensive, coordinated, effective, efficient, and
accountable programs, each of which is--
(a) An integral part of a statewide workforce investment system;
and
(b) Designed to assess, plan, develop, and provide vocational
rehabilitation
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services for individuals with disabilities, consistent with their
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice, so that they may prepare for and engage
in gainful employment.
(Authority: Section 100(a)(2) of the Act; 29 U.S.C. 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; and
(b) Administrative costs under the State 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 and Agreements with
Institutions of Higher Education, Hospitals, and other Non-profit
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 and Alcohol Abuse Prevention).
(b) The regulations in this part 361.
(c) 20 CFR part 662 (Description of One-Stop Service Delivery
System under Title I of the Workforce Investment Act of 1998).
(d) 29 CFR part 37, to the extent programs and activities are being
conducted as part of the One-Stop service delivery system under section
121(b) of the Workforce Investment Act of 1998.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(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, as amended (29 U.S.C.
701 et seq.).
(2) Administrative costs under the State plan means expenditures
incurred in the performance of administrative functions under the
vocational rehabilitation program carried out under this part,
including expenses related to program planning, development,
monitoring, and evaluation, including, but not limited to, expenses
for--
(i) Quality assurance;
(ii) Budgeting, accounting, financial management, information
systems, and related data processing;
(iii) Providing information about the program to the public;
(iv) Technical assistance and support services to other State
agencies, private nonprofit organizations, and businesses and
industries, except for technical assistance and support services
described in Sec. 361.49(a)(4);
(v) The State Rehabilitation Council and other advisory committees;
(vi) Professional organization membership dues for designated State
unit employees;
(vii) The removal of architectural barriers in State vocational
rehabilitation agency offices and State-operated rehabilitation
facilities;
(viii) Operating and maintaining designated State unit facilities,
equipment, and grounds;
(ix) Supplies;
(x) Administration of the comprehensive system of personnel
development described in Sec. 361.18, including personnel
administration, administration of affirmative action plans, and
training and staff development;
(xi) Administrative salaries, including clerical and other support
staff salaries, in support of these administrative functions;
(xii) Travel costs related to carrying out the program, other than
travel costs related to the provision of services;
(xiii) Costs incurred in conducting reviews of determinations made
by personnel of the designated State unit, including costs associated
with mediation and impartial due process hearings under Sec. 361.57;
and
(xiv) Legal expenses required in the administration of the program.
(Authority: Section 7(1) of the Act; 29 U.S.C. 705(1))
(3) American Indian means an individual who is a member of an
Indian tribe.
(Authority: Section 7(19)(A) of the Act; 29 U.S.C. 705(19)(A))
(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. 709(c))
(5) Appropriate modes of communication means specialized aids and
supports that enable an individual with a disability 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, augmentative communication devices,
graphic presentations, and simple language materials.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
(6) Assessment for determining eligibility and vocational
rehabilitation needs means, as appropriate in each case--
(i)(A) A review of existing data--
(1) To determine if an individual is eligible for vocational
rehabilitation services; and
(2) To assign priority for an order of selection described in
Sec. 361.36 in the States that use an order of selection; and
(B) To the extent necessary, the provision of appropriate
assessment activities to obtain necessary additional data to make the
eligibility determination and assignment;
(ii) To the extent additional data are necessary to make a
determination of the employment outcomes and the nature and scope of
vocational
[[Page 4384]]
rehabilitation services to be included in the individualized plan for
employment of an eligible individual, a comprehensive assessment to
determine the unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice, including the
need for supported employment, of the eligible individual. This
comprehensive assessment--
(A) Is limited to information that is necessary to identify the
rehabilitation needs of the individual and to develop the
individualized plan of employment of the eligible individual;
(B) Uses as a primary source of information, to the maximum extent
possible and appropriate and in accordance with confidentiality
requirements--
(1) Existing information obtained for the purposes of determining
the eligibility of the individual and assigning priority for an order
of selection described in Sec. 361.36 for the individual; and
(2) Information that can be provided by the individual and, if
appropriate, by the family of the individual;
(C) May include, to the degree needed to make such a determination,
an assessment of the personality, interests, interpersonal skills,
intelligence and related functional capacities, educational
achievements, work experience, vocational aptitudes, personal and
social adjustments, and employment opportunities of the individual and
the medical, psychiatric, psychological, and other pertinent
vocational, educational, cultural, social, recreational, and
environmental factors that affect the employment and rehabilitation
needs of the individual; and
(D) May include, to the degree needed, an appraisal of the patterns
of work behavior of the individual and services needed for the
individual to acquire occupational skills and to develop work
attitudes, work habits, work tolerance, and social and behavior
patterns necessary for successful job performance, including the use of
work in real job situations to assess and develop the capacities of the
individual to perform adequately in a work environment;
(iii) Referral, for the provision of rehabilitation technology
services to the individual, to assess and develop the capacities of the
individual to perform in a work environment; and
(iv) An exploration of the individual's abilities, capabilities,
and capacity to perform in work situations, which must be assessed
periodically during trial work experiences, including experiences in
which the individual is provided appropriate supports and training.
(Authority: Section 7(2) of the Act; 29 U.S.C. 705(2))
(7) 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(3) of the Act; 29 U.S.C. 705(3))
(8) 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;
(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(4) and 12(c) of the Act; 29 U.S.C. 705(4) and
709(c))
(9) 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.
(10) Comparable services and benefits means--
(i) Services and benefits that are--
(A) Provided or paid for, in whole or in part, by other Federal,
State, or local public agencies, by health insurance, or by employee
benefits;
(B) Available to the individual at the time needed to ensure the
progress of the individual toward achieving the employment outcome in
the individual's individualized plan for employment in accordance with
Sec. 361.53; and
(C) Commensurate to the services that the individual would
otherwise receive from the designated State vocational rehabilitation
agency.
(ii) For the purposes of this definition, comparable benefits do
not include awards and scholarships based on merit.
(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C.
709(c) and 721(a)(8))
(11) Competitive employment means work--
[[Page 4385]]
(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 customary wage and level of benefits paid
by the employer for the same or similar work performed by individuals
who are not disabled.
(Authority: Sections 7(11) and 12(c) of the Act; 29 U.S.C. 705(11)
and 709(c))
(12) 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 construction of new buildings;
(iii) The acquisition of existing buildings;
(iv) The expansion, remodeling, alteration, or renovation 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(6) and 12(c) of the Act; 29 U.S.C. 705(6) and
709(c))
(13) Designated State agency or State agency means the sole State
agency, designated in accordance with Sec. 361.13(a), to administer, or
supervise the 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(8)(A) and 101(a)(2)(A) of the Act; 29 U.S.C.
705(8)(A) and 721(a)(2)(A))
(14) Designated State unit or State unit means either--
(i) The State 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 State agency that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities.
(Authority: Sections 7(8)(B) and 101(a)(2)(B) of the Act; 29 U.S.C.
705(8)(B) and 721(a)(2)(B))
(15) Eligible individual means an applicant for vocational
rehabilitation services who meets the eligibility requirements of
Sec. 361.42(a).
(Authority: Sections 7(20)(A) and 102(a)(1) of the Act; 29 U.S.C.
705(20)(A) and 722(a)(1))
(16) 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, including self-employment, telecommuting, or business
ownership, that is consistent with an individual's strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice.
(Authority: Sections 7(11), 12(c), 100(a)(2), and 102(b)(3)(A) of
the Act; 29 U.S.C. 705(11), 709(c), 720(a)(2), and 722(b)(3)(A))
(17) 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 rehabilitation program as defined in paragraph (b)(18) of
this section to provide vocational rehabilitation services to
applicants or eligible individuals;
(ii) Staffing, if necessary to establish, develop, or improve a
community rehabilitation program for the purpose of providing
vocational rehabilitation services to applicants or eligible
individuals, for a maximum period of 4 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 in
providing vocational rehabilitation services to applicants or eligible
individuals, but are not ongoing operating expenses of the program.
(Authority: Sections 7(12) and 12(c) of the Act; 29 U.S.C. 705(12)
and 709(c))
(18) 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 1 year prior to the date of
acquisition and the Federal share of the cost of 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: Sections 7(12) and 12(c) of the Act; 29 U.S.C. 705(12)
and 709(c))
(19) 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. 709(c))
(20) Extended services means ongoing support services and other
appropriate services that are needed to support and
[[Page 4386]]
maintain an individual with a most significant 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 and 34 CFR part 363 after an
individual with a most significant disability has made the transition
from support provided by the designated State unit.
(Authority: Sections 7(13) and 623 of the Act; 29 U.S.C. 705(13) and
795i)
(21) 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)(A)(i)(III) of the Act; 29
U.S.C. 709(c) and 721(a)(8)(A)(i)(III))
(22) Fair hearing board means a committee, body, or group of
persons established by a State prior to January 1, 1985 that--
(i) Is authorized under State law to review determinations made by
personnel of the designated State unit that affect the provision of
vocational rehabilitation services; and
(ii) Carries out the responsibilities of the impartial hearing
officer in accordance with the requirements in Sec. 361.57(j).
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
(23) Family member, for purposes of receiving vocational
rehabilitation services in accordance with Sec. 361.48(i), 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)(17) of the Act; 29 U.S.C.
709(c) and 723(a)(17))
(24) Governor means a chief executive officer of a State.
(Authority: Section 7(15) of the Act; 29 U.S.C. 705(15))
(25) 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 Council for the
designated State unit;
(C) Has not been involved previously in 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 is not 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(16) of the Act; 29 U.S.C. 705(16))
(26) 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(19)(B) of the Act; 29 U.S.C. 705(19)(B))
(27) Individual who is blind means a person who is blind within the
meaning of applicable State law. (Authority: Section 12(c) of the Act;
29 U.S.C. 709(c))
(28) Individual with a disability, except as provided in
Sec. 361.5(b)(29), 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(20)(A) of the Act; 29 U.S.C. 705(20)(A))
(29) Individual with a disability, for purposes of
Secs. 361.5(b)(14), 361.13(a), 361.13(b)(1), 361.17(a), (b), (c), and
(j), 361.18(b), 361.19, 361.20, 361.23(b)(2), 361.29(a) and (d)(5), and
361.51(b), means an individual--
(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(20)(B) of the Act; 29 U.S.C. 705(20)(B))
(30) Individual with a most significant disability means an
individual with a significant disability who meets the designated State
unit's criteria for an individual with a most significant disability.
These criteria must be consistent with the requirements in
Sec. 361.36(d)(1) and (2).
(Authority: Sections 7(21)(E)(i) and 101(a)(5)(C) of the Act; 29
U.S.C. 705(21)(E)(i) and 721(a)(5)(C))
(31) Individual with a significant 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(21)(A) of the Act; 29 U.S.C. 705(21)(A))
(32) Individual's representative means any representative chosen by
an applicant or eligible individual, as appropriate, 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: Sections 7(22) and 12(c) of the Act; 29 U.S.C. 705(22)
and 709(c))
(33) Integrated setting,--
(i) With respect to the provision of services, means a setting
typically found in the community in which applicants or eligible
individuals interact with non-disabled individuals other than non-
disabled individuals who are
[[Page 4387]]
providing services to those applicants or eligible individuals;
(ii) With respect to an employment outcome, means a setting
typically found in the community in which applicants or eligible
individuals interact with non-disabled individuals, other than non-
disabled individuals who are providing services to those applicants or
eligible individuals, to the same extent that non-disabled individuals
in comparable positions interact with other persons.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
(34) Local workforce investment board means a local workforce
investment board established under section 117 of the Workforce
Investment Act of 1998.
(Authority: Section 7(25) of the Act; 29 U.S.C. 705(25))
(35) Maintenance means monetary support provided to an individual
for expenses, such as food, shelter, and clothing, that are in excess
of the normal expenses of the individual and that are necessitated by
the individual's participation in an assessment for determining
eligibility and vocational rehabilitation needs or the individual's
receipt of vocational rehabilitation services under an individualized
plan for employment.
(Authority: Sections 12(c) and 103(a)(7) of the Act; 29 U.S.C.
709(c) and 723(a)(7))
(i) Examples: The following are examples of expenses that would
meet the definition of maintenance. The examples are illustrative, do
not address all possible circumstances, and are not intended to
substitute for individual counselor judgment.
Example 1: The cost of a uniform or other suitable clothing that
is required for an individual's job placement or job-seeking
activities.
Example 2: The cost of short-term shelter that is required in
order for an individual to participate in assessment activities or
vocational training at a site that is not within commuting distance
of an individual's home.
Example 3: 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 4: The costs of an individual's participation in
enrichment activities related to that individual's training program.
(ii) [Reserved]
(36) Mediation means the act or process of using an independent
third party to act as a mediator, intermediary, or conciliator to
assist persons or parties in settling differences or disputes prior to
pursuing formal administrative or other legal remedies. Mediation under
the program must be conducted in accordance with the requirements in
Sec. 361.57(d) by a qualified and impartial mediator as defined in
Sec. 361.5(b)(43).
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
(37) 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 1986.
(Authority: Section 7(26) of the Act; 29 U.S.C. 705(26))
(38) 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
significant disability in supported employment;
(B) Identified based on a determination by the designated State
unit of the individual's need as specified in an individualized plan
for employment; 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 specific circumstances, especially at the request of
the individual, the individualized plan for employment 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 paragraph
(b)(6)(ii) of this section;
(B) The provision of skilled job trainers who accompany the
individual for intensive job skill training at the work site;
(C) Job development and training;
(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(27) and 12(c) of the Act; 29 U.S.C. 705(27)
and 709(c))
(39) 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 the
individual did not have a disability. The services must be designed to
increase the individual's control in life and ability to perform
everyday activities on or off the job. 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(28), 102(b)(3)(B)(i)(I), and 103(a)(9) of the
Act; 29 U.S.C. 705(28), 722(b)(3)(B)(i)(I), and 723(a)(9))
(40) 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 and orthotic devices;
(viii) Eyeglasses and visual services, including visual training,
and the
[[Page 4388]]
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)(6) of the Act; 29 U.S.C.
709(c) and 723(a)(6))
(41) Physical or mental impairment means--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculo-skeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and
endocrine; or
(ii) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(Authority: Sections 7(20)(A) and 12(c) of the Act; 29 U.S.C.
705(20)(A) and 709(c))
(42) 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, interests, and informed choice.
(Authority: Sections 12(c) and 103(a)(18) of the Act; 29 U.S.C.
709(c)) and 723(a)(18))
Note to paragraph (b)(42): Post-employment services are intended
to ensure that the employment outcome remains consistent with the
individual's strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice. 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 plan for employment; 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,
interests, and informed choice.
(43) Qualified and impartial mediator.
(i) Qualified and impartial mediator means an individual who--
(A) Is not an employee of a public agency (other than an
administrative law judge, hearing examiner, employee of a State office
of mediators, or employee of an institution of higher education);
(B) Is not a member of the State Rehabilitation Council for the
designated State unit;
(C) Has not been involved previously in the vocational
rehabilitation of the applicant or eligible individual;
(D) Is knowledgeable of the vocational rehabilitation program and
the applicable Federal and State laws, regulations, and policies
governing the provision of vocational rehabilitation services;
(E) Has been trained in effective mediation techniques consistent
with any State-approved or -recognized certification, licensing,
registration, or other requirements; and
(F) Has no personal, professional, or financial interest that would
be in conflict with the objectivity of the individual during the
mediation proceedings.
(ii) An individual serving as a mediator is not considered to be an
employee of the designated State agency or designated State unit for
the purposes of this definition solely because the individual is paid
by the designated State agency or designated State unit to serve as a
mediator.
(Authority: Sections 12(c) and 102(c)(4) of the Act; 29 U.S.C.
709(c) and 722(c)(4))
(44) 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: Section 7(12)(c) of the Act; 29 U.S.C. 709(c))
(45) 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(30) of the Act; 29 U.S.C. 705(30))
(46) 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 121(c) of the Act; 29 U.S.C. 741(c))
(47) 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(24) of the Act; 29 U.S.C. 705(24))
(48) 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(32) of the Act; 29 U.S.C. 705(32))
(49) State workforce investment board means a State workforce
investment board established under section 111 of the Workforce
Investment Act of 1998.
(Authority: Section 7(33) of the Act; 29 U.S.C. 705(33))
(50) Statewide workforce investment system means a system described
in
[[Page 4389]]
section 111(d)(2) of the Workforce Investment Act of 1998.
(Authority: Section 7(34) of the Act; 29 U.S.C. 705(34))
(51) State plan means the State plan for vocational rehabilitation
services submitted under Sec. 361.10.
(Authority: Sections 12(c) and 101 of the Act; 29 U.S.C. 709(c) and
721)
(52) Substantial impediment to employment means that a physical or
mental impairment (in light of attendant medical, psychological,
vocational, educational, communication, 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(20)(A) and 12(c) of the Act; 29 U.S.C.
705(20)(A) and 709(c))
(53) Supported employment means--
(i) Competitive employment in an integrated setting, or employment
in integrated work settings in which individuals are working toward
competitive employment, consistent with the strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice of the individuals with ongoing support services for individuals
with the most significant disabilities--
(A) For whom competitive employment has not traditionally occurred
or for whom competitive employment has been interrupted or intermittent
as a result of a significant 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 as described in paragraph
(b)(20) of this section to perform this work; or
(ii) Transitional employment, as defined in paragraph (b)(54) of
this section, for individuals with the most significant disabilities
due to mental illness.
(Authority: Section 7(35) of the Act; 29 U.S.C. 705(35))
(54) Supported employment services means ongoing support services
and other appropriate services needed to support and maintain an
individual with a most significant 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 to achieve
the employment outcome identified in the individualized plan for
employment; 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(36) and 12(c) of the Act; 29 U.S.C. 705(36)
and 709(c))
(55) 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
achievement of the employment outcome identified in the student's
individualized plan for employment.
(Authority: Section 7(37) and 103(a)(15) of the Act; 29 U.S.C.
705(37) and 723(a)(15))
(56) 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 significant 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(35)(B) and 12(c) of the Act; 29 U.S.C.
705(35)(B) and 709(c)
(57) Transportation means travel and related expenses that are
necessary to enable an applicant or eligible individual to participate
in a vocational rehabilitation service, including expenses for training
in the use of public transportation vehicles and systems.
(Authority: 103(a)(8) of the Act; 29 U.S.C. 723(a)(8))
(i) Examples: The following are examples of expenses that would
meet the definition of transportation. The examples are purely
illustrative, do not address all possible circumstances, and are not
intended to substitute for individual counselor judgment.
Example 1: 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 2: The purchase and repair of vehicles, including vans,
but not the modification of these vehicles, as modification would be
considered a rehabilitation technology service.
Example 3: 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.
(ii) [Reserved]
(58) 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 7(38) and 103(a) and (b) of the Act; 29 U.S.C.
705(38), 723(a) and (b))
Subpart B--State Plan and Other Requirements for Vocational
Rehabilitation Services
Sec. 361.10 Submission, approval, and disapproval of the State plan.
(a) Purpose. For a State to receive a grant under this part, the
designated State agency must 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 the vocational 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 vocational 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) State unified plan. The State may choose to submit the State
plan for vocational rehabilitation services as part of the State
unified plan under section 501 of the Workforce Investment Act of 1998.
The portion of the State unified plan that includes the State plan for
vocational rehabilitation services must meet the State plan
requirements in this part.
[[Page 4390]]
(d) Public participation. Prior to the adoption of any substantive
policies or procedures governing the provision of vocational
rehabilitation services under the State plan, including making any
substantive amendment to those policies and procedures, the designated
State agency must conduct public meetings throughout the State, in
accordance with the requirements of Sec. 361.20.
(e) Duration. The State plan remains in effect subject to the
submission of modifications the State determines to be necessary or the
Secretary may require based on a change in State policy, a change in
Federal law, including regulations, an interpretation of the Act by a
Federal court or the highest court of the State, or a finding by the
Secretary of State noncompliance with the requirements of the Act or
this part.
(f) Submission of the State plan. The State must submit the State
plan for approval--
(1) To the Secretary on the same date that the State submits a
State plan relating to the statewide workforce investment system under
section 112 of the Workforce Investment Act of 1998;
(2) As part of the State unified plan submitted under section 501
of that Act; or
(3) To the Secretary on the same date that the State submits a
State unified plan under section 501 of that Act that does not include
the State plan under this part.
(g) Annual submission. (1) The State must submit to the Secretary
for approval revisions to the State plan in accordance with paragraph
(e) of this section and 34 CFR 76.140.
(2) The State must submit to the Secretary reports containing
annual updates of the information required under Secs. 361.18, 361.29,
and 361.35 and any other updates of the information required under this
part that are requested by the Secretary.
(3) The State is not required to submit policies, procedures, or
descriptions required under this part that have been previously
submitted to the Secretary and that demonstrate that the State meets
the requirements of this part, including any policies, procedures, or
descriptions submitted under this part that are in effect on August 6,
1998.
(h) Approval. The Secretary approves any State plan and any
revisions to the State plan that conform to the requirements of this
part and section 101(a) of the Act.
(i) Disapproval. The Secretary disapproves any 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 any 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 part 81.
(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 101(a) and (b), and 107(d) of the Act; 20
U.S.C. 1231g(a); and 29 U.S.C. 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 section 111 or 622(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,
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(b)(2) 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))
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: Sections 101(a)(6) and (a)(10)(A) of the Act; 29 U.S.C.
721(a)(6) and (a)(10)(A))
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,
[[Page 4391]]
the State plan must provide that the designated State agency is one of
the following types of agencies:
(i) A State agency that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities; or
(ii) A State agency that includes a vocational rehabilitation unit
as provided in paragraph (b) of this section.
(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 not of the type specified in
paragraph (a)(1)(i) of this section or if the designated State agency
specified in paragraph (a)(3) of this section is not primarily
concerned with 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;
(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.
(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.
(1) At a minimum, the following activities are the responsibility
of the designated State unit or the sole local agency under the
supervision of the State unit:
(i) All decisions affecting eligibility for vocational
rehabilitation services, the nature and scope of available services,
and the provision of these services.
(ii) The determination to close the record of services of an
individual who has achieved an employment outcome in accordance with
Sec. 361.56.
(iii) Policy formulation and implementation.
(iv) The allocation and expenditure of vocational rehabilitation
funds.
(v) Participation as a partner in the One-Stop service delivery
system under Title I of the Workforce Investment Act of 1998, in
accordance with 20 CFR part 662.
(2) The responsibility for the functions described in paragraph
(c)(1) of this section may not be delegated to any other agency or
individual.
(Authority: Section 101(a)(2) of the Act; 29 U.S.C. 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 must 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 the administration of the plan
by a local agency, the designated State agency must--
(1) Ensure that each local agency is under the supervision of the
designated State unit and is the sole local agency as defined in
Sec. 361.5(b)(47) that is responsible for the administration of the
program within the political subdivision that it serves; and
(2) Develop methods that 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: Sections 7(24) and 101(a)(2)(A) of the Act; 29 U.S.C.
705(24) and 721(a)(2)(A))
Sec. 361.16 Establishment of an independent commission or a state
rehabilitation 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 designated State agency is an independent
State commission that--
(i) Is responsible under State law for operating, or overseeing the
operation of, the vocational rehabilitation program in the State and 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,
unless the designated State unit under the direction of the commission
is the State agency for individuals who are blind;
(iii) Includes family members, advocates, or other representatives
of individuals with mental impairments; and
(iv) Conducts the functions identified in Sec. 361.17(h)(4).
(2) An assurance that--
[[Page 4392]]
(i) The State has established a State Rehabilitation Council
(Council) that meets the requirements of Sec. 361.17;
(ii) The designated State unit, in accordance with Sec. 361.29,
jointly develops, agrees to, and reviews annually State goals and
priorities and jointly submits to the Secretary annual reports of
progress with the Council;
(iii) The designated State unit regularly consults with the Council
regarding the development, implementation, and revision of State
policies and procedures of general applicability pertaining to the
provision of vocational rehabilitation services;
(iv) The designated State unit transmits to the Council--
(A) All plans, reports, and other information required under this
part to be submitted to the Secretary;
(B) All policies and information on all practices and procedures of
general applicability provided to or used by rehabilitation personnel
providing vocational rehabilitation services under this part; and
(C) Copies of due process hearing decisions issued under this part
and transmitted in a manner to ensure that the identity of the
participants in the hearings is kept confidential; and
(v) The State plan, and any revision to the State plan, includes a
summary of input provided by the Council, including recommendations
from the annual report of the Council, the review and analysis of
consumer satisfaction described in Sec. 361.17(h)(4), and other reports
prepared by the Council, and the designated State unit's response to
the input and recommendations, including explanations of reasons for
rejecting any input or recommendation 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 must either establish a separate State
Rehabilitation Council for each agency that does not meet the
requirements in paragraph (a)(1) of this section or establish one State
Rehabilitation Council for both agencies if neither agency meets the
requirements of paragraph (a)(1) of this section.
(Authority: Sections 101(a)(21) of the Act; 29 U.S.C. 721(a)(21))
Sec. 361.17 Requirements for a state rehabilitation council.
If the State has established a Council under Sec. 361.16(a)(2) or
(b), the Council must meet the following requirements:
(a) Appointment.
(1) The members of the Council must be appointed by the Governor
or, in the case of a State that, under State law, vests authority for
the administration of the activities carried out under this part in an
entity other than the Governor (such as one or more houses of the State
legislature or an independent board), the chief officer of that entity.
(2) The appointing authority must 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. In selecting
members, the appointing authority must consider, to the greatest extent
practicable, the extent to which minority populations are represented
on the Council.
(b) Composition.
(1) General. Except as provided in paragraph (b)(3) of this
section, the Council must be composed of at least 15 members,
including--
(i) At least one representative of the Statewide Independent Living
Council, who must be the chairperson or other designee of the Statewide
Independent Living Council;
(ii) At least one representative of a parent training and
information center established pursuant to section 682(a) of the
Individuals with Disabilities Education Act;
(iii) At least one representative of the Client Assistance Program
established under 34 CFR part 370, who must be the director of or other
individual recommended by the Client Assistance Program;
(iv) At least one qualified vocational rehabilitation counselor
with knowledge of and experience with vocational rehabilitation
programs who serves as an ex officio, nonvoting member of the Council
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) Representatives of individuals with disabilities who have
difficulty representing themselves or are unable due to their
disabilities to represent themselves;
(viii) Current or former applicants for, or recipients of,
vocational rehabilitation services;
(ix) In a State in which one or more projects are carried out under
section 121 of the Act (American Indian Vocational Rehabilitation
Services), at least one representative of the directors of the
projects;
(x) At least one representative of the State educational agency
responsible for the public education of students with disabilities who
are eligible to receive services under this part and part B of the
Individuals with Disabilities Education Act;
(xi) At least one representative of the State workforce investment
board; and
(xii) The director of the designated State unit as an ex officio,
nonvoting member of the Council.
(2) Employees of the designated State agency. Employees of the
designated State agency may serve only as nonvoting members of the
Council. This provision does not apply to the representative appointed
pursuant to paragraph (b)(1)(iii) of this section.
(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 representative of an individual who is blind, has
multiple disabilities, and has difficulty representing himself or
herself or is unable due to disabilities to represent himself or
herself.
(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 15 members, the separate Council is 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.
(1) A majority of the Council members must be individuals with
disabilities who meet the requirements of Sec. 361.5(b)(29) and are not
employed by the designated State unit.
(2) In the case of a separate Council established under
Sec. 361.16(b), a majority
[[Page 4393]]
of the Council members must be individuals who are blind and are not
employed by the designated State unit.
(d) Chairperson. The chairperson must 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
(2) In States in which the Governor does not have veto power
pursuant to State law, the appointing authority described in paragraph
(a)(1) of this section must designate a member of the Council to serve
as the chairperson of the Council or must require the Council to
designate a member to serve as chairperson.
(e) Terms of appointment.
(1) Each member of the Council must be appointed for a term of no
more than 3 years, and each member of the Council, other than a
representative identified in paragraph (b)(1)(iii) or (ix) of this
section, 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 must be appointed
for the remainder of the predecessor's term.
(3) The terms of service of the members initially appointed must
be, as specified by the appointing authority as described in paragraph
(a)(1) of this section, 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, except the appointing
authority as described in paragraph (a)(1) of this section may delegate
the authority to fill that vacancy to the remaining members of the
Council after making 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 must, after consulting with the State
workforce investment board--
(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 in
achieving employment outcomes under this part;
(2) In partnership with the designated State unit--
(i) Develop, agree to, and review State goals and priorities in
accordance with Sec. 361.29(c); and
(ii) Evaluate the effectiveness of the vocational rehabilitation
program and submit reports of progress to the Secretary in accordance
with Sec. 361.29(e);
(3) Advise the designated State agency and the designated State
unit regarding activities carried out under this part and assist in the
preparation of the State plan and amendments to the plan, applications,
reports, needs assessments, and evaluations required by this part;
(4) To the extent feasible, conduct a review and analysis of the
effectiveness of, and consumer satisfaction with--
(i) The functions performed by the designated State agency;
(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 under the Act; and
(iii) The employment outcomes achieved by eligible individuals
receiving services under this part, including the availability of
health and other employment benefits in connection with those
employment outcomes;
(5) Prepare and submit to the Governor 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;
(6) To avoid duplication of efforts and enhance the number of
individuals served, coordinate activities with the activities of other
councils within the State, including the Statewide Independent Living
Council established under 34 CFR part 364, the advisory panel
established under section 612(a)(21) of the Individuals with
Disabilities Education Act, the State Developmental Disabilities
Planning Council described in section 124 of the Developmental
Disabilities Assistance and Bill of Rights Act, the State mental health
planning council established under section 1914(a) of the Public Health
Service Act, and the State workforce investment board;
(7) 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
(8) Perform other comparable functions, consistent with the purpose
of this part, as the Council determines to be appropriate, that are
comparable to the other functions performed by the Council.
(i) Resources.
(1) The Council, in conjunction with the designated State unit,
must prepare a plan for the provision of resources, including staff and
other personnel, that may be necessary and sufficient for the Council
to carry out its functions under this part.
(2) The resource plan must, to the maximum extent possible, rely on
the use of resources in existence during the period of implementation
of the plan.
(3) Any disagreements between the designated State unit and the
Council regarding the amount of resources necessary to carry out the
functions of the Council must be resolved by the Governor, consistent
with paragraphs (i)(1) and (2) of this section.
(4) The Council must, 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 must--
(1) Convene at least four meetings a year in locations determined
by the Council to be necessary to conduct Council business. The
meetings must be publicly announced, open, and accessible to the
general 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 121 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)
[[Page 4394]]
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 Council, this description must, at a
minimum, specify that the Council has an opportunity to review and
comment on the development of plans, policies, and procedures necessary
to meet the requirements of paragraphs (b) through (d) 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 5 years based on
projections of the number of individuals to be served, including
individuals with significant disabilities, the number of personnel
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 all professional and
paraprofessional personnel needed within the designated 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, or registration
requirements, or, in the absence of these requirements, 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 that existing standards are not based on the
highest requirements in the State, 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. The steps taken by the State unit under
this paragraph must be described in a written plan that includes--
(A) Specific strategies for retraining, recruiting, and hiring
personnel;
(B) The specific time period by which all State unit personnel will
meet the standards described in paragraph (c)(1)(i) of this section;
(C) Procedures for evaluating the State unit's progress in hiring
or retraining personnel to meet applicable personnel standards within
the time period established under paragraph (c)(1)(ii)(B) of this
section; and
(D) In instances in which the State unit is unable to immediately
hire new personnel who meet the requirements in paragraph (c)(1)(i) of
this section, the initial minimum qualifications that the designated
State unit will require of newly hired personnel and a plan for
training those individuals to meet applicable requirements within the
time period established under paragraph (c)(1)(ii)(B) of this section.
