[Federal Register Volume 62, Number 28 (Tuesday, February 11, 1997)]
[Rules and Regulations]
[Pages 6308-6363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3159]
[[Page 6307]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Part 361 et al.
The State Vocational Rehabilitation Services Program; Final Rule
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 /
Rules and Regulations
[[Page 6308]]
DEPARTMENT OF EDUCATION
34 CFR Parts 361, 363, 376, and 380
RIN 1820-AB12
The State Vocational Rehabilitation Services Program
AGENCY: 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 are needed
to implement changes to the Rehabilitation Act of 1973 (Act) made by
the Rehabilitation Act Amendments of 1992, enacted on October 29, 1992,
as amended by the 1993 technical amendments (hereinafter collectively
referred to as the 1992 Amendments).
EFFECTIVE DATE: These regulations take effect March 13, 1997.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of
Education, 600 Independence Avenue, SW., Room 3014, Mary E. Switzer
Building, Washington, DC. 20202-2531. Telephone (202) 205-8831.
Individuals who use a telecommunications device for the deaf (TDD) may
call (202) 205-5538.
SUPPLEMENTARY INFORMATION: The State Vocational Rehabilitation Services
Program (program) is authorized by Title I of the Act (29 U.S.C. 701-
744). This program provides support to each State to assist it in
operating a comprehensive, coordinated, effective, efficient, and
accountable State program to assess, plan, develop, and provide
vocational rehabilitation (VR) services to individuals with
disabilities so that those individuals may prepare for and engage in
gainful employment, consistent with their strengths, resources,
priorities, concerns, abilities, capabilities, and informed choice.
On December 15, 1995, the Secretary published a notice of proposed
rulemaking (NPRM) for this program in the Federal Register (60 FR
64476).
Additionally, pursuant to Executive Order 12866, which encourages
Federal agencies to facilitate meaningful participation in the
regulatory development process, the Rehabilitation Services
Administration (RSA) made available draft proposed regulations (draft
regulations) in accessible formats, including an electronic format, to
a broad spectrum of parties for informal review and comment prior to
publishing the December 15, 1995 NPRM. RSA also gathered public input
on the draft regulations through public meetings and focus groups and
analyzed over 600 letters of comments on the draft regulations.
These final regulations implement changes made to the program by
the 1992 Amendments with the exception of the evaluation standards and
performance indicator requirements in section 106 of the Act, which are
being implemented in a separate rulemaking document, and incorporate
some of the burden-reducing changes previously proposed in an NPRM for
this program that was published on July 3, 1991 (56 FR 30620) (1991
NPRM). The 1991 NPRM was not finalized at the request of Congress.
These regulations also implement changes that the Secretary believes
are important to update, consolidate, clarify, and in other ways
improve the regulations for this program.
The Supplementary Information section to the NPRM includes a
discussion of the major changes to Title I of the Act made by the 1992
Amendments. These changes have far-reaching implications for the
program. Individuals are encouraged to refer to the NPRM (60 FR 64476-
64477) for a discussion of the major themes associated with the 1992
Amendments.
These final regulations contain a limited number of significant
changes to the proposed regulations based on public comment and
interdepartmental review. A detailed description of these changes
follows. In addition, the final regulations have been reviewed and
revised in accordance with the Department's Principles for Regulating,
which were developed as part of the Administration's regulatory
reinvention initiative under the National Performance Review II. The
principles are designed to ensure that the Department regulates in the
most flexible, most equitable, and least burdensome way possible.
The Secretary also notes that the changes to supported employment
definitions included in these final regulations affect those
definitions in 34 CFR parts 363, 376, and 380. Corresponding regulatory
changes to those parts follow the final regulations amending 34 CFR
part 361.
Goals 2000: Educate America Act
The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands the Department's
capacities for helping communities to exchange ideas and obtain
information needed to achieve the goals.
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
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary as necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of the final regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of potential costs and benefits
The potential costs and benefits of these final regulations were
summarized in the preamble to the NPRM under the following headings:
Improved Organization of Regulations; Notes and Examples; Reduction of
Grantee Burden; Enhanced Protections for Individuals with Disabilities
(60 FR 64495); Increased Flexibility of Grantees to Satisfy Statutory
Requirements; and Additional Benefits (60 FR 64496). Additional
discussion of potential costs and benefits is included in the following
Analysis of Comments and Changes section of this preamble.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, more than
400 parties submitted comments on the proposed regulations. RSA
gathered additional public input on the NPRM through a series of public
meetings. An analysis of the comments and of the changes in the
regulations since publication of the NPRM follows.
Major issues are grouped according to subject under appropriate
sections of the regulations. Other substantive issues are discussed
under the section of the regulations to which they pertain. Technical
and other minor changes--and suggested changes the Secretary is not
legally authorized to make under the
[[Page 6309]]
applicable statutory authority--generally are not addressed. However,
some suggested changes that the Secretary is not authorized to make
also raise important policy issues and, therefore, are discussed under
the appropriate section of the analysis.
References in the analysis of comments to the ``proposed
regulations'' refer to the regulatory provisions in the December 15,
1995 NPRM, whereas references to the ``draft regulations'' refer to
provisions in the draft proposed regulations that were circulated for
informal comment prior to publishing the NPRM.
Section 361.5(b) Applicable definitions
Administrative Costs Under the State Plan
Comments: Some commenters requested that this definition be revised
to specifically limit administrative costs to expenditures incurred by
the Designated State Unit (DSU) in administering the VR program. One
commenter recommended that the definition identify indirect costs as a
type of administrative cost. Finally, one commenter sought to exclude
costs incurred by DSUs in providing technical assistance to businesses
and industries from the definition on the basis that those costs
represent expenditures for the provision of services under
Sec. 361.49(a) of the proposed regulations.
Discussion: The Secretary agrees that administrative costs under
the VR State plan are those costs that the DSU incurs in administering
the VR program. While most indirect costs (those costs that cannot be
allocated to a single cost objective and that benefit more than one
program) are generally types of administrative expenditures, they need
not be limited to administrative expenditures. The Secretary does not
believe it is necessary to classify indirect costs in order to ensure
their allowability under the program. All indirect costs that are
approved under an indirect cost agreement or cost allocation plan are
allowable. The Secretary emphasizes that indirect costs related to
multiple State programs (e.g., operating expenses for State buildings
occupied by DSU staff and staff from other State-administered programs)
can be charged to the VR program only to the extent that the costs are
attributable to the VR program.
In addition, the Secretary agrees that although technical
assistance to businesses, in some cases, is considered an
administrative cost, any technical assistance provided by a DSU to a
business or industry that seeks to employ individuals with disabilities
and that is not subject to the Americans with Disabilities Act (ADA)
does not constitute an administrative cost. Technical assistance
provided under these circumstances is authorized by section 103(b)(5)
of the Act and Sec. 361.49(a)(4) of the regulations as a service for
groups of individuals with disabilities.
Changes: The Secretary has revised Sec. 361.5(b)(2) to clarify that
administrative costs are expenditures that are incurred by the DSU in
performing administrative functions related to the VR program. The
definition also has been amended to exclude technical assistance
provided to businesses and industries as a service under the conditions
in Sec. 361.49(a)(4).
Appropriate Modes of Communication
Comments: One commenter opposed defining ``appropriate modes of
communication'' as specialized media systems and devices that
facilitate communication on the basis that not all modes of
communication used by persons with disabilities are ``media systems and
devices.'' Several commenters requested that the definition identify
graphic presentations, simple language, and other modes of
communication used by individuals with cognitive impairments.
Discussion: The Secretary agrees that ``appropriate modes of
communication'' are not limited to specific systems, devices, or
equipment, as indicated by the proposed definition, and include any
type of aid or support needed by an individual with a disability to
communicate with others effectively. For example, the use of an
interpreter by a person who is deaf is an appropriate mode of
communication, but is not typically viewed as a system or device.
The Secretary believes it would be useful for the definition of
appropriate modes of communication to include examples of communication
methods used by individuals with cognitive impairments. However, the
Secretary emphasizes that the examples of communication services and
materials listed in the definition in the final regulations are not
all-inclusive and that other appropriate modes of communication not
specified in the definition are also available to address the
particular communication needs of an individual with a disability.
Changes: The Secretary has amended Sec. 361.5(b)(5) to clarify that
appropriate modes of communication include any aid or support that
enables an individual with a disability to comprehend and respond to
information being communicated. In addition, the definition has been
amended to include graphic presentations and simple language materials
as examples of modes of communication that may be appropriate for
individuals with cognitive impairments.
Assistive Technology Service
Comments: Some commenters asked that particular services be
identified in this definition as examples of permissible assistive
technology services. For instance, one commenter suggested that the
definition specifically identify modifications to vehicles used by
individuals with disabilities as an assistive technology service.
Discussion: The definition of the term ``assistive technology
service'' in both the proposed and final regulations tracks the
definition of that term in the Technology-Related Assistance for
Individuals with Disabilities Act of 1988 (Tech Act), as required by
section 7(24) of the Act. The Tech Act defines assistive technology
services generally to include any service that directly assists an
individual with a disability in the selection, acquisition, or use of
an assistive technology device. The definition in the regulations,
therefore, is intended to address the scope of service-related needs of
individuals who use assistive technology devices (e.g., the need to
acquire a particular device or the need to receive training on the
operation of a device) rather than to identify actual services that an
individual might receive. Nevertheless, the Secretary recognizes that
any modification to a vehicle that is necessary to enable an individual
with a disability to use that vehicle is considered an adaptation or a
customization of an assistive technology device under
Sec. 361.5(b)(7)(iii) and, therefore, constitutes an assistive
technology service. This position is consistent with current RSA
policy.
Changes: None.
Community Rehabilitation Program
Comments: Some commenters requested that the definition of
``community rehabilitation program'' specify additional services, such
as rehabilitation teaching services, that could be provided under a
community rehabilitation program for individuals with disabilities.
Discussion: The definition of ``community rehabilitation program''
in both the proposed and final regulations is based on the statutory
definition in section 7(25) of the Act. However, paragraph (i)(Q) of
this definition, like section 7(25)(Q) of the Act, authorizes community
rehabilitation programs that
[[Page 6310]]
provide services similar to the services specified in the definition.
Thus, the Secretary believes that a community rehabilitation program
could provide rehabilitation teaching services for individuals who are
blind because those services are similar to orientation and mobility
services for individuals who are blind, which are expressly authorized
under paragraph (i)(K) of the definition.
Changes: None.
Comparable Services and Benefits
Comments: Several commenters requested clarification of the
requirement in the proposed regulations that comparable services and
benefits be available to the individual within a reasonable period of
time. Some commenters requested that the regulations allow DSUs to use
comparable services and benefits only if they are currently available
at the time the individual's Individualized Written Rehabilitation
Program (IWRP) is developed. Other commenters suggested that comparable
services and benefits should be available when necessary to meet the
rehabilitation objectives identified in the individual's IWRP.
Discussion: The definition of ``comparable services and benefits''
is intended to support the statutory purpose of conserving
rehabilitation funds, while ensuring the provision of appropriate and
timely services. The proposed requirement in the NPRM that comparable
services and benefits be available within a reasonable period of time
was intended to enable DSUs to conserve VR funds by searching for
alternative sources of funds without jeopardizing the timely provision
of VR services to eligible individuals. The Secretary agrees that
additional clarification in the regulations is required to ensure that
VR services are provided to eligible individuals at the time they are
needed.
Changes: The Secretary has revised Sec. 361.5(b)(9)(ii) of the
proposed regulations to require that comparable services and benefits
be available to the individual at the time that the relevant service is
needed to achieve the rehabilitation objectives in the individual's
IWRP. This change is consistent with revisions made to Sec. 361.53 of
the proposed regulations, which are discussed in the analysis of
comments to that section.
Competitive Employment and Integrated Setting
Comments: Some commenters opposed the definition of ``competitive
employment'' in the proposed regulations on the basis that it limited
competitive employment outcomes to those in which an individual with a
disability earns at least the minimum wage. Because the proposed
definition applied to supported employment placements, these commenters
believed that the minimum wage requirement would restrict employment
opportunities for individuals with the most severe disabilities who
need supported employment services in order to work. These commenters
stated that some individuals with the most severe disabilities would be
unable to obtain competitive employment unless the definition permitted
employers to compensate employees in accordance with section 14(c) of
the Fair Labor Standards Act (FLSA) (i.e., wages based on individual
productivity that would be less than the minimum wage). Other
commenters supported the proposed definition and the requirement that
individuals in competitive employment earn at least the minimum wage.
Several commenters opposed the requirement in the proposed
regulations that individuals in competitive employment earn at least
the prevailing wage for the same or similar work in the local community
performed by non-disabled individuals. The commenters believed that it
would be unduly burdensome for DSUs to ascertain the relevant
prevailing wage given the potential differences in wages provided by
employers within the same community. In addition, these commenters
stated that the prevailing wage standard would dissuade some employers
from hiring individuals with disabilities when the wage to be provided,
although at least the minimum wage, would have to be increased to be
consistent with higher wages provided by other employers in the
community for the same or similar work.
Several commenters on the proposed regulations opposed the
requirement that competitive employment be performed in an integrated
setting. Several other commenters questioned or requested clarification
of the proposed definition of integrated setting with respect to the
provision of services or the achievement of an employment outcome. In
light of the interrelationship between the terms ``competitive
employment'' and ``integrated setting'' and the fact that the Secretary
considers integration to be an essential component of competitive
employment, comments on both the proposed definition of ``integrated
setting'' and the use of the term ``integrated setting'' as an element
of competitive employment are addressed in the following paragraphs.
Commenters who opposed limiting competitive employment to
placements in integrated settings believed that requiring individuals
with disabilities to interact with non-disabled persons at the work
site would preclude certain kinds of employment outcomes from the scope
of competitive employment. Specifically, the commenters identified
self-employment, home-based employment, and various forms of
telecommuting as examples of employment outcomes that are competitive
but are not located in integrated settings. The commenters stated that
these placement options should be available to individuals with
disabilities to same extent that they are available to non-disabled
persons.
Some commenters believed that the definition of ``integrated
setting'' in the proposed regulations was too weak. These commenters
recommended that the proposed definition, which defined integrated
setting as ``. . . a setting typically found in the community in which
an applicant or eligible individual has an opportunity to interact
regularly with non-disabled persons . . .,'' be amended to require
actual interaction between the applicant or eligible individual and
non-disabled individuals. Other commenters stated that individuals in
competitive employment should be required to interact with non-disabled
persons only to the extent that non-disabled individuals in similar
positions interact with others. Finally, some commenters suggested that
the definition clarify that sheltered workshops and other employment
settings that are established specifically for the purpose of employing
individuals with disabilities do not constitute integrated settings.