(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 needed for
any national or State-approved or -recognized certification, licensing,
registration, or, in the absence of these requirements, 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 unit; 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 assessment, vocational counseling, job placement, and 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.
(2) The specific training areas for staff development must be based
on the
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needs of each State unit and may include, but are not limited to--
(i) Training regarding the Workforce Investment Act of 1998 and the
amendments to the Rehabilitation Act of 1973 made by the Rehabilitation
Act Amendments of 1998;
(ii) Training with respect to the requirements of the Americans
with Disabilities Act, the Individuals with Disabilities Education Act,
and Social Security work incentive programs, including programs under
the Ticket to Work and Work Incentives Improvement Act of 1999,
training to facilitate informed choice under this program, and training
to improve the provision of services to culturally diverse populations;
and
(iii) Activities related to--
(A) Recruitment and retention of qualified rehabilitation
personnel;
(B) Succession planning; and
(C) Leadership development and capacity building.
(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) Coordination with personnel development under the Individuals
with Disabilities Education Act. 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 the Individuals with Disabilities Education
Act.
(Authority: Section 101(a)(7) of the Act; 29 U.S.C. 721(a)(7))
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 covered under and on the same terms and conditions as
stated in section 503 of the Act.
(Authority: Section 101(a)(6)(B) of the Act; 29 U.S.C. 721(a)(6)(B))
Sec. 361.20 Public participation requirements.
(a) Conduct of public meetings. The State plan must assure that
prior to the adoption of any substantive policies or procedures
governing the provision of vocational rehabilitation services under the
State plan, including making any substantive amendments to the policies
and procedures, the designated State agency conducts public meetings
throughout the State to provide the public, including individuals with
disabilities, an opportunity to comment on the policies or procedures.
(b) Notice requirements. The State plan must assure that the
designated State agency, prior to conducting the public meetings,
provides appropriate and sufficient notice throughout the State of the
meetings in accordance with--
(1) State law governing public meetings; or
(2) In the absence of State law governing public meetings,
procedures developed by the designated State agency in consultation
with the State Rehabilitation Council.
(c) Summary of input of the State Rehabilitation Council. The State
plan must provide a summary of the input of the State Rehabilitation
Council, if the State agency has a Council, into the State plan and any
amendment to the plan, in accordance with Sec. 361.16(a)(2)(v).
(d) Special consultation requirements. The State plan must assure
that the State agency actively consults with the director of the Client
Assistance Program, the State Rehabilitation Council, if the State
agency has a Council, and, as appropriate, Indian tribes, tribal
organizations, and native Hawaiian organizations on its policies and
procedures governing the provision of vocational rehabilitation
services under the State plan.
(e) Appropriate modes of communication. The State unit must provide
to the public, through appropriate modes of communication, notices of
the public meetings, any materials furnished prior to or during the
public meetings, and the policies and procedures governing the
provision of vocational rehabilitation services under the State plan.
(Authority: Sections 101(a)(16)(A) and 105(c)(3) of the Act; 29
U.S.C. 721(a)(16)(A), and 725(c)(3))
Sec. 361.21 Consultations regarding the administration of the state
plan.
The State plan must assure that, in connection with matters of
general policy arising in the administration of the State plan, the
designated State agency takes into account the views of--
(a) Individuals and groups of individuals who are recipients of
vocational rehabilitation services or, as appropriate, the individuals'
representatives;
(b) Personnel working in programs that provide vocational
rehabilitation services to individuals with disabilities;
(c) Providers of vocational rehabilitation services to individuals
with disabilities;
(d) The director of the Client Assistance Program; and
(e) The State Rehabilitation Council, if the State has a Council.
(Authority: Sections 101(a)(16)(B) of the Act; 29 U.S.C.
721(a)(16)(B))
Sec. 361.22 Coordination with education officials.
(a) Plans, policies, and procedures. (1) The State plan must
contain plans, policies, and procedures for coordination between the
designated State agency and education officials responsible for the
public education of students with disabilities that are designed to
facilitate the transition of students with disabilities from the
receipt of educational services in school to the receipt of vocational
rehabilitation services under the responsibility of the designated
State agency.
(2) These plans, policies, and procedures in paragraph (a)(1) of
this section must provide for the development and approval of an
individualized plan for employment in accordance with Sec. 361.45 as
early as possible during the transition planning process but, at the
latest, by the time each student determined to be eligible for
vocational rehabilitation services leaves the school setting or, if the
designated State unit is operating under an order of selection, before
each eligible student able to be served under the order leaves the
school setting.
(b) Formal interagency agreement. The State plan must include
information on a formal interagency agreement with the State
educational agency that, at a minimum, provides for--
(1) Consultation and technical assistance to assist educational
agencies in planning for the transition of students with disabilities
from school to post-school activities, including vocational
rehabilitation services;
(2) Transition planning by personnel of the designated State agency
and educational agency personnel for students with disabilities that
facilitates the development and completion of their individualized
education programs (IEPs) under section 614(d) of the Individuals with
Disabilities Education Act;
(3) The roles and responsibilities, including financial
responsibilities, of
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each agency, including provisions for determining State lead agencies
and qualified personnel responsible for transition services; and
(4) Procedures for outreach to and identification of students with
disabilities who are in need of transition services. Outreach to these
students should occur as early as possible during the transition
planning process and must include, at a minimum, a description of the
purpose of the vocational rehabilitation program, eligibility
requirements, application procedures, and scope of services that may be
provided to eligible individuals.
(Authority: Section 101(a)(11)(D) of the Act; 29 U.S.C. 721
(a)(11)(D))
Sec. 361.23 Requirements related to the statewide workforce investment
system.
(a) Responsibilities as a partner of the One-Stop service delivery
system. As a required partner in the One-Stop service delivery system
(which is part of the statewide workforce investment system under Title
I of the Workforce Investment Act of 1998), the designated State unit
must carry out the following functions consistent with the Act, this
part, Title I of the Workforce Investment Act of 1998, and the
regulations in 20 CFR part 662:
(1) Make available to participants through the One-Stop service
delivery system the core services (as described in 20 CFR 662.240) that
are applicable to the Program administered by the designated State unit
under this part.
(2) Use a portion of funds made available to the Program
administered by the designated State unit under this part, consistent
with the Act and this part, to--
(i) Create and maintain the One-Stop service delivery system; and
(ii) Provide core services (as described in 20 CFR 662.240).
(3) Enter into a memorandum of understanding (MOU) with the Local
Workforce Investment Board under section 117 of the Workforce
Investment Act of 1998 relating to the operation of the One-Stop
service delivery system that meets the requirements of section 121(c)
of the Workforce Investment Act and 20 CFR 662.300, including a
description of services, how the cost of the identified services and
operating costs of the system will be funded, and methods for
referrals.
(4) Participate in the operation of the One-Stop service delivery
system consistent with the terms of the MOU and the requirements of the
Act and this part.
(5) Provide representation on the Local Workforce Investment Board
under section 117 of the Workforce Investment Act of 1998.
(b) Cooperative agreements with One-Stop partners. (1) The State
plan must assure that the designated State unit or the designated State
agency enters into cooperative agreements with the other entities that
are partners under the One-Stop service delivery system under Title I
of the Workforce Investment Act of 1998 and replicates those agreements
at the local level between individual offices of the designated State
unit and local entities carrying out the One-Stop service delivery
system or other activities through the statewide workforce investment
system.
(2) Cooperative agreements developed under paragraph (b)(1) of this
section may provide for--
(i) Intercomponent training and technical assistance regarding--
(A) The availability and benefits of, and information on
eligibility standards for, vocational rehabilitation services; and
(B) The promotion of equal, effective and meaningful participation
by individuals with disabilities in the One-Stop service delivery
system and other workforce investment activities through the promotion
of program accessibility consistent with the requirements of the
Americans with Disabilities Act of 1990 and section 504 of the Act, the
use of nondiscriminatory policies and procedures, and the provision of
reasonable accommodations, auxiliary aids and services, and
rehabilitation technology for individuals with disabilities;
(ii) The use of information and financial management systems that
link all of the partners of the One-Stop service delivery system to one
another and to other electronic networks, including nonvisual
electronic networks, and that relate to subjects such as employment
statistics, job vacancies, career planning, and workforce investment
activities;
(iii) The use of customer service features such as common intake
and referral procedures, customer databases, resource information, and
human services hotlines;
(iv) The establishment of cooperative efforts with employers to
facilitate job placement and carry out other activities that the
designated State unit and the employers determine to be appropriate;
(v) The identification of staff roles, responsibilities, and
available resources and specification of the financial responsibility
of each partner of the One-Stop service delivery system with respect to
providing and paying for necessary services, consistent with the
requirements of the Act, this part, other Federal requirements, and
State law; and
(vi) The specification of procedures for resolving disputes among
partners of the One-Stop service delivery system.
(Authority: Section 101(a)(11)(A) of the Act; 29 U.S.C.
721(a)(11)(A); Sections 121 and 134 of the Workforce Investment Act
of 1998; 29 U.S.C. 2841 and 2864)
Sec. 361.24 Cooperation and coordination with other entities.
(a) Interagency cooperation. The State plan must describe the
designated State agency's cooperation with and use of the services and
facilities of Federal, State, and local agencies and programs,
including programs carried out by the Under Secretary for Rural
Development of the Department of Agriculture and State use contracting
programs, to the extent that those agencies and programs are not
carrying out activities through the statewide workforce investment
system.
(b) Coordination with the Statewide Independent Living Council and
independent living centers. The State plan must assure that the
designated State unit, the Statewide Independent Living Council
established under 34 CFR part 364, and the independent living centers
established under 34 CFR part 366 have developed working relationships
and coordinate their activities.
(c) Cooperative agreement with recipients of grants for services to
American Indians.
(1) General. In applicable cases, the State plan must assure that
the designated State agency has entered into a formal cooperative
agreement with each grant recipient in the State that receives funds
under part C of the Act (American Indian Vocational Rehabilitation
Services).
(2) Contents of formal cooperative agreement. The agreement
required under paragraph (a)(1) of this section must describe
strategies for collaboration and coordination in providing vocational
rehabilitation services to American Indians who are individuals with
disabilities, including--
(i) Strategies for interagency referral and information sharing
that will assist in eligibility determinations and the development of
individualized plans for employment;
(ii) Procedures for ensuring that American Indians who are
individuals with disabilities and are living near a reservation or
tribal service area are provided vocational rehabilitation services;
and
(iii) Provisions for sharing resources in cooperative studies and
assessments,
[[Page 4397]]
joint training activities, and other collaborative activities designed
to improve the provision of services to American Indians who are
individuals with disabilities.
(d) Reciprocal referral services between two designated State units
in the same State. If there is a separate designated State unit for
individuals who are blind, the two designated State units must
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 12(c) and 101(a)(11)(C), (E), and (F) of the
Act; 29 U.S.C. 709(c) and 721(a)(11) (C), (E), and (F))
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) For purposes other than those specified in Sec. 361.60(b)(3)(i)
and consistent with the requirements in Sec. 361.60(b)(3)(ii), the
State includes in its State plan, and the Secretary approves, 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) If the State plan provides for the designated State agency to
share funding and administrative responsibility with another State
agency or local public agency to carry out a joint program to provide
services to individuals with disabilities, the State must submit to the
Secretary for approval a plan that describes its shared funding and
administrative arrangement.
(b) The plan under paragraph (a) of this section must include--
(1) A description of the nature and scope of the joint program;
(2) The services to be provided under the joint program;
(3) The respective roles of each participating agency in the
administration and provision of services; and
(4) The share of the costs to be assumed by each agency.
(c) If a proposed joint program does not comply with the
statewideness requirement in Sec. 361.25, the State unit must obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Authority: Section 101(a)(2)(A) of the Act; 29 U.S.C. 721(a)(2)(A))
Sec. 361.28 Third-party cooperative arrangements involving funds from
other public agencies.
(a) The designated State unit may enter 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, if the
designated State unit ensures 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
(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 must obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
Sec. 361.29 Statewide assessment; annual estimates; annual State goals
and priorities; strategies; and progress reports.
(a) Comprehensive statewide assessment. (1) The State plan must
include--
(i) The results of a comprehensive, statewide assessment, jointly
conducted by the designated State unit and the State Rehabilitation
Council (if the State unit has a Council) every 3 years describing the
rehabilitation needs of individuals with disabilities residing within
the State, particularly the vocational rehabilitation services needs
of--
(A) Individuals with the most significant disabilities, including
their need for supported employment services;
(B) Individuals with disabilities who are minorities and
individuals with disabilities who have been unserved or underserved by
the vocational rehabilitation program carried out under this part; and
(C) Individuals with disabilities served through other components
of the statewide workforce investment system as identified by those
individuals and personnel assisting those individuals through the
components of the system; and
(ii) An assessment of the need to establish, develop, or improve
community rehabilitation programs within the State.
(2) The State plan must assure that the State will submit to the
Secretary a report containing information regarding updates to the
assessments under paragraph (a) of this section for any year in which
the State updates the assessments.
(b) Annual estimates. The State plan must include, and must assure
that the State will annually submit a report to the Secretary that
includes, State estimates of--
[[Page 4398]]
(1) The number of individuals in the State who are eligible for
services under this part;
(2) The number of eligible individuals who will receive services
provided with funds provided under part B of Title I of the Act and
under part B of Title VI of the Act, including, if the designated State
agency uses an order of selection in accordance with Sec. 361.36,
estimates of the number of individuals to be served under each priority
category within the order; and
(3) The costs of the services described in paragraph (b)(1) of this
section, including, if the designated State agency uses an order of
selection, the service costs for each priority category within the
order.
(c) Goals and priorities.
(1) In general. The State plan must identify the goals and
priorities of the State in carrying out the program.
(2) Council. The goals and priorities must be jointly developed,
agreed to, reviewed annually, and, as necessary, revised by the
designated State unit and the State Rehabilitation Council, if the
State unit has a Council.
(3) Submission. The State plan must assure that the State will
submit to the Secretary a report containing information regarding
revisions in the goals and priorities for any year in which the State
revises the goals and priorities.
(4) Basis for goals and priorities. The State goals and priorities
must be based on an analysis of--
(i) The comprehensive statewide assessment described in paragraph
(a) of this section, including any updates to the assessment;
(ii) The performance of the State on the standards and indicators
established under section 106 of the Act; and
(iii) Other available information on the operation and the
effectiveness of the vocational rehabilitation program carried out in
the State, including any reports received from the State Rehabilitation
Council under Sec. 361.17(h) and the findings and recommendations from
monitoring activities conducted under section 107 of the Act.
(5) Service and outcome goals for categories in order of selection.
If the designated State agency uses an order of selection in accordance
with Sec. 361.36, the State plan must identify the State's service and
outcome goals and the time within which these goals may be achieved for
individuals in each priority category within the order.
(d)Strategies. The State plan must describe the strategies the
State will use to address the needs identified in the assessment
conducted under paragraph (a) of this section and achieve the goals and
priorities identified in paragraph (c) of this section, including--
(1) The methods to be used to expand and improve services to
individuals with disabilities, including how a broad range of assistive
technology services and assistive technology devices will be provided
to those individuals at each stage of the rehabilitation process and
how those services and devices will be provided to individuals with
disabilities on a statewide basis;
(2) Outreach procedures to identify and serve individuals with
disabilities who are minorities and individuals with disabilities who
have been unserved or underserved by the vocational rehabilitation
program;
(3) As applicable, the plan of the State for establishing,
developing, or improving community rehabilitation programs;
(4) Strategies to improve the performance of the State with respect
to the evaluation standards and performance indicators established
pursuant to section 106 of the Act; and
(5) Strategies for assisting other components of the statewide
workforce investment system in assisting individuals with disabilities.
(e) Evaluation and reports of progress. (1) The State plan must
include--
(i) The results of an evaluation of the effectiveness of the
vocational rehabilitation program; and
(ii) A joint report by the designated State unit and the State
Rehabilitation Council, if the State unit has a Council, to the
Secretary on the progress made in improving the effectiveness of the
program from the previous year. This evaluation and joint report must
include--
(A) An evaluation of the extent to which the goals and priorities
identified in paragraph (c) of this section were achieved;
(B) A description of the strategies that contributed to the
achievement of the goals and priorities;
(C) To the extent to which the goals and priorities were not
achieved, a description of the factors that impeded that achievement;
and
(D) An assessment of the performance of the State on the standards
and indicators established pursuant to section 106 of the Act.
(2) The State plan must assure that the designated State unit and
the State Rehabilitation Council, if the State unit has a Council, will
jointly submit to the Secretary an annual report that contains the
information described in paragraph (e)(1) of this section.
(Authority: Section 101(a)(15) of the Act; 29 U.S.C. 721(a)(15))
Sec. 361.30 Services to American Indians.
The State plan must assure that the designated State agency
provides vocational rehabilitation services to American Indians who are
individuals with disabilities residing in the State to the same extent
as the designated State agency provides vocational rehabilitation
services to other significant populations of individuals with
disabilities residing in the State.
(Authority: Sections 101(a)(13) and 121(b)(3) of the Act; 29 U.S.C.
721(a)(13) and 741(b)(3))
Sec. 361.31 Cooperative agreements with private nonprofit
organizations.
The State plan must describe the manner in which cooperative
agreements with private nonprofit vocational rehabilitation service
providers will be established.
(Authority: Sections 101(a)(24)(B); 29 U.S.C. 721(a)(24)(B))
Sec. 361.32 Use of profitmaking organizations for on-the-job training
in connection with selected projects.
The State plan must assure that the designated State agency has the
authority to enter into contracts with for-profit organizations for the
purpose of providing, as vocational rehabilitation services, on-the-job
training and related programs for individuals with disabilities under
the Projects With Industry program, 34 CFR part 379, if the designated
State agency has determined that for-profit agencies are better
qualified to provide needed vocational rehabilitation services than
nonprofit agencies and organizations.
(Authority: Section 101(a)(24)(A) of the Act; 29 U.S.C.
721(a)(24)(A))
Sec. 361.33 [Reserved]
Sec. 361.34 Supported employment State plan supplement.
(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 any needed annual
revisions, must be submitted as a supplement to the State plan
submitted under this part.
(Authority: Sections 101(a)(22) and 625(a) of the Act; 29 U.S.C.
721(a)(22) and 795(k))
Sec. 361.35 Innovation and expansion activities.
(a) The State plan must assure that the State will reserve and use
a portion of the funds allotted to the State under section 110 of the
Act--
(1) For the development and implementation of innovative
[[Page 4399]]
approaches to expand and improve the provision of vocational
rehabilitation services to individuals with disabilities, particularly
individuals with the most significant disabilities, consistent with the
findings of the comprehensive, statewide assessment of the
rehabilitation needs of individuals with disabilities under
Sec. 361.29(a) and the State's goals and priorities under
Sec. 361.29(c); and
(2) To support the funding of--
(i) The State Rehabilitation Council, if the State has a Council,
consistent with the resource plan identified in Sec. 361.17(i); and
(ii) The Statewide Independent Living Council, consistent with the
plan prepared under 34 CFR 364.21(i).
(b) The State plan must--
(1) Describe how the reserved funds will be used; and
(2) Include, on an annual basis, a report describing how the
reserved funds were used during the preceding year.
(Authority: Section 101(a)(18) of the Act; 29 U.S.C. 721(a)(18))
Sec. 361.36 Ability to serve all eligible individuals; order of
selection for services.
(a) General provisions.
(1) The designated State unit either must be able to provide the
full range of services listed in section 103(a) of the Act and
Sec. 361.48, as appropriate, to all eligible individuals or, in the
event that vocational rehabilitation services cannot be provided to all
eligible individuals in the State who apply for the services, include
in the State plan the order to be followed in selecting eligible
individuals to be provided vocational rehabilitation services.
(2) The ability of the designated State unit to provide the full
range of vocational rehabilitation services to all eligible individuals
must be supported by a determination that satisfies the requirements of
paragraph (b) or (c) of this section and a determination that, on the
basis of the designated State unit's projected fiscal and personnel
resources and its assessment of the rehabilitation needs of individuals
with significant disabilities within the State, it can--
(i) Continue to provide services to all individuals currently
receiving services;
(ii) Provide assessment services to all individuals expected to
apply for services in the next fiscal year;
(iii) Provide services to all individuals who are expected to be
determined eligible in the next fiscal year; and
(iv) Meet all program requirements.
(3) If the designated State unit is unable to provide the full
range vocational rehabilitation services to all eligible individuals in
the State who apply for the services, the State plan must--
(i) Show the order to be followed in selecting eligible individuals
to be provided vocational rehabilitation services;
(ii) Provide a justification for the order of selection;
(iii) Identify service and outcome goals and the time within which
the goals may be achieved for individuals in each priority category
within the order, as required under Sec. 361.29(c)(5); and
(iv) Assure that--
(A) In accordance with criteria established by the State for the
order of selection, individuals with the most significant disabilities
will be selected first for the provision of vocational rehabilitation
services; and
(B) Individuals who do not meet the order of selection criteria
will have access to services provided through the information and
referral system established under Sec. 361.37.
(b) Basis for assurance that services can be provided to all
eligible individuals.
(1) For a designated State unit that determined, for the current
fiscal year and the preceding fiscal year, that it is able to provide
the full range of services, as appropriate, to all eligible
individuals, the State unit, during the current fiscal and preceding
fiscal year, must have in fact--
(i) Provided assessment services to all applicants and the full
range of services, as appropriate, to all eligible individuals;
(ii) Made referral forms widely available throughout the State;
(iii) Conducted outreach efforts to identify and serve individuals
with disabilities who have been unserved or underserved by the
vocational rehabilitation system; and
(iv) Not delayed, through waiting lists or other means,
determinations of eligibility, the development of individualized plans
for employment for individuals determined eligible for vocational
rehabilitation services, or the provision of services for eligible
individuals for whom individualized plans for employment have been
developed.
(2) For a designated State unit that was unable to provide the full
range of services to all eligible individuals during the current or
preceding fiscal year or that has not met the requirements in paragraph
(b)(1) of this section, the determination that the designated State
unit is able to provide the full range of vocational rehabilitation
services to all eligible individuals in the next fiscal year must be
based on--
(i) Circumstances that have changed that will allow the designated
State unit to meet the requirements of paragraph (a)(2) of this section
in the next fiscal year, including--
(A) An estimate of the number of and projected costs of serving, in
the next fiscal year, individuals with existing individualized plans
for employment;
(B) The projected number of individuals with disabilities who will
apply for services and will be determined eligible in the next fiscal
year and the projected costs of serving those individuals;
(C) The projected costs of administering the program in the next
fiscal year, including, but not limited to, costs of staff salaries and
benefits, outreach activities, and required statewide studies; and
(D) The projected revenues and projected number of qualified
personnel for the program in the next fiscal year;
(ii) Comparable data, as relevant, for the current or preceding
fiscal year, or for both years, of the costs listed in paragraphs
(b)(2)(i)(A) through (C) of this section and the resources identified
in paragraph (b)(2)(i)(D) of this section and an explanation of any
projected increases or decreases in these costs and resources; and
(iii) A determination that the projected revenues and the projected
number of qualified personnel for the program in the next fiscal year
are adequate to cover the costs identified in paragraphs (b)(2)(i)(A)
through (C) of this section to ensure the provision of the full range
of services, as appropriate, to all eligible individuals.
(c) Determining need for establishing and implementing an order of
selection.
(1) The designated State unit must determine, prior to the
beginning of each fiscal year, whether to establish and implement an
order of selection.
(2) If the designated State unit determines that it does not need
to establish an order of selection, it must reevaluate this
determination whenever changed circumstances during the course of a
fiscal year, such as a decrease in its fiscal or personnel resources or
an increase in its program costs, indicate that it may no longer be
able to provide the full range of services, as appropriate, to all
eligible individuals, as described in paragraph (a)(2) of this section.
(3) If a DSU establishes an order of selection, but determines that
it does not need to implement that order at the beginning of the fiscal
year, it must continue to meet the requirements of paragraph (a)(2) of
this section, or it must implement the order of selection
[[Page 4400]]
by closing one or more priority categories.
(d) Establishing an order of selection.
(1) Basis for order of selection. An order of selection must be
based on a refinement of the three criteria in the definition of
``individual with a significant disability'' in section 7(21)(A) of the
Act and Sec. 361.5(b)(31).
(2) Factors that cannot be used in determining order of selection
of eligible individuals. An order of selection may not be based on any
other factors, including--
(i) Any duration of residency requirement, provided the individual
is present in the State;
(ii) Type of disability;
(iii) Age, gender, race, color, or national origin;
(iv) Source of referral;
(v) Type of expected employment outcome;
(vi) The need for specific services or anticipated cost of services
required by an individual; or
(vii) The income level of an individual or an individual's family.
(e) Administrative requirements. In administering the order of
selection, the designated State unit must--
(1) Implement the order of selection on a statewide basis;
(2) Notify all eligible individuals of the priority categories in a
State's order of selection, their assignment to a particular category,
and their right to appeal their category assignment;
(3) Continue to provide all needed services to any eligible
individual who has begun to receive services under an individualized
plan for employment prior to the effective date of the order of
selection, irrespective of the severity of the individual's disability;
and
(4) Ensure that its funding arrangements for providing services
under the State plan, including third-party arrangements and awards
under the establishment authority, are consistent with the order of
selection. If any funding arrangements are inconsistent with the order
of selection, the designated State unit must renegotiate these funding
arrangements so that they are consistent with the order of selection.
(f) State Rehabilitation Council. The designated State unit must
consult with the State Rehabilitation Council, if the State unit has a
Council, regarding the--
(1) Need to establish an order of selection, including any
reevaluation of the need under paragraph (c)(2) of this section;
(2) Priority categories of the particular order of selection;
(3) Criteria for determining individuals with the most significant
disabilities; and
(4) Administration of the order of selection.
(Authority: Sections 12(d); 101(a)(5); 101(a)(12); 101(a)(15)(A),
(B) and (C); 101(a)(21)(A)(ii); and 504(a) of the Act; 29 U.S.C.
709(d), 721(a)(5), 721(a)(12), 721(a)(15)(A), (B) and (C);
721(a)(21)(A)(ii), and 794(a))
Sec. 361.37 Information and referral services.
(a) General provisions. The State plan must assure that--
(1) The designated State agency will implement an information and
referral system adequate to ensure that individuals with disabilities,
including eligible individuals who do not meet the agency's order of
selection criteria for receiving vocational rehabilitation services if
the agency is operating on an order of selection, are provided accurate
vocational rehabilitation information and guidance (which may include
counseling and referral for job placement) using appropriate modes of
communication to assist them in preparing for, securing, retaining, or
regaining employment; and
(2) The designated State agency will refer individuals with
disabilities to other appropriate Federal and State programs, including
other components of the statewide workforce investment system.
(b) Criteria for appropriate referrals. In making the referrals
identified in paragraph (a)(2) of this section, the designated State
unit must--
(1) Refer the individual to Federal or State programs, including
programs carried out by other components of the statewide workforce
investment system, best suited to address the specific employment needs
of an individual with a disability; and
(2) Provide the individual who is being referred--
(i) A notice of the referral by the designated State agency to the
agency carrying out the program;
(ii) Information identifying a specific point of contact within the
agency to which the individual is being referred; and
(iii) Information and advice regarding the most suitable services
to assist the individual to prepare for, secure, retain, or regain
employment.
(c) Order of selection. In providing the information and referral
services under this section to eligible individuals who are not in the
priority category or categories to receive vocational rehabilitation
services under the State's order of selection, the State unit must
identify, as part of its reporting under section 101(a)(10) of the Act
and Sec. 361.40, the number of eligible individuals who did not meet
the agency's order of selection criteria for receiving vocational
rehabilitation services and did receive information and referral
services under this section.
(Authority: Sections 101(a)(5)(D) and (20) and 101(a)(10)(C)(ii) of
the Act; 29 U.S.C. 721(a)(5)(D) and (20) and (a)(10)(C)(ii))
Sec. 361.38 Protection, use, and release of personal information.
(a) General provisions.
(1) The State agency and the State unit must adopt and implement
written policies and procedures to safeguard the confidentiality of all
personal information, including photographs and lists of names. These
policies and procedures must ensure that--
(i) Specific safeguards are established to 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's 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 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 must establish policies and procedures governing access to records.
[[Page 4401]]
(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 must make all requested information in that
individual's record of services accessible to and must release the
information 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 to the individual
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, unless a representative has been appointed
by a court to represent the individual, in which case the information
must be released to the court-appointed representative.
(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.
(4) An applicant or eligible individual who believes that
information in the individual's record of services is inaccurate or
misleading may request that the designated State unit amend the
information. If the information is not amended, the request for an
amendment must be documented in the record of services, consistent with
Sec. 361.47(a)(12).
(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 must release personal information if required by
Federal law or regulations.
(4) The State unit must 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 judge, magistrate, or other
authorized 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.
709(c) and 721(a)(6)(A))
Sec. 361.39 State-imposed requirements.
The designated State unit must, upon request, identify 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. 714)
Sec. 361.40 Reports.
(a) The State plan must assure that the designated State agency
will submit reports, including reports required under sections 13, 14,
and 101(a)(10) of the Act--
(1) In the form and level of detail and at the time required by the
Secretary regarding applicants for and eligible individuals receiving
services under this part; and
(2) In a manner that provides a complete count (other than the
information obtained through sampling consistent with section
101(a)(10)(E) of the Act) of the applicants and eligible individuals
to--
(i) Permit the greatest possible cross-classification of data; and
(ii) Protect the confidentiality of the identity of each
individual.
(b) The designated State agency must comply with any requirements
necessary to ensure the accuracy and verification of those reports.
(Authority: Section 101(a)(10)(A) and (F) of the Act; 29 U.S.C.
721(a)(10)(A) and (F))
Provision and Scope of Services
Sec. 361.41 Processing referrals and applications.
(a) Referrals. The designated State unit must establish and
implement standards for the prompt and equitable handling of referrals
of individuals for vocational rehabilitation services, including
referrals of individuals made through the One-Stop service delivery
systems established under section 121 of the Workforce Investment Act
of 1998. 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) Once an individual has submitted an application for vocational
rehabilitation services, including applications made through common
intake procedures in One-Stop centers established under section 121 of
the Workforce Investment Act of 1998, an eligibility determination must
be made within 60 days, unless--
(i) Exceptional and unforeseen circumstances beyond the control of
the designated State unit preclude making an eligibility determination
within 60 days and the designated State unit and
[[Page 4402]]
the individual agree to a specific extension of time; or
(ii) An exploration of the individual's abilities, capabilities,
and capacity to perform in work situations is carried out in accordance
with Sec. 361.42(e) or, if appropriate, an extended evaluation is
carried out in accordance with Sec. 361.42(f).
(2) An individual is considered to have submitted an application
when the individual or the individual's representative, as
appropriate--
(i)(A) Has completed and signed an agency application form;
(B) Has completed a common intake application form in a One-Stop
center requesting vocational rehabilitation services; or
(C) Has otherwise requested services from the designated State
unit;
(ii) Has provided to the designated State unit information
necessary to initiate an assessment to determine eligibility and
priority for services; and
(iii) Is available to complete the assessment process.
(3) The designated State unit must ensure that its application
forms are widely available throughout the State, particularly in the
One-Stop centers established under section 121 of the Workforce
Investment Act of 1998.
(Authority: Sections 101(a)(6)(A) and 102(a)(6) of the Act; 29
U.S.C. 721(a)(6)(A) and 722(a)(6))
Sec. 361.42 Assessment for determining eligibility and priority for
services.
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 must 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 designated State unit's determination
of an applicant's eligibility for vocational rehabilitation services
must be based only on the following requirements:
(i) A determination by qualified personnel that the applicant has a
physical or mental impairment.
(ii) A determination by qualified personnel that the applicant's
physical or mental impairment constitutes or results in a substantial
impediment to employment for the applicant.
(iii) A determination by a qualified vocational rehabilitation
counselor employed by the designated State unit that the applicant
requires vocational rehabilitation services to prepare for, secure,
retain, or regain employment consistent with the applicant's unique
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice.
(iv) A presumption, 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.
(2) Presumption of benefit. The designated State unit must 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 demonstrates, based on clear and
convincing evidence, that the applicant is incapable of benefiting in
terms of an employment outcome from vocational rehabilitation services
due to the severity of the applicant's disability.
(3) Presumption of eligibility for Social Security recipients and
beneficiaries.
(i) Any applicant who has been determined eligible for Social
Security benefits under Title II or Title XVI of the Social Security
Act is--
(A) Presumed eligible for vocational rehabilitation services under
paragraphs (a)(1) and (2) of this section; and
(B) Considered an individual with a significant disability as
defined in Sec. 361.5(b)(31).
(ii) If an applicant for vocational rehabilitation services asserts
that he or she is eligible for Social Security benefits under Title II
or Title XVI of the Social Security Act (and, therefore, is presumed
eligible for vocational rehabilitation services under paragraph
(a)(3)(i)(A) of this section), but is unable to provide appropriate
evidence, such as an award letter, to support that assertion, the State
unit must verify the applicant's eligibility under Title II or Title
XVI of the Social Security Act by contacting the Social Security
Administration. This verification must be made within a reasonable
period of time that enables the State unit to determine the applicant's
eligibility for vocational rehabilitation services within 60 days of
the individual submitting an application for services in accordance
with Sec. 361.41(b)(2).
(4) Achievement of an employment outcome. Any eligible individual,
including an individual whose eligibility for vocational rehabilitation
services is based on the individual being eligible for Social Security
benefits under Title II or Title XVI of the Social Security Act, must
intend to achieve an employment outcome that is consistent with the
applicant's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice.
(i) The State unit is responsible for informing individuals,
through its application process for vocational rehabilitation services,
that individuals who receive services under the program must intend to
achieve an employment outcome.
(ii) The applicant's completion of the application process for
vocational rehabilitation services is sufficient evidence of the
individual's intent to achieve an employment outcome, and no additional
demonstration on the part of the applicant is required for purposes of
satisfying paragraph (a)(4) of this section.
(5) Interpretation. Nothing in this section, including paragraph
(a)(3)(i), is to be construed to create an entitlement to any
vocational rehabilitation service.
(b) Interim determination of eligibility.
(1) The designated State unit may initiate the provision of
vocational rehabilitation services for an applicant on the basis of an
interim determination of eligibility prior to the 60-day period
described in Sec. 361.41(b)(2).
(2) If a State chooses to make interim determinations of
eligibility, the designated State unit must--
(i) Establish criteria and conditions for making those
determinations;
(ii) Develop and implement procedures for making the
determinations; and
(iii) Determine the scope of services that may be provided pending
the final determination of eligibility.
(3) If a State elects to use an interim eligibility determination,
the designated State unit must make a final determination of
eligibility within 60 days of the individual submitting an application
for services in accordance with Sec. 361.41(b)(2).
(c) Prohibited factors.
(1) The State plan must assure that the State unit will not impose,
as part of determining eligibility under this section, a duration of
residence requirement that excludes from services any applicant who is
present in the State.
(2) In making a determination of eligibility under this section,
the designated State unit also must ensure that--
(i) No applicant or group of applicants is excluded or found
ineligible solely on the basis of the type of disability; and
(ii) The eligibility requirements are applied without regard to
the--
(A) Age, gender, race, color, or national origin of the applicant;
[[Page 4403]]
(B) Type of expected employment outcome;
(C) Source of referral for vocational rehabilitation services; and
(D) Particular service needs or anticipated cost of services
required by an applicant or the income level of an applicant or
applicant's family.
(d) Review and assessment of data for eligibility determination.
Except as provided in paragraph (e) of this section, the designated
State unit--
(1) Must base its determination of each of the basic eligibility
requirements in paragraph (a) of this section on--
(i) A review and assessment of existing data, including counselor
observations, education records, information provided by the individual
or the individual's family, particularly information used by education
officials, and determinations made by officials of other agencies; and
(ii) 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 trial work experiences, assistive
technology devices and services, personal assistance services, and any
other support services that are necessary to determine whether an
individual is eligible; and
(2) Must base its presumption under paragraph (a)(3)(i) of this
section that an applicant who has been determined eligible for Social
Security benefits under Title II or Title XVI of the Social Security
Act satisfies each of the basic eligibility requirements in paragraph
(a) of this section on determinations made by the Social Security
Administration.
(e) Trial work experiences for individuals with significant
disabilities.
(1) Prior to any determination that an individual with a disability
is incapable of benefiting from vocational rehabilitation services in
terms of an employment outcome because of the severity of that
individual's disability, the designated State unit must conduct an
exploration of the individual's abilities, capabilities, and capacity
to perform in realistic work situations to determine whether or not
there is clear and convincing evidence to support such a determination.
(2)(i) The designated State unit must develop a written plan to
assess periodically the individual's abilities, capabilities, and
capacity to perform in work situations through the use of trial work
experiences, which must be provided in the most integrated setting
possible, consistent with the informed choice and rehabilitation needs
of the individual.
(ii) Trial work experiences include supported employment, on-the-
job training, and other experiences using realistic work settings.
(iii) Trial work experiences must be of sufficient variety and over
a sufficient period of time for the designated State unit to determine
that--
(A) 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
(B) There is clear and convincing evidence that the individual is
incapable of benefiting from vocational rehabilitation services in
terms of an employment outcome due to the severity of the individual's
disability.
(iv) The designated State unit must provide appropriate supports,
including assistive technology devices and services and personal
assistance services, to accommodate the rehabilitation needs of the
individual during the trial work experiences.
(f) Extended evaluation for certain individuals with significant
disabilities.
(1) Under limited circumstances if an individual cannot take
advantage of trial work experiences or if options for trial work
experiences have been exhausted before the State unit is able to make
the determinations described in paragraph (e)(2)(iii) of this section,
the designated State unit must conduct an extended evaluation to make
these determinations.
(2) During the extended evaluation period, vocational
rehabilitation services must be provided in the most integrated setting
possible, consistent with the informed choice and rehabilitation needs
of the individual.
(3) During the extended evaluation period, the designated State
unit must develop a written plan for providing services necessary to
make a determination under paragraph (e)(2)(iii) of this section.
(4) During the extended evaluation period, the designated State
unit provides only those services that are necessary to make the
determinations described in paragraph (e)(2)(iii) of this section and
terminates extended evaluation services when the State unit is able to
make the determinations.
(g) Data for determination of priority for services under an order
of selection. If the designated State unit is operating under an order
of selection for services, as provided in Sec. 361.36, the State unit
must base its priority assignments on--
(1) A review of the data that was developed under paragraphs (d)
and (e) of this section to make the eligibility determination; and
(2) An assessment of additional data, to the extent necessary.
(Authority: Sections 7(2)(A), 7(2)(B)(ii)(I), 7(2)(C), 7(2)(D),
101(a)(12), 102(a)(1), 102(a)(2), 102(a)(3), 102(a)(4)(A),
102(a)(4)(B), 102(a)(4)(C), 103(a)(1), 103(a)(9), 103(a)(10) and
103(a)(14) of the Act; 29 U.S.C. 705(2)(A), 705(2)(B)(ii)(I),
705(2)(C), 705(2)(D), 721(a)(12), 722(a)(1), 722(a)(2), 722(a)(3),
722(a)(4)(A), 722(a)(4)(B), 722(a)(4)(C), 723(a)(1), 723(a)(9),
723(a)(10) and 723(a)(14))
Note to Sec. 361.42: Clear and convincing evidence means that
the designated State unit shall have a high degree of certainty
before it can conclude that an individual is incapable of benefiting
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 is to be individually applied on a case-by-
case basis. The term clear means unequivocal. 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. (S. Rep. No. 357, 102d Cong.,
2d. Sess. 37-38 (1992))
Sec. 361.43 Procedures for ineligibility determination.
If the State unit determines that an applicant is ineligible for
vocational rehabilitation services or determines that an individual
receiving services under an individualized plan for employment is no
longer eligible for services, the State unit must--
(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, supplemented as necessary by
other appropriate modes of communication consistent with the informed
choice of the individual, 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
State unit personnel determinations in accordance with Sec. 361.57;
(c) Provide the individual with a description of services available
from a
[[Page 4404]]
client assistance program established under 34 CFR part 370 and
information on how to contact that program;
(d) Refer the individual to other training or employment-related
programs that are part of the One-Stop service delivery system under
the Workforce Investment Act; and
(e) Review within 12 months and annually thereafter if requested by
the individual or, if appropriate, by the individual's representative
any ineligibility determination that is based on a finding that the
individual is incapable of achieving an employment outcome. This review
need not be conducted in situations in which the individual has refused
it, the individual is no longer present in the State, the individual's
whereabouts are unknown, or the individual's medical condition is
rapidly progressive or terminal.
(Authority: Sections 102(a)(5) and 102(c) of the Act; 29 U.S.C.
722(a)(5) and 722(c))
Sec. 361.44 Closure without eligibility determination.
The designated State unit may not close an applicant's record of
services 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: Section 12(c) of the Act; 29 U.S.C. 709(c))
Sec. 361.45 Development of the individualized plan for employment.
(a) General requirements. The State plan must assure that--
(1) An individualized plan for employment (IPE) meeting the
requirements of this section and Sec. 361.46 is developed and
implemented in a timely manner for each individual determined to be
eligible for vocational rehabilitation services or, if the designated
State unit is operating under an order of selection in accordance with
Sec. 361.36, for each eligible individual to whom the State unit is
able to provide services; and
(2) Services will be provided in accordance with the provisions of
the IPE.
(b) Purpose.
(1) The designated State unit must conduct an assessment for
determining vocational rehabilitation needs, if appropriate, 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
employment outcome, and the nature and scope of vocational
rehabilitation services to be included in the IPE.
(2) The IPE must--
(i) Be designed to achieve the specific employment outcome that is
selected by the individual consistent with the individual's unique
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice; and
(ii) To the maximum extent appropriate, result in employment in an
integrated setting.
(c) Required information. The State unit must provide the following
information to each eligible individual or, as appropriate, the
individual's representative, in writing and, if appropriate, in the
native language or mode of communication of the individual or the
individual's representative:
(1) Options for developing an IPE. Information on the available
options for developing the IPE, including the option that an eligible
individual or, as appropriate, the individual's representative may
develop all or part of the IPE--
(i) Without assistance from the State unit or other entity; or
(ii) With assistance from--
(A) A qualified vocational rehabilitation counselor employed by the
State unit;
(B) A qualified vocational rehabilitation counselor who is not
employed by the State unit; or
(C) Resources other than those in paragraph (A) or (B) of this
section.
(2) Additional information. Additional information to assist the
eligible individual or, as appropriate, the individual's representative
in developing the IPE, including--
(i) Information describing the full range of components that must
be included in an IPE;
(ii) As appropriate to each eligible individual--
(A) An explanation of agency guidelines and criteria for
determining an eligible individual's financial commitments under an
IPE;
(B) Information on the availability of assistance in completing
State unit forms required as part of the IPE; and
(C) Additional information that the eligible individual requests or
the State unit determines to be necessary to the development of the
IPE;
(iii) A description of the rights and remedies available to the
individual, including, if appropriate, recourse to the processes
described in Sec. 361.57; and
(iv) A description of the availability of a client assistance
program established under 34 CFR part 370 and information on how to
contact the client assistance program.
(d) Mandatory procedures. The designated State unit must ensure
that--
(1) The IPE is a written document prepared on forms provided by the
State unit;
(2) The IPE is developed and implemented in a manner that gives
eligible individuals the opportunity to exercise informed choice,
consistent with Sec. 361.52, in selecting--
(i) The employment outcome, including the employment setting;
(ii) The specific vocational rehabilitation services needed to
achieve the employment outcome, including the settings in which
services will be provided;
(iii) The entity or entities that will provide the vocational
rehabilitation services; and
(iv) The methods available for procuring the services;
(3) The IPE is--
(i) Agreed to and signed by the eligible individual or, as
appropriate, the individual's representative; and
(ii) Approved and signed by a qualified vocational rehabilitation
counselor employed by the designated State unit;
(4) A copy of the IPE and a copy of any amendments to the IPE are
provided to the eligible individual or, as appropriate, to the
individual's representative, in writing and, if appropriate, in the
native language or mode of communication of the individual or, as
appropriate, the individual's representative;
(5) The IPE is reviewed at least annually by a qualified vocational
rehabilitation counselor and the eligible individual or, as
appropriate, the individual's representative to assess the eligible
individual's progress in achieving the identified employment outcome;
(6) The IPE is amended, as necessary, by the individual or, as
appropriate, the individual's representative, in collaboration with a
representative of the State unit or a qualified vocational
rehabilitation counselor (to the extent determined to be appropriate by
the individual), if there are substantive changes in the employment
outcome, the vocational rehabilitation services to be provided, or the
providers of the vocational rehabilitation services;
(7) Amendments to the IPE do not take effect until agreed to and
signed by the eligible individual or, as appropriate, the individual's
representative and by a qualified vocational rehabilitation counselor
[[Page 4405]]
employed by the designated State unit; and
(8) An IPE for a student with a disability receiving special
education services is developed--
(i) In consideration of the student's IEP; and
(ii) In accordance with the plans, policies, procedures, and terms
of the interagency agreement required under Sec. 361.22.
(e) Standards for developing the IPE. The designated State unit
must establish and implement standards for the prompt development of
IPEs for the individuals identified under paragraph (a) of this
section, including timelines that take into consideration the needs of
the individuals.
(f) Data for preparing the IPE.
(1) Preparation without comprehensive assessment. To the extent
possible, the employment outcome and the nature and scope of
rehabilitation services to be included in the individual's IPE 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 determine the employment
outcome and the nature and scope of services to be included in the IPE
of an eligible individual, the State unit must conduct a comprehensive
assessment of the unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice, including the
need for supported employment services, of the eligible individual, in
the most integrated setting possible, consistent with the informed
choice of the individual in accordance with the provisions of
Sec. 361.5(b)(6)(ii).
(ii) In preparing the comprehensive assessment, the State unit must
use, to the maximum extent possible and appropriate and in accordance
with confidentiality requirements, existing information that is current
as of the date of the development of the IPE, including--
(A) Information available from other programs and providers,
particularly information used by education officials and the Social
Security Administration;
(B) Information provided by the individual and the individual's
family; and
(C) Information obtained under the assessment for determining the
individual's eligibility and vocational rehabilitation needs.
(Authority: Sections 7(2)(B), 101(a)(9), 102(b)(1), 102(b)(2),
102(c) and 103(a)(1); 29 U.S.C. 705(2)(B), 721(a)(9), 722(b)(1),
722(b)(2), 722(c) and 723(a)(1))
Sec. 361.46 Content of the individualized plan for employment.
(a) Mandatory components. Regardless of the approach in
Sec. 361.45(c)(1) that an eligible individual selects for purposes of
developing the IPE, each IPE must include--
(1) A description of the specific employment outcome that is chosen
by the eligible individual that--
(i) Is consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, career
interests, and informed choice; and
(ii) To the maximum extent appropriate, results in employment in an
integrated setting;
(2) A description of the specific rehabilitation services under
Sec. 361.48 that are--
(i) Needed to achieve the employment outcome, including, as
appropriate, the provision of assistive technology devices, assistive
technology services, and personal assistance services, including
training in the management of those services; and
(ii) Provided in the most integrated setting that is appropriate
for the services involved and is consistent with the informed choice of
the eligible individual;
(3) Timelines for the achievement of the employment outcome and for
the initiation of services;
(4) A description of the entity or entities chosen by the eligible
individual or, as appropriate, the individual's representative that
will provide the vocational rehabilitation services and the methods
used to procure those services;
(5) A description of the criteria that will be used to evaluate
progress toward achievement of the employment outcome; and
(6) The terms and conditions of the IPE, including, as appropriate,
information describing--
(i) The responsibilities of the designated State unit;
(ii) The responsibilities of the eligible individual, including--
(A) The responsibilities the individual will assume in relation to
achieving the employment outcome;
(B) If applicable, the extent of the individual's participation in
paying for the cost of services; and
(C) The responsibility of the individual with regard to applying
for and securing comparable services and benefits as described in
Sec. 361.53; and
(iii) The responsibilities of other entities as the result of
arrangements made pursuant to the comparable services or benefits
requirements in Sec. 361.53.
(b) Supported employment requirements. An IPE for an individual
with a most significant disability for whom an employment outcome in a
supported employment setting has been determined to be appropriate
must--
(1) Specify the supported employment services to be provided by the
designated State unit;
(2) Specify the expected extended services needed, which may
include natural supports;
(3) Identify the source of extended services or, to the extent that
it is not possible to identify the source of extended services at the
time the IPE is developed, include a description of the basis for
concluding that there is a reasonable expectation that those sources
will become available;
(4) Provide for periodic monitoring to ensure that the individual
is making satisfactory progress toward meeting the weekly work
requirement established in the IPE by the time of transition to
extended services;
(5) Provide for the coordination of services provided under an IPE
with services provided under other individualized plans established
under other Federal or State programs;
(6) To the extent that job skills training is provided, identify
that the training will be provided on site; and
(7) Include placement in an integrated setting for the maximum
number of hours possible based on the unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice of individuals with the most significant disabilities.
(c) Post-employment services. The IPE for each individual must
contain, as determined to be necessary, statements concerning--
(1) The expected need for post-employment services prior to closing
the record of services of an individual who has achieved an employment
outcome;
(2) A description of the terms and conditions for the provision of
any post-employment services; and
(3) If appropriate, a statement of how post-employment services
will be provided or arranged through other entities as the result of
arrangements made pursuant to the comparable services or benefits
requirements in Sec. 361.53.
(d) Coordination of services for students with disabilities who are
receiving special education services. The IPE for a student with a
disability who is receiving special education services must be
coordinated with the
[[Page 4406]]
IEP for that individual in terms of the goals, objectives, and services
identified in the IEP.
(Authority: Sections 101(a)(8), 101(a)(9), 102(b)(3), and 625(b)(6)
of the Act; 29 U.S.C. 721(a)(8), 721(a)(9), 722(b)(3), and 795(k))
Sec. 361.47 Record of services.
(a) The designated State unit must maintain for each applicant and
eligible individual a record of services that includes, to the extent
pertinent, the following documentation:
(1) If an applicant has been determined to be an eligible
individual, documentation supporting that determination in accordance
with the requirements under Sec. 361.42.
(2) If an applicant or eligible individual receiving services under
an IPE has been determined to be ineligible, documentation supporting
that determination in accordance with the requirements under
Sec. 361.43.
(3) Documentation that describes the justification for closing an
applicant's or eligible individual's record of services if that closure
is based on reasons other than ineligibility, including, as
appropriate, documentation indicating that the State unit has satisfied
the requirements in Sec. 361.44.
(4) If an individual has been determined to be an individual with a
significant disability or an individual with a most significant
disability, documentation supporting that determination.
(5) If an individual with a significant disability requires an
exploration of abilities, capabilities, and capacity to perform in
realistic work situations through the use of trial work experiences or,
as appropriate, an extended evaluation to determine whether the
individual is an eligible individual, documentation supporting the need
for, and the plan relating to, that exploration or, as appropriate,
extended evaluation and documentation regarding the periodic
assessments carried out during the trial work experiences or, as
appropriate, the extended evaluation, in accordance with the
requirements under Sec. 361.42(e) and (f).
(6) The IPE, and any amendments to the IPE, consistent with the
requirements under Sec. 361.46.
(7) Documentation describing the extent to which the applicant or
eligible individual exercised informed choice regarding the provision
of assessment services and the extent to which the eligible individual
exercised informed choice in the development of the IPE with respect to
the selection of the specific employment outcome, the specific
vocational rehabilitation services needed to achieve the employment
outcome, the entity to provide the services, the employment setting,
the settings in which the services will be provided, and the methods to
procure the services.
(8) In the event that the IPE provides for services or an
employment outcome in a non-integrated setting, a justification to
support the non-integrated setting.
(9) In the event that an individual obtains competitive employment,
verification that the individual is compensated at or above the minimum
wage and that the individual's wage and level of benefits are not less
than that customarily paid by the employer for the same or similar work
performed by non-disabled individuals in accordance with
Sec. 361.5(b)(11)(ii).
(10) In the event that an individual obtains an employment outcome
in an extended employment setting in a community rehabilitation program
or any other employment under section 14(c) of the Fair Labor Standards
Act, documentation of the results of the annual reviews required under
Sec. 361.55, the individual's input into those reviews, and the
individual's or, if appropriate, the individual's representative's
acknowledgement that those reviews were conducted.
(11) Documentation concerning any action or decision resulting from
a request by an individual under Sec. 361.57 for a review of
determinations made by designated State unit personnel.
(12) In the event that an applicant or eligible individual requests
under Sec. 361.38(c)(4) that documentation in the record of services be
amended and the documentation is not amended, documentation of the
request.
(13) In the event an individual is referred to another program
through the State unit's information and referral system under
Sec. 361.37, including other components of the statewide workforce
investment system, documentation on the nature and scope of services
provided by the designated State unit to the individual and on the
referral itself, consistent with the requirements of Sec. 361.37.
(14) In the event an individual's record of service is closed under
Sec. 361.56, documentation that demonstrates the services provided
under the individual's IPE contributed to the achievement of the
employment outcome.
(15) In the event an individual's record of service is closed under
Sec. 361.56, documentation verifying that the provisions of Sec. 361.56
have been satisfied.
(b) The State unit, in consultation with the State Rehabilitation
Council if the State has a Council, must determine the type of
documentation that the State unit must maintain for each applicant and
eligible individual in order to meet the requirements in paragraph (a)
of this section.
(Authority: Sections 101(a)(6), (9), (14), (20) and 102(a), (b), and
(d) of the Act; 29 U.S.C. 721(a)(6), (9), (14), (20) and 722(a),(b),
and (d))
Sec. 361.48 Scope of vocational rehabilitation services for
individuals with disabilities.
As appropriate to the vocational rehabilitation needs of each
individual and consistent with each individual's informed choice, the
designated State unit must ensure that the following vocational
rehabilitation services are available to assist the individual with a
disability in preparing for, securing, retaining, or regaining an
employment outcome that is consistent with the individual's strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice:
(a) Assessment for determining eligibility and priority for
services by qualified personnel, including, if appropriate, an
assessment by personnel skilled in rehabilitation technology, in
accordance with Sec. 361.42.
(b) Assessment for determining vocational rehabilitation needs by
qualified personnel, including, if appropriate, an assessment by
personnel skilled in rehabilitation technology, in accordance with
Sec. 361.45.
(c) Vocational rehabilitation counseling and guidance, including
information and support services to assist an individual in exercising
informed choice in accordance with Sec. 361.52.
(d) Referral and other services necessary to assist applicants and
eligible individuals to secure needed services from other agencies,
including other components of the statewide workforce investment
system, in accordance with Secs. 361.23, 361.24, and 361.37, and to
advise those individuals about client assistance programs established
under 34 CFR part 370.
(e) In accordance with the definition in Sec. 361.5(b)(40),
physical and mental restoration services, to the extent that financial
support is not readily available from a source other than the
designated State unit (such as through health insurance or a comparable
service or benefit as defined in Sec. 361.5(b)(10)).
(f) Vocational and other training services, including personal and
vocational adjustment training, books, tools, and other training
materials,
[[Page 4407]]
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 and the individual to secure
grant assistance in whole or in part from other sources to pay for that
training.
(g) Maintenance, in accordance with the definition of that term in
Sec. 361.5(b)(35).
(h) 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)(57).
(i) Vocational rehabilitation services to family members, as
defined in Sec. 361.5(b)(23), of an applicant or eligible individual if
necessary to enable the applicant or eligible individual to achieve an
employment outcome.
(j) Interpreter services, including sign language and oral
interpreter services, for individuals who are deaf or hard of hearing
and tactile interpreting services for individuals who are deaf-blind
provided by qualified personnel.
(k) Reader services, rehabilitation teaching services, and
orientation and mobility services for individuals who are blind.
(l) Job-related services, including job search and placement
assistance, job retention services, follow-up services, and follow-
along services.
(m) Supported employment services in accordance with the definition
of that term in Sec. 361.5(b)(54).
(n) Personal assistance services in accordance with the definition
of that term in Sec. 361.5(b)(39).
(o) Post-employment services in accordance with the definition of
that term in Sec. 361.5(b)(42).
(p) Occupational licenses, tools, equipment, initial stocks, and
supplies.
(q) Rehabilitation technology in accordance with the definition of
that term in Sec. 361.5(b)(45), including vehicular modification,
telecommunications, sensory, and other technological aids and devices.
(r) Transition services in accordance with the definition of that
term in Sec. 361.5(b)(55).
(s) Technical assistance and other consultation services to conduct
market analyses, develop business plans, and otherwise provide
resources, to the extent those resources are authorized to be provided
through the statewide workforce investment system, to eligible
individuals who are pursuing self-employment or telecommuting or
establishing a small business operation as an employment outcome.
(t) Other goods and services determined necessary for the
individual with a disability to achieve an employment outcome.
(Authority: Section 103(a) of the Act; 29 U.S.C. 723(a))
Sec. 361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
(a) The designated State unit 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 vocational rehabilitation 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 vocational rehabilitation
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, video description services, satellite, tactile-vibratory
devices, and similar systems, as appropriate.
(3) Special services to provide nonvisual access to information for
individuals who are blind, including the use of telecommunications,
Braille, sound recordings, or other appropriate media; captioned
television, films, or video cassettes for individuals who are deaf or
hard of hearing; 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 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 any small business enterprise operated by
individuals with significant disabilities under the supervision of the
designated State unit, including enterprises established under the
Randolph-Sheppard program, management services and supervision provided
by the State unit along with the acquisition by the State unit of
vending facilities or other equipment, 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 significant 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 may not exceed 6 months.
(iii) Costs of establishing a small business enterprise may include
operational costs during the initial establishment period, which may
not exceed 6 months.
(iv) If the designated State unit provides for these services, it
must ensure that only individuals with significant disabilities will be
selected to participate in this supervised program.
(v) If the designated State unit provides for these services and
chooses to set aside funds from the proceeds of the operation of the
small business enterprises, the State unit must maintain 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 individualized plan for employment 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.
(7) Consultative and technical assistance services to assist
educational agencies in planning for the transition of students with
disabilities from school to post-school activities, including
employment.
[[Page 4408]]
(b) If the designated State unit provides for vocational
rehabilitation services for groups of individuals, it must--
(1) Develop and maintain written policies covering the nature and
scope of each of the vocational rehabilitation services it provides and
the criteria under which each service is provided; and
(2) Maintain 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 benefiting from those services.
(Authority: Sections 12(c), 101(a)(6)(A), and 103(b) of the Act; 29
U.S.C. 709(c), 721(a)(6), and 723(b))
Sec. 361.50 Written policies governing the provision of services for
individuals with disabilities.
(a) Policies. The State unit must develop and maintain written
policies covering the nature and scope of each of the vocational
rehabilitation services specified in Sec. 361.48 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 IPE and is consistent
with the individual's informed choice. 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:
(b) 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 policies that effectively
prohibit the provision of out-of-State services.
(c) Payment for services.
(1) The State unit must establish and maintain written policies to
govern the rates of payment for all purchased vocational rehabilitation
services.
(2) The State unit may establish a fee schedule designed to ensure
a reasonable cost to the program for each service, if 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.
(d) 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
individualized plan for employment.
(e) Authorization of services. The State unit must establish
policies related to the timely authorization of services, including any
conditions under which verbal authorization can be given.
(Authority: Sections 12(c) and 101(a)(6) of the Act and 29 U.S.C.
709(c) and 721(a)(6))
Sec. 361.51 Standards for facilities and providers of services.
(a) Accessibility of facilities. The State plan must assure that
any facility used in connection with the delivery of vocational
rehabilitation services under this part meets program accessibility
requirements consistent with the requirements, as applicable, of the
Architectural Barriers Act of 1968, the Americans with Disabilities Act
of 1990, section 504 of the Act, and the regulations implementing these
laws.
(b) Affirmative action. The State plan must assure that community
rehabilitation programs that receive assistance under part B of Title I
of the Act take affirmative action to employ and advance in employment
qualified individuals with disabilities covered under and on the same
terms and conditions as in section 503 of the Act.
(c) Special communication needs personnel. The designated State
unit must ensure that providers of vocational rehabilitation services
are able to communicate--
(1) In the native language of applicants and eligible individuals
who have limited English speaking ability; and
(2) By using appropriate modes of communication used by applicants
and eligible individuals.
(Authority: Sections 12(c) and 101(a)(6)(B) and (C) of the Act; 29
U.S.C. 709(c) and 721(a)(6)(B) and (C))
Sec. 361.52 Informed choice.
(a) General provision. The State plan must assure that applicants
and eligible individuals or, as appropriate, their representatives are
provided information and support services to assist applicants and
eligible individuals in exercising informed choice throughout the
rehabilitation process consistent with the provisions of section 102(d)
of the Act and the requirements of this section.
(b) Written policies and procedures. The designated State unit, in
consultation with its State Rehabilitation Council, if it has a
Council, must develop and implement written policies and procedures
that enable an applicant or eligible individual to exercise informed
choice throughout the vocational rehabilitation process. These policies
and procedures must provide for--
(1) Informing each applicant and eligible individual (including
students with disabilities who are making the transition from programs
under the responsibility of an educational agency to programs under the
responsibility of the designated State unit), through appropriate modes
of communication, about the availability of and opportunities to
exercise informed choice, including the availability of support
services for individuals with cognitive or other disabilities who
require assistance in exercising informed choice throughout the
vocational rehabilitation process;
(2) Assisting applicants and eligible individuals in exercising
informed choice in decisions related to the provision of assessment
services;
(3) Developing and implementing flexible procurement policies and
methods that facilitate the provision of vocational rehabilitation
services and that afford eligible individuals meaningful choices among
the methods used to procure vocational rehabilitation services;
(4) Assisting eligible individuals or, as appropriate, the
individuals' representatives in acquiring information that enables them
to exercise informed choice in the development of their IPEs with
respect to the selection of the--
(i) Employment outcome;
(ii) Specific vocational rehabilitation services needed to achieve
the employment outcome;
[[Page 4409]]
(iii) Entity that will provide the services;
(iv) Employment setting and the settings in which the services will
be provided; and
(v) Methods available for procuring the services; and
(5) Ensuring that the availability and scope of informed choice is
consistent with the obligations of the designated State agency under
this part.