Discussion: The Secretary agrees with the commenters who believe
that competitive employment outcomes should be limited to those in
which individuals earn at least the minimum wage. Consequently, the
Secretary does not consider placements in supported employment settings
in which individuals receive wages below the minimum wage under section
14(c) of the FLSA to be competitive employment. This position, which
would modify longstanding RSA regulatory policy, is consistent with the
requirement in the 1992 Amendments (section 101(a)(16) of the Act) that
DSUs annually review and reevaluate the status of each individual in an
employment setting under section 14(c) of the FLSA in order to
determine the individual's readiness for competitive employment. This
statutory requirement indicates that supported employment
[[Page 6311]]
settings in which individuals are compensated below the minimum wage in
accordance with the FLSA do not constitute competitive employment. The
Secretary wishes to clarify that the minimum wage requirement for
individuals placed in supported employment applies at the time of
transition to extended services. If an individual is unable to obtain
the minimum wage at this time, the individual would still be considered
to have achieved an employment outcome but it would not be considered a
supported employment outcome.
The Secretary agrees that requiring individuals in competitive
employment to earn at least the prevailing wage for the same or similar
work in the local community performed by non-disabled individuals is
unduly restrictive and that requiring individuals with disabilities who
achieve competitive employment outcomes to be compensated at the wage
level typically paid to non-disabled individuals who perform the same
or similar work for the same employer is a more reasonable standard.
This standard requires that competitively employed individuals with
disabilities receive the customary wage and level of benefits (e.g.,
insurance premiums, retirement contributions) received by non-disabled
workers performing comparable jobs for the same employer. Clarification
in the final regulations that comparable compensation includes both the
wage and benefit level typically paid by the employer is necessary, the
Secretary believes, in order to ensure that competitive employment
outcomes for individuals with disabilities are truly ``competitive.'
A key purpose of the 1992 Amendments is to ensure that individuals
with disabilities achieve employment outcomes in the most integrated
settings possible, consistent with the individual's informed choice.
Consequently, the Secretary believes that placement in an integrated
setting is an essential component of ``competitive employment.'
The Secretary agrees with those commenters who believe that the
definition of integrated setting in the proposed regulations did not
sufficiently ensure actual interaction between individuals with
disabilities and non-disabled persons. The Secretary also agrees with
those commenters who contend that the best measure of integration in an
employment setting for individuals with disabilities is to require
parity with the integration experienced by non-disabled workers in
similar positions. Consequently, the final regulations establish a
standard of integration with respect to employment outcomes that is
based on ensuring the same level of interaction by disabled individuals
with non-disabled persons as that experienced by a non-disabled worker
in the same or similar job. An integrated setting for purposes of a job
placement is one in which an applicant or eligible individual interacts
with non-disabled persons, excluding service providers, to the same
extent that a non-disabled worker in a comparable position interacts
with others.
The Secretary believes, however, that interaction between
individuals with disabilities and non-disabled persons need not be
face-to-face in order to meet this standard. Persons with disabilities
who are self-employed or telecommute may interact regularly with non-
disabled persons through a number of mediums (e.g., telephone,
facsimile, or computer). Self-employment, home-based employment, and
other forms of employment in which individuals communicate regularly
from separate locations, therefore, would satisfy the integration
requirement of competitive employment as long as the eligible
individual interacts with non-disabled persons other than service
providers to the same extent as a non-disabled person in a comparable
job.
The Secretary, like many of the commenters, also believes that
settings that are established specifically for the purpose of employing
individuals with disabilities (e.g., sheltered workshops) do not
constitute integrated settings since there are no comparable settings
for non-disabled individuals.
Changes: The Secretary has amended Sec. 361.5(b)(10) to define
``competitive employment,'' in part, as work for which an individual
earns at least the minimum wage but not less than the customary wage
and level of benefits provided by the same employer to non-disabled
workers who perform the same or similar work. The Secretary also has
amended Sec. 361.5(b)(30) to define ``integrated setting'' with respect
to an employment outcome as a setting typically found in the community
in which applicants or eligible individuals interact with non-disabled
individuals to the same extent that non-disabled individuals in
comparable positions interact with other persons. The definition of
``integrated setting'' with respect to the provision of services has
been similarly strengthened to require actual interaction between
individuals with disabilities receiving services and non-disabled
individuals.
Designated State Unit
Comments: Some commenters requested that the regulatory definition
of ``designated State unit'' prohibit DSUs from administering
vocational and other rehabilitation programs other than those programs
authorized or funded under the Act.
Discussion: Sections 101(a)(1) and (a)(2) of the Act require that
the State VR Services Program be administered by a State entity that is
primarily concerned with vocational rehabilitation or vocational and
other rehabilitation of individuals with disabilities, but does not
restrict this rehabilitation focus to only programs authorized or
funded under the Act. The Secretary wishes to give States as much
organizational flexibility as is permitted by statute.
Changes: None.
Employment Outcome
Comments: Several commenters opposed the definition of ``employment
outcome'' in the proposed regulations on the basis that it failed to
exclude outcomes other than competitive employment (e.g., homemaker,
self-employment). Other commenters disagreed with the emphasis in the
definition on competitive employment.
Discussion: The definition of ``employment outcome'' in the final
regulations, like the proposed definition, elaborates on the definition
in section 7(5) of the Act by incorporating into the definition the
statutory concept that an employment outcome must be consistent with an
individual's strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice. Although the definition
does not contain a full list of permissible employment outcomes, it
does not exclude any employment outcomes that have been permitted in
the past. Thus, for example, homemaker, extended employment, and self-
employment remain acceptable employment outcomes even though they are
not specifically identified in the definition. The Secretary also
believes, however, that competitive employment, which is the optimal
employment outcome under the program, should be considered for each
individual who receives services under the program and should,
therefore, be highlighted in the definition.
Changes: None.
Establishment, Development, or Improvement of a Public or
Nonprofit Community Rehabilitation Program
Comments: Some commenters opposed that part of the proposed
[[Page 6312]]
definition of the term ``establishment, development, or improvement of
a public or nonprofit community rehabilitation program'' that would
reduce over a four-year period Federal financial support of staffing
costs associated with operating a community rehabilitation program.
Some of these commenters also opposed the prohibition in the definition
of Federal support for ongoing operating expenses of a community
rehabilitation program. The commenters were concerned that these
provisions would make it difficult or impossible to develop new
community rehabilitation programs.
Discussion: The definition elaborates on the statutory definition
of the term ``establishment of a community rehabilitation program''
under section 7(6) of the Act by incorporating all of the types of
expenditures for which a DSU can receive Federal financial support. The
limitations on staffing costs in the proposed definition are based on
the authorization in section 7(6) of the Act for the Secretary to
include as part of the costs of establishment any additional staffing
costs that the Secretary considers appropriate. The limitations are
similar to those previously proposed in the 1991 NPRM. Specifically,
the proposed regulations established a limitation on staffing costs by
providing, after the first 12 months of staffing assistance, for an
annual decrease in the percentage of staffing costs (from 100 percent
to 45 percent) for which Federal financial participation (FFP) is
available. This limitation, like the staffing cost requirements
proposed in the 1991 NPRM, is influenced by and in part based on the
conclusions of a 1979 General Accounting Office (GAO) report (HRD-79-
84). The GAO Report to Congress recommended amending the Act to provide
for a gradual reduction of Federal funding for staffing costs in the
establishment authority. Legislative change is unnecessary to
accomplish this purpose because section 7(6) of the Act vests the
Secretary with the authority to determine what staffing costs are
appropriate for Federal financial participation. The Secretary believes
that the GAO recommendation is still relevant and needs to be
implemented. The limitation on staffing costs is intended, in part, to
ensure that facilities bear an increasing share of the responsibility
for running community rehabilitation programs, while preserving VR
funds needed to support necessary development or expansion of community
rehabilitation facilities. More generally, the limitation on staffing
costs is intended to preserve the amount of funds available to the DSU
for providing VR services to eligible individuals.
The final regulations also authorize Federal support for other
costs needed to establish, develop, or improve a community
rehabilitation program as long as these costs are not ongoing
operational expenses of the program. The Secretary believes that this
prohibition is consistent with the Act, which limits Federal financial
support to costs associated with setting up, renovating, converting, or
otherwise improving community rehabilitation programs.
The Secretary also notes that recent audits of State agencies have
indicated, in some cases, that VR funds have been used under the
authority for establishing community rehabilitation programs for
purposes other than providing services under the VR program. In
response, the Secretary believes the proposed definition should be
amended to ensure that Federal support for the establishment,
development, or improvement of a public or nonprofit community
rehabilitation program is provided only if the purpose of the
expenditures is to provide services to applicants and eligible
individuals under the VR program.
Changes: The Secretary has amended Sec. 361.5(b)(16) to ensure that
costs associated with the establishment, development, or improvement of
a public or nonprofit community rehabilitation program must be
necessary to the provision of VR services to applicants and eligible
individuals. Changes to this definition and to the State plan
requirements in Sec. 361.33(b) of the regulations are intended to
address the violations identified in recent audits of State agencies.
Extended Employment
Comments: Several commenters requested that the definition of
``extended employment'' in the proposed regulations be broadened to
include placements in integrated settings. Other commenters sought to
expand the proposed definition to include employment with profitmaking
organizations. Finally, some commenters requested that the regulations
exclude extended employment from the scope of potential employment
outcomes under the program.
Discussion: Section 101(a)(16) of the Act requires DSUs to annually
review and reevaluate the status of each individual in extended
employment to determine the individual's readiness for competitive
employment in an integrated setting. This statutory requirement
indicates that extended employment is limited to placements in non-
integrated settings. The lack of integration in extended employment
placements is a key factor in differentiating between extended
employment and competitive employment outcomes.
The Secretary does not believe that extended employment includes
work performed on behalf of profitmaking organizations. Extended
employment, according to section 101(a)(16) of the Act, means work
performed in community rehabilitation programs, including workshops, or
in other non-integrated employment settings in which individuals are
compensated pursuant to the FLSA. The Secretary believes that
employment in private, profitmaking organizations should be viewed as
competitive employment in which individuals shall earn at least the
minimum wage and work in integrated settings. Incorporating placements
in profitmaking organizations into the definition of extended
employment would expand the scope of potential extended employment
placements and would be contrary to the statutory policy that promotes
movement from extended employment to competitive employment, the
optimal employment outcome under the program. Nevertheless, the final
regulations will continue to recognize extended employment as a
possible employment outcome under the program consistent with
101(a)(16) of the Act.
Changes: None.
Impartial Hearing Officer
Comments: One commenter requested that the regulations prohibit a
member of a State Rehabilitation Advisory Council from serving as an
impartial hearing officer for any DSU within that State.
Discussion: The definition of ``impartial hearing officer'' in the
proposed regulations specified that a member of a DSU's State
Rehabilitation Advisory Council (Council) could not serve as an
impartial hearing officer for that same DSU. The proposed definition,
however, did allow a member of a DSU's Council to serve as an impartial
hearing officer in cases involving another DSU within the same State.
For example, a member of the Council for a State unit serving
individuals who are blind was not precluded under the proposed
regulations, solely on the basis of that membership, from serving as an
impartial hearing officer in cases involving the State unit that serves
[[Page 6313]]
individuals with disabilities other than individuals with visual
disabilities. The Secretary believes that prohibiting members of a
Council from serving as impartial hearing officers in cases involving
any DSU within the State would be unduly restrictive. The Secretary
also believes that other impartiality requirements in the definition
that apply to all impartial hearing officers, including those who are
members of Councils for other DSUs (e.g., the individual has no
personal, professional, or financial conflict of interest) will
sufficiently ensure the absence of potential conflicts between the
hearing officer and the parties to the dispute.
Changes: None.
Maintenance
Comments: Some commenters requested that the definition of
``maintenance'' in the proposed regulations be expanded to include
expenses other than living expenses (e.g., food, shelter, and
clothing). As an example, the commenters stated that maintenance should
be authorized to support costs incurred by eligible individuals who
take part in enrichment activities as part of a training program in a
higher education institution. Several other commenters recommended
deletion of the fourth example in the note following the proposed
definition, which stated that maintenance could be used to pay for
food, shelter, and clothing for homeless or recently
deinstitutionalized individuals until other financial assistance is
secured. These commenters asserted that these costs should be supported
by welfare or other public assistance agencies rather than DSUs.
Discussion: The Secretary agrees that maintenance may include costs
other than standard living expenses (i.e., food, shelter, and clothing)
as long as the expenses are in excess of the normal expenses incurred
by an eligible individual or an individual receiving extended
evaluation services. Limiting maintenance to additional costs incurred
by individuals receiving services under an IWRP or under a written plan
for providing extended evaluation services is consistent with section
103(a)(5) of the Act, which restricts the provision of maintenance to
``additional costs while participating in rehabilitation.'
The Secretary also agrees that the fourth example of permissible
maintenance expenses in the proposed regulations was inadvisable.
Permitting DSUs to support the full costs of a homeless or
deinstitutionalized individual's subsistence under the maintenance
authority, until other financial assistance becomes available, is
inconsistent with the policy of limiting maintenance costs to those in
excess of the individual's normal expenses. In addition, the Secretary
agrees that welfare and other social service agencies are better
equipped to support the everyday living expenses of the homeless or
deinstitutionalized. However, a DSU could choose to provide short-term
emergency financial assistance to those individuals under
Sec. 361.48(a)(20) as ``other'' services that the DSU determines are
necessary for the individual to achieve an employment outcome.
Changes: The Secretary has deleted the term ``living'' from
Sec. 361.5(b)(31) of the proposed regulations to clarify that
maintenance may include expenses other than living expenses. In
addition, the Secretary has deleted the fourth example in the note
following the proposed definition of maintenance and replaced it with
an example of a permissible maintenance cost that would not constitute
a living expense.
Ongoing Support Services
Comments: Some commenters recommended that the Secretary place a
time limit on the provision of ongoing support services furnished by
extended services providers. The commenters stated that the regulations
should permit ongoing support services to ``fade'' once they are no
longer needed to maintain an individual in supported employment.
Discussion: It is RSA's longstanding policy that individuals with
the most severe disabilities who are placed in supported employment
should require ongoing support services throughout the course of their
placement. The need for ongoing support services provides a critical
distinction (i.e., the provision of ongoing supports) between supported
employment and other kinds of employment outcomes. The Secretary
believes that if an individual in supported employment no longer
requires ongoing support services that individual is no longer an
appropriate candidate for supported employment.
Changes: None.
Personal Assistance Services
Comments: Some commenters requested that the definition of
``personal assistance services'' in the proposed regulations be amended
to more closely track the statutory definition of that term in section
7(11) of the Act. The commenters stated that revision to the proposed
definition is needed to clarify that personal assistance services need
not be provided on the job site.
Discussion: The Secretary agrees that personal assistance services
may be provided off the job site as long as they are necessary to
assist an individual with a disability to perform daily living
functions and achieve an employment outcome and are provided while the
individual is participating in a program of VR services. The Secretary
believes the proposed definition clearly authorized personal assistance
services needed by an individual to perform everyday activities off the
job but, nevertheless, agrees that further clarification may be
helpful.
Changes: The Secretary has amended Sec. 361.5(b)(34) of the
proposed regulations to track the language in section 7(11) of the Act
authorizing personal assistance services needed to increase the
individual's control in life and ability to perform everyday activities
on or off the job.
Physical and Mental Restoration Services
Comments: Some commenters requested that the regulatory definition
of ``physical and mental restoration services'' specifically include
psychological services provided by qualified personnel under State
licensure laws.
Discussion: The Secretary agrees that psychological services are a
form of mental restoration services. Psychological services, however,
are subsumed within the broader term ``mental health services'' in
paragraph (xiii) of the definition and need not be identified
separately. Moreover, section 103(a)(4) of the Act authorizes services,
including psychological services, that are needed to diagnose and treat
mental or emotional disorders only if those services are provided by
qualified personnel in accordance with State licensure laws. This
requirement, which was included in the proposed definition, is
reflected in paragraph (ii) of the definition in the final regulations.
Changes: None.
Physical or Mental Impairment
Comments: Some commenters requested clarification of the
requirement in the proposed regulations that a physical or mental
impairment will probably result in materially limiting mental or
physical functioning if it is not treated. One commenter stated that
the definition should be limited to conditions that cause present
functional limitations so as not to unnecessarily expand the pool of
eligible individuals.
[[Page 6314]]
Discussion: The Secretary agrees that clarification is needed. The
proposed regulations defined ``physical or mental impairment'' as an
injury, disease, or other condition that materially limits, or if not
treated will probably result in materially limiting, mental or physical
functioning. The existence of a physical or mental impairment is the
first criterion for determining eligibility under the program (see
Sec. 361.42(a) of the final regulations). The proposed definition was
designed to include progressive conditions that may cause functional
limitations in the future even though current functional limitations
may not be evident. Although a DSU may not always know with certainty
whether a certain condition will limit an individual's functional
abilities, the Secretary believes that the definition must account for
situations in which there is a strong likelihood that functional
limitations will result if treatment is not provided. On the other
hand, the Secretary does not believe that accounting for progressive
conditions will result in an unwarranted increase in eligible
individuals since all eligible individuals, including those who do not
currently experience a limitation in functioning, must meet each of the
eligibility criteria in Sec. 361.42(a).
Changes: The Secretary has amended Sec. 361.5(b)(36) of the
proposed regulations to clarify that a physical or mental impairment
must materially limit, or if untreated must be expected to materially
limit, physical or mental functioning.
Post-Employment Services
Comments: Some commenters requested that the regulations specify a
time limit for providing post-employment services following the
achievement of an employment outcome. Other commenters opposed the
availability of post-employment services for purposes of assisting an
individual to advance in employment. Finally, several commenters
recommended that the definition enable individuals to receive post-
employment services in order to maintain, regain, or advance in
employment that is consistent with the individual's informed choice.
Discussion: The Secretary believes that it would be inappropriate
to establish an absolute time limit after which post-employment
services would be unavailable. DSUs are responsible for determining on
a case-by-case basis whether an eligible individual who has achieved an
employment outcome requires post-employment services in accordance with
the definition in the regulations. As stated in the note following the
proposed definition, post-employment services are available to meet
rehabilitation needs that do not require a complex and comprehensive
provision of services and, therefore, should be limited in scope and
duration. If the DSU determines that an individual requires extensive
services or requires services over an extended period of time, then the
DSU should consider beginning a new rehabilitation effort for the
individual, starting with a redetermination of whether, under current
circumstances, the individual is eligible under the VR program.
The Secretary emphasizes that post-employment services are
available if the DSU determines that the services are necessary to
enable an individual to advance in employment consistent with the
individual's strengths, resources, priorities, concerns, abilities,
capabilities, and interests. Section 103(a)(2) of the Act specifically
authorizes the provision of post-employment services for purposes of
assisting an individual to maintain, regain, or advance in employment.
The Secretary agrees that the provision of post-employment services
must be consistent with the individual's informed choice. However, the
Secretary believes that it is unnecessary to add informed choice as an
element in the definition of ``post-employment services'' because
informed choice is specifically identified as a condition that applies
to the provision of any VR service, including post-employment services,
under Sec. 361.48(a).
Changes: None.
Substantial Impediment To Employment
Comments: The majority of commenters supported the definition of
``substantial impediment to employment'' in the proposed regulations.
However, some commenters opposed the proposed definition on the basis
that it requires only that an impairment hinder the individual from
preparing for, entering into, engaging in, or retaining employment.
These commenters recommended that the Secretary reinstate the standard
from the draft regulations that an impairment must prevent the
individual from employment in order for it to constitute a substantial
impediment to employment.
Discussion: An individual's disability must result in a substantial
impediment to employment for the individual to be found eligible under
the VR program (see Sec. 361.42(a)). The Secretary believes that the
proposed definition establishes the appropriate standard for
determining whether the individual's impairment causes a substantial
impediment to employment when read in conjunction with the remaining
eligibility requirements in Sec. 361.42(a). This standard does not
extend eligibility under the program to individuals with disabilities
who do not experience material functional limitation or who do not need
VR services to obtain appropriate employment since these individuals
would not meet the criteria in Sec. 361.42(a). On the other hand, the
Secretary believes that requiring that an impairment prevent the
individual from employment is too stringent and would exclude from the
program those individuals who are underemployed and who need VR
services to obtain new employment that is consistent with their
abilities and capabilities.
Changes: None.
Supported Employment
Comments: One commenter suggested that, given the requirement in
the proposed regulations that limits competitive employment outcomes to
those in which individuals earn at least the minimum wage, competitive
employment should not be a required element of supported employment.
Another commenter stated that an individual in a supported employment
setting should be viewed as competitively employed as long as the
individual earns at least the minimum wage at the time of transition to
an extended services provider rather than at the time of initial
placement in supported employment.
Discussion: Section 7(18) of the Act defines supported employment
as competitive employment in an integrated setting with ongoing support
services. Thus, individuals in supported employment shall earn at least
the minimum wage consistent with the definition of competitive
employment in the final regulations. The Secretary agrees, however,
that the minimum wage requirement applies to individuals in supported
employment at the time the individual has made the transition from
support provided by the DSU to extended services provided by an
appropriate State or private entity.
Changes: None.
Transitioning Student
Comments: Some commenters were concerned that omitting the term
applicant from the definition of ``transitioning student'' would mean
that students with disabilities who apply for VR services might not be
evaluated for program eligibility. In addition, some commenters stated
that the term ``transitioning student'' is confusing and is
inappropriately used in
[[Page 6315]]
other sections of the proposed regulations, specifically Sec. 361.22
(Cooperation with agencies responsible for transitioning students).
Discussion: The proposed regulations defined ``transitioning
student'' as a student who is eligible under the VR program and is
receiving transition services. The Secretary believes that transition
services, which are authorized under section 103(a)(14) of the Act and
defined in Sec. 361.5(b)(47) of the final regulations, are limited to
those services identified in an eligible student's IWRP that promote or
facilitate the accomplishment of long-term rehabilitation goals and
intermediate rehabilitation objectives. Because assessment services are
provided prior to the development of an IWRP and, therefore, are not
transition services, student applicants under the program were not
included within the proposed definition of ``transitioning student.''
Nevertheless, this interpretation does not alter the responsibility of
DSUs to evaluate student applicants for eligibility for VR services. As
with any individual with a disability, DSUs shall promptly handle a
referral of a student for VR services, evaluate the student following
application for services, and determine the student's eligibility under
the program within 60 days after the application is submitted.
The Secretary agrees that the definition of the term
``transitioning student'' in the proposed regulations is confusing, as
evidenced by the previous comments questioning the DSU's responsibility
with regard to student applicants. Other commenters were confused by
Sec. 361.22(b) of the proposed regulations, which referred to students
with disabilities who are not receiving special education services as
``transitioning students.'
Changes: The Secretary has eliminated the definition of the term
``transitioning student'', which is not defined in the Act, from the
final regulations and has replaced that term in the regulations with
the term ``student with a disability,'' which includes students who are
receiving special education services and students who are not.
Transportation
Comments: One commenter requested that the regulations clarify that
transportation is a support service. Other commenters opposed the
example following the definition that identified the purchase and
repair of vehicles as a possible transportation expense. These
commenters stated that adherence to this example would severely deplete
DSU resources.
Discussion: ``Transportation'' is defined in both the proposed and
final regulations as travel and related expenses that are necessary to
enable an applicant or eligible individual to participate in a VR
service. The Secretary believes that it is clear from this definition
that transportation is not a stand-alone service but must be tied to
the provision of other services identified in an IWRP.
The Secretary emphasizes that the examples provided under this
definition, like all examples throughout the regulations, are provided
solely for purposes of illustration and guidance and are not intended
to substitute for DSU determinations in individual cases. Accordingly,
the example opposed by some commenters neither requires nor encourages
DSUs to purchase or repair vehicles. The example states only that the
purchase or repair of vehicles is authorized as a transportation
expense in those limited circumstances in which the DSU determines that
provision of this service is necessary for an individual to participate
in a VR service and is consistent with DSU policies that govern the
provision of services. Appropriately developed DSU policies covering
the nature and scope of services dictate the extent to which any
service, including transportation, can be provided.
Changes: None.
Sec. 361.10 Submission, approval, and disapproval of the State plan.
Comments: None.
Discussion: The Secretary has revised the requirements governing
the duration of State plans to reflect recent amendments to section 436
of the General Education Provisions Act (GEPA). Section 436 of GEPA,
which applies to Rehabilitation Act programs, authorizes the Secretary
to establish a State plan period that is longer than the standard
three-year period specified in section 101(a) of the Rehabilitation Act
and Sec. 361.10(e) of the proposed regulations. Although RSA will
continue to require the submission of a new State plan every three
years, the regulations now permit RSA to establish a State plan period
other than the regular three-year period if circumstances warrant. For
example, RSA used this statutory authority in FY 1996 to extend for a
fourth year the State plan covering FYs 1994 through 1996 in order to
allow these final regulations to become effective before requiring
submission of a new State plan. The flexibility afforded RSA through
this regulatory change also obviates the need for Sec. 361.10(h) of the
proposed regulations, which would have permitted the Secretary to
require an interim State plan covering less than three years following
a reauthorization of the Act and prior to the publication of final
regulations.
Changes: The Secretary has amended Sec. 361.10(e) to state that the
State plan must cover a multi-year period as determined by the
Secretary. In addition, Sec. 361.10(h) of the proposed regulations has
been deleted from the final regulations.
Sec. 361.13 State agency for administration
Comments: Some commenters opposed the elimination of the
requirement from the draft proposed regulations that the State plan
describe the organizational structure of the State agency and its
organizational units. These commenters stated that the absence of this
description in the State plan would make it impossible for RSA to
determine whether each DSU operates at a level comparable to that of
other organizational units within the State agency. Other commenters
recommended, consistent with requirements in the draft proposed
regulations, that the final regulations authorize the designated State
agency to define the scope of the program and direct its administration
without external administrative controls. Additionally, in response to
the Secretary's request in the NPRM, some commenters identified
additional program functions that were not included in the proposed
regulations for which the DSU shall be responsible in order to meet the
statutory requirement in section 101(a)(2)(A) that it be responsible
for the VR program. The additional functions identified by the
commenters (determinations of whether an individual has achieved an
employment outcome; policy development; and administrative control of
VR funds) were specified in the draft proposed regulations. Finally,
some commenters stated that the requirement in the proposed regulations
that at least 90 percent of DSU staff shall be employed full time on
rehabilitation work was unduly restrictive.
Discussion: This section of the proposed regulations was
significantly revised under the Department's Principles for Regulating
in an effort to reduce the paperwork requirements imposed on State
agencies. For example, the Secretary proposed to remove from current
regulations the requirement that the State plan describe the
organizational structure of the State agency and its organizational
units
[[Page 6316]]
because the Secretary considered the requirement unduly burdensome. The
Secretary intended to reduce the paperwork burden on State agencies in
developing their State plans and to emphasize the underlying
administrative responsibility of States by relying on an assurance,
required by statute, that if the State agency is required to have a
vocational rehabilitation unit, the unit is located at an
organizational level comparable to other organizational units within
the State agency. The Secretary does not believe that continuing to
require by regulations that an organizational description be included
in the State plan would necessarily ensure that a DSU actually operates
at a level comparable to that of other units within the State agency.
Moreover, the Secretary believes that determinations as to whether a
State agency meets the organizational requirements in this section,
including whether the State unit operates at a comparable level to that
of other State entities, can be better addressed by RSA through its
monitoring process.
In an effort to reduce regulatory burden and increase State
flexibility in accordance with the Department's Principles for
Regulating, the Secretary also proposed to remove from current
regulations the requirement that a designated State agency that has as
its major function vocational rehabilitation or vocational and other
rehabilitation of individuals with disabilities shall ``have the
authority, subject to the supervision of the Governor, if appropriate,
to define the scope of the program within the provisions of State and
Federal law and to direct its administration without external
administrative controls.'' This non-statutory requirement applies under
current regulations to only one of the three designated State agency
options. The Secretary believes, however, that a State should have the
same authority to review or oversee the administration of its VR
program regardless of the option under which it chooses to organize its
agency. Elimination of this requirement will enable a State to locate
and administer its vocational rehabilitation program within the limits
permitted by statute without being influenced by the existence or non-
existence of varying levels of control outside of the DSU.
In the preamble to the proposed regulations, the Secretary
solicited public comment on whether the regulations should expand or
otherwise clarify essential program functions for which the DSU shall
be responsible in order to meet the statutory requirement in section
101(a)(2)(A) of the Act that it be responsible for the VR program.
Consistent with current regulations, the proposed regulations specified
that the DSU shall be responsible for determinations of eligibility,
development of IWRPs, and decisions regarding the provision of
services. The Secretary interprets this non-delegation provision to
mean that the DSU shall carry out these functions or activities using
its own staff. While some commenters believed that States should have
the flexibility to delegate responsibility for other programmatic
functions to State entities other than the DSU, the overwhelming
majority of commenters stated that the additional functions that were
identified in the draft regulations (determinations that service
recipients have achieved appropriate employment outcomes, the
formulation and implementation of program policy, and the allocation
and expenditure of program funds) must be carried out by the DSU to
ensure that the program is administered properly. In light of the
public comment received, the Secretary agrees that responsibility for
these additional functions must be retained by the DSU to ensure that
State agencies that consolidate staff to administer multiple State and
federally funded programs do not entrust these key VR programmatic
decisions to individuals who lack experience in meeting the needs of
individuals with disabilities. Moreover, the Secretary believes that
the benefits derived from DSU retention of these functions--enhanced
program efficiency and effectiveness--outweigh any costs that may be
associated with the non-delegation requirements in the final
regulations.