(c) Information and assistance in the selection of vocational
rehabilitation services and service providers. In assisting an
applicant and eligible individual in exercising informed choice during
the assessment for determining eligibility and vocational
rehabilitation needs and during development of the IPE, the designated
State unit must provide the individual or the individual's
representative, or assist the individual or the individual's
representative in acquiring, information necessary to make an informed
choice about the specific vocational rehabilitation services, including
the providers of those services, that are needed to achieve the
individual's employment outcome. This information must include, at a
minimum, information relating to the--
(1) Cost, accessibility, and duration of potential services;
(2) Consumer satisfaction with those services to the extent that
information relating to consumer satisfaction is available;
(3) Qualifications of potential service providers;
(4) Types of services offered by the potential providers;
(5) Degree to which services are provided in integrated settings;
and
(6) Outcomes achieved by individuals working with service
providers, to the extent that such information is available.
(d) Methods or sources of information. In providing or assisting
the individual or the individual's representative in acquiring the
information required under paragraph (c) of this section, the State
unit may use, but is not limited to, the following methods or sources
of information:
(1) Lists of services and service providers.
(2) Periodic consumer satisfaction surveys and reports.
(3) Referrals to other consumers, 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.
(5) Opportunities for individuals to visit or experience various
work and service provider settings.
(Authority: Sections 12(c), 101(a)(19); 102(b)(2)(B) and 102(d) of
the Act; 29 U.S.C. 709(c), 721(a)(19); 722(b)(2)(B) and 722(d))
Sec. 361.53 Comparable services and benefits.
(a) Determination of availability. The State plan must assure that
prior to providing any vocational rehabilitation services, except those
services listed in paragraph (b) of this section, to an eligible
individual, or to members of the individual's family, the State unit
must determine whether comparable services and benefits, as defined in
Sec. 361.5(b)(10), exist under any other program and whether those
services and benefits are available to the individual unless such a
determination would interrupt or delay--
(1) The progress of the individual toward achieving the employment
outcome identified in the individualized plan for employment;
(2) An immediate job placement; or
(3) 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.
(b) Exempt services. The following vocational rehabilitation
services described in Sec. 361.48(a) are exempt from a determination of
the availability of comparable services and benefits under paragraph
(a) of this section:
(1) Assessment for determining eligibility and vocational
rehabilitation needs.
(2) Counseling and guidance, including information and support
services to assist an individual in exercising informed choice.
(3) Referral and other services to secure needed services from
other agencies, including other components of the statewide workforce
investment system, if those services are not available under this part.
(4) Job-related services, including job search and placement
assistance, job retention services, follow-up services, and follow-
along services.
(5) Rehabilitation technology, including telecommunications,
sensory, and other technological aids and devices.
(6) Post-employment services consisting of the services listed
under paragraphs (b)(1) through (5) of this section.
(c) Provision of services.
(1) If comparable services or benefits exist under any other
program and are available to the individual at the time needed to
ensure the progress of the individual toward achieving the employment
outcome in the individual's IPE, the designated State unit must use
those comparable services or benefits to meet, in whole or part, the
costs of the vocational rehabilitation services.
(2) If comparable services or benefits exist under any other
program, but are not available to the individual at the time needed to
ensure the progress of the individual toward achieving the employment
outcome in the individual's IPE, the designated State unit must provide
vocational rehabilitation services until those comparable services and
benefits become available.
(d) Interagency coordination.
(1) The State plan must assure that the Governor, in consultation
with the entity in the State responsible for the vocational
rehabilitation program and other appropriate agencies, will ensure that
an interagency agreement or other mechanism for interagency
coordination takes effect between the designated State vocational
rehabilitation unit and any appropriate public entity, including the
State entity responsible for administering the State medicaid program,
a public institution of higher education, and a component of the
statewide workforce investment system, to ensure the provision of
vocational rehabilitation services (other than those services listed in
paragraph (b) of this section) that are included in the IPE, including
the provision of those vocational rehabilitation services during the
pendency of any interagency dispute in accordance with the provisions
of paragraph (d)(3)(iii) of this section.
(2) The Governor may meet the requirements of paragraph (d)(1) of
this section through--
(i) A State statute or regulation;
(ii) A signed agreement between the respective officials of the
public entities that clearly identifies the responsibilities of each
public entity for the provision of the services; or
(iii) Another appropriate mechanism as determined by the designated
State vocational rehabilitation unit.
(3) The interagency agreement or other mechanism for interagency
coordination must include the following:
(i) Agency financial responsibility. An identification of, or
description of a method for defining, the financial responsibility of
the public entity for providing the vocational rehabilitation services
other than those listed in paragraph (b) of this section and a
provision stating the financial
[[Page 4410]]
responsibility of the public entity for providing those services.
(ii) Conditions, terms, and procedures of reimbursement.
Information specifying the conditions, terms, and procedures under
which the designated State unit must be reimbursed by the other public
entities for providing vocational rehabilitation services based on the
terms of the interagency agreement or other mechanism for interagency
coordination.
(iii) Interagency disputes. Information specifying procedures for
resolving interagency disputes under the interagency agreement or other
mechanism for interagency coordination, including procedures under
which the designated State unit may initiate proceedings to secure
reimbursement from other public entities or otherwise implement the
provisions of the agreement or mechanism.
(iv) Procedures for coordination of services. Information
specifying policies and procedures for public entities to determine and
identify interagency coordination responsibilities of each public
entity to promote the coordination and timely delivery of vocational
rehabilitation services other than those listed in paragraph (b) of
this section.
(e) Responsibilities under other law.
(1) If a public entity (other than the designated State unit) is
obligated under Federal law (such as the Americans with Disabilities
Act, section 504 of the Act, or section 188 of the Workforce Investment
Act) or State law, or assigned responsibility under State policy or an
interagency agreement established under this section, to provide or pay
for any services considered to be vocational rehabilitation services
(e.g., interpreter services under Sec. 361.48(j)), other than those
services listed in paragraph (b) of this section, the public entity
must fulfill that obligation or responsibility through--
(i) The terms of the interagency agreement or other requirements of
this section;
(ii) Providing or paying for the service directly or by contract;
or
(iii) Other arrangement.
(2) If a public entity other than the designated State unit fails
to provide or pay for vocational rehabilitation services for an
eligible individual as established under this section, the designated
State unit must provide or pay for those services to the individual and
may claim reimbursement for the services from the public entity that
failed to provide or pay for those services. The public entity must
reimburse the designated State unit pursuant to the terms of the
interagency agreement or other mechanism described in paragraph (d) of
this section in accordance with the procedures established in the
agreement or mechanism pursuant to paragraph (d)(3)(ii) of this
section.
(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C.
709(c) and 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 through
trial work experiences under Sec. 361.42(e) or during an extended
evaluation under Sec. 361.42(f) 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 must maintain written policies--
(A) Explaining the method for determining the financial need of an
eligible individual; and
(B) Specifying the types of vocational rehabilitation services for
which the unit has established a financial needs test;
(ii) The policies must be applied uniformly to all individuals in
similar circumstances;
(iii) 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
(iv) 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, including
consideration of any disability-related expenses paid by the
individual; and
(C) Not so high as to effectively deny the individual a necessary
service.
(3) The designated State unit may not apply a financial needs test,
or require the financial participation of the individual--
(i) As a condition for furnishing the following vocational
rehabilitation services:
(A) Assessment for determining eligibility and priority for
services under Sec. 361.48(a), except those non-assessment services
that are provided to an individual with a significant disability during
either an exploration of the individual's abilities, capabilities, and
capacity to perform in work situations through the use of trial work
experiences under Sec. 361.42(e) or an extended evaluation under
Sec. 361.42(f).
(B) Assessment for determining vocational rehabilitation needs
under Sec. 361.48(b).
(C) Vocational rehabilitation counseling and guidance under
Sec. 361.48(c).
(D) Referral and other services under Sec. 361.48(d).
(E) Job-related services under Sec. 361.48(l).
(F) Personal assistance services under Sec. 361.48(n).
(G) Any auxiliary aid or service (e.g., interpreter services under
Sec. 361.48(j), reader services under Sec. 361.48(k)) that an
individual with a disability requires under section 504 of the Act (29
U.S.C. 794) or the Americans with Disabilities Act (42 U.S.C. 12101, et
seq.), or regulations implementing those laws, in order for the
individual to participate in the VR program as authorized under this
part; or
(ii) As a condition for furnishing any vocational rehabilitation
service if the individual in need of the service has been determined
eligible for Social Security benefits under Titles II or XVI of the
Social Security Act.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
Sec. 361.55 Annual review of individuals in extended employment or
other employment under special certificate provisions of the Fair Labor
Standards Act.
The State plan must assure that the designated State unit--
(a) Annually reviews and reevaluates the status of each individual
with a disability served under the vocational rehabilitation program
who has achieved an employment outcome either in an extended employment
setting in a community rehabilitation program or in any other
employment setting in which the individual is compensated in accordance
with section 14(c) of the Fair Labor Standards Act for 2 years after
the individual achieves the employment outcome (and thereafter if
requested by the individual or, if appropriate, the individual's
representative) to determine the interests, priorities, and needs of
the individual with respect to competitive employment or training for
competitive employment;
(b) Enables the individual or, if appropriate, the individual's
[[Page 4411]]
representative to provide input into the review and reevaluation and
documents that input in the record of services, consistent with
Sec. 361.47(a)(10), with the individual's or, as appropriate, the
individual's representative's signed acknowledgment that the review and
reevaluation have been conducted; and
(c) Makes maximum efforts, including identifying and providing
vocational rehabilitation services, reasonable accommodations, and
other necessary support services, to assist the individuals identified
in paragraph (a) of this section in engaging in competitive employment
as defined in Sec. 361.5(b)(11).
(Authority: Section 101(a)(14) of the Act; 29 U.S.C. 721(a)(14))
Sec. 361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
The record of services of an individual who has achieved an
employment outcome may be closed only if all of the following
requirements are met:
(a) Employment outcome achieved. The individual has achieved the
employment outcome that is described in the individual's IPE in
accordance with Sec. 361.46(a)(1) and is--
(1) Consistent with the individual's strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice; and (2) In the most integrated setting possible, consistent
with the individual's informed choice.
(b) Employment outcome maintained. The individual has maintained
the employment outcome for an appropriate period of time, but not less
than 90 days, necessary to ensure the stability of the employment
outcome, and the individual no longer needs vocational rehabilitation
services.
(c) Satisfactory outcome. At the end of the appropriate period
under paragraph (b) of this section, the individual and the qualified
rehabilitation counselor employed by the designated State unit consider
the employment outcome to be satisfactory and agree that the individual
is performing well in the employment.
(d) Post-employment services. The individual is informed through
appropriate modes of communication of the availability of post-
employment services.
(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 determinations made by designated State unit
personnel.
(a) Procedures. The designated State unit must develop and
implement procedures to ensure that an applicant or eligible individual
who is dissatisfied with any determination made by personnel of the
designated State unit that affects the provision of vocational
rehabilitation services may request, or, if appropriate, may request
through the individual's representative, a timely review of that
determination. The procedures must be in accordance with paragraphs (b)
through (k) of this section:
(b) General requirements.
(1) Notification. Procedures established by the State unit under
this section must provide an applicant or eligible individual or, as
appropriate, the individual's representative notice of--
(i) The right to obtain review of State unit determinations that
affect the provision of vocational rehabilitation services through an
impartial due process hearing under paragraph (e) of this section;
(ii) The right to pursue mediation under paragraph (d) of this
section with respect to determinations made by designated State unit
personnel that affect the provision of vocational rehabilitation
services to an applicant or eligible individual;
(iii) The names and addresses of individuals with whom requests for
mediation or due process hearings may be filed;
(iv) The manner in which a mediator or impartial hearing officer
may be selected consistent with the requirements of paragraphs (d) and
(f) of this section; and
(v) The availability of the client assistance program, established
under 34 CFR part 370, to assist the applicant or eligible individual
during mediation sessions or impartial due process hearings.
(2) Timing. Notice described in paragraph (b)(1) of this section
must be provided in writing--
(i) At the time the individual applies for vocational
rehabilitation services under this part;
(ii) At the time the individual is assigned to a category in the
State's order of selection, if the State has established an order of
selection under Sec. 361.36;
(iii) At the time the IPE is developed; and
(iv) Whenever vocational rehabilitation services for an individual
are reduced, suspended, or terminated.
(3) Evidence and representation. Procedures established under this
section must--
(i) Provide an applicant or eligible individual or, as appropriate,
the individual's representative with an opportunity to submit during
mediation sessions or due process hearings evidence and other
information that supports the applicant's or eligible individual's
position; and
(ii) Allow an applicant or eligible individual to be represented
during mediation sessions or due process hearings by counsel or other
advocate selected by the applicant or eligible individual.
(4) Impact on provision of services. The State unit may not
institute a suspension, reduction, or termination of vocational
rehabilitation services being provided to an applicant or eligible
individual, including evaluation and assessment services and IPE
development, pending a resolution through mediation, pending a decision
by a hearing officer or reviewing official, or pending informal
resolution under this section unless--
(i) The individual or, in appropriate cases, the individual's
representative requests a suspension, reduction, or termination of
services; or
(ii) The State agency has evidence that the services have been
obtained through misrepresentation, fraud, collusion, or criminal
conduct on the part of the individual or the individual's
representative.
(5) Ineligibility. Applicants who are found ineligible for
vocational rehabilitation services and previously eligible individuals
who are determined to be no longer eligible for vocational
rehabilitation services pursuant to Sec. 361.43 are permitted to
challenge the determinations of ineligibility under the procedures
described in this section.
(c) Informal dispute resolution. The State unit may develop an
informal process for resolving a request for review without conducting
mediation or a formal hearing. A State's informal process must not be
used to deny the right of an applicant or eligible individual to a
hearing under paragraph (e) of this section or any other right provided
under this part, including the right to pursue mediation under
paragraph (d) of this section. If informal resolution under this
paragraph or mediation under paragraph (d) of this section is not
successful in resolving the dispute within the time period established
under paragraph (e)(1) of this section, a formal hearing must be
conducted within that same time period, unless the parties agree to a
specific extension of time.
[[Page 4412]]
(d) Mediation.
(1) The State must establish and implement procedures, as required
under paragraph (b)(1)(ii) of this section, to allow an applicant or
eligible individual and the State unit to resolve disputes involving
State unit determinations that affect the provision of vocational
rehabilitation services through a mediation process that must be made
available, at a minimum, whenever an applicant or eligible individual
or, as appropriate, the individual's representative requests an
impartial due process hearing under this section.
(2) Mediation procedures established by the State unit under
paragraph (d) must ensure that--
(i) Participation in the mediation process is voluntary on the part
of the applicant or eligible individual, as appropriate, and on the
part of the State unit;
(ii) Use of the mediation process is not used to deny or delay the
applicant's or eligible individual's right to pursue resolution of the
dispute through an impartial hearing held within the time period
specified in paragraph (e)(1) of this section or any other rights
provided under this part. At any point during the mediation process,
either party or the mediator may elect to terminate the mediation. In
the event mediation is terminated, either party may pursue resolution
through an impartial hearing;
(iii) The mediation process is conducted by a qualified and
impartial mediator, as defined in Sec. 361.5(b)(43), who must be
selected from a list of qualified and impartial mediators maintained by
the State--
(A) On a random basis;
(B) By agreement between the director of the designated State unit
and the applicant or eligible individual or, as appropriate, the
individual's representative; or
(C) In accordance with a procedure established in the State for
assigning mediators, provided this procedure ensures the neutrality of
the mediator assigned; and
(iv) Mediation sessions are scheduled and conducted in a timely
manner and are held in a location and manner that is convenient to the
parties to the dispute.
(3) Discussions that occur during the mediation process must be
kept confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(4) An agreement reached by the parties to the dispute in the
mediation process must be described in a written mediation agreement
that is developed by the parties with the assistance of the qualified
and impartial mediator and signed by both parties. Copies of the
agreement must be sent to both parties.
(5) The costs of the mediation process must be paid by the State.
The State is not required to pay for any costs related to the
representation of an applicant or eligible individual authorized under
paragraph (b)(3)(ii) of this section.
(e) Impartial due process hearings. The State unit must establish
and implement formal review procedures, as required under paragraph
(b)(1)(i) of this section, that provide that--
(1) A hearing conducted by an impartial hearing officer, selected
in accordance with paragraph (f) of this section, must be held within
60 days of an applicant's or eligible individual's request for review
of a determination made by personnel of the State unit that affects the
provision of vocational rehabilitation services to the individual,
unless informal resolution or a mediation agreement is achieved prior
to the 60th day or the parties agree to a specific extension of time;
(2) In addition to the rights described in paragraph (b)(3) of this
section, the applicant or eligible individual or, if appropriate, the
individual's representative must be given the opportunity to present
witnesses during the hearing and to examine all witnesses and other
relevant sources of information and evidence;
(3) The impartial hearing officer must--
(i) Make a decision based on the provisions of the approved State
plan, the Act, Federal vocational rehabilitation regulations, and State
regulations and policies that are consistent with Federal requirements;
and
(ii) Provide to the individual or, if appropriate, the individual's
representative and to the State unit a full written report of the
findings and grounds for the decision within 30 days of the completion
of the hearing; and
(4) The hearing officer's decision is final, except that a party
may request an impartial review under paragraph (g)(1) of this section
if the State has established procedures for that review, and a party
involved in a hearing may bring a civil action under paragraph (i) of
this section.
(f) Selection of impartial hearing officers. The impartial hearing
officer for a particular case must be selected--
(1) From a list of qualified impartial hearing officers maintained
by the State unit. Impartial hearing officers included on the list must
be--
(i) Identified by the State unit if the State unit is an
independent commission; or
(ii) Jointly identified by the State unit and the State
Rehabilitation 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 applicant or eligible individual or, as appropriate, the
individual's representative.
(g) Administrative review of hearing officer's decision. The State
may establish procedures to enable a party who is dissatisfied with the
decision of the impartial hearing officer to seek an impartial
administrative review of the decision under paragraph (e)(3) of this
section in accordance with the following requirements:
(1) A request for administrative review under paragraph (g) of this
section must be made within 20 days of the mailing of the impartial
hearing officer's decision.
(2) Administrative review of the hearing officer's decision must be
conducted by--
(i) The chief official of the designated State agency if the State
has established both a designated State agency and a designated State
unit under Sec. 361.13(b); or
(ii) An official from the office of the Governor.
(3) The reviewing official described in paragraph (g)(2)(i) of this
section--
(i) Provides both parties with an opportunity to submit additional
evidence and information relevant to a final decision concerning the
matter under review;
(ii) May not overturn or modify the hearing officer's decision, or
any part of that decision, that supports the position of the applicant
or eligible individual unless the reviewing official concludes, based
on clear and convincing evidence, that the decision of the impartial
hearing officer is clearly erroneous on the basis of being contrary to
the approved State plan, the Act, Federal vocational rehabilitation
regulations, or State regulations and policies that are consistent with
Federal requirements;
(iii) Makes an independent, final decision following a review of
the entire hearing record and provides the decision in writing,
including a full report of the findings and the statutory, regulatory,
or policy grounds for the decision, to the applicant or eligible
individual or, as appropriate, the individual's representative and to
the State unit within 30 days of the request
[[Page 4413]]
for administrative review under paragraph (g)(1) of this section; and
(iv) May not delegate the responsibility for making the final
decision under paragraph (g) of this section to any officer or employee
of the designated State unit.
(4) The reviewing official's decision under paragraph (g) of this
section is final unless either party brings a civil action under
paragraph (i) of this section.
(h) Implementation of final decisions. If a party brings a civil
action under paragraph (h) of this section to challenge the final
decision of a hearing officer under paragraph (e) of this section or to
challenge the final decision of a State reviewing official under
paragraph (g) of this section, the final decision of the hearing
officer or State reviewing official must be implemented pending review
by the court.
(i) Civil action.
(1) Any party who disagrees with the findings and decision of an
impartial hearing officer under paragraph (e) of this section in a
State that has not established administrative review procedures under
paragraph (g) of this section and any party who disagrees with the
findings and decision under paragraph (g)(3)(iii) of this section have
a right to bring a civil action with respect to the matter in dispute.
The action may be brought in any State court of competent jurisdiction
or in a district court of the United States of competent jurisdiction
without regard to the amount in controversy.
(2) In any action brought under paragraph (i) of this section, the
court--
(i) Receives the records related to the impartial due process
hearing and the records related to the administrative review process,
if applicable;
(ii) Hears additional evidence at the request of a party; and
(iii) Basing its decision on the preponderance of the evidence,
grants the relief that the court determines to be appropriate.
(j) State fair hearing board. A fair hearing board as defined in
Sec. 361.5(b)(22) is authorized to carry out the responsibilities of
the impartial hearing officer under paragraph (e) of this section in
accordance with the following criteria:
(1) The fair hearing board may conduct due process hearings either
collectively or by assigning responsibility for conducting the hearing
to one or more members of the fair hearing board.
(2) The final decision issued by the fair hearing board following a
hearing under paragraph (j)(1) of this section must be made
collectively by, or by a majority vote of, the fair hearing board.
(3) The provisions of paragraphs (b)(1), (2), and (3) of this
section that relate to due process hearings and of paragraphs (e), (f),
(g), and (h) of this section do not apply to fair hearing boards under
this paragraph (j).
(k) Data collection.
(1) The director of the designated State unit must collect and
submit, at a minimum, the following data to the Commissioner of the
Rehabilitation Services Administration (RSA) for inclusion each year in
the annual report to Congress under section 13 of the Act:
(i) A copy of the standards used by State reviewing officials for
reviewing decisions made by impartial hearing officers under this
section.
(ii) The number of mediations held, including the number of
mediation agreements reached.
(iii) The number of hearings and reviews sought from impartial
hearing officers and State reviewing officials, including the type of
complaints and the issues involved.
(iv) The number of hearing officer decisions that were not reviewed
by administrative reviewing officials.
(v) The number of hearing decisions that were reviewed by State
reviewing officials and, based on these reviews, the number of hearing
decisions that were--
(A) Sustained in favor of an applicant or eligible individual;
(B) Sustained in favor of the designated State unit;
(C) Reversed in whole or in part in favor of the applicant or
eligible individual; and
(D) Reversed in whole or in part in favor of the State unit.
(2) The State unit director also must collect and submit to the
Commissioner of RSA copies of all final decisions issued by impartial
hearing officers under paragraph (e) of this section and by State
review officials under paragraph (g) of this section.
(3) The confidentiality of records of applicants and eligible
individuals maintained by the State unit may not preclude the access of
the RSA Commissioner to those records for the purposes described in
this section.
(Authority: Section 102(c) of the Act; 29 U.S.C. 722(c))
Subpart C--Financing of State Vocational Rehabilitation Programs
Sec. 361.60 Matching requirements.
(a) Federal share.
(1) General. Except as provided in paragraph (a)(2) of this
section, the Federal share for expenditures made by the State under the
State plan, including expenditures for the provision of vocational
rehabilitation services and the administration of the State 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.
(b) Non-Federal share.
(1) General. Except as provided in paragraph (b)(2) and (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 funds are earmarked for--
(i) Meeting in whole or in part the State's share for establishing
a community rehabilitation program or constructing a particular
facility for community rehabilitation program purposes;
(ii) Particular geographic areas within the State for any purpose
under the State plan, other than those described in paragraph (b)(3)(i)
of this section, in accordance with the following criteria:
(A) Before funds that are earmarked for a particular geographic
area may be used as part of the non-Federal share, the State must
notify the Secretary that the State cannot provide the full non-Federal
share without using these funds.
(B) Funds that are earmarked for a particular geographic area may
be used as part of the non-Federal share without requesting a waiver of
statewideness under Sec. 361.26.
(C) Except as provided in paragraph (b)(3)(i) of this section, all
Federal funds must be used on a statewide basis consistent with
Sec. 361.25, unless a waiver of statewideness is obtained under
Sec. 361.26; and
(iii) Any other purpose under the State plan, provided 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,
[[Page 4414]]
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(14), 101(a)(3), 101(a)(4) and 104 of the Act;
29 U.S.C. 706(14), 721(a)(3), 721(a)(4) and 724))
Example for paragraph (b)(3): Contributions may be earmarked in
accordance with Sec. 361.60(b)(3)(iii) 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., students with
disabilities who are receiving special education services),
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 in
accordance with the requirements in Sec. 361.60(b)(3)(ii).
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 2
years prior to the previous fiscal year.
Example: For fiscal year 2001, a State's maintenance of effort
level is based on the amount of its expenditures from non-Federal
sources for fiscal year 1999. Thus, if the State's non-Federal
expenditures in 2001 are less than they were in 1999, the State has
a maintenance of effort deficit, and the Secretary reduces the
State's allotment in 2002 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 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 2 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 that result in a general reduction of programs within the
State; or
(ii) Require the State to make 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. For purposes of this section, 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 assisting
Social Security beneficiaries and recipients to achieve employment
outcomes, 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.
(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 and the administration of the State plan.
Program income is considered earned when it is received.
(2) Payments provided to a State from the Social Security
Administration for assisting Social Security beneficiaries and
recipients to achieve employment outcomes may also be used to carry out
programs under part B of Title I of the Act (client assistance), part B
of Title VI
[[Page 4415]]
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 cannot 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 by the beginning of the succeeding fiscal year
and any program income received during a fiscal year that is not
obligated by the State by the beginning of the succeeding fiscal year
remain available for obligation by the State 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 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. 716)
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--[Reserved]
Subpart E--Evaluation Standards and Performance Indicators
Sec. 361.80 Purpose.
The purpose of this subpart is to establish evaluation standards
and performance indicators for the Program.
(Authority: 29 U.S.C. 726(a))
Sec. 361.81 Applicable definitions.
In addition to those definitions in Sec. 361.5(b), the following
definitions apply to this subpart:
Average hourly earnings means the average per hour earnings in the
week prior to exiting the vocational rehabilitation (VR) program of an
eligible individual who has achieved a competitive employment outcome.
Business Enterprise Program (BEP) means an employment outcome in
which an individual with a significant disability operates a vending
facility or other small business under the management and supervision
of a designated State unit (DSU). This term includes home industry,
farming, and other enterprises.
Exit the VR program means that a DSU has closed the individual's
record of VR services in one of the following categories:
(1) Ineligible for VR services.
(2) Received services under an individualized plan for employment
(IPE) and achieved an employment outcome.
(3) Received services under an IPE but did not achieve an
employment outcome.
(4) Eligible for VR services but did not receive services under an
IPE.
General or combined DSU means a DSU that does not serve exclusively
individuals with visual impairments or blindness.
Individuals from a minority background means individuals who report
their race and ethnicity in any of the following categories: American
Indian or Alaska Native, Asian, Black or African American, Native
Hawaiian or Other Pacific Islander, or Hispanic or Latino.
Minimum wage means the higher of the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206(a)(1),
(i.e., the Federal minimum wage) or applicable State minimum wage law.
Non-minority individuals means individuals who report themselves
exclusively as White, non-Hispanic.
Performance period is the reporting period during which a DSU's
performance is measured. For Evaluation Standards 1 and 2, performance
data must be aggregated and reported for each fiscal year beginning
with fiscal year 1999. However, DSUs that exclusively serve individuals
with visual impairments or blindness must report each year the
aggregated data for the 2 previous years for Performance Indicators 1.1
through 1.6; the second year must coincide with the performance period
for general or combined DSUs.
Primary indicators means Performance Indicators 1.3, 1.4, and 1.5,
which are specifically designed to measure--
(1) The achievement of competitive, self-, or BEP employment with
earnings equivalent to the minimum wage or higher, particularly by
individuals with significant disabilities; and
(2) The ratio between the average hourly earnings of individuals
who exit the VR program in competitive, self-, or BEP employment with
earnings equivalent to the minimum wage or higher and the State's
average hourly earnings for all employed individuals.
RSA-911 means the Case Service Report that is submitted annually by
a DSU as approved by the Office of Management and Budget (OMB).
Self-employment means an employment outcome in which the individual
works for profit or fee in his or her own business, farm, shop, or
office, including sharecroppers.
Service rate means the result obtained by dividing the number of
individuals who exit the VR program after receiving one or more
services under an IPE during any reporting period by the total number
of individuals who exit the VR program (as defined in this section)
during that reporting period.
State's average hourly earnings means the average hourly earnings
of all persons in the State in which the DSU is located.
[[Page 4416]]
(Authority: 29 U.S.C. 726(a))
Sec. 361.82 Evaluation standards.
(a) The Secretary establishes two evaluation standards to evaluate
the performance of each DSU that receives funds under this part. The
evaluation standards assist the Secretary and each DSU to evaluate a
DSU's performance in serving individuals with disabilities under the VR
program.
(b) A DSU must achieve successful performance on both evaluation
standards during each performance period.
(c) The evaluation standards for the VR program are--
(1) Evaluation Standard 1--Employment outcomes. A DSU must assist
any eligible individual, including an individual with a significant
disability, to obtain, maintain, or regain high-quality employment.
(2) Evaluation Standard 2--Equal access to services. A DSU must
ensure that individuals from minority backgrounds have equal access to
VR services. (Approved by the Office of Management and Budget under
control number 1820-0508.)
(Authority: 29 U.S.C. 726(a))
Sec. 361.84 Performance indicators.
(a) The performance indicators establish what constitutes minimum
compliance with the evaluation standards.
(b) The performance indicators require a DSU to provide information
on a variety of factors to enable the Secretary to measure compliance
with the evaluation standards.
(c) The performance indicators are as follows:
(1) Employment outcomes.
(i) Performance Indicator 1.1. The number of individuals exiting
the VR program who achieved an employment outcome during the current
performance period compared to the number of individuals who exit the
VR program after achieving an employment outcome during the previous
performance period.
(ii) Performance Indicator 1.2. Of all individuals who exit the VR
program after receiving services, the percentage who are determined to
have achieved an employment outcome.
(iii) Performance Indicator 1.3. Of all individuals determined to
have achieved an employment outcome, the percentage who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage.
(iv) Performance Indicator 1.4. Of all individuals who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage, the percentage who are
individuals with significant disabilities.
(v) Performance Indicator 1.5. The average hourly earnings of all
individuals who exit the VR program in competitive, self-, or BEP
employment with earnings levels equivalent to at least the minimum wage
as a ratio to the State's average hourly earnings for all individuals
in the State who are employed (as derived from the Bureau of Labor
Statistics report ``State Average Annual Pay'' for the most recent
available year).
(vi) Performance Indicator 1.6. Of all individuals who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage, the difference between the
percentage who report their own income as the largest single source of
economic support at the time they exit the VR program and the
percentage who report their own income as the largest single source of
support at the time they apply for VR services.
(2) Equal access to services.
(i) Performance Indicator 2.1. The service rate for all individuals
with disabilities from minority backgrounds as a ratio to the service
rate for all non-minority individuals with disabilities.
(Approved by the Office of Management and Budget under control
number 1820-0508.)
(Authority: 29 U.S.C. 726(a))
Sec. 361.86 Performance levels.
(a) General.
(1) Paragraph (b) of this section establishes performance levels
for--
(i) General or combined DSUs; and
(ii) DSUs serving exclusively individuals who are visually impaired
or blind.
(2) The Secretary may establish, by regulations, new performance
levels.
(b) Performance levels for each performance indicator.
(1)(i) The performance levels for Performance Indicators 1.1
through 1.6 are--
----------------------------------------------------------------------------------------------------------------
Performance level by type of DSU
Performance indicator ----------------------------------------------------------------------------
General/Combined Blind
----------------------------------------------------------------------------------------------------------------
1.1................................ Equal or exceed previous performance period.... Same.
1.2................................ 55.8%.......................................... 68.9%.
1.3................................ 72.6%.......................................... 35.4%.
1.4................................ 62.4%.......................................... 89.0%.
1.5................................ .52 (Ratio).................................... .59.
1.6................................ 53.0 (Math. Difference)........................ 30.4.
----------------------------------------------------------------------------------------------------------------
(ii) To achieve successful performance on Evaluation Standard 1
(Employment outcomes), a DSU must meet or exceed the performance levels
established for four of the six performance indicators in the
evaluation standard, including meeting or exceeding the performance
levels for two of the three primary indicators (Performance Indicators
1.3, 1.4, and 1.5).
(2)(i) The performance level for Performance Indicator 2.1 is--
------------------------------------------------------------------------
Performance indicator Performance levels
------------------------------------------------------------------------
2.1.................................... .80 (Ratio).
------------------------------------------------------------------------
(ii) To achieve successful performance on Evaluation Standard 2
(Equal access), DSUs must meet or exceed the performance level
established for Performance Indicator 2.1 or meet the performance
requirement in paragraph (2)(iii) of this section.
(iii) If a DSU's performance does not meet or exceed the
performance level required for Performance Indicator 2.1, or if fewer
than 100 individuals from a minority population have exited the VR
program during the reporting period, the DSU must describe the policies
it has adopted or will adopt and the steps it has taken or will take to
ensure that individuals with disabilities from minority backgrounds
have equal access to VR services.
(Authority: 29 U.S.C. 726(a))
Sec. 361.88 Reporting requirements.
(a) The Secretary requires that each DSU report within 60 days
after the end of each fiscal year the extent to which the State is in
compliance with the
[[Page 4417]]
evaluation standards and performance indicators and include in this
report the following RSA-911 data:
(1) The number of individuals who exited the VR program in each
closure category as specified in the definition of ``Exit the VR
program'' under Sec. 361.81.
(2) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage.
(3) The number of individuals with significant disabilities who
exited the VR program in competitive, self-, or BEP employment with
earnings at or above the minimum wage.
(4) The weekly earnings and hours worked of individuals who exited
the VR program in competitive, self-, or BEP employment with earnings
at or above the minimum wage.
(5) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage whose primary source of support at the time they applied
for VR services was ``personal income.''
(6) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage whose primary source of support at closure was ``personal
income.''
(7) The number of individuals exiting the VR program who are
individuals from a minority background.
(8) The number of non-minority individuals exiting the VR program.
(9) The number of individuals from a minority background exiting
the VR program after receiving services under an IPE.
(10) The number of non-minority individuals exiting the VR program
after receiving services under an IPE.
(b) In lieu of the report required in paragraph (a) of this
section, a DSU may submit its RSA-911 data on tape, diskette, or any
alternative electronic format that is compatible with RSA's capability
to process such an alternative, as long as the tape, diskette, or
alternative electronic format includes the data that--
(1) Are required by paragraph (a)(1) through (10) of this section;
and
(2) Meet the requirements of paragraph (c) of this section.
(c) Data reported by a DSU must be valid, accurate, and in a
consistent format. If a DSU fails to submit data that are valid,
accurate, and in a consistent format within the 60-day period, the DSU
must develop a program improvement plan pursuant to Sec. 361.89(a).
(Approved by the Office of Management and Budget under control number
1820-0508.)
(Authority: 29 U.S.C. 726(b))
Sec. 361.89 Enforcement procedures.
(a) If a DSU fails to meet the established performance levels on
both evaluation standards as required by Sec. 361.82(b), the Secretary
and the DSU must jointly develop a program improvement plan that
outlines the specific actions to be taken by the DSU to improve program
performance.
(b) In developing the program improvement plan, the Secretary
considers all available data and information related to the DSU's
performance.
(c) When a program improvement plan is in effect, review of the
plan is conducted on a biannual basis. If necessary, the Secretary may
request that a DSU make further revisions to the plan to improve
performance. If the Secretary establishes new performance levels under
Sec. 361.86(a)(2), the Secretary and the DSU must jointly modify the
program improvement plan based on the new performance levels. The
Secretary continues reviews and requests revisions until the DSU
sustains satisfactory performance based on the current performance
levels over a period of more than 1 year.
(d) If the Secretary determines that a DSU with less than
satisfactory performance has failed to enter into a program improvement
plan or comply substantially with the terms and conditions of the
program improvement plan, the Secretary, consistent with the procedures
specified in Sec. 361.11, reduces or makes no further payments to the
DSU under this program until the DSU has met one of these two
requirements or raised its subsequent performance to meet the current
overall minimum satisfactory level on the compliance indicators.
(Approved by the Office of Management and Budget under control
number 1820-0508.)
(Authority: 29 U.S.C. 726(b) and (c))
Appendix
Analysis of Comments and Changes
Note: The following appendix will not appear in the Code of
Federal Regulations.
Section 361.4--Applicable Regulations
Comments: Several commenters requested clarification of proposed
Sec. 361.4(c) and (d) that made applicable to the VR program the
regulations implementing the One-Stop system under Title I of the
WIA. In particular, these commenters requested that the Secretary
assure in this section that the regulations governing the One-Stop
system do not conflict with the regulations in part 361 and that the
One-Stop system requirements would not apply if conflicts between
regulatory provisions arise.
Discussion: Proposed Sec. 361.4(c) listed the regulations in 20
CFR part 662 (Description of One-Stop Service Delivery System under
Title I of WIA) among the regulations applicable to the VR program.
Similarly, proposed Sec. 361.4(d) identified the civil rights
protections under 29 CFR part 37 (Implementation of the
Nondiscrimination and Equal Opportunity Provisions of WIA) as
applicable to VR program activities that are conducted as part of
the One-Stop system. Citing these parts of Federal regulations is
intended solely as a means of notifying State units of their
regulatory obligations as One-Stop system partners.
Moreover, both Title I of WIA and its implementing regulations
specify that partner programs, such as the VR program, are to
participate in applicable One-Stop system activities in a manner
that is consistent with the Federal law authorizing the individual
partner program (see e.g., section 121(b)(1)(A)(ii) of WIA; 20 CFR
662.230(d)). We interpret this requirement to mean that the DSU
administering the VR program in the State must partner with the
other components of the One-Stop system in accordance with the
requirements of both Title I of the Rehabilitation Act of 1973 and
these final regulations. Given that condition on One-Stop system
participation, and the fact that these regulations generally govern
State conduct, we do not consider it appropriate to include in the
regulations the assurances sought by the commenters. However, we
emphasize that we have worked closely with the U.S. Department of
Labor to ensure that the One-Stop system regulations do not conflict
with VR program requirements. Despite these efforts, we urge State
units and others to inform us of any apparent conflicts between
regulatory provisions that arise so that we, along with the
Department of Labor, can address any inconsistencies that might
remain.
Changes: None.
Section 361.5(b)--Applicable Definitions
General
Comments: Several commenters asked that additional terms be
defined in the final regulations. One commenter requested that a
definition of ``informed choice'' be added to the regulations. Other
commenters asked that separate definitions of the terms ``qualified
vocational rehabilitation counselor'' and ``qualified vocational
rehabilitation counselor employed by the designated State unit'' be
included among the regulatory definitions. Finally, some commenters
asked that ``rehabilitation engineering'' be defined in the final
regulations since that term is used in the definition of
``rehabilitation technology,'' while others suggested that
``mediation'' be defined in the final regulations in order to
clarify the scope of the mediation process.
Discussion: We do not believe it is necessary to define
``informed choice'' in the final regulations. Section 361.52 of both
the proposed and final regulations, which tracks section 102(d) of
the Act, enumerates the critical aspects of informed choice and
reflects the statutory emphasis that individuals participating in
the VR program must be able to exercise informed choice
[[Page 4418]]
throughout the entire rehabilitation process. That section of the
regulations also retains additional choice-related provisions from
the current regulations, including, in Sec. 361.52(c), the types of
information that must be provided for an individual to exercise
choice in selecting VR services and service providers. Thus,
Sec. 361.52, as a whole, contains a comprehensive list of
requirements intended to ensure that individuals are given
meaningful choices, and the opportunity to exercise those choices,
in each aspect of their rehabilitation, as the Act intends.
For further discussion of our decision to not define ``informed
choice,'' please see the analysis of comments to Sec. 361.52 in this
appendix.
We agree that clarification is needed concerning the distinction
between a ``qualified vocational rehabilitation counselor'' and a
``qualified vocational rehabilitation counselor employed by the
DSU.'' However, we do not believe that defining these terms would
provide the necessary clarification since States can readily
determine which counselors they employ. Rather, we think it would be
more helpful to further explain the differences between the
functions that must be performed by DSU and non-DSU counselors. That
discussion can be found in the analysis of comments received under
Sec. 361.45.
We agree that retaining the current regulatory definition of
``rehabilitation engineering'' would be beneficial.
Finally, the 1998 Amendments introduced mediation as another
means for individuals and State units to resolve disputes regarding
the provision of VR services. Although mediation is new to the VR
program, it has been used for years in other programs as a less
adversarial process for resolving disputes than formal due process
hearings or court litigation. The NPRM provided guidance to States
in developing their systems of mediation by defining the statutory
term ``qualified and impartial mediator.'' However, we agree that
defining ``mediation'' in the regulations would provide further
clarification.
We believe it is important that the regulations give States
sufficient flexibility to establish mediation procedures that best
meet the needs of individuals with disabilities in the State and the
needs of the State unit. At the same time, for efficiency purposes,
we feel that the definition of ``mediation'' in the final
regulations should allow for States to conduct mediations under the
VR program in a manner that is consistent with those conducted by
the State under similar programs. We believe that a definition that
is based on relevant portions of the definition of ``mediation'' in
the Federal regulations governing the Client Assistance Program
(CAP) in 34 CFR 370.6(b) serves both of those purposes.
Changes: We have amended the proposed regulations to include
definitions of the terms ``mediation'' and ``rehabilitation
engineering.'' These definitions are located in Sec. 361.5(b)(36)
and (b)(44), respectively, meaning that other definitions in the
proposed regulations have been renumbered in the final regulations.
Administrative costs under the State plan
Comments: One commenter asked why the listing of costs in the
proposed definition of ``administrative costs under the State plan''
was preceded by the term ``including'' rather than ``including, but
not limited to,'' as in the current regulations. This same commenter
also asked what is meant by ``support services'' to other entities,
which was listed as an administrative cost under
Sec. 361.5(b)(2)(iv) of the proposed regulations.
Discussion: The proposed definition of ``administrative costs
under the State plan,'' which tracks the definition in section 7(1)
of the Act, does not differ substantively from the previous
regulatory definition. However, because we interpret the statutory
definition to allow for ``administrative costs'' other than those
listed in the Act, we agree with the commenter that the definition
should specify that the scope of administrative costs is not limited
to the costs listed in the definition.
``Support services to other State agencies, private nonprofit
organizations, and businesses and industries,'' which is referenced
in section 7(1)(D) of the Act, as well as in Sec. 361.5(b)(2)(iv),
can include activities such as training the staff of the One-Stop
system on disability issues, providing organizations with materials
and advice on auxiliary aids and services and other accessibility
issues, reviewing employers' workplace policies and hiring
practices, and other activities that would facilitate and promote
the employment of individuals with disabilities. The scope of
support services that a State unit may provide would differ
depending upon the circumstances in that State.
Changes: We have amended the definition of ``administrative
costs under the State plan'' to clarify that the scope of
administrative costs under the program includes, but is not limited
to, the costs listed in the definition.
Appropriate modes of communication
Comments: Several commenters requested that we amend the
proposed definition of ``appropriate modes of communication'' to
include additional communication modes that are available for
individuals who are deaf or hard of hearing.
Discussion: The definition of ``appropriate modes of
communication'' in the proposed regulations, which was the same as
the previous regulatory definition, was not intended as a
comprehensive list of communication modes used by persons with
disabilities. Accordingly, the definition specified that the scope
of appropriate modes was not limited to the identified examples and
allowed for other modes as they are needed.
Changes: None.
Assessment for determining eligibility and vocational
rehabilitation needs
Comments: One commenter asked that this proposed definition be
amended to ensure that the information used in assessing
eligibility, order of selection category, and vocational
rehabilitation needs of an individual with a disability is provided
by professionals with expertise in the individual's disabling
condition or conditions. This commenter also asked that we revise
the proposed regulations to require that appropriate modes of
communication are used in the course of conducting assessments.
Discussion: The points made by the commenter relate to important
elements of the assessment process. However, we believe those points
are sufficiently addressed by other requirements in the regulations.
For example, Sec. 361.42(a) of both the proposed and final
regulations requires that determinations of eligibility be made by
qualified personnel. Similarly, Sec. 361.18(e) requires that the
State unit be able to communicate with applicants, as well as
eligible individuals, through appropriate modes of communication.
Because these requirements apply to the State unit as it conducts
assessments and fulfills its other functions, we do not consider it
necessary to amend the proposed definition as the commenter
requested.
Changes: None.
Comparable services and benefits
Comments: One commenter asked that the proposed definition be
revised to specifically exclude the personal resources of the
eligible individual from the scope of ``comparable services and
benefits'' that the State unit must use before expending program
funds in support of VR services.
In addition, a number of commenters asked whether a ``ticket''
issued to an individual with a disability under the Ticket to Work
and Work Incentives Improvement Act of 1999, Pub. L. 106-170
(TWWIIA) constitutes a comparable service or benefit. Several other
commenters stated that a Plan for Achieving Self-Support (PASS)
issued by the Social Security Administration (SSA) should not be
treated as a comparable service or benefit.
Discussion: The proposed regulatory definition of comparable
services and benefits--services and benefits that are provided or
paid for by other Federal, State or local public agencies, by health
insurance, or by employee benefits--did not include the eligible
individual's personal resources. Nonetheless, an individual may be
asked to participate in the costs of certain VR services to the
extent that the State unit uses a financial needs test that is
consistent with the requirements in Sec. 361.54 of the regulations.
Because Social Security recipients with disabilities are issued
``tickets'' under TWWIIA in order to receive training and
employment-related services from an employment network as defined in
that act, we believe that the ticket constitutes a comparable
service and benefit under the VR program. Thus, to the extent that a
ticket holder is receiving services from another entity that is
serving as that individual's employment network, the DSU need not
expend VR program funds on services that are comparable to the
services the individual is already receiving. On the other hand, if
the individual initially chooses the DSU as its employment network
under TWWIIA, or otherwise transfers his or her ticket to the DSU,
then the individual would be served solely by the DSU, and the
ticket would not be considered a comparable service and benefit.
On a related point, we note that DSUs must accept a ticket as
sufficient evidence that the
[[Page 4419]]
ticket holder has a disability, is receiving Social Security
benefits, and therefore is presumptively eligible under the VR
program (see Sec. 361.42(a)(3) of the final regulations).
Finally, we agree with the commenters' assertion that a PASS
does not constitute a comparable service or benefit. Simply stated,
a PASS is a mechanism made available to SSDI beneficiaries under the
Social Security Act that enables its holder to conserve certain
amounts of his or her own income or resources for purposes of
supporting himself or herself in the future. Thus, because a PASS is
not a source of support for VR services, we do not view it as a
comparable benefit that the DSU can look to as an alternative to
expending VR program funds.
Changes: None.
Competitive employment
Comments: One commenter questioned the basis for the requirement
that ``competitive employment'' be limited to employment outcomes in
integrated settings. A second commenter asked that we broaden the
definition of ``competitive employment'' in the proposed regulations
to include employment under the Javits-Wagner-O'Day (JWOD) program
if that employment is chosen by the eligible individual.
Discussion: The proposed definition of ``competitive
employment'' was the same as that found in the previous regulations.
Although the term is not defined in the Act, section 7(11), the
statutory definition of ``employment outcome'' does refer to
competitive employment in the integrated labor market. On that
basis, and in light of the great emphasis that the Act places on
maximizing the integration into society of persons with
disabilities, it has been our longstanding policy to define
``competitive employment'' to mean employment in an integrated
setting (at or above minimum wage). For further information on the
integrated setting (and wage) components of the ``competitive
employment'' definition, please refer to the relevant discussion in
the preamble to the previous regulations (62 FR 6310 through 6311).
Whether an employment outcome meets the regulatory definition of
``competitive employment'' is to be determined on case-by-case
basis. If a particular job, including a job secured under the JWOD
program, is integrated (i.e., the individual with a disability
interacts with non-disabled persons to the same extent that non-
disabled individuals in comparable positions interact with other
persons; Sec. 361.5(b)(33)(ii) of the final regulations) and the
individual is compensated at or above the minimum wage (and not less
than the customary wage and benefit level paid by the employer for
the same or similar work performed by individuals who are not
disabled; Sec. 361.5(b)(11)(ii) of the final regulations), then that
position would be considered competitive employment. In fact, we
expect that many jobs secured under JWOD service contracts would
meet these criteria. On the other hand, employment in a non-
integrated setting such as a sheltered workshop would not qualify as
competitive employment regardless of whether the position is
obtained under a JWOD contract or another program or arrangement.
Changes: None.
Employment outcome
Comments: A number of commenters recommended that we expand the
definition of ``employment outcome'' in the proposed regulations
(i.e., entering or retaining full- or part-time competitive,
supported, or other employment) to include ``advancing in''
appropriate employment. This change, the commenters believe, would
encourage DSUs to look beyond entry-level employment options for
eligible individuals.
Another commenter asked that we define ``part-time employment''
in the final regulations. This commenter expressed concern about
DSUs expending resources on individuals who might work very few
hours in the course of a week or a month.
Discussion: The chief purpose of the VR program is to assist
eligible individuals with disabilities to achieve high-quality
employment outcomes consistent with the individual's strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice. Because that standard is reflected in the
definition of the term ``employment outcome,'' we believe that the
regulations sufficiently support the commenters' point that
individuals with disabilities who are currently employed should be
able to receive VR services in order to advance in their careers.
Additionally, the availability of VR services for purposes of
``advancing in'' employment is addressed in other parts of the
regulations. For example, Sec. 361.46(a)(1)(i)) of the final
regulations also specifies that the employment outcome identified in
the individualized plan for employment, i.e., the employment goal
the individual must pursue with the assistance of the State unit,
must be consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, career
interests, and informed choice. That section requires that States
look beyond options in entry-level employment for VR program
participants who are capable of more challenging work. Specifically,
the eligible individual should be assisted in pursuing the job that
reflects his or her strengths, resources, abilities, and other
employment factors previously listed. We suggest that you consult
Rehabilitation Services Administration (RSA) Policy Directive 97-04
for a more complete discussion of the scope and selection of
employment outcomes for eligible individuals.
We have not defined ``part-time employment'' as used in the
proposed definition of ``employment outcome.'' We note that most
employers generally consider any job of less than 35 hours per week
to be part-time. Yet, we do not believe that it would be appropriate
to require a minimum number of hours for part-time work secured
through the VR program.
Although we think that instances in which eligible individuals
work only a handful of hours per week are limited, we do not want to
discourage State units from serving potential part-time workers who,
with the State unit's support, may increase their hours or even
become employed full-time at a later date.
Changes: None.
Fair Hearing Board
Comments: One commenter suggested modifying the proposed
regulations to require a State's fair hearing board to include at
least one individual with a disability.
Discussion: By defining ``fair hearing board'' in the proposed
regulations, we intended to clarify past confusion about the scope
of the fair hearing board exception to the due process requirements
under section 102(c)(6)(A) of the Act. In particular, the proposed
regulations specified in Sec. 361.57(j) that for a State's pre-1985
fair hearing board to qualify under the exception, that board must
be comprised of a group of persons that acts collectively when
issuing final decisions to resolve disputes concerning the provision
of VR services to applicants or eligible individuals.
These proposed requirements were intended to address instances
in which some States had misinterpreted the exception as enabling a
single administrative law judge or other official of a State office
of hearing examiners to carry out hearings under Sec. 361.57 without
following the procedural requirements in that section. In response,
we modeled the proposed definition after the actual State fair
hearing board that served as the catalyst for the statutory
exception in the 1986 Amendments to the Rehabilitation Act. Because
those few States with hearing boards that qualify under the
exception have long followed this authorized State process for
resolving individual disputes under the VR program, we do not
believe it is necessary or prudent to impose special membership
requirements on those boards through regulations. We do, however,
encourage the few fair hearing board States to consider qualified
individuals with disabilities when vacancies on these boards arise.
Changes: None.
Maintenance
Comments: Several commenters objected to the use of examples
following this definition, stating that the information included in
the examples should be placed in sub-regulatory guidance. Other
commenters supported the use of the examples in the proposed
regulations.
In addition, one commenter asked that we clarify the types of
``enrichment activities'' that would fall under the fourth example
to the proposed definition, while another asked that we eliminate
that example altogether.
Discussion: As we have stated in preambles to prior versions of
the VR program regulations, we believe that the limited use of
examples following the regulatory definition of ``maintenance'' is
helpful in understanding the types of services that maintenance may
include. The examples are purely illustrative and are not meant to
limit or exclude other types of services that could be considered
maintenance.
The fourth example to both the proposed and previous regulatory
definition stated that maintenance can include the costs of an
individual's ``participation in enrichment activities'' related to
the individual's training. This example was added to the previous
regulations in 1997 in response to the requests of public commenters
who noted that some DSUs establish limits in
[[Page 4420]]
maintenance budgets that preclude individuals from participating in
enrichment activities (e.g., student trips, visits to museums,
supplemental lectures, etc.) that are often important components of
a student's training program. The ``enrichment'' example was
intended to encourage DSUs to factor in these extra costs when
developing an individualized plan for employment (IPE) for a student
so that the individual can take advantage of supplemental enrichment
activities as appropriate.
Changes: None.
Personal assistance services
Comments: One commenter questioned the point at which a State
unit can provide personal assistance services to an individual with
a disability.
Discussion: The proposed definition, which was the same as that
in the previous regulations, specified that ``personal assistance
services'' (i.e., services designed to assist persons with
disabilities in daily living activities) must be necessary to the
achievement of an employment outcome and may be provided only while
the individual is receiving other VR services. As long as those
conditions are met, personal assistance services, as defined in
Sec. 361.5(b)(39) of the regulations, can be made available at any
stage in the VR process, including during the assessment for
determining the individual's eligibility and priority for VR
services.
Changes: None.
Physical and mental restoration services
Comments: One commenter asked us to require that all services
listed in the proposed definition of ``physical and mental
restoration services'' be provided by personnel who are qualified in
accordance with applicable State licensure laws. Another commenter
asked that the definition in the final regulations specifically
refer to ``assistive listening and alerting devices.'' Finally, one
commenter asked that the regulations prohibit a State unit from
providing physical or mental restoration services if other resources
are available.
Discussion: The proposed regulations followed the scope of
physical and mental restoration services specified in section
103(a)(6) of the Act, and we do not believe that it would be
appropriate to apply, solely through regulations, State licensure
requirements on the provision of additional restoration services.
However, a State may, if it has not done so already, choose to
establish licensure or other qualified personnel requirements for
providers of physical and mental restoration services. Those States
would need to address those requirements in its written policies on
the nature and scope of services developed under Sec. 361.50.
We do not believe it is necessary to list additional restoration
services in the final regulatory definition. Additional medical or
medically related services that an individual needs in order to
achieve an employment outcome are authorized under
Sec. 361.5(b)(40)(xvi).
Similarly, the commenter's concerns about using other resources
before expending VR funds in support of restoration services is
fully addressed elsewhere in the regulations. Section 361.48(e) of
both the proposed and final regulations, under which restoration
services are authorized, specifies that those services can be made
available only to the extent that financial support for the services
is not available from other sources. The application of the more
general comparable services and benefit requirements in Sec. 361.53
produces the same result.
Changes: None.
Physical or mental impairment
Comments: Several commenters questioned the proposed revision to
the previous regulatory definition of ``physical or mental
impairment'' to mirror the definition used in the regulations
implementing section 504 of the Act (section 504) (34 CFR 104.3) and
the Americans with Disabilities Act (ADA). The commenters stated
that using the ADA or section 504 definition may create confusion,
conflict with existing definitions in State law, and weaken the
eligibility criteria of the VR program. Several other commenters
supported the revised definition, stating that consistency across
Federal disability laws leads to more effective administration of
the VR and other programs.
Discussion: As noted in the preamble discussion of the changes
to the definition of ``physical or mental impairment'' proposed in
the NPRM (65 FR 10622), the revised definition does not impact on
the employment-related eligibility criteria under the VR program.
The changes to the definition in the previous regulations were
proposed in an effort to make the VR program regulations more
consistent with other Federal disability laws that define ``physical
or mental impairment.'' We agree with those commenters who indicated
that consistency with the definition used in the ADA and section 504
regulations increases efficiency and actually lessens confusion by
eliminating the need to duplicate efforts in assessing whether an
individual has an impairment. Again, the changes address only
whether an impairment exists; eligibility for VR services remains
dependent on whether an individual also satisfies the eligibility
criteria that are focused on employment (i.e., the impairment
results in a substantial impediment to employment and the other
criteria in Sec. 361.42(a)).
Also, we do not believe that the proposed definition restricted
the scope of physical or mental impairments that satisfied the
previous regulatory definition or that the proposed definition
conflicted with definitions of the same term in State law. If such a
conflict exists, we ask that the State seek technical assistance
from RSA in modifying its requirements in order to ensure that the
State does not employ additional or more restrictive eligibility
criteria for individuals to receive VR services as compared to the
criteria specified in these final regulations.
Changes: None.
Post-employment services
Comments: One commenter requested that the proposed regulations
be modified to eliminate the availability of post-employment
services for purposes of ``advancing'' in employment.
Discussion: Although the term ``post-employment services'' is
not defined in the Act, section 103(a)(18) of the Act specifically
authorizes post-employment services that are necessary to assist an
individual with a disability to retain, regain, or advance in
employment. The proposed definition, which followed the definition
in the previous regulations, supported the use of post-employment
services to enable persons to ``advance'' in employment. As in the
previous regulations, the note that followed the proposed definition
offered additional guidance regarding the provision of post-
employment services.
Changes: None.
Qualified and impartial mediator
Comments: We received many comments on the proposed definition
of ``qualified and impartial mediator.'' First, several commenters
stated that requiring mediators to be ``trained in effective
mediation techniques consistent with any State-approved or -
recognized certification, licensing, registration, or other
requirements* * *'' establishes too restrictive a standard for
mediators. Others sought additional guidance on how to implement
this requirement if the State has not established applicable
certification or other requirements. In addition, several commenters
asked whether the prohibition on public agency employees serving as
mediators under the proposed definition applies to those from a
State Office of Dispute Resolution who conduct mediations across
multiple State programs.
Aside from those issues, some commenters asked that we clarify
whether a qualified and impartial mediator could also serve as an
impartial hearing officer in resolving individual disputes that
arise under the VR program. Other commenters voiced support for the
proposed definition and for the emphasis given to mediation in the
proposed regulations.
Discussion: In establishing the general guidelines that govern
mediations, section 102(c)(4) of the Act requires that mediations be
conducted by a ``qualified and impartial mediator who is trained in
effective mediation techniques.'' We defined ``qualified and
impartial mediator'' in the proposed regulations as a means of
providing guidance to the States in identifying or training
available mediators.
As indicated previously, we are aware that many States already
use mediation to resolve disputes arising under other authorities
(e.g., the Individuals with Disabilities Education Act (IDEA) or
family law statutes) and that education, experience, or other
qualification standards for mediators may vary from State to State.
Thus, the proposed requirement that mediators under the VR program
be trained consistent with applicable certification or other
requirements was intended to ensure that mediators of disputes
arising under the VR program are sufficiently qualified and that the
State unit is able to use its State's existing pool of qualified
mediators.
We fully agree that mediators in a State Office of Dispute
Resolution or other similar office should be able to conduct
mediations under the VR program, and we have modified the proposed
definition to accommodate that situation. This change is analogous
to the provision that enables administrative law judges and hearing
examiners in the State to
[[Page 4421]]
serve as impartial hearing officers even though those individuals
are public employees (see the definition of ``impartial hearing
officer'' in Sec. 361.5(b)(25)).
In addition, although we believe that it is not generally the
case, if there are no recognized credentialing or qualification
standards for mediators in the State, then the Act and these final
regulations require only that the State unit ensure that its
mediators are trained in effective mediation techniques and meet the
other components of the definition in Sec. 361.5(b)(43).
It is critical that qualified and impartial mediators be neutral
in facilitating the resolution of disputes regarding the provision
of services to applicants or eligible individuals under the VR
program. Therefore, we modeled the impartiality requirements in the
proposed definition of ``qualified and impartial mediator'' after
similar requirements in the previous definition of ``impartial
hearing officer.'' Nevertheless, we realize that many States,
particularly rural States with relatively small populations, have
difficulty maintaining an appropriate pool of individuals to serve
as hearing officers. It is not unusual in these or other States for
hearing officers also to be trained as mediators, and we interpret
the Act as allowing individuals to serve as both mediators and
hearing officers under the VR program, provided they meet the
applicable qualifications for each position. However, we also
interpret the statutory requirement that mediators and hearing
officers be impartial (see section 102(c)(4)(B)(iii) of the Act in
reference to mediators and sections 7(16) and 102(c)(5) of the Act
in reference to hearing officers) to preclude the same individual
from serving as both mediator and hearing officer in the same case.
Changes: We have revised the definition of ``qualified and
impartial mediator'' to allow employees of a State office of
mediators or similar office to serve as qualified and impartial
mediators under the VR program.
Substantial impediment to employment
Comments: One commenter suggested that ``communication'' be
listed among the attendant factors in the definition that could
indicate the existence of a ``substantial impediment to
employment,'' since communication plays a critical role in the
individual's ability to function in the workplace. Other commenters
requested that the proposed definition be revised to include
examples of how the attendant medical factors are applied if medical
measures are taken and result in mitigating functional limitations.
Discussion: We agree that communication competence is crucial to
success in the workplace. Although the proposed and previous
regulations stated explicitly that a ``substantial impediment to
employment'' could be measured in terms of ``other factors,'' we
agree that ``communication'' should be added to the specific factors
listed in the final regulatory term.
We suspect that those commenters who suggested that the final
regulations explain how attendant medical factors indicating the
existence of a ``substantial impediment to employment'' are assessed
if medical measures that mitigate functional limitations (also
referred to as ``mitigating measures'') are taken are questioning
the application to the VR program of recent Supreme Court case law
interpreting the ADA. The relevant cases require that any mitigating
measures (e.g., medication) that an individual is using to lessen
the effects of that person's impairment be taken into account in
determining whether the individual has a disability under the ADA
(i.e., an impairment that substantially limits one or more major
life activities).
It is not clear, however, that the Court's decisions apply to
the VR program eligibility criterion that an individual's impairment
constitutes a substantial impediment to employment, since that
provision and ADA language in question are not identical. Moreover,
the purpose of the ADA, which is a civil rights statute, differs
from that of the VR program, which provides Federal funding to
assist individuals with disabilities enter into employment. We are
not aware of any instances in which States, based on these cases,
have altered their processes for assessing an individual's
eligibility for the VR program; nor would we encourage them to do
so.
Changes: None.
Supported employment
Comments: Some commenters requested clarification of what it
means to be ``working toward competitive employment'' for purposes
of meeting the definition of ``supported employment'' in the
proposed regulations. These commenters also asked whether the fact
that an individual in supported employment is working toward
competitive employment affects the 18-month limit on supported
employment services provided by the State unit.