The Secretary does not believe that the proposed requirement that
at least 90 percent of the designated State unit staff shall work full
time on the rehabilitation work of the organizational unit is unduly
restrictive. This provision means that if the organizational unit
provides other rehabilitation services, in addition to vocational
rehabilitation, the 90 percent staffing requirement applies to all unit
staff providing rehabilitation services, not to just the vocational
rehabilitation staff. ``Other rehabilitation'' includes, but is not
limited to, other programs that provide medical, psychological,
educational, or social services to individuals with disabilities.
Although some commenters believed the 90 percent staffing requirement
sets too restrictive a standard, the Secretary believes that this
requirement is consistent with the statutory requirement in section
101(a)(2)(A)(iii) of the Act that ``substantially all'' of the DSU's
staff shall work on rehabilitation and with RSA's longstanding
interpretation of ``substantially all'' to mean 90 percent.
Changes: The Secretary has revised Sec. 361.13(c) by adding three
functions--determination that an individual has achieved an employment
outcome, formulation and implementation of program policy, and
allocation and expenditure of program funds--that must be carried out
by the DSU.
Sec. 361.15 Local administration
Comments: One commenter requested clarification of the requirement
that each local agency administering the program be ``under the
supervision of the DSU.''
Discussion: Section 7(9) of the Act defines the term ``local
agency'' as a local governmental unit that has an agreement with the
designated State agency to conduct the VR program in accordance with
the State plan. Accordingly, the requirement in this section that each
local agency is subject to the supervision of the DSU means that the
DSU is responsible for ensuring that the program is administered in
accordance with the State plan. This provision does not require the DSU
to supervise the day-to-day operations of each local agency's program
staff.
Changes: For purposes of clarification, the Secretary has revised
Sec. 361.15 to add a cross-reference to the regulatory definition of
``sole local agency.'' The Secretary has also made technical changes to
the citations of authority for this section.
Sec. 361.16 Establishment of an independent commission or a State
Rehabilitation Advisory Council
Comments: One commenter requested clarification of the scope of the
proposed requirement that the State plan summarize annually the advice
provided by the Council.
Discussion: Section 101(a)(36)(A)(iii) of the Act requires the DSU
to include in its State plan or amendment to the plan a summary of
advice provided by the Council. Accordingly, Sec. 361.16(a)(2)(iv) of
the regulations requires that the State plan ``annually summarize the
advice provided by the Council.'' This ``annual'' requirement means
that any State plan submission, whether a new three-year plan or an
annual amendment to an existing plan, must include, as appropriate, a
summary of the advice provided by the Council on the new plan or the
plan amendment. Thus, a summary of the advice provided by the Council
on the entire plan must be submitted once every three years in
conjunction with
[[Page 6317]]
the DSU's new, three-year State plan. During the interim between new
plans, the DSU shall summarize the advice provided by the Council on
the amendments to the existing plan and submit that summary in
conjunction with its annual submission of amendments to the plan.
Annual amendments to the plan include any amendment generated by a
change to a State policy or practice that is reflected in the current
State plan, as well as those amendments that are required by the Act or
these regulations. Consistent with the general requirement in section
101(a)(36)(A)(iii), this section also requires the DSU to annually
summarize the advice provided by the Council on matters other than
those addressed in the State plan. A summary of the advice provided by
the Council on these issues should be included also in the annual
summaries.
Changes: None.
Sec. 361.18 Comprehensive system of personnel development
Comments: Some commenters questioned the authority for requiring
the involvement of the State Rehabilitation Advisory Council in the
development of the State agency's personnel standards, whereas other
commenters supported a role for the Council in this area. Some
commenters sought clarification of what it means for the Council to be
``involved'' in the development of personnel standards. Additional
commenters sought an expanded role for the Council that would involve
it in the formulation of other aspects of the State agency's
comprehensive system of personnel development in addition to the State
agency's personnel standards.
Some commenters stated that the data collection requirements in
paragraph (a) of this section are unduly burdensome and should be
eliminated.
A number of commenters opposed the authorization of State personnel
requirements as comparable requirements upon which a State agency could
develop its personnel standards under paragraph (c) of this section.
These commenters stated that a State agency's personnel standards
should be based solely on the licensing and certification requirements
applicable to the profession in which DSU employees provide VR services
in order to ensure that DSU personnel are ``qualified'' within the
meaning of the Act. Similarly, several commenters opposed the use of
``equivalent experience'' as a substitute for academic degrees in the
definition of ``highest requirements in the State* * *'' under
paragraph (c) of this section. One commenter stated that the personnel
standards developed by State agencies under this section should be
prospective only and that agencies should be permitted to retain
current DSU personnel who do not meet the ``highest requirements in the
State.'' In addition, some commenters recommended that the regulations
specifically provide for DSU employment for individuals who, due to the
existence of their disability, are unable to satisfy certification or
licensure standards applicable to a particular profession. As an
example, these commenters stated that, historically, individuals who
are blind have been excluded on the basis of their disability from
obtaining necessary certification to teach orientation and mobility to
other blind individuals even though they are fully qualified to work in
that profession.
Some commenters believed that the regulations should require that
DSU staff receive mandatory training in all of the areas identified in
paragraph (d)(2) of this section. Paragraph (d)(2) listed examples of
training areas (e.g., the Americans with Disabilities Act and the
Individuals with Disabilities Education Act (IDEA)) that State
agencies, at their discretion, may incorporate into their staff
development systems.
Several commenters opposed the statement in the preamble to the
proposed regulations that supported a DSU's use of family members and
community volunteers for purposes of communicating in an applicant's or
eligible individual's native language. The commenters believed that the
availability of family members or volunteers should not relieve the
State agency of its responsibility to hire qualified personnel who are
able to meet the communication needs of individuals with disabilities.
One commenter asked whether the State agency's responsibility to employ
persons who can address the communication needs of applicants and
eligible individuals means that the State agency shall include sign-
language interpreters among its personnel.
Finally, one commenter stated that the number of individuals that a
rehabilitation counselor assists in achieving an employment outcome
should not be considered as a factor in the evaluation of the
rehabilitation counselor's performance under paragraph (f) of this
section.
Discussion: The Act requires that the Council generally advise the
State unit in connection with the carrying out of its responsibilities.
In addition, the Council is required to advise the State agency on
issues affecting the development of the State plan. Because an
effective system of personnel development is an essential part of the
State plan and a critical element to the success of The State
Vocational Rehabilitation Services Program, the Secretary believes it
is necessary for the Council to be involved in the development of key
aspects of the State agency's personnel development system.
Specifically, the Secretary agrees with the commenters who stated that
the Council should provide advice to the State agency in connection
with the development of the recruitment, preparation, and retention
plan under paragraph (b) of this section; staff development policies
and procedures under paragraph (d) of this section; and the performance
evaluation system under paragraph (f) of this section; as well as in
the development of personnel standards under paragraph (c) of this
section, as was stated in the proposed regulations.
The Secretary emphasizes that this section of the regulations is
not intended to expand or alter the role of the Council beyond the
advisory role contemplated by the Act, but only to identify those areas
of personnel development in which the Council must be involved in an
advisory capacity. The Secretary believes that to fulfill its advisory
role, the Council, at a minimum, must be afforded an opportunity to
review and comment on relevant plans, policies, and procedures prior to
their implementation. This ``opportunity for review and comment'' is
necessary to ensure that the Council plays a meaningful, although
advisory, role in the development of a system that ensures an adequate
supply of qualified DSU personnel.
The data system and data collection requirements specified in
paragraph (a) of this section are statutorily required. However, the
Secretary emphasizes that the regulations require only that the State
plan include a description of the system used to collect the data on
personnel needs and personnel development and do not require the State
to submit the actual data to the Secretary.
The Secretary agrees with those commenters who stated that the
State agency's personnel standards must be based solely on existing
licensing or certification requirements applicable to the profession in
which DSU employees provide VR services. The Secretary interprets
section 101(a)(7)(B) of the Act to permit DSUs to base their personnel
standards on other ``comparable'' requirements only if certification or
licensing requirements applicable to a particular profession do not
exist. This interpretation is consistent with the
[[Page 6318]]
statute's emphasis on qualified personnel and with the requirement in
the Act that State agencies develop personnel standards that are based
on the ``highest requirements in the State.'' State personnel
requirements may be used as ``comparable requirements'' by the State
agency only in those very limited instances in which there is no
national or statewide certification or license that applies to the
professional or paraprofessional providing VR services (e.g., case
aides). Under those circumstances, State personnel requirements may, in
fact, represent the highest requirements in the State for the
particular profession.
The proposed regulations authorized States to base the highest
personnel standards in the State on equivalent experience, as well as
on academic degrees, in an effort to stress the significance of
relevant work experience and to expand the pool from which qualified
personnel can be selected. The overwhelming majority of commenters on
this issue, however, asserted that the use of ``equivalent experience''
as a substitute for academic degrees for purposes of meeting the
``highest requirements in the State * * *'' significantly weakened the
Act's focus on qualified personnel. In light of these comments, the
Secretary agrees that the ``highest requirements in the State'' should
be limited to the highest entry-level academic degree needed for a
national or State license or certification in order to ensure that the
DSU employs those professionals who are most capable of assessing the
specialized needs of individuals with disabilities and addressing those
needs through an appropriate provision of VR services. The Secretary
recognizes the extent to which the qualified personnel standard in the
Act would be undermined if States chose to ignore widely recognized,
nationally approved or State-approved licensing standards and to employ
less qualified individuals on the basis of ``equivalent experience.''
The Secretary interprets the Act and regulations to permit State
agencies to retain current DSU personnel who do not meet the ``highest
requirements in the State.'' This position is consistent with paragraph
(c)(1)(ii) of this section, which requires the State agency to describe
the steps it plans to take to retrain or hire personnel to meet
standards that are based on the highest requirements in the State if
the State's current standards are not based on the highest requirements
in the State.
The Secretary recognizes the concerns of those commenters who
sought to safeguard DSU employment opportunities for individuals who,
because of their disability, are prohibited from obtaining the license
or certification applicable to their particular profession. To the
extent that certification and licensing requirements are discriminatory
on the basis of disability, these issues should be addressed as
compliance issues under section 504 of the Act and the ADA.
Nevertheless, the Secretary is cognizant of the particular difficulty
experienced by blind individuals who, historically, have been excluded
on the basis of their disability from becoming certified as orientation
and mobility instructors. The Secretary emphasizes that these
regulations do not inhibit DSUs or other VR service providers from
hiring blind individuals as orientation and mobility teachers even
though those individuals may not meet current certification
requirements. To the extent that a DSU employs blind individuals who do
not meet the ``highest requirements in the State'' applicable to the
orientation and mobility profession, the State agency's plan under
paragraph (c)(1)(ii) of this section must identify the steps the agency
plans to take to assist employees in meeting those requirements. In
this regard, the Secretary is supporting a national project to develop
alternative certification standards for orientation and mobility
instructors in order to ensure that individuals who are blind can meet
necessary certification standards within the timeframe outlined in the
DSU's plan under paragraph (c)(1)(ii) of this section.
The Secretary does not believe it is prudent to make the training
areas identified in paragraph (d) of this section mandatory for all
staff employed by each DSU. The Secretary believes that the specific
training areas for staff development adopted by a State unit must be
based on the particular needs of that State unit. Thus, the final
regulations, like the proposed regulations, identify specific training
areas as examples that State agencies may incorporate into their staff
development systems in light of the DSU's needs.
Paragraph (e) of this section requires the State unit to describe
in the State plan how it includes among its personnel or obtains the
services of--(1) Individuals able to communicate in the native
languages of applicants and eligible individuals who have limited
English speaking ability; and (2) Individuals able to communicate with
applicants or eligible individuals in appropriate modes of
communication. Personnel under the first requirement may include State
agency staff, family members of an applicant or eligible individual,
community volunteers, and other individuals able to communicate in the
appropriate native language. However, the Secretary agrees that a DSU
cannot institute an across-the-board policy of using family members or
volunteers as a substitute for addressing the communication needs of
individuals with limited English proficiency through the use of DSU
staff or contract personnel. DSUs shall be prepared to address the
individual communication needs of each applicant or eligible individual
it serves. In addition, the Secretary believes that the DSU is
responsible for employing or obtaining the services of sign-language
interpreters, which fall within the definition of ``appropriate modes
of communication'' in Sec. 361.5(b)(5), to the extent necessary to meet
the communication needs of individuals who are deaf.
The Secretary believes that in evaluating a rehabilitation
counselor's performance, States should not focus primarily on the
number of individuals that the counselor has assisted in achieving an
employment outcome. At most, the number of employment outcomes for
which the counselor is responsible should be considered as one of many
factors in the assessment of the counselor's performance. The Act
requires that the State's performance evaluation system facilitate the
accomplishment of the policies and procedures outlined in the statute,
including the policy of serving, among others, individuals with the
most severe disabilities. Thus, counselors should be evaluated on the
basis of their efforts in advancing the purposes of the program and,
more precisely, on the basis of their performance in serving the most
severely disabled. The Secretary notes the following passage from the
report of the Senate Committee on Labor and Human Resources, which was
also referenced in the preamble to the proposed regulations, to further
support this position: ``The Committee is concerned that in some
States, procedures used for evaluating performance of counselors may
have the unintended consequence of providing a disincentive to serve
individuals with the most severe disabilities and those clients
requiring complex services.'' The performance evaluation system
required under the Act and included in the regulations is designed to
address these disincentives.
Changes: The Secretary has amended Sec. 361.18 to require that the
State Rehabilitation Advisory Council must be afforded an opportunity
to review and comment on the following aspects of the State agency's
comprehensive system of personnel development: The
[[Page 6319]]
plan for recruitment, preparation, and retention of qualified
personnel. Personnel standards. Staff development. The performance
evaluation system. In addition, the Secretary has clarified paragraph
(c) of this section to permit DSUs to base their personnel standards on
comparable requirements (including State personnel requirements) only
if national or State-approved or -recognized certification, licensing,
or registration requirements applicable to a particular profession do
not exist. Finally, the term ``equivalent experience'' has been deleted
from the definition of ``highest requirements in the State'' under
paragraph (c) of this section.
Sec. 361.22 Cooperation with agencies responsible for students with
disabilities
Comments: Some commenters questioned whether this section requires
DSUs to develop policies that enable transitioning students to live
independently before leaving school. The commenters stated that the
proposed regulations appeared to require DSUs to assist students in
living independently while the student continues to receive special
education services from an educational agency. Other commenters
recommended that the regulations be revised to require the development
and completion of the IWRP for a special education student who is
eligible for VR services before the student leaves the school system.