Discussion: The 1998 Amendments expanded the prior statutory
definition of ``supported employment'' (``competitive work in an
integrated setting with ongoing supports'') to also include
``employment in integrated settings in which individuals are working
toward competitive work'' in order to cover persons who are working
in supported employment settings but are making less than the
minimum wage. ``Competitive employment,'' which we have long viewed
as synonymous with the term ``competitive work'' used in the
supported employment definition, generally refers to employment that
is performed in an integrated setting for which the individual is
compensated at or above the minimum wage. Thus, as long as an
individual receiving ongoing support services while working in an
integrated setting is also progressing or moving toward the minimum
wage level, then the individual's job is considered ``supported
employment.'' We note, however, that an individual in supported
employment working toward competitive employment would not be
considered to have achieved a ``competitive employment'' outcome
until the individual is earning at least the minimum wage consistent
with the definition of ``competitive employment'' in
Sec. 361.5(b)(11).
We also note that the change to the statutory definition of
``supported employment'' does not affect the 18-month period for
which the DSU can provide supported employment services. Once that
18 months has passed (and unless the special circumstances warrant
an extension), ongoing services, if needed, must be provided by a
provider of extended services (see Sec. 361.5(b)(20) of the final
regulations) regardless of whether the individual has yet to receive
at least the minimum wage.
Changes: None.
Transportation
Comments: Five commenters asked that the examples following the
proposed definition of ``transportation'' be deleted. Another
commenter supported specifically the example stating that the
modification of a vehicle is a rehabilitation technology, rather
than a transportation, service. Another commenter asked that we
include in the final regulations specific authority for DSUs to pay
for the repair and maintenance of vehicles.
Discussion: We have found that the examples following the
previous regulatory definition of ``transportation,'' which were
largely the same as those included in the proposed regulations, were
helpful to State agency personnel, individuals with disabilities,
and others in clarifying the scope of transportation services
authorized under the VR program. As we have always maintained, these
examples are purely illustrative and are not meant to provide a
comprehensive set of allowable transportation services.
Thus, because other authorized ``transportation'' services
exist, and should be considered in light of the needs of the
individual, we do not believe it is necessary to specify additional
transportation costs in the regulations. We do note, however, that
the second example to the proposed definition identifies the
``purchase and repair'' of vehicles as an example of an authorized
transportation expense. We view the vehicle ``repair and
maintenance'' expense identified by the commenter as covered by that
example and, therefore, authorized. We would also instruct each DSU
to include in its written policies governing the nature and scope of
services under Sec. 361.50(a) any additional transportation expenses
that the DSU generally provides.
Changes: None.
Section 361.10 Submission, Approval, and Disapproval of the State
Plan
Comments: Commenters expressed concern that the proposed
regulations would require the State unit to hold public meetings
throughout the State prior to adopting any new substantive policy or
procedure concerning the provision of VR services or substantively
amending an existing service-related policy or procedure.
Consequently, many commenters viewed the provision as both
burdensome and costly. Some of these commenters suggested that the
State unit be permitted to adopt new policies and procedures (and
make any amendments to existing policies) initially in accordance
with applicable State laws and later invite public comment and input
on those additions or changes during the State's public meetings on
the State plan. Other commenters sought clarification of what
constituted a ``substantive'' policy, procedure, or amendment and
asked who would determine whether a policy is ``substantive.''
[[Page 4422]]
Additional comments on this section of the proposed regulations
reflected concerns about the different dates that govern the
submission of the VR State plan. These commenters recommended that
all States be required to submit updates and revisions to their
State plans by the same date.
Discussion: Section 101(a)(16)(A) of the Act requires the State
to hold public meetings prior to adopting policies or procedures
governing the provision of services under the State plan. This
requirement is essentially the same as the statutory requirements
concerning public meetings that preceded the 1998 Amendments. Thus,
we interpret the requirement in section 101(a)(16)(A) of the Act in
the same manner as we have historically, i.e., the public is to be
given the opportunity to comment on the State plan prior to the
State unit adopting substantive policies and procedures (and any
amendments thereto) governing the provision of vocational
rehabilitation services under the plan. Typically, a State unit
fulfills this requirement by taking comment on new policies during
public meetings on State plan revisions and updates. Regardless of
the timing of the State's public meetings, however, section
101(a)(16)(A) clearly requires that these meetings for receiving
public input be held prior to States adopting new or revised
policies affecting the provision of VR services. Implementing new
policies in advance of the public meetings is not permitted.
We also note that section 101(a)(16)(B) of the Act and
Sec. 361.21 of both the previous and the proposed regulations
required the designated State agency to consult with certain groups
on matters of general policy arising in the administration of the
State plan. In addition, a State unit that has a State
Rehabilitation Council (Council), in accordance with section
101(a)(21)(A)(ii)(II) of the Act and Sec. 361.16(a) of the
regulations (again, both previous and proposed), must consult with
the Council regarding the development, implementation, and revision
of State policies and procedures of general applicability pertaining
to the provision of vocational rehabilitation services. Each of the
public comment or consultation requirements specified in the
proposed regulations, and the resulting burden, was imposed by the
Act, and each was intended to ensure that the State unit accounts
for the diverse needs of its State's disability population before
modifying its service-provision practices.
Nonetheless, in an effort to reduce the burden on the States, we
incorporated into both the proposed and final regulations the term
``substantive'' to clarify that States need not hold public meetings
on policy or procedural changes that are merely technical or do not
affect the provision of VR services in any substantive manner.
Longstanding RSA guidance (see PD-90-08 and PAC-90-05) provides
additional information on the scope of this requirement. We note
that the determination of whether a specific policy or procedure is
sufficiently ``substantive'' to warrant public input is made by the
State unit. Yet, we strongly urge State units to consult with their
Councils in assessing whether proposed policy changes are
``substantive'' or in developing evaluative criteria for the State
unit to use in making that assessment.
Section 101(a)(1)(A) of the Act requires the State to submit its
State plan for the VR program on the same date that its submits its
plan under section 112 of WIA. In addition, section 501 of WIA
authorizes the State to submit a State unified plan in place of both
a WIA section 112 plan and separate State plans for those WIA
partner programs, including the VR program. We believe that in order
to foster collaboration and cooperation between the VR program and
other components of the One-Stop service delivery system, a State
plan for the VR program that is not included in the State's unified
plan should be submitted on the same date as that unified plan. That
view is reflected in Sec. 361.10(f)(3) of the proposed and the final
regulations.
Changes: None
Section 361.16 Establishment of an Independent Commission or a
State Rehabilitation Council
Comments: One commenter expressed concern that the proposed
regulations failed to require the State unit to provide documents to
the Council in alternative formats and in a timely manner. As a
result, this commenter stated that Council members who are blind
will not have sufficient opportunity to review and respond to
information provided by the State unit.
Discussion: This section of the proposed regulations made only
technical changes to the previous regulations in order to conform to
statutory changes in the 1998 Amendments to the Act. We do not
believe that a regulatory change to this provision is warranted
based on the comment received. Providing information in appropriate
formats to Council members with disabilities falls under the State
unit's general responsibility under section 504(a) of the Act to not
exclude, on the basis of disability, any individual from
participating in programs or activities receiving Federal financial
assistance. Moreover, Federal regulations at 34 CFR 104.4(b)(1)(vi)
specify that a recipient's responsibility under section 504 of the
Act extends to the participation of individuals with disabilities on
advisory boards. Thus, as in many other instances in which it
distributes written materials, the State unit must ensure that
Council members who are blind or otherwise disabled are able to
review information that the State unit transmits to the Council, as
well as participate generally in Council activities.
Changes: None.
Section 361.17 Requirements for a State Rehabilitation Council
Comments: We received several comments regarding the composition
requirements of the Council. One commenter requested clarification
as to whether an entity that is a required member of the Council
could select someone other than a member of that entity as its
representative to the Council.
Several commenters suggested that the regulations specify that
the ``nonvoting'' membership status of Council members who are
employees of the designated State agency does not apply to the
representative of the CAP. This change, the commenters assert, is
necessary since the CAPs in some States are components of the
designated State agency that administers the VR program. The
commenters raised questions regarding the required Council
membership of a representative of the directors of the American
Indian VR services projects authorized under section 121 of the Act.
Some of these commenters indicated that the Council should include
members from each of the section 121 projects and that a single
representative of all the directors could not adequately represent
all American Indian VR service projects in the State. Other
commenters described situations in which a section 121 project is
``headquartered'' in one State but has a service area that extends
across State lines into another State and asked whether that project
must be represented on the Council of each State that it serves.
One commenter questioned whether a Council member could be
appointed to the State Workforce Investment Board (SWIB) under
section 111 of WIA in order to satisfy the requirement in the
proposed regulations that the Council include a member of the SWIB.
This commenter stated that otherwise this requirement would be
difficult to meet given the limited pool of persons interested in
serving on the Council as evidenced by the difficulty Councils
experience in filling vacancies as they occur.
Finally, we received several comments indicating that the
proposed regulations failed to incorporate the new statutory
requirement that the majority of members to a Council for a State
agency for the blind must be individuals who are blind.
Discussion: Section 105(b) of the Act contains the membership
requirements for the Council to ensure that various constituencies
of the VR program have a voice in the conduct of the VR program in
the State. Section 105(b)(3) requires that the Governor, after
soliciting recommendations from organizations representing
individuals with disabilities, appoint members to the Council in
accordance with the membership criteria in section 105(b)(1) of the
Act.
The question as to whether an entity can be represented on the
Council by someone other than one of its own members or employees
has been raised in the past. With few exceptions, the Council
membership requirements in section 105(b)(1) of the Act state that a
``representative'' of an identified entity must serve on the
Council. The Act does not require that the ``representative'' be an
employee or member of the required entity. Thus, we interpret
section 105(b) of the Act and Sec. 361.17(b) of the regulations to
allow an entity that is required to be represented on the Council to
be represented by someone who is not an employee or member of that
organization. Recommendations of appropriate representatives can be
made by the organizations themselves, although final appointment
authority rests with the Governor. Moreover, we would expect that
such a Council member would be closely affiliated with and
knowledgeable about the
[[Page 4423]]
organization or entity whose interests the individual is charged
with representing.
We agree that the non-voting status of State agency or State
unit employees under Sec. 361.17(b)(2) of the proposed regulations
does not apply to Council members representing the State's CAP
pursuant to proposed Sec. 361.17(b)(1)(iii).
Questions regarding Council representation of the section 121
project directors have been raised frequently since the passage of
the 1998 Amendments to the Act. Moreover, the commenters' concerns
as to whether one project director can sufficiently represent the
interests of several independent projects serving different
populations of American Indians have generated the most debate. Yet,
the requirement in proposed Sec. 361.17(b)(1)(ix) enabling one
person to represent all section 121 project directors in the State
came directly from section 105(b)(1)(ix) of the Act. This
requirement appears to reflect an intent of Congress to minimize the
burden on States and to ensure that the size of the Councils not be
so large as to become unmanageable. Nevertheless, we urge the
directors of section 121 projects in the same State to collaborate
more extensively than they may have in the past and to work to
ensure that their collective views are represented on the Council.
We also note that neither the Act nor regulations prohibit the
Governor from appointing to the Council more than one representative
of the State's section 121 projects (or other groups) if warranted
as long as the remaining composition requirements in the Act and
regulations (e.g., the requirement that a majority of Council
members be individuals with disabilities) are met. As for section
121 projects that are ``headquartered'' in one State but serve those
in another State, it is our understanding that to the extent this
occurs, affected projects primarily serve American Indians with
disabilities in the State in which the project is located and serve
only a relatively small area in a neighboring State. We do not
believe that the Council must include a representative of a section
121 project serving American Indians with disabilities in the State
if that project is primarily located, and serves those, in another
State. In that instance, Sec. 361.17(b)(1)(ix) of the final
regulations would apply only to the State in which the project is
located. The Governor, however, always has the discretion to appoint
to the Council a representative of an out-of-State project that also
serves American Indians with disabilities in the Governor's State.
Since the time that the Council requirements came into effect,
questions regarding whether the same individual can fulfill more
than one role on the Council have been raised often. In response, we
consistently have taken the position that an individual may
represent only one entity on the Council even though that same
individual may qualify under more than one of the composition
requirements. We recognize that some States have difficulty
maintaining a sufficient pool of qualified individuals to serve on
statewide Councils and that the 1998 Amendments to the Act added
three new required members to the Council. Nevertheless, section
105(b) of the Act establishes a minimum number of members for the
Council, each of whom represents a specific component of the
disability community. Because each member represents a different
interest, sometimes one that is divergent from that of other
members, we maintain that each organizational requirement must be
met separately. Thus, a Council member who serves on the SWIB cannot
represent both the SWIB and another organization on the Council.
We agree with the commenters who pointed out the discrepancy
between the Act and the regulations regarding the membership
requirements that apply to a Council for a separate State agency
that administers the VR program for individuals who are blind. These
commenters correctly noted that the proposed regulations did not
specify, as does the statute, that the majority of members of these
Councils must be individuals who are blind. This omission was
inadvertent, and we agree that it needs to be corrected in the final
regulations.
Changes: We have revised Sec. 361.17(b)(2) of the proposed
regulations to clarify that the CAP representative is, in all
instances, a voting member of the Council. In addition, we have
modified Sec. 361.17(c) to reflect the requirement in section
105(b)(4)(B) of the Act that a majority of the members on a Council
for a separate State agency for the blind must be individuals who
are blind.
Section 361.18(c) Comprehensive System of Personnel Development--
Personnel Standards
Comments: Some commenters expressed concern with the indication
in the preamble to the NPRM that statewide ``multi-tiered''
personnel standards could be used by the State unit in establishing
standards for its rehabilitation personnel. Other commenters
suggested that the proposed regulations be revised to require that
all rehabilitation counselors obtain a Master's degree consistent
with the national certification standards for rehabilitation
counselors.
In addition, a number of commenters sought waiver or
``grandfather'' provisions in the final regulations that would
exempt current rehabilitation counselors and other professionals
from the State's personnel standards. On a related point, some
commenters asked whether currently employed rehabilitation
counselors who do not meet the State unit's personnel standards can
continue to serve as counselors while training to meet the standard.
Additionally, several commenters viewed the requirement in the
proposed regulations that the State unit develop a written plan for
retraining, recruiting, and hiring staff to meet applicable
personnel standards as unduly burdensome. Other commenters supported
this requirement and suggested that the written plan be developed
with input from the Council.
Finally, several commenters suggested that RSA define the
professional and paraprofessional disciplines for which a State unit
must establish personnel standards, while others asked what
standards the State unit should apply to professions or
paraprofessions for which no certification or similar criteria
exist.
Discussion: The preamble discussion in the NPRM concerning the
ability of State units to use the same multi-tiered personnel
standards as those applied by other State agencies to its
rehabilitation staff was intended to clarify the level of
flexibility the proposed regulations give State units in ensuring
that its personnel are qualified within the meaning of the Act.
Typically, multi-tiered certification systems require rehabilitation
counselors to reach a certain academic level depending on the amount
of experience the individual has had in that field. As we indicated
in the NPRM (65 FR 10623), because the Act clearly allows State
units to base their personnel standards on applicable State
standards, it is permissible for a DSU to apply the multi-tiered
counselor certification criteria of, for example, the State Workers'
Compensation program to DSU counselors if the counselors of both
agencies perform similar functions. The Act gives State units that
discretion, and that same discretion also prohibits requiring by
Federal regulations that all State unit counselors obtain a Master's
degree consistent with the national rehabilitation counselor
certification standards as sought by some commenters. Nonetheless,
as we stressed in the preamble to the NPRM, we encourage each State
unit to ensure that its personnel standards promote quality among
its counselors and other staff, and we caution State units not to
employ minimally qualified individuals by routinely substituting
``equivalent experience'' for higher-level degree criteria.
The Act does not authorize ``grandfathering'' or the waiving of
personnel standards for current staff. Rather, section
101(a)(7)(B)(ii) of the Act compels the State unit, if its current
personnel does not meet the ``highest requirements in the State''
(i.e., the highest entry-level academic degree needed for the
applicable State or national certification, licensing, or
registration requirements--see Sec. 361.18(b)(2)(i) of the final
regulations), to retrain existing staff, as well as recruit new
employees, to meet the personnel standards applicable to each
profession.
The written plan under Sec. 361.18(c)(ii) that describes the
retraining, recruitment, and other efforts of a State unit whose
current personnel standards do not conform to the highest
requirements in the State is based on the requirement in the Act
that directs the State to provide this information in its State
plan. More importantly, however, we believe that the limited
components of the written plan (e.g., retraining, recruiting, and
hiring steps, timelines for those efforts, procedures for evaluating
progress, etc.) are essential to ensuring that the State unit
employs a fully qualified staff that is best able to meet the
diverse needs of individuals with disabilities. Any burden
associated with developing the plan, we believe, is caused by the
intent of the Act. The narrow scope of required plan components is
expected to provide States with a helpful framework for fulfilling
their personnel development responsibilities and improving their
service delivery capacity.
As we have stated in the past, we recognize the many constraints
faced by State agencies in securing a fully qualified staff, not the
least of which is the time that it takes to
[[Page 4424]]
retrain existing staff. Thus, current counselors who, pursuant to
the State unit's plan under Sec. 361.18(c)(1)(ii), are working
toward applicable qualification standards can continue to perform
their counselor functions. The Act establishes an expectation that
rehabilitation counselors and other staff will become qualified
consistent with the highest applicable personnel standards in the
State. Accordingly, the requirements in the regulations are intended
to ensure that the State unit can continue to serve persons with
disabilities while it progresses as rapidly as possible toward the
point at which all of its staff, both current and new hires, meet
the highest qualifications that the State applies to their
professions.
We also emphasize the importance of the role of the Council in
the area of personnel development. Section 361.18(a) of the final
regulations requires that the Council, if it exists, have an
opportunity to review and comment on the development of all plans,
policies, and procedures necessary to meet the State unit's
obligations under the comprehensive system of personnel development
(CSPD). As with each of the Council's functions, we view the
Council's input into the development of the State unit's personnel
policies, procedures, and standards as vital toward ensuring that
those efforts result in a State unit workforce that is fully capable
of meeting the training and employment needs of persons with
disabilities in the State.
We decline to define the professional and paraprofessional
disciplines for which a State unit must establish personnel
standards, as some commenters requested. While a State unit must
apply to its staff the highest personnel requirements that exist in
the State and that apply to each profession, determining the types
of professionals and paraprofessionals needed to effectively
administer its VR program and establishing the scope of functions
for each job are the responsibility of the State unit. It is the
State unit that can best judge its staffing needs and establish
staffing arrangements that meet the particular needs of that
agency's service recipients. In the preamble to the NPRM, however,
we did provide some guidance on the categories of professional and
paraprofessional disciplines most closely associated with the VR
program for which the State unit should give priority in developing
both specific job criteria and appropriate qualification standards.
Those professions include rehabilitation counselors, vocational
evaluators, job coaches for individuals in supported employment or
transitional employment, job development and job placement
specialists, and personnel who provide medical or psychological
services to individuals with disabilities.
As a final matter, we note that if there are no State or
national licensing, certification, or registration requirements for
a given profession established by the State unit, then both the Act
and the final regulations require the State to use other
``comparable requirements'' (such as State personnel requirements)
for that profession or discipline. The scope of these ``comparable
requirements'' (e.g., degree criteria, work experience, etc.) that
are applied to jobs for which no licensing or similar requirements
exist is left to the reasonable judgement of the State unit.
Changes: None.
Section 361.22 Coordination With Education Officials
Comments: Some commenters opposed the requirement in the
proposed regulations that the State unit complete the IPE for
students eligible for VR services before they leave school. These
commenters stated, for example, that the proposed requirement would
be impracticable for State units to fulfill, would lead to rashly
formulated IPEs, or would exceed applicable statutory requirements.
Other commenters supported requiring completion of the IPE before
the student leaves school and viewed the requirement in the proposed
regulations as essential if transition planning is to prove
effective.
In addition, one commenter requested that the proposed
regulations be revised to require that the formal interagency
agreement between the State unit and educational agencies specify
both the manner and the time in which State unit staff will
participate in transition planning for students with disabilities.
Another commenter suggested that each agreement include provisions
for resolving disputes regarding the agencies' financial
responsibilities in paying for transition services and for enabling
students to retain assistive technology provided by schools that the
student needs following transition.
Discussion: The proposed requirement that State units provide
for the development and completion of the IPE before students who
are eligible for VR services leave the school setting was carried
over from the previous regulations. As we have indicated from the
time the previous regulations were published in 1997, we believe
that requiring IPE completion before eligible students with
disabilities leave school is entirely consistent with the emphasis
on transition in both the Act and its legislative history (see
Senate Report 102-357). That emphasis was only heightened by the
requirement in the 1998 Amendments that State units increase their
participation in transition planning and related activities. More
importantly, requiring the IPE to be in place before the student
exits school is essential toward ensuring a smooth transition
process, one in which students do not suffer unnecessary delays in
services and can continue the progress toward employment that they
began making while in school. In fact, it is in support of that
effort that we have made two clarifications in these final
regulations: (1) that designated State agencies should be involved
in the transition planning process as early as possible; and (2)
that the IPE must be ``approved'' (i.e., agreed to and signed by the
individual and the DSU) prior to the student leaving school, as
opposed to simply ``completed'' as stated in the proposed
regulations.
We have determined it necessary to clarify in the final
regulations steps that the designated State agency must take, at a
minimum, when conducting the statutorily required outreach to
students with disabilities. It is essential for the designated State
agency to inform these students of the purpose of the VR program,
the application procedures, the eligibility requirements, and the
potential scope of services that may be available. This information
should be provided as early as possible during the transition
planning process in order to enable students with disabilities to
make an informed choice on whether to apply for VR services while
still in school.
We are not aware that State units have had great difficulty in
completing IPEs for students. As before, the final regulations
require that if the State is operating under an order of selection,
only the IPEs of those students that the State unit can serve under
the order must be developed before the student leaves school.
Moreover, we believe that State units will be even better prepared
to fulfill this requirement as they become more active in transition
planning for special education and other students with disabilities
(e.g., those students receiving services pursuant to section 504 of
the Act or the IDEA) and in generally coordinating with school
officials.
We believe, as did some commenters, that the extent to which the
State unit should be involved in transition planning for individual
students with disabilities should be based on the needs of the
student. However, we also believe that it is important for the
designated State agency to participate actively throughout the
transition planning process, not just when the student is nearing
graduation. Early involvement by the designated State agency can be
very beneficial in terms of assisting the student to make the
transition from school to employment. For this reason, these final
regulations clarify that the designated State agency should become
involved in the transition planning process as early as possible.
The designated State agency and the State education agency should
negotiate more specific provisions, as part of their interagency
agreement, to ensure that the students' needs are met in a timely
manner. Congress clearly envisioned that that approach be followed
in developing the terms of the State's interagency agreement (see
e.g., Conference Report 105-659, page 354). Also left to local
discretion is the scope of components, other than those limited
components specified in the Act and clarified previously, that
should be included in the agreement. Some of the additional
agreement items identified by commenters may be considered in that
regard.
However, in response to the commenter's suggestion that each
agreement should include provisions for resolving disputes in paying
for transition services, we note that State units are authorized to
pay for only transition services for students who have been
determined eligible under the VR program and who have an approved
IPE. Thus, as long as those criteria have been met, and the IPE
specifies those transition services necessary for the successful
implementation of the IPE, we anticipate that disputes of the type
raised by the commenter will not be prevalent.
Changes: We have amended Sec. 361.22(a) of the proposed
regulations to clarify that the
[[Page 4425]]
IPE for a student determined to be eligible for vocational
rehabilitation services must be developed and approved before the
student leaves the school setting and as early as possible during
the transition planning process. In addition, we have amended
Sec. 361.22(b)(4) of the proposed regulations to clarify information
that must be provided by the designated State agency, at a minimum,
when conducting outreach to students with disabilities, and we have
clarified that outreach should begin as early as possible during the
transition planning process.
Section 361.23 Requirements Related to the Statewide Workforce
Investment System
Comments: We received a great many comments on this section of
the proposed regulations that raise important policy issues and
questions of interpretation that relate not only to the proposed
regulations, but also to WIA and the regulations in 20 CFR part 662.
Most commenters requested more detail in the final regulations
that elaborates on how the VR program is to fulfill the requirements
in proposed Sec. 361.23(a). For example, several commenters asked
that we specify in the final regulations those core services under
WIA that the VR program is expected to provide in accordance with
proposed Sec. 361.23(a)(1), while others asked that we explain which
activities related to ``creating and maintaining'' the One-Stop
system under Sec. 361.23(a)(2) are allowable under the VR program.
Some of the commenters on this proposed section also urged us to
identify in the final regulations certain restrictions in the Act
(e.g., the order of selection requirements under section 101(a)(5))
that may affect the extent to which State units can contribute to
the cost of One-Stop system services or other One-Stop system
activities. Of critical importance to the final regulations, most
commenters stressed, is the need to address the responsibility of
all WIA partner programs to serve individuals with disabilities.
Other commenters asked that we add to the One-Stop system
responsibilities listed in proposed Sec. 361.23(a) other items that
are necessary for DSUs to effectively participate with other partner
programs of the One-Stop system, including methods for allocating
costs between programs, methods for ensuring proportionality between
the partner's financial participation in the One-Stop system and the
resulting benefits it receives, and methods for resolving disputes
regarding funding that may arise between partner programs.
Several other commenters identified additional components that
they suggested be included in the required cooperative agreements
between the designated State agency and those entities administering
other One-Stop system partner programs. In addition, some commenters
asked whether the requirement that State units, through the
cooperative agreements, promote participation by individuals with
disabilities in the One-Stop system also requires that State units
pay the cost of reasonable accommodations at the One-Stop system
center or other locations.
Discussion: As we discussed at some length in the preamble to
the NPRM (65 FR 10620, 10621, and 10624), we restated in
Sec. 361.23(a) of the proposed regulations the responsibilities of
One-Stop system partners, including the VR program, that are
described in the regulations implementing Title I of WIA (20 CFR
part 662). That effort was intended solely to inform State units of
the One-Stop system responsibilities to which they are subject under
WIA. We also asked that commenters raise specific interpretive or
policy questions related to these One-Stop system responsibilities
so that we may address, through appropriate guidance, those most
pressing matters that DSUs face as they participate in the One-Stop
service delivery system. Most of the comments received on this
section of the proposed regulations focus on those types of
questions.
Although we anticipate addressing in future guidance materials,
and in cooperation with other appropriate Federal agencies, the
workforce policy questions posed by the commenters, we do note that
many of the issues raised are impacted by a number of key One-Stop
system principles embedded in WIA, its implementing regulations, and
these final regulations.
First, participation by DSUs in the One-Stop system must be
performed in a manner that is consistent with the legal requirements
applicable to the VR program (i.e., the Act and these final
regulations). Thus, the DSUs' participation in the cost of core
services or any other One-Stop system activities cannot, for
example, result in expenditures for services to individuals who do
not meet the priority for services in the order of selection under
which a DSU is currently operating (although the DSU can
participate, as appropriate, in the cost of intake and other
expenditures that would normally be borne by the DSU prior to
determining eligibility and the individual's priority category under
the State's order of selection; see the discussion in the following
section of this analysis of comments for further information on the
relationship between order of selection requirements and
participation in One-Stop system activities.) The fact that DSUs
must comply with the Act and the VR program regulations in the
course of participating in the One-Stop system, we believe, was made
clear in the proposed regulations, as it is in Title I of WIA and
the regulations implementing that title.
Compliance with the ADA and section 504 of the Act represents
another key issue that directly impacts the One-Stop system. In sum,
those laws obligate One-Stop system centers and their partners to
make their services accessible to individuals with disabilities.
Thus, we, along with the Department of Labor and many of the
commenters, have emphasized that the legal responsibility for
assisting persons with disabilities does not fall to the DSU alone.
Consequently, individuals with disabilities are likely to receive
services through a variety of arrangements (e.g., through the One-
Stop system center, through a combination of core services at the
One-Stop system center and specialized VR services from the DSU,
etc.) depending on the configuration and structure of the local One-
Stop system. Nonetheless, because the universal access principles
reflected in the ADA and section 504 relate to the responsibilities
of non-DSU entities and because these final regulations establish
requirements for designated State agencies and designated State
units administering VR programs, we do not believe this section
should be revised to address the application of the ADA and section
504 to the One-Stop system generally. Those responsibilities are
fully addressed in WIA, particularly in section 188 of that act and
its implementing regulations, 29 CFR part 37, which establish the
civil rights protections that must be provided by the State and
local workforce development systems.
Many of the commenters also raised important issues related to
collaboration between the DSU and its One-Stop system partners. In
response, we note that those issues can, and should, be addressed
through the development of the memorandum of understanding (MOU)
governing the operation of the One-Stop system referred to in
Sec. 361.23(a)(3) or through the cooperative agreements developed
between these same parties under Sec. 361.23(b). In fact, some of
the suggested items, including the methods for funding One-Stop
system costs among partner programs, are addressed in the
regulations implementing title I of WIA (see MOU requirements in 20
CFR 662.300). Rather than specifying additional MOU or cooperative
agreement components in these final regulations, we would urge DSUs
and their One-Stop system partners to determine which components,
other than those specified in the MOU requirements in 20 CFR part
662 and the agreement components in Sec. 361.23(b) of these final
regulations, would be most appropriate to address given State and
local circumstances.
We do believe it is necessary, however, to clarify one technical
item related to the cooperative agreement under Sec. 361.23(b) that
some commenters raised. The commenters appeared to interpret
Sec. 361.23(b)(2)(i)(B) as requiring DSUs to pay for reasonable
accommodations, auxiliary aids, and other services for persons with
disabilities participating in the One-Stop system. Yet, that
proposed section, which comes directly from section
101(a)(11)(A)(i)(II) of the Act, states only that DSUs, in promoting
meaningful participation by persons with disabilities in One-Stop
system and other workforce investment activities through program
accessibility, may provide training and technical assistance to its
One-Stop system partners on how to provide reasonable accommodations
and auxiliary aids and services. Neither the relevant statutory
provision nor the proposed regulatory section questioned by
commenters instructs DSUs to pay the costs of providing individuals
with disabilities access to the One-Stop system. In fact, as
previously noted, that responsibility falls to the One-Stop system
pursuant to the ADA and section 504.
Changes: None.
Section 361.31 Cooperative Agreements With Private Nonprofit
Organizations
Comments: None.
Discussion: We wish to clarify the relationship between these
final regulations
[[Page 4426]]
and potential agreements that DSUs may enter into with employment
networks authorized under the recently enacted TWWIIA. In
particular, we note that neither the Act nor the regulations,
including the requirement in section 101(a)(24)(B) of the Act and
Sec. 361.31 of the regulations that the DSU enter into cooperative
agreements under the VR program with private nonprofit VR service
providers, are intended to limit or prohibit the establishment of a
fee-for-service or other reimbursement type agreement between DSUs
and employment networks. Typically, fee-for-service arrangements
enable private service providers to purchase from the DSU services
that are needed by an individual with a disability who is not a VR
program participant.
On a related note, we also emphasize that nothing in the Act or
these regulations would affect the ability of a DSU to serve as an
employment network as authorized under TWWIIA.
Changes: None.
Section 361.36 Ability To Serve All Eligible Individuals; Order of
Selection for Services
Comments: One commenter suggested that this section of the
proposed regulations be strengthened to ensure that States preserve
resources and provide needed services to individuals with
significant disabilities, particularly as the State unit becomes
more closely linked to, and participates in, the One-Stop system
under WIA.
Discussion: As we discussed in the previous section, we agree
that the policy behind the order of selection requirements in the
Act and regulations--to preserve the fiscal and personnel resources
of the DSU so that those with the most significant disabilities can
receive the full range of VR services that they need to become
appropriately employed--must be safeguarded. However, we believe
those safeguards are in place. As a required partner in the One-Stop
system, the State unit must participate toward the development and
maintenance of an effective One-Stop system at the local level.
Moreover, Title I of WIA and the regulations implementing that title
clearly condition that participation on compliance with the
Rehabilitation Act and these regulations. Thus, the order of
selection requirements in section 101(a)(5) of the Act and these
regulations, or any other statutory or regulatory requirement
applicable to the VR program, must be followed in the course of
participating in One-Stop system activities. If the State is
operating on an order of selection because it cannot serve all
eligible individuals given its current level of VR program
resources, then the State unit can pay only for services (i.e.,
services beyond intake and assessment that are necessary to
determine whether an individual is eligible under the program and,
if so, to determine the individual's priority category under the
order of selection) for the individuals who qualify for services
under that order, regardless of whether those services are provided
within or apart from the One-Stop system center. The severity of an
individual's disability or the cost of the individual's program of
services can have no bearing on the scope of services the individual
receives.
Changes: We have made one clarifying change to Sec. 361.36(c) of
the proposed regulations that was not based on public comment. This
proposed section has been revised to clarify that a DSU that has
developed but not implemented an order of selection must continue to
provide the full range of services, as appropriate, to all eligible
individuals.
Section 361.42 Assessment for Determining Eligibility and Priority
for Services
Comments: Several commenters recommended requiring in this
section of the final regulations a written assessment for
determining eligibility and priority for services by a qualified VR
counselor employed by the DSU, as a means of emphasizing the
importance of the professional opinion of the VR counselor. These
commenters also proposed that this written assessment be included
with the information given to the eligible individual during IPE
development.
Some commenters opposed the eligibility provisions stated in
proposed Sec. 361.42(a)(i) and (ii) (i.e., determinations by
qualified personnel that the applicant has a physical or mental
impairment and the impairment constitutes or results in a
substantial impediment to employment) on the basis that neither
provision required that the applicable determination be made by a
qualified employee of the DSU. These commenters stated that all
eligibility-related determinations should be made by the DSU.
Several commenters opposed Sec. 361.42(a)(3) of the proposed
regulations, which implemented the statutory requirements regarding
presumptive VR program eligibility for individuals receiving SSI or
SSDI under the Social Security Act. These commenters stated that a
categorical presumption of eligibility for this group of individuals
could be misconstrued as creating an entitlement to VR services,
could lead to efforts to extend presumptive eligibility
inappropriately to other groups with common characteristics, and may
undermine the individualized nature of the VR program. Some of the
commenters asserted that a presumption of eligibility should be able
to be rebutted by a showing that an individual receiving SSI or SSDI
does not meet one or more of the eligibility criteria. Other
commenters suggested that presumptive eligibility for these
individuals should apply to only those Social Security recipients or
beneficiaries seeking to earn wages as opposed to those intending to
become homemakers.
On the other hand, several commenters supported the proposed
requirements regarding presumptive VR program eligibility for
individuals receiving SSI or SSDI. Some noted that the relevant
statutory provision, section 102(a)(3) of the Act, already has been
effective in reducing the time expended on eligibility
determinations, thereby allowing counselors and individuals to focus
on IPE development and initiating needed services.
Many commenters opposed the manner in which the proposed
regulations implemented the passage in section 102(a)(3)(ii) of the
Act that states that Social Security recipients are presumed
eligible under the VR program ``provided that the individual intends
to achieve an employment outcome.'' Specifically, these commenters
believed that completion of the application process, as described in
the proposed regulations, is insufficient evidence of the
individual's intent to achieve an employment outcome. They urged
that the applicable paragraph in the proposed regulations be
stricken on the basis that DSUs make eligibility-related decisions
not only at the time of application but throughout the VR process.
Several commenters opposed authorizing DSUs, under
Sec. 361.42(b) of the proposed regulations, to make interim
determinations of eligibility. Most of these commenters questioned
the statutory authority for the proposed section or viewed the
provision as unnecessary since all eligibility determinations must
be completed within 60 days from the time the individual applies for
VR services. On the other hand, many commenters supported the
proposed interim eligibility authority and the fact that using it
rests with the discretion of the DSU.
Several commenters supported proposed Sec. 361.42(c)(1) that the
DSU will not impose, as part of the eligibility determination
process, a duration of residence requirement that excludes from
services any applicant who is present in the State. Two commenters
suggested that the proposed language more closely track the Act by
applying the prohibition not only to applicants but to any
individual who is present in the State. Other commenters supported
retaining specific language stating that a requirement for an
applicant to be present in the State cannot be used to circumvent an
individual's choice of an out-of-State service provider.
We received many comments on proposed Sec. 361.42(e), which
implemented new statutory requirements regarding the use of trial
work experiences as part of the process for determining eligibility
for VR services. Several commenters responded to our request in the
preamble to the NPRM that they identify examples of trial work
experiences, other than supported employment and on-the-job
training, that DSUs might employ. Suggestions included contract or
production work in the individual's own home, internships, unpaid
work experiences, on-the-job evaluations, job shadowing, structured
volunteer experiences in real work settings, and community-based
work assessments with supports, among others.
Many commenters suggested that the final regulations authorize a
DSU to consider trial work that the individual performed previously,
and that is documented, for purposes of meeting the requirement that
it assess the individual's capacity to perform trial work before the
individual is determined too severely disabled to achieve an
employment outcome (and, therefore, ineligible). These commenters
also recommended that the final regulations clarify that trial work
experiences need not be used for all individuals with significant
disabilities or in instances in which an individual's ability to
achieve an employment outcome is not in question.
A number of commenters opposed the requirement in proposed
Sec. 361.42(e)(2)(i) that the DSU develop a written plan to assess
the individual's capacity to perform in realistic
[[Page 4427]]
work settings. These commenters noted that the Act does not require
a written plan and that the proposed provision could have the
unintended effect of delaying services to the individual. Other
commenters expressed concern that the trial work assessment for an
individual appeared open-ended and, therefore, recommended that the
regulations apply a specific time limit to the use of trial work for
purposes of determining eligibility.
One commenter questioned the authority for the proposed
regulatory requirement that DSUs provide appropriate supports,
including assistive technology devices and services and personal
assistance services, to accommodate the rehabilitation needs of an
individual while performing trial work. In contrast, another
commenter stated that it is vital for DSUs to provide the supports
and assistive technology that are needed for an individual during
the trial work period.
Several commenters recommended deleting proposed Sec. 361.42(h),
which authorized the continued use of extended evaluations in
instances in which trial work experience options have been exhausted
or cannot be used by the individual. These same commenters suggested
that the 18-month time limit that applied to extended evaluation
under the current regulations be applied to trial work experience
options. Some of the commenters also questioned the authority for
keeping the extended evaluation option in the regulations, while
others suggested that since trial work experiences were available to
most individuals with significant disabilities, the extended
evaluation authority is no longer necessary or is inconsistent with
the Act's preference for finding most applicants eligible for the VR
program. In contrast, a number of commenters supported retaining the
extended evaluation requirements.
Discussion: We agree that the professional opinion of the VR
counselor is critical in assessing an individual's eligibility and
priority for services. Both the Act and the regulations specify that
qualified personnel must conduct assessments under the VR program.
Although we suspect that most States develop written assessments, we
do not think it is necessary to require by rulemaking that the
assessment itself be in writing. Thus, State units may continue to
require written eligibility assessments, or otherwise attest to an
individual's eligibility and priority of service category under an
existing order of selection, as they deem appropriate. We do note,
however, that the DSU is required to document, in some fashion,
support for determinations of eligibility as part of the record of
services required under Sec. 361.47 of the regulations. Whether that
documentation is the assessment itself or some other combination of
information, again, lies with the discretion of the DSU.
We believe that proposed Sec. 361.42(a)(1)(i) and (ii) and the
references to ``qualified personnel'' in each of the provisions are
consistent with the Act. We interpret the requirements in section
103(a)(1) of the Act (requiring assessments for determining
eligibility and rehabilitation to be conducted by ``qualified
personnel'') and section 102(a)(6) of the Act (requiring eligibility
determinations to be conducted by the designated State unit) the
same as we have historically since neither statutory provision
changed in the 1998 Amendments. Specifically, the Act authorizes
qualified professionals, both DSU and non-DSU employees, to
determine the existence of an impairment and to determine whether
the impairment results in a substantial impediment to employment
(i.e., whether the first two eligibility criteria have been met.)
The requirement in section 102(a)(4)(B) of the Act regarding the use
of determinations made by officials of other agencies also supports
this position. Assuming the DSU can confirm that a qualified
professional has determined that the individual has met those
criteria, the DSU counselor then assesses whether the individual
requires VR services to obtain and retain work in the individual's
chosen field that is appropriate to his or her abilities (i.e., the
third criterion of eligibility.) The individual is presumed to have
met the fourth criterion--that the individual can benefit from VR
services under Sec. 361.42(a)(1)(iv). This framework, which we
believe is required by the Act, is intended to ensure that the DSU
controls the eligibility process at the same time that it
facilitates more timely assessments that allow for existing
information from other sources to be taken into account.
The 1998 Amendments specify that those who qualify for SSI or
SSDI are presumed eligible for the VR program. As we discussed
extensively in the preamble to NPRM (65 FR 10625 and 10626), we
believe that this change was adopted in the 1998 Amendments to
streamline eligibility and expedite necessary VR services for those
Social Security recipients since each category of recipients already
has met stringent disability criteria under the Social Security Act
and clearly needs VR services in order to achieve appropriate
employment. We do not believe that this presumption will be
misconstrued as changing the nature of the VR program to a program
under which individuals are entitled to services without pursuing a
job. In fact, section 102(a)(3)(B) of the Act and Sec. 361.42(a)(5)
of these final regulations specify that nothing in the presumptive
eligibility requirement creates an entitlement to VR services,
meaning that individuals with disabilities are not automatically
entitled to VR services but, rather, must expect to achieve an
employment outcome as a result of receiving those services. The
final regulations implement that expectation by ensuring that all
applicants, including those receiving SSI or SSDI, are informed of
the employment-related nature of the VR program during the
application process.
We also disagree with the assertion that a categorical
presumption of eligibility for individuals receiving SSI or SSDI
will lead to categorical eligibility for other groups and undermine
the individualized nature of the VR program. Prior to the 1998
Amendments, disabled SSI recipients were statutorily presumed to
have a physical or mental impairment that constituted a substantial
impediment to employment (i.e., were presumed to have met the first
two eligibility criteria in Sec. 361.42(a)(1) of the regulations),
as well as a severe disability. Section 102(a)(3) of the 1998
reauthorized Act expanded this presumption by giving presumptive VR
program eligibility (i.e. a presumption that individuals meet all of
the eligibility criteria under the VR program) to this same
population. The presumption applies only to these persons and is not
written to broadly cover other groups that do not qualify under the
stringent disability-related criteria applied by the Social Security
Administration. Also, the individualized nature of the VR program
(i.e., that services are provided under an IPE to meet an
individual's rehabilitation needs and assist an individual to
achieve an employment outcome) is unaffected by this requirement
that only addresses eligibility for services.
As section 102(a)(3)(A)(ii) of the Act makes clear, a DSU can
rebut the presumption that an SSI or SSDI recipient is eligible
under the VR program if it can demonstrate by clear and convincing
evidence that the individual is incapable of benefiting in terms of
an employment outcome from VR services due to the severity of the
individual's disability. In response to the commenter's contentions,
we maintain that a presumption of eligibility can be rebutted only
on this basis.
We also do not believe that presumptive eligibility for SSI or
SSDI recipients should be restricted to those seeking certain types
of employment outcomes. As we have long required, eligibility
requirements are not to be applied with regard to the type of
expected employment outcome that the applicant seeks (see
Sec. 361.42(c)(2)(ii)(B) of these final regulations). Thus, whether
an individual seeks a self-employment, another wage-earning
employment, a homemaker, or other outcome cannot be used as a factor
in determining the individual's eligibility for VR services or
affect the presumptive eligibility of an individual receiving SSI or
SSDI.
We believe that completion of the application process after the
DSU has informed the individual that he or she must seek an
employment outcome to receive VR services is sufficient evidence
that any individual, including SSI and SSDI recipients, ``intends to
achieve an employment outcome,'' as section 102(a)(3)(ii) specifies.
While we understand that some commenters are concerned that disabled
Social Security recipients in particular will seek VR services
without intending to work, we find that concern unfounded. We
referred in the preamble to the NPRM to an obvious fact--that all
applicants for VR services, not only those who qualify for SSI or
SSDI, must intend to work to receive VR services. Thus, ensuring
that the DSU explains the employment-related nature of the VR
program as part of the application process ensures that applicants
understand what is expected of them before participating in the
program. Thus, the proposed regulatory method of ensuring an
individual's intent to work fulfills an expectation that applies to
all applicants for VR services and streamlines, rather than hinders,
the eligibility process for SSI and SSDI recipients, as the Act
intends.
Additionally, we disagree with the contention that an
individual's intent to
[[Page 4428]]
achieve an employment outcome constitutes an additional eligibility-
related criterion that must be applied throughout the VR process.
Eligibility is assessed at the outset of the rehabilitation process,
at a point when the final regulations require that the DSU apprise
individuals of the nature of the program. As always, if an
individual becomes too severely disabled to achieve an employment
outcome (as supported by clear and convincing evidence) or, for
whatever reason, stops participating in the VR program, then the DSU
need not continue serving that individual. That approach applies no
less to SSI recipients or SSDI beneficiaries than it does to any
other participant in the VR program. Yet, as long as the individual
continues to participate in the program, there exists a presumption
that the individual intends to work.
We agree with those commenters who supported proposed
Sec. 361.42(b) that would allow DSUs to make interim determinations
of eligibility for individuals who the DSU reasonably believes will
be eligible for VR services at the end of the statutory 60-day
period for making eligibility decisions. We emphasize that this
provision is an option for DSUs to expedite further the delivery of
services to individuals while the DSU awaits information to permit a
final eligibility determination. DSUs are not required to implement
provisions for interim determinations of eligibility.
We also agree with the commenters who stressed the importance of
language in section 101(a)(12) of the Act that prohibits a State
from establishing any residence requirement that excludes from
services any individual who is present in the State. However, we
believe that the proposed regulatory language sufficiently tracks
the statutory requirement that was not changed by the 1998
Amendments. Again, we believe it is important to clarify, as
explained in the Senate Committee Report on the Rehabilitation Act
Amendments of 1998, that the requirement for an individual to be
present in the State in order to be eligible to receive services
should not be interpreted in any way to circumvent an individual's
choice of an out-of-State provider (Senate Report 105-166, p. 13).
The committee further stated that, with regard to out-of-State
placements, the requirement that an individual be present in the
State must be imposed at the time of the eligibility determination
and may not be used as a means of denying the continuation of
services that are being provided in an out-of-State setting.
As we explained more fully in the preamble to the NPRM (65 FR
10626 and 10627), the Act specifies that DSUs must explore an
individual's abilities, capabilities, and capacity to perform in
work settings through the use of trial work experiences before it
can demonstrate that an individual is too severely disabled to
benefit from VR services in terms of an employment outcome and,
consequently, is ineligible under the program. We believe that this
requirement establishes the fairest standard for assessing whether
an individual with a significant disability is in fact capable of
achieving employment. We also appreciate the trial work examples
that commenters shared and note that these types of work options
(e.g., supported employment, on-the-job training, internships, job
shadowing, structured volunteer experiences in real work settings,
and community-based work assessments with appropriate supports)
should be considered by others as they seek to expand the scope of
trial work experiences available to applicants with significant
disabilities. Nevertheless, we believe that Sec. 361.42(e)(2)(ii) of
the regulations is sufficiently broad to encompass each of these
examples and that a change to that provision is not necessary.
In addition, we interpret the Act to clearly require DSUs to
give individuals trial work experiences before deciding that an
individual is ineligible under the VR program due to the severity of
the individual's disability. Accordingly, a DSU cannot meet the
requirement that it use trial work to assess eligibility by simply
securing documentation that addresses the individual's success in
performing work previously. Using documentation in that regard runs
the risk of violating the scope of the mandate in section
102(a)(2)(B) of the Act, specifically that trial work options be
sufficiently varied and take place over a sufficient period of time
for the DSU to either conclude that the individual is eligible for
VR services or (based on clear and convincing evidence) that the
individual is incapable of benefiting from the provision of VR
services in terms of an employment outcome. Given the State units'
expertise in conducting assessments, and without knowing the
validity of the documentation that exists or the circumstances that
might have changed since the time the individual previously worked,
we believe that it is appropriate to require that, before
determining that an individual cannot benefit from VR services, the
DSU give the individual a variety of trial work options regardless
of the individual's past work history or assessments.
We do not believe that the written plan for providing trial work
experiences as required in Sec. 361.42(e)(2)(i) of the regulations
is inconsistent with the Act or will cause delays in service
delivery. On the contrary, we believe that requiring a written plan
to assess an individual's abilities, capabilities, and capacities to
perform in realistic work settings is a logical means of fulfilling
the requirements in section 102(a)(2)(B) of the Act. The written
plan will ensure that the assessment process is conducted in a
deliberate and well-formulated manner, thus giving an individual a
full opportunity to demonstrate his or her capabilities and enabling
the DSU to accurately gauge whether the individual can achieve
employment. Also, we feel that any burden or minor delay associated
with developing the written plan is clearly justified given that the
individual risks being found ineligible, and precluded from
receiving services altogether, if trial work options are not well-
planned and prove unsuccessful.
We recognize the concerns of those commenters who requested that
time limits be included in the regulations to ensure that trial work
opportunities do not extend beyond a reasonable length. Yet, we
believe the timeframes that are the most reasonable and appropriate
already were built into the proposed regulations. Specifically,
Sec. 361.42(e)(2)(iii) of the regulations requires that the DSU
assess the individual's capacity to work in realistic work settings
through the use of trial work experiences that are provided over a
sufficient period of time for the DSU to determine either that the
individual is eligible for VR services or that there exists clear
and convincing evidence that the individual cannot benefit from VR
services in terms of an employment outcome due to the severity of
the individual's disability. Because trial work is intended to
result in either a determination of eligibility or a determination
of ineligibility that is sufficiently supported, trial work
opportunities must be provided until the point that the DSU can
reach one of these two conclusions. Thus, specific time periods that
would serve to discontinue trial work requirements before the DSU
has reached either result would serve to undermine the purpose
behind those very same requirements.
We do not believe that the requirement in Sec. 361.42(e)(2)(iv)
of the regulations that the DSU provide individuals with appropriate
support services, such as assistive technology devices and services
and personal assistance services, during trial work falls beyond the
scope of the Act. Section 102(a)(2)(B) of the Act states explicitly
that trial work experiences are to be afforded ``with appropriate
supports provided by the designated State unit.'' Clearly, assistive
technology devices and services and personal assistance services are
authorized services available to individuals pursuing employment,
including supported employment, through the VR program (see e.g.,
section 102(b)(3)(B)(i)(I) of the Act). Accordingly, we believe it
is entirely appropriate to interpret the DSU's responsibility to
provide ``necessary supports'' during the trial work period to cover
these same services.
We also disagree that the authority concerning extended
evaluations should be deleted in the final regulations. Although the
Act clearly places a priority on using trial work experiences in the
course of assessments, Congress recognized the need to allow for
extended evaluations in those limited instances in which a real work
test is impossible or the State unit has exhausted its trial work
options without reaching a determination of eligibility. That point
is reflected in the legislative history to the trial work provisions
in the Act, specifically in Senate Report 105-166, pages 9 and 10.
Changes: None.
Section 361.45 Development of the Individualized Plan for
Employment
Comments: Several commenters recommended that the final
regulations clarify that the DSU is not required to pay for the
costs of technical assistance in IPE development that is provided by
sources other than DSU personnel. On the other hand, other
commenters suggested that the DSU be required to pay for the costs
of the technical assistance provided by non-DSU sources, asserting
that such a requirement
[[Page 4429]]
would be consistent with the individual's opportunity to exercise
informed choice in selecting DSU or non-DSU assistance for purposes
of developing the individual's IPE.
Many commenters sought more explanatory information in the final
regulations that details the role of the qualified VR counselor
employed by the DSU in developing and approving the IPE and IPE
amendments and in reviewing the IPE annually. These commenters
indicated that the ``diminished role for the DSU counselor'' in the
proposed regulations was inconsistent with the Act and other
regulatory requirements. The commenters also stated that a DSU-
employed counselor must conduct the required annual review of the
IPE and assess the individual's progress toward achieving the
identified employment outcome since the DSU is responsible for the
proper delivery of services and the outcome of the individual's
participation in the program. Other commenters suggested that we
distinguish between the roles of the ``qualified vocational
rehabilitation counselor'' and the ``qualified vocational
rehabilitation counselor employed by the designated State unit'' by
defining each term in the final regulations.
Some commenters suggested that this section of the proposed
regulations be revised to prohibit VR counselors employed, or
previously employed, by an agency or organization that may provide
services under an individual's IPE from assisting the individual in
developing the IPE. These commenters urged that a prohibition of
this type be implemented in order to guard against conflicts of
interest on the part of the counselor that could otherwise
jeopardize the individual's ability to exercise informed choice in
selecting services and service providers included in the IPE.
In addition, a number of commenters opposed Sec. 361.45(e) of
the proposed regulations, which required the DSU to establish and
implement standards, including timelines, for the prompt development
of IPEs. These commenters viewed this proposed section as beyond the
scope of the Act. Other commenters recommended either requiring by
regulations a specific time period governing IPE development and
implementation (e.g., 30 days from the date eligibility is
determined) or defining the term ``timely'' as it applies to IPE
development.
Discussion: Pursuant to section 102(b) of the Act and
Sec. 361.45(c) of the final regulations, the DSU must inform
eligible individuals of the range of available options in obtaining
assistance for purposes of developing the IPE (e.g., developing the
IPE with DSU assistance, with non-DSU assistance, or on one's own).
Since IPE development assistance from non-DSU sources is authorized,
the regulations do not prohibit the DSU from supporting the costs of
that assistance. At the same time, however, we agree that the DSU
need not pay the costs of assistance provided by non-DSU sources if
it so chooses. Thus, it falls within the discretion of the DSU to
determine whether, and under what circumstances, it will pay for
technical assistance in IPE development from sources other than the
DSU.
We believe that the proposed regulations accurately reflected
the scope of functions that the Act reserves to the DSU, as well as
the broad authority for non-DSU counselors to assist in the
development and review of IPEs at the individual's discretion. As
some commenters pointed out, a qualified VR counselor who is
employed by the DSU must approve and sign the IPE and any amendments
to the IPE (see section 102(b)(2)(C)(ii) and (b)(2)(E) of the Act).
The proposed regulations followed the framework established by the
Act, i.e., by enabling individuals to receive assistance in IPE
development from whichever source (if any) that they choose and
ensuring that the DSU maintains final IPE approval authority as the
Act requires. We do not believe that additional regulatory
provisions in this area, including definitions, are needed.
While we note, as we did in the preamble to the NPRM, that the
DSU also is responsible for ensuring that the individual's IPE is
reviewed annually, we do not agree that that review must necessarily
be conducted by a DSU counselor. As discussed in greater detail in
the NPRM preamble (65 FR 10626 and 10627), Congress intended to
distinguish between IPE functions that must be performed by a
qualified VR counselor employed by the DSU and related functions
that may be performed by a qualified VR counselor or other person
who is not employed by the State unit. Thus, in addition to enabling
individuals to secure assistance from outside the DSU in developing
the IPE and IPE amendments, the DSU can meet its responsibility to
ensure that the IPE is reviewed at least annually with the
individual by conducting the review itself or, at the individual's
discretion, by approving the results of a review appropriately
conducted by a qualified VR counselor from outside the DSU.
At the same time, however, we do appreciate the commenters
concerns regarding the potential conflicts of interest, including
potential limits on the exercise of informed choice, that may arise
if the counselor or other person assisting the individual in
developing (or amending) the IPE is employed or otherwise affiliated
with an organization that may provide services to the individual
under that IPE. However, without information indicating whether that
problem exists or the resulting effects that an existing problem has
on participants in the program, we are not inclined to restrict,
through these final regulations, the individual's choice of
assistants in developing the IPE. Nonetheless, we emphasize that
DSUs must ensure that individuals are given full opportunities to
exercise informed choice in the selection of services and service
providers consistent with the requirements of section 102(d) of the
Act and Sec. 361.52 of these final regulations. Accordingly, we
would expect DSUs to address any situation, if it arises, in which
it believes that a counselor employed by a service provider is
unduly influencing an individual during IPE development to obtain
services through that counselor's employer without providing the
individual with sufficient choices.
We maintain that requirements in Sec. 361.45(e) regarding DSU
standards, including timelines, for the prompt development of IPEs
are entirely consistent with the Act. In particular, section
101(a)(9) of the Act requires that the individual's IPE be developed
and implemented ``in a timely manner'' subsequent to the
determination of eligibility. In fact, both this regulatory
requirement and the statutory provision on which it is based precede
the 1998 Amendments. We continue to believe that the regulatory
standards and timelines called for under Sec. 361.45(e) of the
regulations are necessary to guard against delays in service
delivery that are, in turn, caused by delays in the IPE development
process. We emphasize that DSUs need not meet this requirement by
establishing an arbitrary time limit to apply to the development of
all IPEs. Instead, State units are expected to develop general
standards to guide the timely development of IPEs and, as part of
those standards, flexible timelines that take into account the
specific needs of the individual.
Changes: None.
Section 361.47 Record of Services
Comments: Some commenters generally supported the modifications
to record of services requirements that we proposed in the NPRM. One
commenter supported the new flexibility given to DSUs in determining
the sources of documentation it will use to meet the required
components of the record of services, but asked that RSA identify
minimum documentation types in the final regulations. Several
commenters opposed the expansion of the service record requirements
beyond those in the previous regulations.
Several other commenters asked that we clarify the scope of
Sec. 361.47(a)(7) of the proposed regulations, which required
documentation in the service record describing the extent to which
the applicant or eligible individual exercised informed choice
regarding assessment services and regarding the employment outcome,
VR services, and other components of the IPE. Some commenters
suggested that this proposed requirement be replaced by a provision
requiring simply that the DSU document that the individual was
provided an opportunity to exercise informed choice. Other
commenters stated that it would be difficult to meet the proposed
requirement in instances in which the DSU is not directly involved
in the development of the IPE.
Many commenters opposed the newly proposed Sec. 361.47(b), which
would require that the DSU consult with the State Rehabilitation
Council in determining the type of documentation that it will
maintain for each applicant and eligible individual. These
commenters believed that the proposed provision would expand the
functions of the Council beyond those functions required by the Act.
Due to the voluntary nature of the Council, the commenters asserted,
it would be inappropriate to expect members of the Council to be
involved in the DSU's day-to-day operations, including the setting
of documentation requirements. Other commenters supported requiring
the Council to be involved in establishing the DSU's documentation
requirements.
Discussion: We revised Sec. 361.47(a) of the previous
regulations to identify minimum
[[Page 4430]]
documentation standards that will enable DSUs to demonstrate that
certain service delivery requirements, as they apply to applicants
and eligible individuals participating in the VR program, have been
met. While we identified in this proposed section those critical
service delivery requirements that must be documented, we sought to
provide greater flexibility to DSUs in determining the manner in
which they would comply (i.e., determining the types of
documentation each would use to comply) with the stated
requirements. We believe that the proposed regulations provided that
flexibility, while identifying only those requirements of the
rehabilitation process that are most necessary to address in the
record of services. Those proposed requirements that were not drawn
from the previous regulations represented important aspects of the
1998 Amendments that we believe the DSU, and we, must monitor to
ensure the proper implementation of the program.
In addition, we believe that Sec. 361.47(a)(7) of the proposed
regulations established an appropriate standard for DSUs to meet in
documenting compliance with a most critical aspect of the VR
program--giving individuals the opportunity to exercise informed
choice throughout the rehabilitation process. Accordingly, we do not
believe that a simple statement that the applicant or eligible
individual was provided an opportunity to exercise informed choice
reflects either the scope or the importance of the choice-related
requirements in the Act. Among those requirements, section 102(d) of
the Act and Sec. 361.52 of the final regulations specify that
applicants and eligible individuals must be given opportunities to
exercise informed choice in selecting assessment services and in
selecting an employment outcome, the VR services needed to achieve
that outcome, the entities providing services, and the methods used
to secure the services. Thus, given the emphasis accorded choice
under the Act, we believe it is appropriate and prudent to require
documentation describing the extent to which the applicant or
eligible individual exercised informed choice in accordance with the
Act's requirements. As for those instances in which an individual
elects to develop an IPE without the DSU's assistance, we would
expect the DSU to inform individuals about the availability and
opportunities to exercise informed choice (as it is required to do
under section 102(d)(1) of the Act), obtain information from the
individual on the extent to which he or she exercised choice during
IPE development, and supplement that information with additional
information available to the DSU in order to meet the documentation
requirement in Sec. 361.47(a)(7).
As we stated in the preamble to the NPRM, we think it is
necessary that the DSU consult with the Council, if it has a
Council, in determining the type of documentation that the DSU will
maintain in the record of services for each applicant and eligible
individual. Section 101(a)(16)(B)(v) of the Act requires the State
unit to take into account, in connection with matters of general
policy arising in the administration of the State plan, the views of
the Council and other specified groups. The document types that will
comprise the records of services maintained by the DSU relate
directly to the DSU's ability to demonstrate its compliance with
important service provision requirements in the law, as well as its
ability to justify its decisions (e.g., eligibility determinations)
regarding the individual's participation under the VR program. We
maintain, therefore, that the DSU's documentation standards for
fulfilling the record of services requirements in this section of
the regulations constitute a policy of general applicability on
which the Council's input is required. Moreover, we do not believe
that the consultation required under this section of the regulations
expands the Council's functions beyond the scope of the statute,
particularly the broad scope of review, analysis, and advisory
functions carried out by the Council under section 105(c)(1) of the
Act.
Changes: None.
Section 361.48 Scope of Vocational Rehabilitation Services for
Individuals With Disabilities
Comments: Several commenters requested that we revise
Sec. 361.48(j) of the proposed regulations to more clearly describe
the type of interpreter and other communication access services that
are authorized under the program. Other commenters requested
clarification regarding the scope of assistance for eligible
individuals seeking self-employment, telecommuting, or business
ownership outcomes that is authorized under proposed Sec. 361.48(s).
One of these commenters requested guidance on how these services
relate to the entrepreneurial services available through the State
workforce investment system.
Discussion: We agree with the suggestion that the scope of
authorized interpreter services under proposed Sec. 361.48(j) needs
to be clarified in the final regulations. In particular, we believe
that we need to clarify that sign language interpreter and oral
interpreter services are authorized under that section.
Regarding Sec. 361.48(s), we have received several inquiries, in
addition to the noted comments, asking us to clarify the scope of
resources that are authorized to be provided through the statewide
workforce investment system in order to clarify the extent of the
State unit's obligation under proposed Sec. 361.48(s). This
provision restates section 103(a)(13) of the Act.
Section 112 of Title I of WIA requires that each participating
State submit to the Department of Labor a State plan that describes
its statewide workforce investment system and the employment and
training activities that it will support with WIA Title I funds. The
specific employment and training activities included in the plan are
determined individually by each State, depending on the needs and
economic conditions in that State. Therefore, the scope of resources
authorized under the VR program for self-employed persons,
telecommuters, and small business owners will depend on the extent
to which the State's workforce development system, as described in
the State plan under section 112 of WIA, provides support to
individuals pursuing that type of work. Given the variances in
workforce investment systems across the States, we do not believe
that it is practical to revise the language in proposed
Sec. 361.48(s) that aligned the resources authorized under the VR
program with those that the State makes available under WIA.