Several commenters believed that the elements of formal interagency
agreements between State units and educational agencies identified in
the proposed regulations should be mandatory for all interagency
agreements developed under this section. Another commenter asked
whether the regulations require DSUs to enter into formal interagency
agreements with each local educational agency within the State.
One commenter opposed the distinction in the proposed regulations
between those students who receive special education services and those
who do not receive special education services and argued that the
requirements governing coordination between educational agencies and
State units should apply for both groups of students. Finally, some
commenters recommended that the term ``transitioning student'' be
replaced by the term ``student with a disability'' for purposes of
referring to students who do not receive special education services
from an educational agency.
Discussion: The proposed regulations required the DSU to develop
plans, policies, and procedures designed to facilitate the transition
of special education students from the school setting to the VR
program. Specifically, the regulations stated these policies must be
designed to facilitate the development and accomplishment of long-term
rehabilitation goals, intermediate rehabilitation objectives, and goals
and objectives related to enabling a transitioning student to live
independently before leaving school. Although these regulatory
requirements largely track the statutory requirements in section
101(a)(24) of the Act, the Secretary agrees that clarification is
needed.
The Secretary does not believe that the Act places on the DSU the
responsibility for assisting a student with a disability to become
independent prior to leaving school. However, the Secretary interprets
the Act to require that, before a student with a disability who is in a
special education program leaves school, the DSU shall plan for that
student's transition to the VR program in order to ensure that there is
no delay in the provision of VR services once special education
services end. This means that the IWRP for each student determined to
be eligible under the VR program or, if the designated State unit is
operating under an order of selection, the IWRP for each eligible
student able to be served under the order, must be completed before the
student leaves school and must, at a minimum, be consistent with the
rehabilitation goals and objectives, including goals and objectives
related to enabling the student to live independently, that were
previously identified in the student's individualized education
program. The Secretary believes that this position is further supported
by the legislative history to the Act, particularly the Report of the
Senate Committee on Labor and Human Resources, portions of which are
restated in the note following this section of the regulations.
Furthermore, the Secretary believes that requiring the development of
the IWRP before a VR-eligible student leaves school does not impose any
additional costs on the DSU since DSUs are already required to develop
IWRPs for eligible individuals, including students with disabilities,
if those individuals can be served. More importantly, the Secretary
believes that this requirement will improve coordination between the
State's special education and VR programs and will ensure that services
are not interrupted after an eligible student leaves school.
In the proposed regulations, the Secretary attempted to lessen the
paperwork burden on State units by reducing the mandatory content
requirements that the draft regulations made applicable to all formal
interagency agreements between State units and educational agencies.
Accordingly, the proposed regulations required only that interagency
agreements identify provisions for determining State lead agencies and
qualified personnel responsible for transition services and identify
policies and practices that can be coordinated between the agencies.
The remaining elements under the draft regulations (identification of
available resources, financial responsibilities of each agency, dispute
resolution procedures, and other necessary cooperative policies) were
discretionary under the proposed regulations. However, most commenters
on this section opposed the reduction in required elements and stated
that each component is essential for ensuring the appropriate
transition of special education students from the school setting to the
VR program. Without detailed agreements, the commenters argue,
resources may be wasted and key processes may not be delineated,
resulting in delays in services once the special education student
leaves school. Consequently, each identified element of formal
interagency agreements is mandatory for all agreements developed under
this section of the final regulations. The Secretary believes this
position is consistent with the statutory requirements governing formal
interagency agreements in section 101 (a)(11) and (a)(24) of the Act.
In reviewing the regulations since publication of the NPRM, the
Secretary identified an additional mandatory element of formal
interagency agreements that was inadvertently omitted from the proposed
regulations. This additional element implements the requirement in
section 101(a)(11)(B) of the Act, which specifies that interagency
cooperation between the DSU and other agencies, including educational
agencies, must include training for staff of the agencies as to the
availability, benefits of, and eligibility standards for vocational
rehabilitation services, to the extent practicable.
The Secretary notes that, although the regulations require the DSU
to enter into a formal agreement with the State educational agency, it
is within the discretion of each State to determine which local
educational agencies should be parties to agreements with the DSU.
The Secretary agrees that classifying students who do not receive
special education services as ``transitioning students'' is confusing.
As stated previously in the preamble analysis of comments on
Sec. 361.5(b)(49), the
[[Page 6320]]
Secretary believes that replacing all references to ``transitioning
students'' in the final regulations with the term ``students with
disabilities'' and eliminating the definition of ``transitioning
student'' from the final regulations will enable DSUs and educational
agencies to more easily refer to, and differentiate between, students
with disabilities who are receiving special education services and
students with disabilities who are not receiving special education
services. Moreover, these changes are consistent with the reference to
``students who are individuals with disabilities'' in section 101
(a)(24) and (a)(30) of the Act.
The Secretary also notes that section 101(a)(30) of the Act
warrants the separate treatment that is afforded students with
disabilities who are not in special education programs as opposed to
those who receive special education services. Paragraph (b) of this
section implements this statutory provision by requiring DSUs to
develop and implement policies for providing VR services to students
with disabilities who do not receive special education services.
Changes: The Secretary has revised Sec. 361.22 to clarify that DSU
policies must provide for the development and completion of the IWRP
for each student with a disability determined to be eligible for
vocational rehabilitation services before the student leaves the school
setting. This section has been revised further to expand the number of
mandatory elements, including staff training to the extent practicable,
that must be included in formal interagency agreements between DSUs and
educational agencies. The Secretary also has revised this section by
replacing the term ``transitioning student'' with the term ``student
with a disability.'' Finally, the Secretary has expanded the note
following this section in order to highlight the emphasis in the Act on
the timely provision of VR services to special education students.
Sec. 361.23 Cooperation with other public agencies
Comments: None.
Discussion: The Secretary wishes to clarify the requirements
governing interagency cooperation between State units and other public
agencies that provide rehabilitation services to individuals with
disabilities. Section 361.23(b)(3) of the proposed regulations would
have required that all types of interagency cooperative initiatives
developed pursuant to this section meet certain requirements. However,
consistent with section 101(a)(11) of the Act, the Secretary wishes to
clarify that the requirements specified in paragraph (b)(3) of this
section (e.g., identification of policies that can be coordinated
between agencies, description of financial responsibility of each
agency, and procedures for resolving disputes) apply only if the State
unit chooses to enter into formal interagency cooperative agreements
with other agencies. It is within the discretion of the State to
determine how the State unit will cooperate with agencies other than
agencies responsible for students with disabilities and to determine
whether the requirements identified in paragraph (b)(3) of this section
should be addressed if the State adopts cooperative methods other than
formal interagency agreements (e.g., interagency working groups).
Changes: The Secretary has revised Sec. 361.23 to clarify that the
mandatory policies, practices, and procedures specified in paragraph
(b)(3) apply only to formal interagency cooperative agreements
developed under this section.
Sec. 361.27 Shared funding and administration of joint programs
Comments: One commenter supported the proposal to no longer require
written agreements for joint programs. The majority of commenters,
however, stated that written agreements are necessary to ensure that
joint programs are administered consistent with the purposes of the VR
program.
Discussion: The proposed regulations removed the current regulatory
requirements relating to written agreements for programs involving
shared funding and administrative responsibility as part of the effort
to reduce paperwork burden on State units and increase State
flexibility. The Secretary maintains that it is within the discretion
of the State to determine whether the public agencies administering a
joint program for providing services to individuals with disabilities
shall enter into a formal written agreement. However, the Secretary
agrees with the commenters who indicated that DSUs should be
accountable for the proper administration of joint rehabilitation
programs authorized under section 101(a)(1)(A) of the Act.
Accountability will be based on the extent to which joint programs are
carried out consistent with the State plan description required by the
final regulations. This limited description is much less extensive, and
therefore less burdensome to DSUs, than the State plan requirements in
the current regulations related to joint programs.
Changes: The Secretary has amended Sec. 361.27 to require that the
State plan describe the nature and scope of any joint program to be
entered into by the DSU, including the services to be provided, the
respective roles of each participating agency in the provision of
services and in the administration of the services, and the share of
the costs to be assumed by each agency.
Sec. 361.29 Statewide studies and evaluations
Comments: One commenter requested that DSUs be required to conduct
a comprehensive assessment of the rehabilitation needs of individuals
with severe disabilities every five years rather than every three years
as was specified in the proposed regulations. Another commenter asked
whether the review of outreach procedures to identify and serve
underserved populations and the review of the provision of VR services
to individuals with the most severe disabilities required under
paragraph (a) of this section are to be conducted on an annual or
triennial basis. In addition, one commenter questioned the statutory
basis for requiring the DSU to analyze the characteristics of
individuals determined to be ineligible for VR services and the reasons
for the ineligibility determinations.
One commenter stated that requiring the DSU to analyze, as part of
its annual evaluation under paragraph (b) of this section, the extent
to which the State has achieved the objectives of the strategic plan is
unnecessary and duplicative of the requirements in Sec. 361.72. Other
commenters stated that it is unduly burdensome to require the
submission of summaries or copies of the statewide studies and annual
evaluations as attachments to the State plan. Finally, one commenter
asked whether the DSU must provide copies of the statewide studies and
annual evaluations to the State Rehabilitation Advisory Council.
Discussion: The Secretary believes it is appropriate and necessary
that a comprehensive assessment of the rehabilitation needs of
individuals with severe disabilities be conducted every three years.
This time period is intended to ensure that the DSU conducts the
assessment and reviews its results in connection with the development
of a new State plan which, in most instances, must be submitted every
three years. Moreover, the Secretary believes that each review or
assessment identified in the regulations as a minimum component of the
DSU's continuing statewide studies must be conducted on a triennial
basis in
[[Page 6321]]
conjunction with the development of the State plan.
Section 101(a)(9)(D) of the Act requires that the State agency
annually provide to the Secretary an analysis of the characteristics of
those individuals determined to be ineligible for VR services and the
reasons for the ineligibility determinations. This requirement,
however, was mischaracterized in the proposed regulations as a
statewide study component and should have been identified as an annual
reporting requirement to be submitted in the State plan.
The Secretary agrees that the proposed annual evaluation
requirement related to the State's achievement of the objectives in its
strategic plan is duplicative of the requirements in Sec. 361.72(e) and
that the requirement should be deleted from paragraph (b) of this
section.
In recognition of the paperwork burden associated with including
summaries or copies of the statewide studies and annual evaluations as
attachments to the State plan, the Secretary intends to require only
that DSUs maintain copies of the studies and evaluations and provide
copies to the Secretary upon request. Copies of the studies and
evaluations, however, should be provided to the State Rehabilitation
Advisory Council so that the Council can meaningfully fulfill its
advisory role in connection with the development of those documents as
is required under section 105(c) of the Act. Additionally, although
this program reporting requirement has been revised, the Secretary
notes that, pursuant to section 635 of the Act, State agencies shall
submit as part of the supported employment supplement to their State
plan a summary of the results of the comprehensive, statewide
assessment on the rehabilitation and career needs of individuals with
severe disabilities and the need for supported employment services.
Changes: The Secretary has amended Sec. 361.29 to clarify that each
mandatory assessment and review identified in paragraph (a) as part of
the DSU's continuing statewide studies must be conducted triennially in
conjunction with the development of the State plan. In addition,
paragraph (a)(3) of this section of the proposed regulations (annual
analysis of ineligible individuals and ineligibility determinations)
has been changed to a reporting requirement in the State plan and
relocated to paragraph (c)(3) in the final regulations. The Secretary
also has deleted the analysis of the State's progress in achieving the
objectives in the strategic plan from the annual evaluation
requirements in paragraph (b) of this section. Finally, the Secretary
has revised paragraph (c)(3) of this section to require that the DSU
maintain copies of its statewide studies and annual evaluations and
make those copies available upon the request of the Secretary. This
provision has been relocated to paragraph (c)(4) in the final
regulations.
Sec. 361.33 Use, assessment, and support of community rehabilitation
programs
Comments: Some commenters opposed the requirement that vocational
rehabilitation services received through community rehabilitation
programs must be provided in the most integrated settings possible.
Other commenters requested that this section be revised to require the
development of a plan for improving existing community rehabilitation
programs.
Discussion: Section 102(b)(1)(B) of the Act requires that
vocational rehabilitation services, including those provided by
community rehabilitation programs, be provided in the most integrated
settings possible. Thus, the standard of integration specified in this
section is consistent with the Act and with other sections of the
regulations governing the provision of services.
The Secretary recognizes that the proposed regulations did not
adequately address each statutory requirement in section 101(a) of the
Act related to community rehabilitation programs. Consequently, the
Secretary believes that this section of the final regulations should be
reorganized, revised, and retitled in an effort to more accurately
reflect all of these statutory requirements, including the requirement
that DSUs develop plans for improving existing programs.
In addition, the Secretary believes that DSUs should be required to
describe in the State plan the need to use Federal funds in support of
new or existing community rehabilitation programs in light of recent
program audit findings indicating that some States have used Federal
funds received under the authority for establishing, developing, or
improving community rehabilitation programs for purposes other than
providing VR services to applicants and eligible individuals. Any
paperwork burden or cost associated with this description, the
Secretary believes, is significantly outweighed by the need to ensure
that program funds used to support community rehabilitation programs
are properly expended.
Changes: The Secretary has revised Sec. 361.33 to require that the
State plan contain plans for improving existing community
rehabilitation programs. In addition, the Secretary has revised this
section to require States to describe in the State plan the need to
establish, develop, or improve, as appropriate, a community
rehabilitation program to provide VR services to applicants and
eligible individuals. This requirement is consistent with revisions
made to the definition of ``establishment, development, or improvement
of a public or nonprofit community rehabilitation program'' in
Sec. 361.5(b)(16) to clarify that Federal support of community
rehabilitation programs is limited to the provision of services to
applicants and eligible individuals under the VR program. Finally, this
section has been retitled ``use, assessment, and support of community
rehabilitation programs'' and has been reorganized to reflect these
three types of requirements.
Sec. 361.34 Supported employment plan
Comments: One commenter opposed the requirement in the proposed
regulations that the DSU submit annual revisions to its supported
employment plan as a supplement to its State plan.
Discussion: The Secretary does not intend to require DSUs to
annually revise each provision of its supported employment plan and
submit those revisions to RSA every year. Section 635(a) of the Act
requires that each State submit a State plan supplement for providing
supported employment services and ``annual revisions [to] the plan
supplement as may be necessary.'' Pursuant to section 635(b)(3) of the
Act, however, RSA requires that each year the DSU explain how it will
expend its annual allotment of supported employment funds received
under section 632 of the Act. Thus, at a minimum, the DSU is required
to submit an annual revision to its State plan attachment that
describes its plans for distributing section 632 funds for purposes of
providing supported employment services to individuals with the most
severe disabilities. In addition, the State unit shall provide, on an
annual basis, any revisions to its supported employment plan that are
necessary to reflect corresponding changes in State policies or
practices regarding the provision of supported employment services.
Changes: The Secretary has revised Sec. 361.34(b) to clarify that
the DSU is required to submit ``any needed'' annual revisions to its
supported employment plan.
[[Page 6322]]
Sec. 361.35 Strategic plan
Comments: Two commenters opposed the requirement that the strategic
plan be submitted as a supplement to the State plan.
Discussion: Section 120 of the Act requires that each State develop
a strategic plan for developing, expanding, and improving VR services
and submit the plan to RSA. In addition, section 101(a)(34)(A) of the
Act requires that the State plan include an assurance that the State
has developed and implemented a strategic plan. The statute, however,
does not authorize the Secretary to approve or disapprove the strategic
plan. Consistent with these requirements, the Secretary does not
consider the strategic plan to be part of the State plan that is
subject to the approval of the Secretary, but is requiring the DSU to
submit the strategic plan and the State plan at the same time for
purposes of administrative efficiency.
Changes: The Secretary has amended Sec. 361.35(b) to require that
the DSU submit the strategic plan at the same time that it submits the
State plan.
Sec. 361.37 Establishment and maintenance of information and referral
programs
Comments: The majority of commenters on this section of the
proposed regulations supported the new provision that would authorize
State units operating under an order of selection to establish an
expanded information and referral program for eligible individuals who
do not meet the order of selection criteria for receiving VR services.
Some commenters did seek additional clarification as to whether
counseling and guidance services are authorized or whether an IWRP is
to be developed for individuals served under the expanded program. One
commenter requested that the Secretary define the term ``referral for
job placement.'' Other commenters requested that DSUs be permitted to
count as successful outcomes those individuals who obtain employment
following a referral by the DSU. A limited number of commenters
believed the expanded program to be inconsistent with the order of
selection requirements in the Act.
Discussion: The expanded information and referral program
authorized in this section is intended to address the concerns of some
State units operating under an order of selection. These State units
believe they should be permitted to provide limited non-purchased
services to eligible individuals who do not qualify for services under
the State unit's priority categories. An order of selection is required
under section 101(a)(5)(A) of the Act if a State unit determines that
it is unable to provide services to all eligible individuals.
Authorization of an expanded information and referral program under
this section is consistent with the Act as long as the DSU, in carrying
out the expanded program, does not use funds needed to provide VR
services to eligible individuals who are able to be served under the
State unit's order of selection. An assurance to this effect is a key
condition to operating an expanded program. In addition, the Secretary
expects a DSU to expend a limited level of resources (e.g., staff time
and equipment) in support of its referral program. For example, a DSU
staff member can administer the expanded program only to extent that
the staff person is not needed to provide VR services to eligible
individuals who qualify for services. This limited commitment of
resources must be reflected in the DSU's description of its program
under paragraph (c)(2) of this section.
The Secretary agrees that it is appropriate to provide counseling
and guidance services under the expanded referral program.
Authorization of these services further distinguishes the expanded
program from the general information and referral functions performed
by the DSU for any individual with a disability. However, DSUs are not
expected to develop IWRPs for eligible individuals receiving expanded
information and referral services since these individuals do not meet
the DSU's criteria for receiving services under its order of selection
and, therefore, cannot receive the full range of services under section
103(a) of the Act to address their rehabilitation needs.
The Secretary believes that the term ``referral for job placement''
is self-explanatory. The expanded program authorizes DSUs to refer
individuals to various public and private placement agencies in the
community that may be able to assist the individual in obtaining
employment.
Although the proposed regulations had required DSUs to track the
results of its expanded information and referral program, the final
regulations make this a State option. For those DSUs that choose to
track and report on individuals who obtain employment following their
participation in the expanded information and referral program, the
final regulations require that the DSU report to RSA the number of
individuals served and the number who obtain employment. However, the
Secretary emphasizes that the number of individuals who are assisted,
in part, under the expanded information and referral program and who
subsequently obtain employment must be identified separately from those
individuals who receive full services under an IWRP and achieve an
employment outcome under the VR program. Individuals who obtain
employment following their receipt of limited counseling, guidance, and
referral services through the expanded program are not considered to
have achieved an employment outcome under Sec. 361.56 of the
regulations.
Changes: The Secretary has revised Sec. 361.37(c) to authorize
counseling and guidance services under the DSU's expanded information
and referral program. In addition, paragraph (c) of this section has
been amended to give the DSU the discretion to determine whether to
track the results of its expanded information and referral program.
Sec. 361.38 Protection, use, and release of personal information
Comments: One commenter questioned whether the regulations
authorize the release of personal information to the State
Rehabilitation Advisory Council for purposes of evaluating program
effectiveness and consumer satisfaction. Other commenters stated that
this section should permit applicants or eligible individuals to
examine, as well as receive copies of, the information in their record
of services.
Some commenters argued that determinations as to whether
information is harmful under paragraph (c)(2) of this section should be
made by objective third parties rather than DSUs. These commenters were
concerned that a conservative interpretation of the term ``harmful'' by
a State unit would result in limited access to important information.
Additional commenters requested that applicants and eligible
individuals be given unrestricted access to personal information
obtained by the DSU from other agencies and organizations. Other
commenters sought authorization in this section for the removal of
inaccurate or misleading information from the record of services.
Finally, some commenters requested clarification of the term ``judicial
officer'' in paragraph (e)(4) of this section, which is used in
connection with the release of information in response to a judicial
order.
Discussion: Paragraph (d) of this section authorizes the release of
personal information to entities that evaluate the VR program as long
as the evaluation is directly related to the
[[Page 6323]]
administration of the program or to the improvement of the quality of
life for applicants and eligible individuals. State Rehabilitation
Advisory Councils are responsible for evaluating the effectiveness of,
and consumer satisfaction with, the State agency and VR services.
Because the Council's evaluations are designed to facilitate
improvement in the administration of the VR program and in the
provision of VR services, personal information may be released to the
Council for purposes of carrying out its evaluative functions, provided
that the Council safeguards the confidentiality of the information
consistent with the requirements in paragraph (d).
The Secretary recognizes that, in some instances, an applicant or
eligible individual may need ready access to the information in his or
her case record, in addition to copies of the information. The proposed
regulations were not intended to foreclose the current regulatory
option that permits applicants and eligible individuals to examine the
information in their record of services.
The Secretary believes it would be unduly burdensome to require
that an objective third party rather than the DSU determine whether
information requested by an applicant or eligible individual is
``harmful'' to that individual. Moreover, the Secretary regards any
inconvenience resulting from the individual's inability to directly
receive ``harmful'' information as minimal since the relevant
information must still be provided to the individual, except that it
shall be provided through a third party chosen by the applicant or
eligible individual. The Secretary also notes that the individual's
right under paragraph (c)(2) of this section to choose the person to
whom harmful information is released supersedes any conflicting State
confidentiality policy developed under paragraph (a)(1) that designates
a specific individual to receive harmful information (e.g., medical
professional). Nevertheless, if a representative has been assigned by a
court to represent the applicant or eligible individual, the harmful
information must be released to the individual through the court-
appointed representative. This exception is particularly applicable if
the applicant or eligible individual is a minor or has limited
cognitive capacity.
The Secretary does not believe that there is a basis for requiring
that applicants and eligible individuals be given unrestricted access
to personal information obtained by the DSU from other agencies and
organizations. Release of information developed or compiled by another
agency or organization is subject to the conditions established by that
entity in accordance with paragraph (c)(3) of this section.
The Secretary recognizes that any applicant or eligible individual
would prefer that inaccurate or misleading information be removed from
the individual's record of services. On the other hand, the Secretary
also believes it would be unduly burdensome to impose, through these
regulations, costly and time-consuming due process procedures that
would enable an individual to legally challenge the accuracy of the
information in his or her file. It is within the discretion of the DSU
to determine the extent to which an individual may challenge the
information in that individual's record of services. However, the
Secretary believes, at a minimum, that applicants and eligible
individuals should be given an opportunity to question the accuracy of
the information in the individual's record of services and, if
unsuccessful in having the information removed, should be permitted to
include a statement in the record that identifies the information that
the individual considers to be inaccurate.
The Secretary emphasizes that DSUs are not authorized to release
personal information in response to a subpoena or other document issued
by a party to a dispute or an attorney. Release is authorized only if a
judge or other judicial officer orders the State unit to release the
information. The term ``judicial officer'' in the proposed regulations
was intended to mean any judge, magistrate, or other official who is
authorized to decide the merits of, and issue, a court order. The
Secretary has clarified this intention in the final regulations.
Changes: The Secretary has expanded paragraph (c)(1) of Sec. 361.38
to require that the DSU make the information in the record of services
available for inspection by the applicant or eligible individual. In
addition, paragraph (c)(2) has been amended to clarify that if a court
has appointed a representative to represent an applicant or eligible
individual, then any requested information that is considered harmful
to the individual shall be provided to the individual through the
court-appointed representative. The Secretary also has expanded
paragraph (c) to authorize applicants and eligible individuals to
request that misleading or inaccurate information in the individual's
record of services be amended and to have the request documented in the
individual's file. Finally, paragraph (e)(4) has been clarified to
require the release of information in response to an order issued by a
judge, magistrate, or other authorized judicial officer.
Sec. 361.41 Processing referrals and applications
Comments: Some commenters opposed the proposed requirement that the
DSU develop timelines for informing individuals referred to the DSU for
VR services of its application requirements and for gathering
information necessary to assess the individual's eligibility and
priority for services. While these commenters viewed the timeline
requirements as unduly burdensome, other commenters supported the
provision and emphasized the need for DSUs to respond timely to
individuals during the pre-application stage.
One commenter stated that authorized extensions of the 60-day time
period for determining eligibility should be limited in duration. Other
commenters stated that all individuals should be required to complete
the DSU's formal application form before the 60-day time period begins
to run. Finally, one commenter requested clarification as to whether
all individuals must provide information necessary to conduct an
assessment for determining eligibility and priority for services before
being considered ``to have submitted an application.''
Discussion: The Secretary believes that it is important to retain
in the final regulations the requirement that DSUs develop timelines
for making good faith efforts to inform individuals referred to the VR
program of the DSU's application requirements and to obtain information
needed to assess the individual's eligibility and priority for
services. The Secretary agrees with those commenters who indicated that
these timelines are necessary to ensure that there is no unreasonable
delay between the individual's referral and application for VR
services. Moreover, this requirement is unlikely to cause DSUs undue
burden since many States already have in place timelines for handling
referrals. However, the Secretary believes that the development of an
appropriate, good faith timeline for processing referrals is a matter
of State discretion and that it would be inappropriate to impose in the
final regulations a specific Federal time period for this purpose.
Section 102(a)(5)(A) authorizes extensions of the 60-day time
period for determining eligibility if (1) exceptional or unforeseen
circumstances arise or (2) an extended evaluation of the individual is
necessary, which may not exceed 18 months. The Secretary agrees,
[[Page 6324]]
however, that extensions due to exceptional or unforeseen circumstances
cannot be open-ended but must be limited to a specific time period that
is mutually agreed upon by the individual and the DSU.
The Secretary believes it would be unduly restrictive to require in
all instances that an individual with a disability complete the DSU's
application form before the DSU initiates an assessment for determining
eligibility and priority for services. This limitation would be
particularly burdensome for individuals in rural areas who may not have
ready access to a DSU application form. Although the regulations
require the DSU to make its application form widely available
throughout the State, the Secretary considers it inappropriate to
penalize individuals who are unable to secure an application. Thus, the
Secretary maintains that the 60-day time period for determining
eligibility begins once the individual (1) has either completed and
signed an agency application form or has otherwise requested services
and (2) has provided information necessary for the DSU to initiate the
assessment. Once an individual or the individual's representative, as
appropriate, requests services, it is expected that State units will
make good faith efforts to obtain the assessment information as quickly
as possible. The Secretary also notes that information needed to
initiate the assessment must be provided before the 60-day timeline
begins to run, whether the individual has completed an agency
application form or has otherwise requested services. Of course, it is
essential that the individual remain available during this period to
complete the assessment process.
Changes: The Secretary has amended Sec. 361.41 to require that
extensions of the 60-day time period for determining eligibility due to
exceptional or unforeseen circumstances be limited in duration and that
a specific time period be agreed to by the individual and the DSU. In
addition, the Secretary has revised this section to clarify that all
individuals who have requested VR services, whether through the
completion of an agency application or otherwise, shall be available to
complete the assessment before the individual is considered to have
submitted an application for VR services.
Sec. 361.42 Assessment for determining eligibility and priority for
services
Comments: With respect to the first eligibility criterion, several
commenters opposed the standard in the proposed regulations that
required qualified personnel ``licensed or certified in accordance with
State law and regulation'' to determine the existence of a physical or
mental impairment. The commenters further recommended that the
regulations permit DSU employees who meet requirements that are
``comparable'' to licensing or certification requirements to determine
the existence of obvious physical impairments.
Some commenters sought clarification under the second eligibility
criterion that an impairment that hinders an individual from
maintaining a job placement constitutes a ``substantial impediment to
employment.'' These commenters were concerned that the proposed
regulations appeared to limit ``substantial impediments to employment''
to impairments that prevent unemployed individuals from obtaining jobs.
Other commenters recommended that the term ``determine'' be
replaced by the statutory term ``demonstrate'' in paragraph (a)(2) of
this section, in connection with rebutting the presumption that an
individual who has a substantial impediment to employment can benefit
in terms of an employment outcome from VR services. Finally, one
commenter requested clarification as to whether individuals who qualify
for Social Security benefits are presumed eligible for VR services.
Several commenters recommended specific clarifying changes to some
of the examples following this section, whereas other commenters
opposed the use of examples under this section altogether.
Discussion: The Secretary believes that the personnel standard
proposed in connection with the first eligibility criterion is
consistent with the Act. The proposed standard was based on the
requirement in section 103(a)(1) of the Act, which states that the
assessment for determining an individual's eligibility and VR needs
must be conducted by qualified personnel. The Secretary interprets the
term ``qualified personnel'' under section 103(a)(1) of the Act to
refer to personnel who meet the DSU's personnel standards under
Sec. 361.18(c) of these final regulations (i.e., national or State-
approved certification, licensing, or registration requirements or, if
none of these requirements exist, other ``comparable requirements''
that apply to the profession in which the individual provides VR
services). Thus, a determination that an individual has a physical or
mental impairment, or meets any of the other eligibility criteria in
Sec. 361.42(a), must be made by personnel who meet existing licensure,
certification, or registration requirements applicable to their
profession. Moreover, because DSUs are required under Sec. 361.18(c) to
develop personnel standards based on existing certification or
licensure requirements, it is expected that DSU personnel who determine
the existence of impairments, including obvious physical impairments,
will be qualified within the meaning of the Act.