Finally, we believe it is important to note that the list of
authorized services in this section of the regulations is not
exhaustive and that Sec. 361.48(t) specifically authorizes ``other
goods and services'' that the DSU and individual determine to be
necessary for the individual to achieve an employment outcome.
Changes: We have revised Sec. 361.48(j) of the proposed
regulations by referring specifically to sign language interpreter
and oral interpreter services as included within the scope of
authorized services for individuals who are deaf or hard of hearing.
Section 361.50 Written Policies Governing the Provision of
Services for Individuals With Disabilities
Comments: One commenter requested changes to Sec. 361.50(b)(1)
of the proposed regulations, which authorized States to establish
preferences for in-State services under certain conditions. The
commenter contends that this provision, which was included in the
previous regulations, has been subject to misuse and
misinterpretation. In response, the commenter suggests restricting
DSU preferences for in-State services to instances in which the in-
State service is equivalent to and likely to have the same results
as an out-of-State service.
Discussion: Section 361.50(b)(1) authorizes a DSU to establish a
preference for in-State services in instances in which necessary
services are available both within and outside the State. The
preference (i.e., the State not taking responsibility for the costs
of an out-of-State service that exceeds the costs of the same
service provided in-State) is dependent on the in-State service
meeting the individual's rehabilitation needs. For that reason, we
believe that the provision establishes an appropriate standard, one
that has the same effect as that of requiring equivalency between
in-State and out-of-State services.
Changes: None.
Section 361.51 Standards for Facilities and Providers of Services
Comments: Many commenters expressed concern about the omission
in the proposed regulations of the designated State unit's current
regulatory responsibility to issue minimum standards for facilities
and service providers. The commenters believed that omitting these
requirements from the final regulations will have the effect of
holding community providers and facilities to a lower standard than
that which must be met by the State agency administering the VR
program. The concern was that VR program participants receiving
services from private providers would be adversely affected. These
commenters encouraged us to maintain the current regulatory
standards in the final regulations.
The commenters on this section were concerned mostly about the
proposed
[[Page 4431]]
removal of the previous regulatory provisions requiring providers of
vocational rehabilitation services to use qualified personnel. For
example, one party stated that financial constraints on community
facilities may reduce a facility's capacity to maintain the same
qualified personnel standards that section 101(a)(7) of the Act
imposes on State agencies; nevertheless, this commenter believed
that regulatory requirements should be developed to ensure a
reasonable level of professional qualifications at provider
facilities. Other commenters stated that individuals who are blind
or visually impaired in particular, and all individuals with
disabilities generally, must be assured that private facilities and
providers of services under the VR program have proper
qualifications beyond native language skills and the ability to use
appropriate modes of communication (two current standards that were
retained in the proposed regulations). In addition, many of the
commenters expressed concern that the proposed regulations, unlike
the previous regulations, did not require VR service providers to
have adequate and appropriate policies and procedures to prevent
fraud, waste, and abuse.
Discussion: We had proposed to remove the regulatory
requirements governing personnel and other standards for providers
of VR services on the basis that the explicit statutory authority
supporting those requirements was removed by the 1998 Amendments.
Specifically, the 1998 Amendments removed provisions previously
contained in section 12(e) of the Act that had required the
Secretary to promulgate regulations pertaining to the selection of
VR services and VR service providers. In accordance with the prior
Act, Sec. 361.51 of the previous regulations included procedures to
prevent fraud, waste, and abuse among service providers and
procedures to ensure that service providers complied with applicable
standards, such as those related to qualified personnel. The
requirements in Sec. 361.51 of the proposed regulations that were
retained from the previous regulations relating to the accessibility
of facilities, affirmative action for qualified individuals with
disabilities, and special communication needs personnel also were
retained in the 1998 Amendments.
We have interpreted Congress' removal of standards governing
personnel and fraud, waste, and abuse from the Act as intended to
give States greater discretion in determining how best to ensure
that service providers used by the DSU are capable of providing
necessary VR services and meeting the needs of VR program
participants. In other words, Congress determined that States could
ensure the quality of personnel and administrative efficiency among
the service providers it uses by following applicable State rules.
We want to emphasize that removing this particular requirement from
the final regulations does not absolve State units from ensuring
that entities providing services under the VR program meet
applicable State laws that impose personnel standards and other
safeguards on parties providing services under State-administered
programs. We believe that this responsibility of the DSU, as well as
the DSU's general responsibilities under OMB Circular A-87 and the
Education Department General Administrative Regulations (EDGAR) to
administer the VR program and the expenditure of VR program funds
efficiently and effectively, ensures that the removal of previous
regulatory standards for service providers will not have an adverse
impact on the program.
Changes: None.
Section 361.52 Informed Choice
Comments: As with proposed Sec. 361.5(b) discussed previously, a
number of commenters requested that we define the term ``informed
choice'' in this section of the final regulations.
Another commenter suggested that this section of the proposed
regulations be revised to ensure that participants in the VR program
are able to exercise informed choice in selecting their vocational
rehabilitation counselor. Specifically, the commenter suggested that
participants, prior to selecting a counselor, be given a list of
counselors in the local office of the State unit, a statement of the
counselors' qualifications, and the opportunity to interview a
number of counselors.
Other commenters suggested that DSUs make available to
individuals information concerning the outcomes that individuals
achieve in working with specific service providers. The commenters
asked that this information be included in the scope of information
that DSUs must provide individuals under Sec. 361.52(c). Other
commenters proposed revisions to Sec. 361.52(d), which identifies
sample methods or sources of information that the DSU may use to
make available required information on services and service
providers. Specifically, one commenter requested that DSUs make
available to individuals information on nationwide services and
service providers, as well as service-related information issued by
national consumer groups.
Discussion: We have long been asked to define the term
``informed choice'' in regulations and have refrained on the basis
that the current regulations establish appropriate guidelines
governing the informed choice process, while leaving some discretion
to DSUs, in conjunction with their Councils, if they have Councils,
to determine how best to secure information and make that
information available to participants so that they may exercise
choice. The 1998 Amendments give even greater emphasis to informed
choice, specifically in section 102(d), which identifies each of the
stages at which choices must be given (essentially all stages of the
rehabilitation process), requires the DSU to inform individuals
about the availability of and the opportunity to exercise informed
choice, and requires that the DSU assist individuals as is necessary
so that they may make informed choices. We believe that this
proposed section of the regulations sufficiently reflected the
significant scope of the choice provisions in the Act and retained a
number of key portions from the previous regulations that serve to
guide DSUs in developing their choice-related policies. We again
emphasize the crucial role that the Council must play in that
regard.
Although we maintain that, at this point, defining ``informed
choice'' in the regulations would not be appropriate, we have
established additional guidance materials designed to facilitate the
choice process, most notably as part of the RSA Monitoring Guide for
FY 2000. We intend to develop additional policy directives that will
also assist in that effort.
Section 361.45 of the regulations, which implements section
102(b)(1) of the Act, specifies the range of options available to
individuals in securing assistance in developing their IPEs,
including assistance provided by DSU or non-DSU counselors or from
other sources. However, neither that provision nor the broad choice
requirements in section 102(d) of the Act establish a basis for
requiring DSUs to provide individuals with their choice of VR
counselors. At the same time, we note that the Act and the final
regulations do not prevent a State from giving individuals the
opportunity to exercise informed choice in selecting counselors. RSA
guidance to the States (Program Assistance Circular 88-03, dated
June 7, 1988) underscores the importance of an effective counseling
relationship between the applicant or eligible individual and the
DSU counselor. Thus, we would urge DSUs, taking into account
caseload levels and other staffing considerations, to assign
counselors to individuals in a manner that they believe will result
in a most effective match. Given the obvious effect that that match
has on the successful rehabilitation of the individual, we also
indicate in the guidance that, if an individual requests a change in
counselor and the request is denied, the individual can appeal the
determination through the DSU's due process procedures.
Section 361.52(c) of the proposed regulations listed the minimum
scope of information that State units were required to provide to
individuals, or assist the individual in acquiring, to enable the
individual to make informed choices about the services, service
providers, and outcome identified in the IPE. We agree with the
commenter that the minimum information related to services and
service providers specified in this section (e.g., cost, consumer
satisfaction, qualifications, degree of integration, etc.) also
should mention the types of outcomes that individuals have achieved
in working with certain providers.
Section 361.52(d) identifies specific methods and sources of
information that the DSU may use to provide individuals with
sufficient information about services and service providers. Since
this provision is not a comprehensive listing of methods and
sources, we note that DSUs and individuals may use any other methods
and sources of information that are available to enable the
individual to exercise choice. We agree that participants and State
units may benefit greatly by securing information from national
consumer groups or other national organizations with specialized
expertise in particular disabilities, rehabilitation methods, and
services. In addition, methods involving experiences that
participants may use to gain information about types of employment
outcomes, services, and service providers may prove helpful. We
encourage
[[Page 4432]]
DSUs to assist individuals in obtaining useful information from many
other appropriate sources.
Changes: We have revised Sec. 361.52(c) of the proposed
regulations to clarify that information and assistance provided
under that section also must assist individuals in exercising
informed choice among assessment services. In addition, we have
included service provider outcomes in the scope of information
relating to the selection of vocational rehabilitation services and
service providers. We have deleted the terms ``local'' and ``state
and regional'' from Sec. 361.52(d) and have added references to
methods involving visiting or experiencing various settings to the
list of potential methods or sources of obtaining information.
Section 361.53 Comparable Services and Benefits
Comments: One commenter expressed concern that the requirement
in the proposed regulations that DSUs provide services to an
individual while waiting for identified comparable services and
benefits to become available may serve as a disincentive for
individuals to pursue the alternative benefits or services at the
appropriate time. The commenter recommended that DSUs be able to
discontinue services if an individual refuses to pursue the
comparable benefits or services.
Another commenter noted that the proposed regulations did not
include the statutory exemption in section 101(a)(8)(A)(ii) of the
Act that states that awards and scholarships based on merit are not
considered comparable services and benefits under the program.
Discussion: Both section 102(b)(3)(E)(ii) of the Act and
Sec. 361.46(a)(6)(ii)(C)) of the regulations require that the IPE
identify the individual's responsibilities with regard to applying
for and securing comparable services and benefits. Thus, the law
anticipates that State units and individuals will work out the
extent of those responsibilities through the IPE development
process. For that reason, we do not believe that Sec. 361.53(c)(2),
which is unchanged from the previous regulations, would create the
disincentive envisioned by the commenter as long as the individual
is fully apprised of, and is assisted in fulfilling, his or her
responsibilities in securing other services once they become
available.
We recognize that this section of the proposed regulations did
not refer to the statutory exception to comparable services and
benefits for scholarships and awards based on merit. However, this
exemption is addressed in the definition of the term ``comparable
services and benefits'' in Sec. 361.5(b)(10). We think the exception
is best addressed in the definition itself since it is the
definition that specifies the scope of comparable services and
benefits under the program.
Changes: None.
Section 361.54 Participation of Individuals in Cost of Services
Based on Financial Need
Comments: Many commenters supported the proposed expansion of
those services that would be exempt from State financial needs
tests, meaning that individuals could not be required to contribute
to the cost of those services. One commenter suggested that the
proposed exemption of interpreter services, reader services, and
personal assistance services from financial needs tests be limited
to the provision of those services during the assessment phase of
the VR process. Another commenter supporting the proposal asked that
we also emphasize that the DSU still must seek and use comparable
services and benefits to pay for exempted services.
In addition, in response to our request for comments on the
appropriate scope of services that should be exempted from financial
needs tests, a number of commenters requested that the proposed
listing be expanded to specifically include assistive communication
devices, rehabilitation engineering services, and other access-type
services.
Other commenters strongly opposed the proposed expansion of the
list of services exempted from financial needs tests under the prior
regulations. Some of these commenters stated that the proposed
expansion would undermine the DSU's longstanding option of
considering the financial need of program participants and would
weaken the DSU's ability to conserve VR program funds.
In addition, many commenters supported the proposed prohibition
in the NPRM on applying financial needs tests to eligible
individuals receiving SSI or SSDI. Other commenters supported
prohibiting the application of financial needs tests only to
individuals receiving SSI since SSI eligibility is based on the
individual's financial need as opposed to SSDI beneficiaries who may
have assets that they could contribute to the cost of vocational
rehabilitation services.
A significant number of commenters opposed the proposed
exemption of SSI recipients and SSDI beneficiaries from the DSU's
financial needs assessments on the basis that DSUs often consider
the resources of the individual's entire household, as opposed to
those of the individual only, in determining the level of resources
the individual must contribute to the program of VR services. While
these commenters agreed that DSUs could disregard an individual's
actual SSI or SSDI cash payment, the commenters recommended that
DSUs be able to consider the overall financial status of the
individual and the individual's household when assessing the
individual's financial need under the VR program.
Discussion: In the NPRM, we proposed to expand the scope of
services exempt from State financial needs tests under the prior
regulations to include certain services (i.e., interpreter, reader,
and personal assistance services) needed to participate in the VR
program, as well as any service needed by a recipient of SSI or
SSDI.
The purpose of the proposal to exempt from State financial needs
tests interpreter, reader, and personal assistance services was to
ensure access to the VR program. As we discussed in the preamble to
the NPRM (65 FR 10629), the additional services that we proposed
excluding from State financial needs tests enable individuals to
participate in training or employment-related services that they are
seeking through the VR program. Typically, individuals do not apply,
nor are they determined eligible, under the VR program solely to
receive these access-type services. Rather, these services are
provided in conjunction with employment and training services sought
by the individual participating in the VR program. In fact, the
distinguishing feature of these access services is that
participation in the VR program is not possible without these
services being afforded. Thus, placing an additional burden on the
individual to participate in the cost of accessing the VR program,
in our view, is inappropriate and contrary to both the purpose of
the VR program and the principles in section of 504 of the Act and
the ADA, which safeguard participation by persons with disabilities
in federally funded (under section 504) or public (under the ADA)
programs.
As many of the commenters pointed out, we realize that access-
type services other than the three additional services that the NPRM
would have exempted from financial needs tests (i.e., interpreter,
reader, and personal assistance services) clearly exist and that
individuals might need those services in order to participate in the
VR program. In light of the extensive public comment we received on
that point, and the fact that the limited scope of exempted services
in the proposed regulations would not ensure that persons with
certain disabilities are able to participate in the VR program, we
have modified the proposed regulations to more clearly reflect the
DSU's responsibility to ensure that all persons with disabilities do
not incur the disability-related costs of accessing the VR program.
Specifically, the final regulations prohibit the application of
State financial needs tests to the provision of any auxiliary aid or
service that would be necessary under section 504 of the Act or the
ADA in order for an individual with a disability to participate in
the VR program. Thus, the final regulations, in effect, ensure that
individuals are able to receive, at no additional cost to
themselves, aids and services to which they are already entitled
under section 504 or the ADA.
We note that interpreter and reader services--two services
proposed to be exempt from financial needs tests in the NPRM--
generally would be covered under the section 504- and ADA-based
standard in the final regulations if those services are needed in
order for the individual to access other VR services. In addition,
the final regulations, like the NPRM, identify personal assistance
services as a separate category of services exempt from financial
needs tests. While personal assistance services, as defined in the
VR program regulations, might not necessarily be provided by public
programs under section 504 or the ADA, those services are often
critical for individuals with significant disabilities to be able to
access employment and training under the VR program. As we indicated
in the preamble to the NPRM, we believe it is important to exempt
these services from financial needs tests as well. We also believe
that retaining from the NPRM the exemption for personal assistance
services will remove a significant disincentive toward pursuing
[[Page 4433]]
employment for those with the most significant disabilities.
We also note, however, that the final regulations do not alter
the State unit's responsibility to seek comparable services and
benefits that can meet the individual's interpreter, reader,
personal assistant, or other access needs. Nor does it affect
entities outside of the DSU from meeting their responsibilities
under section 504 of the Act, the ADA, or other laws. In fact, we
expect that some of those entities are likely to be public agencies
with which the State unit is required to enter into an interagency
agreement in order for both parties to fulfill their
responsibilities toward individuals with disabilities (see
Sec. 361.53(d) of the final regulations).
With regard to the proposed prohibition on applying financial
needs tests to individuals who receive SSI or SSDI, we continue to
believe that it is appropriate to exempt those persons from DSU
financial needs tests given the Act's emphasis on streamlining
access to VR services for disabled Social Security recipients.
Moreover, as we discussed in the preamble to the NPRM (65 FR 10629),
this change to the prior regulations facilitates the primary goal
behind referring SSI recipients and SSDI beneficiaries to the VR
program--supporting their efforts (and reducing disincentives) to
pursue gainful employment and no longer require Social Security
support.
Our rationale for exempting individuals receiving SSI benefits,
or a combination of SSI and SSDI benefits, from State-imposed
financial needs tests is further supported by the fact that these
persons already have gone through a rigorous, federally mandated
financial needs test that is typically more restrictive than those
tests employed at the State level. To qualify for SSI, individual
recipients must have very limited, if any, monthly income--
individual or household--or other assets. These individuals
generally live at or below the federally established poverty level.
Consequently, SSI recipients clearly have a limited ability to
contribute to the costs of VR services. Requiring these same persons
to undergo an additional financial needs test at the State level
would serve only to unnecessarily delay the provision of VR
services.
On the other hand, the rationale behind exempting from DSU
financial needs tests individuals receiving SSDI benefits alone is
based on three critical points. First, SSA, as a matter of policy,
has deemed it necessary to award SSDI beneficiaries monthly cash
assistance due to their inability to work. While it is true that
SSDI benefits are awarded on the basis of earnings and years worked
as opposed to extreme financial need, SSA has determined that these
individuals can no longer work due to their disabilities and,
therefore, cannot earn income to support themselves or their
families. SSDI payments are intended to cover a person's living
expenses. Once a person achieves an employment outcome earning
sufficient wages, as determined by SSA, the individual would be
removed from the SSDI rolls.
Second, many State and Federal agencies currently are working to
remove as many disincentives as possible for individuals with
disabilities, including individuals with significant disabilities
receiving Social Security benefits, to return to work. For example,
Congress has adopted changes to Social Security laws not to penalize
persons (i.e., not to eliminate or reduce Social Security benefits,
including health care coverage) for working since individual's wages
are often insufficient to cover costly medical and other living
expenses. Previously, many individuals with disabilities chose to
remain on SSDI, at Federal expense, rather than risk losing health
care coverage. Imposing a financial needs test on this same
population that is seeking VR services in order to achieve an
employment outcome, in effect, creates an additional disincentive to
work and could adversely affect the results sought through the
revised Social Security laws and other reforms.
Third, it is important to note that SSA reimburses State VR
agencies for the costs incurred in serving an SSI or SSDI recipient
when that individual achieves an employment outcome (i.e.,
substantial gainful activity under Social Security laws) for a
specified period of time. Thus, as far as those SSI and SSDI
recipients who successfully achieve employment outcomes under the VR
program are concerned, there is ultimately little financial burden
on the DSU in serving these persons to justify transferring that
burden to individuals.
Changes: We have amended the proposed regulations to exempt from
DSU financial needs tests any service that constitutes an auxiliary
aid or service afforded the individual under section 504 of the Act
or the ADA in order for the individual to participate in the VR
program.
Section 361.56 Requirements for Closing the Record of Services of
an Individual Who Has Achieved an Employment Outcome
Comments: Several commenters expressed concern about proposed
Sec. 361.56(a), which required, as a condition of closing the
individual's record of services, that the employment outcome
achieved by the individual be the same as that described in the
individual's IPE. These commenters viewed the provision as
inappropriate since amending the IPE to specify a new employment
outcome is not always possible, for example when the individual is
unavailable to sign an amended IPE.
Other commenters questioned Sec. 361.56(c) of the proposed
regulations, which required an agreement between the individual and
the DSU counselor that the employment outcome is satisfactory and
that the individual is performing well in the employment before the
DSU can close the individual's record of services. These commenters
suggested that the proposed provision might lead to differences of
opinion between the counselor and the individual as to whether the
outcome is ``satisfactory'' and thus preclude the State unit from
appropriately closing the service record.
Discussion: We agree that in very limited instances it may be
impractical for the DSU and the individual, together, to amend the
individual's IPE to reflect the ultimate employment outcome that the
individual obtains while participating in the VR program. Yet, we
believe that in most instances necessary amendments to the IPE can
be accomplished since the DSU and the individual need not approve
and sign the amended IPE simultaneously. Moreover, the required
consistency between the IPE and the individual's outcome, in our
view, is warranted in order to preserve the usefulness of the IPE
development process.
With respect to the comments on proposed Sec. 361.56(c), we note
that this provision in the NPRM was substantially the same as the
previous regulatory provision. In addition, we are not aware of any
reported problems regarding the implementation of this provision
through RSA monitoring activities, referrals to the Client
Assistance Program, or due process hearings. More importantly, given
that employee and counselor satisfaction is a critical factor toward
assessing the stability of the individual's job, we believe that the
provision should be retained in the final regulations.
Changes: None
Section 361.57 Review of Determinations Made by Designated State
Unit Personnel
Comments: One commenter suggested revising Sec. 361.57(a) of the
proposed regulations to require the State unit to provide in writing
all agency decisions that result in a suspension, termination, or
denial of services. This commenter explained that requiring written
notification of service denials would be consistent with procedural
safeguards in other Federal programs.
We received several comments regarding proposed Sec. 361.57(b),
the general requirements governing State due process procedures.
Specifically, commenters expressed dissatisfaction with proposed
Sec. 361.57(b)(3)(ii) regarding representation during mediation
sessions and formal due process hearings. One commenter suggested
revising that paragraph to exclude the use of attorneys during
mediation and to require the use of attorneys during the formal
hearing process. The commenter expressed concern that the use of
attorneys during mediation would alter the informal nature of that
process. Conversely, the commenter explained, individuals who are
not represented by attorneys during the formal hearing are at a
distinct disadvantage since the State unit, in general, is
represented in hearings by an attorney.
At least one commenter questioned whether mediation should be
voluntary on the part of the State unit. The commenter suggested
revising proposed Sec. 361.57(d)(2)(i) to require the State unit to
participate in good faith in the mediation process whenever
mediation is requested by the individual.
Commenters suggested that Sec. 361.57(d)(2)(ii) of the proposed
regulations be modified to allow the mediator, in addition to the
parties to the mediation, to terminate the mediation process. The
commenters stated that it is common practice to give mediators that
authority.
A few commenters raised concerns about proposed
Sec. 361.57(d)(2)(iii), which governs the manner in which mediators
are assigned to a particular case and lists of qualified and
[[Page 4434]]
impartial mediators are maintained. One commenter described the
meticulous and thoughtful steps used in one State to assign the
mediator who is most appropriate to each case. Another commenter
suggested that the regulations require that the State unit and the
Council agree to the list of mediators as they do for impartial
hearing officers.
The final set of comments regarding the proposed mediation
procedures pertain to the requirements governing mediation
agreements under proposed Sec. 361.57(d)(4). One commenter stated
that mediators do not ``issue'' mediation agreements as that
provision suggests. Several commenters urged us to make mediation
agreements binding on all parties in order to create greater
incentive to pursue mediation.
We received many comments regarding the requirement in proposed
Sec. 361.57(e)(1) that hearings generally be conducted within 45
days of an individual's request for review of a State unit decision
that affects the provision of services to the individual. With one
exception, all commenters indicated that it is overly burdensome to
require the State unit to conduct informal reviews, mediation, and
the formal hearing within the same 45-day period. Some suggested
that the 45-day clock not begin until after an informal review and,
if applicable, the mediation process are completed. Others suggested
that the time period be extended by a certain number of days (e.g.,
10 days) to allow for mediation to occur. Still others suggested
that the regulations allow separate time periods for each phase of
dispute resolution and that the time periods run consecutively.
Several commenters suggested that Sec. 361.57(g)(3)(iii) of the
proposed regulations be modified to eliminate the 30-day deadline by
which a reviewing official must render a decision.
Finally, we received several comments asking that the final
regulations include a time limit (e.g., 30 days) for the filing of
civil actions under Sec. 361.57(i) of the proposed regulations.
Discussion: The issue concerning requiring that all agency
decisions that result in a suspension, termination, or denial of
services be provided in writing has been brought to our attention
many times since the adoption of the 1998 Amendments. Section
361.57(a) conforms to the statutory requirements in section 102(c)
of the Act. The Act does not require a written decision in order for
an individual to initiate an appeal under this section. An
individual may appeal ``any determination.'' Therefore, we do not
require designated State unit personnel to issue decisions
pertaining to the provision of services in writing, but we encourage
the use of written decisions whenever practicable.
With respect to the comments pertaining to legal representation,
we share the concern that individuals sometimes are at a
disadvantage if they are not represented by an attorney during the
formal hearing process, especially if the designated State unit is
represented by an attorney. However, we do not share the concern
that attorneys used during the mediation process necessarily change
the nature of mediation. Nonetheless, the proposed requirements
regarding representation during the mediation and hearing stages
reflect the broad authority in section 102(c)(3)(B) of the Act for
individuals to select the representative of their choice.
The 1998 Amendments to the Act added mediation as a new method
of resolving disputes between individuals and the State unit. Thus,
it is not surprising that many commenters sought further
clarification of the requirements in the proposed regulations that
impact the States' implementation of mediation procedures.
Section 361.57(d)(2)(i) conforms to the statutory language of
section 102(c)(4)(B)(i) of the Act, which requires that the DSU's
mediation procedures ensure that the mediation process ``is
voluntary on the part of the parties. . . . '' (emphasis added).
Therefore, Congress intended the mediation process to be voluntary
on the part of both parties rather than giving only the individual
the discretion to participate in mediation as one commenter
suggested. We also believe that allowing mediation to be voluntary
on the part of both parties is necessary since mediation is
successful only if both parties participate willingly in an effort
to resolve their dispute. We do note, however, that the State unit's
decision to agree to pursue mediation should be made on a case-by-
case basis. It is neither appropriate nor consistent with the intent
of the Act for a DSU to follow a general policy of never
participating in mediation.
Our intent behind Sec. 361.57(d)(2)(ii) of the proposed
regulations was to ensure that either party may change its mind
about participating in mediation, even after the mediation process
has begun, and at that point pursue a due process hearing. We sought
to ensure that individuals in particular are never locked into a
less formal dispute resolution process that they believe to be
futile. Consistent with this approach, we also agree with the
suggestion that mediators should be allowed to terminate the
mediation process and that amending the regulations to reflect that
point would not alter the intended effect of this proposed section.
We proposed a process in Sec. 361.57(d)(2)(iii) of the proposed
regulations that is similar to that which the Act applies to the
selection of impartial hearing officers. In particular, we sought to
ensure the same neutrality on the part of the mediators that exists
for hearing officers. However, we believe that States with
established processes for assigning mediators to a case should be
allowed to continue appointing mediators in that fashion, provided
that the process used ensures neutrality.
In response to the comments on proposed Sec. 361.57(d)(2)(iii)
and the development of the State's list of available mediators, we
note that section 102(c)(4)(C) of the Act does not require the State
to develop the list of mediators through the joint efforts of the
State unit and the Council. Many States have developed an ``Office
of Dispute Resolution'' or similar office to handle all mediations
across multiple State agencies. These offices typically employ
mediators or contract with private mediators to conduct mediations
involving State-administered programs. The proposed regulations were
intended to give States as much flexibility as possible in
establishing mediation policies and using existing mediation
processes.
Many individuals representing CAPs and DSUs have urged us to
interpret section 102(c)(4) of the Act to require that a mediation
agreement be binding on all parties. We believe that, if the outcome
of mediation (i.e., a mediation agreement) were binding, then
conceivably neither party could pursue a formal hearing afterward.
That type of restriction would be contrary to the scope of due
process procedures that are available under the Act.
In light of the overwhelming support for extending the 45-day
period for holding due process hearings under proposed
Sec. 361.57(e)(1), we agree that the period should be extended to 60
days in the final regulations. We do not believe that the time
period should be extended any longer since section 102(c) of the Act
clearly envisions a due process system that is timely, quick, and
equitable.
We believe that the 30-day period for an appropriate official to
review a hearing officer's decision under proposed
Sec. 361.57(g)(3)(iii) is reasonable. This is the same time period
that applied to the review of hearing decisions by the State unit
director under the previous regulations. Although State-level review
of hearing decisions, if established by the State, now must be
conducted by an official of an entity overseeing the DSU, we see no
reason for modifying the current time period.
We consider it inappropriate for us to establish a time limit
for the filing of civil actions in disputes arising under the VR
program. The State's Rules of Civil Procedure or the Federal Rules
of Civil Procedure, depending on the appropriate forum, dictate the
applicable deadline for filing an action in civil court.
Changes: We have made the following modifications to proposed
Sec. 361.57(d): authorizing mediators to terminate mediations
(Sec. 361.57(d)(2)(ii)); authorizing States with an established
method of assigning mediators to use that process in assigning
mediators for the VR program provided the process ensures neutrality
on the part of mediators (Sec. 361.57(d)(2)(iii)); and, in adopting
a technical but important revision suggested by some commenters,
clarifying that mediators assist in developing rather than ``issue''
mediation agreements (Sec. 361.57(d)(4)). We also have modified
proposed Sec. 361.57(e)(1) to require that hearings be conducted
within 60, rather than 45, days from the individual's request for
review of a DSU decision.
Section 361.60 Matching Requirements
Comments: One commenter wrote in support of the proposed change
in Sec. 361.60(b)(3)(ii) that would authorize a State to use funds
that are earmarked for a particular geographic area within the State
as part of its non-Federal share without obtaining a waiver of
statewideness if the State determines and informs the RSA
Commissioner that it cannot provide the full amount of its non-
Federal share without using the earmarked funds. This commenter
indicated that the provision was needed
[[Page 4435]]
since many State legislatures appropriate most, but not all, of the
funds needed to match the full amount of Federal funds available
under the program.
Discussion: Although section 101(a)(4)(B) of the Act is intended
to assist some States in meeting their matching obligations, we wish
to reemphasize that statewideness requirements still apply to the
Federal VR program funds that the State receives in return for
contributing geographically limited earmarked funds to its non-
Federal share. For further discussion of the effect of this change
from the previous regulations, please refer to the preamble to the
NPRM (65 FR 10630).
Changes: None.
Sections 361.80-361.89 Evaluation Standards and Performance
Indicators
Comments: None.
Discussion: The Evaluation Standards and Performance Indicators
for the VR program were published in the Federal Register on June 5,
2000 (65 FR 35792) and became effective on July 5, 2000. Because
these performance measures are part of the regulations implementing
the VR program (34 CFR 361), we have added the measures and their
corresponding requirements to the final regulations in this
publication. The Evaluation Standards and Performance Indicators are
located in Secs. 361.80 through 361.89 of Subpart E. For guidance in
implementing the performance measures, we suggest you consult the
preamble to the prior Federal Register publication of the measures
(65 FR 35792).
Changes: We have amended the proposed regulations to include
Subpart E, ``Evaluation Standards and Performance Indicators,'' and
the corresponding provisions in Secs. 361.80 through 361.89 that
were previously published. The requirements in these sections are
the same as those published in the Federal Register on June 5, 2000.
[FR Doc. 01-512 Filed 1-16-01; 8:45 am]
BILLING CODE 4000-01-U