The Secretary agrees that an individual does not have to be
unemployed to have a ``substantial impediment to employment.'' A
``substantial impediment to employment,'' as defined in
Sec. 361.5(b)(44), includes any impairment that hinders the individual
from entering into, engaging in, or retaining employment consistent
with the individual's abilities and capabilities. Given that the
regulatory definition of the term ``substantial impediment to
employment'' clearly recognizes that currently employed individuals may
qualify for VR services for purposes of ``retaining'' their employment,
the Secretary does not believe it is necessary to revise the second
eligibility criterion in paragraph (a)(1)(ii) as the commenters
recommended.
Section 102(a)(4)(A) of the Act requires the DSU to presume that an
individual can benefit in terms of an employment outcome, unless the
DSU can ``demonstrate,'' based on clear and convincing evidence, that
the individual is incapable of benefitting in terms of an employment
outcome from VR services. The Secretary did not intend to weaken this
statutory presumption by using the term ``determine'' in place of the
term ``demonstrate'' in the proposed regulations and agrees that the
regulations should be changed to track the stronger statutory language.
In addition, the Secretary emphasizes that Social Security
beneficiaries are not automatically eligible to receive VR services,
but are presumed under section 102(a)(2) of the Act to meet only the
first two eligibility criteria under paragraph (a)(1) of this section
(i.e., the individual has a physical or mental impairment that
constitutes or results in a substantial impediment to employment).
Eligibility for services under the Social Security Act also means that
the individual is presumed to meet the first element in the definition
of ``individual with a severe disability'' under Sec. 361.5(b)(28). The
Secretary believes that these limited presumptions were clearly
reflected in the proposed regulations.
Although the Secretary believes that most of the examples in the
regulations represent useful guidance material, the Secretary agrees
that the examples
[[Page 6325]]
following this section of the proposed regulations, which had
identified six potential applications of the fourth eligibility
criterion (an individual requires VR services), should be removed from
the final regulations in light of the confusion expressed by commenters
and in recognition of the fact that eligibility determinations are
highly individualized. The commenters' confusion, the Secretary
believes, stems from the possibility that the application of the fourth
eligibility criterion may result in different outcomes for individuals
with disabilities who face apparently similar circumstances. By
removing these examples, the Secretary seeks to avoid causing similar
confusion on the part of individual counselors charged with making
individual eligibility determinations. Because the examples used
elsewhere in the regulations (e.g., permissible expenses under the
definitions of ``maintenance'' and ``transportation'') are
straightforward applications of clear issues and do not create similar
confusion among commenters, the Secretary believes that those examples
should be retained in the final regulations.
Changes: The Secretary has amended Sec. 361.42(a)(2) of this
section to require a ``demonstration,'' based on clear and convincing
evidence, that an individual is incapable of benefitting from VR
services in order for the DSU to overcome the presumption that an
individual can benefit from VR services. A technical change also has
been made to paragraph (a)(1)(iii) to identify more accurately the
third eligibility criterion as a ``presumption'' of benefit, not a
``determination'' of benefit. In addition, the Secretary has removed
from the final regulations the examples that had followed this section
in the proposed regulations of how an individual may or may not meet
the final eligibility criterion.
Sec. 361.43 Procedures for ineligibility determination
Comments: Several commenters stated that DSUs should be required,
in all instances, to inform individuals in writing of the DSU's
ineligibility determination. These commenters were concerned that the
proposed regulations authorized DSUs to inform individuals of
ineligibility determinations through an appropriate mode of
communication without a written record.
In addition, several commenters indicated that it is unduly
burdensome to require DSUs to review all ineligibility determinations
within 12 months. These commenters stated that the review of
ineligibility determinations should be limited to those determinations
that are based on a finding that the individual is incapable of
achieving an employment outcome. Other commenters asked that the
regulations specify additional bases for not reviewing ineligibility
determinations (e.g., that the individual's disability is rapidly
progressive or terminal).
Discussion: The proposed regulations incorrectly indicated that
DSUs have the option of providing ineligibility notices in writing or
through an appropriate mode of communication. The Secretary agrees
that, at a minimum, notice of an ineligibility determination and other
required information should be provided to the individual in writing
and supplemented, as necessary, by other appropriate modes of
communication in accordance with the individual's informed choice.
The Secretary agrees with the suggestion to modify the requirements
in paragraph (d) of this section governing the review of ineligibility
determinations in light of the views expressed by public commenters.
The proposed regulations required DSUs to review all ineligibility
determinations at least once within 12 months and to review annually
thereafter if requested by the individual determinations based on a
finding that the individual cannot achieve an employment outcome. In
order to reduce the process burden and associated costs on DSUs,
however, the Secretary believes that DSUs should be required to review
within 12 months, and annually thereafter if requested by the
individual, only those ineligibility determinations that are based on a
finding that the individual is incapable of achieving an employment
outcome. Moreover, an additional exception to this review requirement,
which is authorized under the current regulations, should be permitted
for situations in which the individual's medical condition is rapidly
progressive or terminal. The Secretary believes this narrower
interpretation of the review requirements is supported by sections
101(a)(9)(D) and 102(c) of the Act and notes that this position is
consistent with the current regulations in 34 CFR 361.35(d). The
Secretary also notes that the requirements of this section apply both
to ineligibility determinations following an extended evaluation and to
ineligibility determinations made after an individual has begun to
receive services under an IWRP.
Changes: The Secretary has revised Sec. 361.43 to specify that
notice of ineligibility determinations must be provided in writing and
must be supplemented, as necessary, by other appropriate modes of
communication consistent with the individual's informed choice. For
example, a DSU could meet these requirements by providing an
ineligibility notice in braille or large print form to an applicant who
has a visual impairment. In addition, the Secretary has revised this
section to require DSUs to review only ineligibility determinations
that are based on a finding that the individual is incapable of
achieving an employment outcome. The final regulations also clarify
that this review of ineligibility determinations need not be conducted
if the individual's medical condition is rapidly progressive or
terminal.
Sec. 361.44 Closure without eligibility determination
Comments: One commenter requested that this section be amended to
state that a DSU ``shall not close'' (rather than ``may not close'') an
applicant's case prior to making an eligibility determination in order
to clarify that the prohibition under this section is mandatory.
Discussion: The Secretary emphasizes that State units are
prohibited from closing an applicant's record of services prior to
making an eligibility determination unless certain circumstances are
evident (e.g., the applicant declines to participate in the assessment,
and the DSU has made a reasonable number of attempts to encourage the
applicant's participation). The Secretary interprets the phrase ``may
not close'' to signify a mandatory prohibition.
Changes: None.
Sec. 361.45 Development of the individualized written rehabilitation
program
Comments: Several commenters stated that the regulations should be
strengthened to ensure that the eligible individual's employment goal
is consistent with that individual's informed choice. In addition, some
commenters opposed requiring DSUs to develop timelines for the prompt
development of IWRPs, whereas other commenters supported the timeline
requirement as a necessary protection for eligible individuals.
Commenters also stated that the DSU should not be required to revise an
individual's IWRP to reflect minor changes to services that are already
identified in the IWRP.
Discussion: The Secretary agrees that the informed choice of the
individual, as well as the individual's strengths, priorities,
concerns, abilities, capabilities, and interests, should be considered
in determining the individual's employment goal. Addition
[[Page 6326]]
of the term ``informed choice'' to the list of factors to be considered
under paragraph (a) of this section is also consistent with the
consideration of informed choice in connection with the provision of
services under Sec. 361.48 and in connection with the achievement of an
employment outcome under Sec. 361.56.
The Secretary believes that the proposed requirement that DSUs
establish and implement timelines for the prompt development of IWRPs
should be retained in the final regulations. The Secretary agrees with
those commenters who indicated that these timelines are necessary to
guard against unreasonable delays in the development of the IWRP once
an individual is determined eligible for VR services. It should also be
noted that this section does not require DSUs to apply an arbitrary
time limit to the development of all IWRPs, as some commenters had
questioned. Instead, DSUs are required to develop general standards
that ensure the timely development of IWRPs as long as the standards
include timelines that take into account the specific needs of the
individual.
Changes in an individual's vocational goal, intermediate
objectives, or VR services must be documented through a revision in the
IWRP after obtaining the agreement and signature of the individual. The
Secretary believes that changing the reference from ``VR needs'' to
``VR services'' will help clarify this provision.
In addition, the Secretary agrees that minor changes to an
individual's program of services do not have to be recorded in a
revision to the IWRP. This means, for example, that a slight change in
the cost of a previously authorized VR service would not warrant a
revision to the IWRP. On the other hand, a substantive change to an
existing service (e.g., a change in service provider) or the addition
of a new service must be documented by a revision. Regardless of
whether a particular change to an individual's program necessitates a
revision to the IWRP, however, the Secretary expects that the DSU will
obtain the agreement of the individual before the change is
implemented.
Changes: The Secretary has revised Sec. 361.45 to clarify that the
informed choice of the individual must be considered in the development
of the IWRP and the identification of a vocational goal. The Secretary
also has amended this section to require the DSU to incorporate into
the IWRP any revisions necessary to reflect changes to the individual's
goal, objectives, or VR services and to obtain the individual's
agreement and signature to the revisions.
Sec. 361.46 Content of the IWRP
Comments: Some commenters on the proposed regulations questioned
certain required elements of the IWRP, contending they were
inconsistent with the Act and unnecessarily burdensome. Specifically,
several commenters questioned the basis for requiring that the long-
term vocational goal identified in the IWRP be ``specific.'' Similarly,
other commenters stated that intermediate rehabilitation objectives
need not be ``measurable.'' Additional commenters opposed requiring a
projected date for the achievement of the vocational goal. Several
commenters recommended that the record of the DSU's evaluations of
individual progress be removed from the IWRP and added to the record of
services under Sec. 361.47. Finally, some commenters opposed the
requirement that the individual be provided with information concerning
the availability and qualifications of alternative service providers.
Discussion: The Secretary believes that the long-term vocational
goal must be stated with some specificity in the IWRP in order for it
to be meaningful. The Secretary does not intend that the IWRP identify
the exact job that the individual intends to obtain, but expects, at a
minimum, that the vocational goal be described in terms of a particular
type of profession or occupation. For example, ``clerical work'' is a
sufficiently detailed vocational goal under this requirement, whereas a
vocational goal of ``supported employment'' or ``self-employment''
would be impermissibly vague.
The requirement in the proposed regulations that the intermediate
rehabilitation objectives must be ``measurable'' was misplaced and has
been eliminated from the final regulations. The use of this term was
based on the requirement in section 102(b)(1)(B)(vii) of the Act that
the DSU shall develop procedures for evaluating the individual's
progress toward meeting the intermediate rehabilitation objectives. The
final regulations also clarify that the progress of the individual in
satisfying the objectives must be measured periodically by the DSU, but
a record of the reviews and evaluations need not be included in the
IWRP. These reviews and evaluations, the Secretary agrees, should be
maintained as part of the individual's record of services under
Sec. 361.47, as some commenters suggested.
The Secretary does not expect DSUs to specify a date certain on
which an employment outcome shall be achieved. Thus, the term
``projected date'' for the achievement of the individual's vocational
goal in paragraph (a)(4) of this section in the proposed regulations
has been replaced by the term ``projected timeframe'' in the final
regulations. This provision is intended to ensure that the individual
understands how long the rehabilitation process is expected to take.
The Secretary believes that the requirement in this section
concerning the individual's description of how information was provided
about the availability and qualification of alternative service
providers should be removed from the final regulations since it is
duplicative of the choice requirements in Sec. 361.52. Section
361.52(b) specifies that the DSU shall provide the individual, or
assist the individual in acquiring, information necessary to make an
informed choice about VR services and service providers, including
information about the qualifications of potential service providers.
Changes: The Secretary has revised Sec. 361.46 by removing the term
``measurable'' from paragraph (a)(2). The Secretary also has replaced
the term ``projected date'' in paragraph (a)(4) of this section with
the term ``projected timeframe'' in connection with the achievement of
the individual's vocational goal. Additionally, the record of reviews
and evaluations of individual progress has been removed from paragraph
(a)(5) of this section as an IWRP requirement and relocated to
Sec. 361.47(h) as a record of services requirement. Finally, the
reference in the individual's statement to the availability and
qualifications of alternative service providers has been removed from
paragraph (a)(6).
Sec. 361.47 Record of services
Comments: None.
Discussion: In the proposed regulations, the Secretary proposed to
delete from the record of services a number of requirements that were
considered burdensome or were adequately addressed in other regulatory
provisions. In particular, several requirements that were duplicative
of IWRP content requirements in Sec. 361.46 were proposed for removal
from this section. For the same reason, the Secretary believes that
proposed Sec. 361.47(h) should be deleted from the final regulations.
This provision would have required documentation in the record of
services of the DSU's reasons for terminating services to an individual
and, if appropriate, documentation of the
[[Page 6327]]
DSU's basis for determining that the individual has achieved an
employment outcome under Sec. 361.56. The Secretary believes that
further reducing the paperwork burden on DSUs by removing proposed
Sec. 361.47(h) is appropriate given that this requirement is adequately
addressed by Sec. 361.46(a)(10).
However, in order to ensure that individuals in competitive
employment are compensated in accordance with the definition of
``competitive employment'' in Sec. 361.5(b)(10), the Secretary believes
that the record of services for those individuals must include
documentation that the individual is compensated at or above the
minimum wage and receives at least the customary wage and benefit level
paid to non-disabled persons performing similar work for the same
employer.
Changes: The Secretary has removed from Sec. 361.47 the
documentation requirements relating to the termination of services and
the achievement of an employment outcome and has added a cross-
reference in Sec. 361.46(a)(10) to Sec. 361.56 for additional
clarification. In addition, this section has been amended to require
that the DSU verify in the record of services that an individual with a
disability in competitive employment is compensated at or above the
minimum wage and that the individual's wage and level of benefits are
not less than that paid by the employer for the same or similar work
performed by non-disabled individuals. This new requirement is located
in paragraph (i) of this section.
Sec. 361.48 Scope of vocational rehabilitation services for
individuals with disabilities
Comments: Some commenters recommended that this section of the
final regulations identify assessment services, counseling and
guidance, and rehabilitation technology as mandatory services that the
DSU shall provide to all individuals in need of these services. Other
commenters opposed limiting counseling and guidance services authorized
under this section to ``vocational counseling and guidance.'' Two
commenters requested that the final regulations clarify that it is the
joint responsibility of the DSU and the individual to secure grant
assistance from sources other than VR program funds to pay for training
in institutions of higher education. Other commenters recommended that
language be added to paragraph (a)(13) of this section to ensure that
job search and placement services are not discontinued before an
individual achieves the employment outcome specified in the
individual's IWRP. One commenter opposed the requirement in paragraph
(b) that the State plan descriptions related to the provision of
rehabilitation technology and personal assistance services be provided
on an annual basis. Another commenter stated that the description of
the DSU's strategies for expanding the availability of personal
assistance services under Sec. 361.48(b)(3) of the proposed regulations
is unduly burdensome and is not required by the Act. Finally, several
commenters recommended that the final regulations require, consistent
with the Act, a description in the State plan of how assistive
technology devices are provided or worksite assessments are made as
part of the assessment for determining eligibility and VR needs of the
individual.
Discussion: Section 361.48, which implements section 103(a) of the
Act, authorizes specific vocational rehabilitation services necessary
to address the rehabilitation needs of individuals with disabilities.
These services must be included in each DSU's program of VR services
and, consistent with Sec. 361.45(a) and Sec. 361.46(a), must be
provided to an eligible individual if the service is needed to achieve
the intermediate rehabilitation objectives or vocational goal included
in the individual's IWRP. In addition, Sec. 361.42 requires DSUs to
conduct an assessment for determining eligibility and priority for
services for each applicant and to provide rehabilitation technology
devices and services during the assessment if needed to determine
eligibility. In light of these requirements, the Secretary does not
believe it is necessary to identify assessment services, counseling and
guidance, and rehabilitation technology as mandatory services under
this section of the regulations, as some commenters had recommended.
The commenters correctly noted that section 101(a)(8) of the Act
exempts these services from the required search for comparable service
and benefits. Regardless of whether a particular service is subject to
the comparable service and benefits requirements, however, the
regulations clearly require DSUs to conduct an assessment for
determining eligibility and priority for services for each applicant
and to ensure that each eligible individual receives needed VR services
in accordance with the individual's IWRP.
Those commenters who opposed changing the term ``counseling and
guidance'' to ``vocational counseling and guidance'' in the proposed
regulations were concerned that the change would limit the scope of
counseling and guidance currently provided under the program.
Specifically, the commenters were concerned that this term would
prohibit the provision of personal adjustment counseling and other
related counseling services currently provided by vocational
rehabilitation counselors--services that are necessary to address
issues confronted by individuals with disabilities seeking employment,
including issues associated with adjusting to environmental barriers,
medical issues, family and social issues, and other related issues that
are not considered ``vocational.'' However, the use of the term
``vocational counseling and guidance'' in the proposed regulations was
not intended to limit the scope of the counseling and guidance that an
individual may need in order to achieve a vocational goal. Rather, the
term ``vocational counseling and guidance'' was intended merely as a
means of distinguishing discrete, therapeutic counseling and guidance
services that are necessary for an individual to achieve an employment
outcome from the general supportive role that the VR counselor performs
throughout the rehabilitation process in connection with any service.
Discrete, therapeutic counseling and guidance services include personal
adjustment counseling, counseling that addresses medical, family, or
social issues, vocational counseling, and any other form of counseling
and guidance that is necessary for an individual with a disability to
achieve an employment outcome. The Secretary agrees that changing the
term ``vocational counseling and guidance'' to ``vocational
rehabilitation counseling and guidance'' in the final regulations, as
some commenters suggested, better reflects this broad interpretation.
Like the term used in the proposed regulations, this change does not
affect the general counseling and guidance relationship that exists
between the counselor and the individual during the entire
rehabilitation process.
The Secretary agrees that the DSU and the individual share a joint
responsibility to secure grant assistance from sources other than VR
program funds in order to pay for training in institutions of higher
education. This position is consistent with RSA's longstanding policy
relating to the requirement that available comparable services and
benefits be located and used before a DSU expends program funds to pay
for VR services. Under this policy, DSUs are responsible for
identifying providers of comparable services and benefits and for
assisting
[[Page 6328]]
eligible individuals in obtaining those resources. The individual, on
the other hand, is responsible for applying for appropriate comparable
services and benefits identified by the DSU. The Secretary believes
that this policy is equally applicable to the requirement in section
103(a)(3) of the Act that maximum efforts be made to secure alternative
sources to pay for training in institutions of higher education.
Accordingly, it is expected that DSUs will locate alternative funding
sources to support the cost of training in colleges and universities
and, to the extent necessary, assist eligible individuals in obtaining
this assistance. It is further expected that an individual in need of
training in a higher education institution will pursue and apply for
alternative funding sources identified by the DSU.
Commenters on Sec. 361.48(a)(13) of the proposed regulations were
concerned that DSUs could terminate job placement services anytime an
eligible individual obtains a job even if the job is inconsistent with
the vocational goal identified in the individual's IWRP. As a result,
these commenters recommended that this section specifically authorize
job search and placement assistance until the individual achieves an
employment outcome that is consistent with his or her abilities,
capabilities, interests, and informed choice. The Secretary believes,
however, that the commenters' concerns are fully addressed by
Sec. 361.56 of the regulations. That section contains the requirements
for determining whether an individual has achieved an employment
outcome, including the requirement in Sec. 361.56(b) that the
employment outcome be consistent with the individual's abilities,
capabilities, interests, and informed choice. Thus, termination of
services on the basis that the individual has achieved an employment
outcome is dependent, in part, upon whether the job placement is
appropriate for the individual in accordance with Sec. 361.56(b). If an
eligible individual receiving VR services is underemployed (i.e.,
placed in a job that is not consistent with the individual's abilities,
capabilities, interests, and informed choice), the DSU may not
discontinue services, including job search and placement assistance,
that the individual needs in order to achieve the vocational goal
specified in the individual's IWRP.
In an effort to further reduce the paperwork burden and associated
costs on DSUs, the Secretary has made two regulatory changes to
paragraph (b) of this section that were recommended by commenters on
the proposed regulations. First, the final regulations require the DSU
to submit descriptions related to the provision of rehabilitation
technology and personal assistance services triennially as part of its
new State plan. The proposed regulations would have required submission
of these descriptions annually as revisions to the State plan. Second,
the proposed State plan description of the DSU's strategies for
expanding the availability of personal assistance services has been
removed from the final regulations because it is not required by
statute and could be more appropriately addressed in a DSU's strategic
plan. Additionally, the Secretary has added to Sec. 361.48(b) of the
final regulations a requirement that the State plan describe how
assistive technology devices are provided or worksite assessments are
made as part of the assessment for determining eligibility and VR needs
of the individual. This State plan component, which is required under
section 101(a)(31) of the Act, was inadvertently omitted from the
proposed regulations.
Changes: The Secretary has revised Sec. 361.48 of the proposed
regulations by changing the term ``vocational counseling and guidance''
under paragraph (a)(3) of this section to ``vocational rehabilitation
counseling and guidance.'' The Secretary also has revised this section
by clarifying under paragraph (a)(6) that it is the joint
responsibility of the DSU and the individual to secure grant assistance
from other sources before using VR funds to pay for training in
institutions of higher education. In addition, the term ``annually''
has been removed from paragraph (b) of this section. The description in
the State plan regarding the DSU's strategies for expanding the
availability of personal assistance services that would have been
required under Sec. 361.48(b)(3) of the proposed regulations also has
been removed from the final regulations. Finally, the Secretary has
added to this section the requirement that the State plan describe the
manner in which assistive technology devices are provided or worksite
assessments are made as part of the assessment for determining
eligibility and VR needs of the individual.
Sec. 361.49 Scope of Vocational Rehabilitation Services for Groups of
Individuals With Disabilities
Comments: None.
Discussion: Because the final regulations limit Sec. 361.50 to
written policies that cover the nature and scope of services provided
to individuals under Sec. 361.48, the Secretary believes that the
requirement regarding written policies for services to groups properly
belongs in Sec. 361.49(b)(2) of the final regulations. This provision
is intended to ensure that if a DSU chooses to provide services to
groups under Sec. 361.49, then the DSU develops and maintains written
policies covering each service and the criteria under which each
service is provided.
Changes: The Secretary has revised Sec. 361.49 by relocating the
requirement regarding written policies for services to groups from
Sec. 361.50 of the proposed regulations to Sec. 361.49(b)(2).
Sec. 361.50 Written Policies Governing the Provision of Services for
Individuals With Disabilities
Comments: One commenter stated that it is inappropriate for this
section to require DSUs to develop written policies governing the
provision of VR services to groups since these services are not
included in the individual's IWRP. Several commenters recommended
requiring that the written policies developed under this section must
ensure that the provision of services to each individual is consistent
with the individual's informed choice. Finally, one commenter
questioned whether DSUs can prohibit verbal authorization for services
in all instances.
Discussion: The Secretary recognizes the inconsistency in requiring
the DSU to develop written policies that cover the scope of VR services
for groups under Sec. 361.49 and, at the same time, ensure that the
provision of services is based on the needs of the individual as
identified in the individual's IWRP. The commenter on the proposed
regulations who raised this issue correctly noted that group services
under Sec. 361.49 are not necessarily included in the IWRP to address a
rehabilitation need of the individual. The Secretary intends that the
policies developed under Sec. 361.50 will ensure that the provision of
services to any eligible individual will be based on that individual's
needs and that no arbitrary limits, including limits pertaining to the
location, cost, or duration of a particular service, will be placed on
an individual's receipt of VR services.
The Secretary agrees that the provision of VR services must be
consistent with the informed choice of the individual. This position is
clearly reflected in Sec. 361.48 of the regulations. Consequently, the
final regulations specify that the DSU's written policies developed
under Sec. 361.50 must ensure that the provision of VR services is
based on the individual's rehabilitation needs and is consistent with
the individual's informed choice.
[[Page 6329]]
Consistent with the proposed regulations, Sec. 361.50(d) of the
final regulations requires DSUs to establish policies related to the
timely authorization of services, including any conditions under which
it allows verbal authorization. Although the Secretary expects that, in
most instances, the DSU will provide written authorization of services
before or at the same time that the services are provided, the
Secretary agrees that DSUs should have the flexibility to determine the
circumstances under which verbal authorization for services is
permitted. The Secretary recognizes, however, that some States prohibit
verbal authorization under all circumstances. This provision is not
intended to infringe on this State prerogative and requires only that
the DSU specify the conditions, if any, under which verbal
authorization can be given.
Changes: The Secretary has amended Sec. 361.50 by clarifying that
this section applies only to the provision of services to individuals
with disabilities under Sec. 361.48. This section also has been
retitled to reflect this change. A corresponding requirement regarding
written policies for services to groups has been added to
Sec. 361.49(b) of the final regulations. In addition, the Secretary has
revised Sec. 361.50 to specify that the DSU's written policies must
ensure that the provision of services is consistent with the
individual's informed choice. Finally, paragraph (d) of this section
has been clarified to require that the DSU's policies regarding the
timely authorization of services identify any conditions under which
verbal authorization can be given.
Sec. 361.51 Written Standards for Facilities and Providers of Services
Comments: None.
Discussion: The Secretary believes it is necessary to revise the
requirements relating to qualified personnel in paragraph (b)(1) of
this section to reflect corresponding changes to the personnel
standards included in the State agency's comprehensive system of
personnel development under Sec. 361.18(c) of these regulations. A
change is necessary to clarify that individuals who provide VR services
shall meet existing national or State-approved certification,
licensing, or registration requirements that apply to the discipline in
which that rehabilitation professional provides VR services.
Individuals who meet ``comparable requirements,'' such as State
personnel requirements, developed by the DSU under Sec. 361.18(c) would
be authorized to provide VR services only if there are no existing
licensing, certification, or registration requirements applicable to
their particular profession. As stated in the analysis of comments on
Sec. 361.18(c), the Secretary believes that the Act precludes the use
of less rigorous ``comparable requirements'' in place of existing
national or statewide certification, licensing, or registration
requirements that apply to the discipline in which a rehabilitation
professional provides VR services.
Changes: The Secretary has revised Sec. 361.51(b) consistent with
Sec. 361.18(c) to clarify that individuals who provide VR services
shall meet applicable certification, licensing, or registration
requirements or, if none exist, other ``comparable requirements''
developed by the DSU under its comprehensive system of personnel
development.
Sec. 361.52 Opportunity To Make Informed Choices
Comments: Some commenters requested clarification of the meaning of
the term ``informed choice.'' Other commenters stated that the DSUs
should be required to inform individuals of their right to make
informed choices and to explain how informed choice may be exercised.
Additional commenters recommended requiring DSUs to provide through
appropriate modes of communication information that is necessary for an
individual to make an informed choice and to assist individuals with
cognitive disabilities in exercising choice.
Some commenters opposed the requirement that DSUs provide, or
assist individuals in obtaining, information related to the level of
consumer satisfaction with each service. These commenters stated that
information pertaining to consumer satisfaction may not be available to
the DSU in all instances. In addition, several commenters questioned
whether the sources of information specified in paragraph (c) of this
section must be used by DSUs to ensure that individuals have sufficient
information to make informed choices.
Discussion: ``Informed choice'' is a decisionmaking process in
which the individual analyzes relevant information and selects, with
the assistance of the rehabilitation counselor or coordinator, a
vocational goal, intermediate rehabilitation objectives, VR services,
and VR service providers. Accordingly, this section of the regulations
requires each DSU, in consultation with its Council if it has one, to
develop its own policies and procedures that enable individuals with
disabilities to make informed choices throughout their participation in
the VR program. In addition, the regulations identify minimum types of
information that must be provided to the individual by the DSU or
through the DSU's assistance in connection with the development of the
IWRP (e.g., information pertaining to cost, accessibility, and duration
of services, qualifications of service providers, and degree of
integration associated with a service). Beyond these limited
informational requirements, the Secretary believes it would be
inappropriate to impose, through these regulations, an across-the-board
definition of ``informed choice,'' as some commenters suggested. It is
within the discretion of the DSU to develop appropriate policies that
facilitate access to, at a minimum, the types of information specified
in the regulations and that enable each individual to make informed
choices.
However, the Secretary agrees that individuals must be
appropriately informed of their opportunity to make informed choices
throughout the rehabilitation process and that requirements should be
added to the final regulations that are designed to ensure that
individuals are aware of their right to make an informed choice about
their vocational goal, rehabilitation objectives, services, and service
providers and that they understand how to exercise that right. In
addition, the Secretary believes that requiring DSUs to apprise
eligible individuals of their statutory right to informed choice is an
essential protection for individuals with disabilities that
significantly outweighs any additional burden associated with the
information requirements in this section.
The Secretary recognizes that, in some instances, DSUs may not have
access to information regarding the level of consumer satisfaction with
a particular service and that DSUs should be required to provide, or
assist the individual in acquiring, this information to the extent that
it is available.
In addition, the Secretary emphasizes that the information sources
and methods of obtaining information identified in paragraph (c) of
this section are intended to serve only as examples. A DSU can assist
individuals in making informed choices by using the identified methods
(e.g., referring individuals to local consumer groups or disability
advisory councils), by providing the listed sources of information
(e.g., State or regional lists of services and services providers), or
by using other methods or information sources that it considers
appropriate.
Changes: The Secretary has revised Sec. 361.52(a) to require DSUs
to develop
[[Page 6330]]
policies that ensure that each individual receives, through appropriate
modes of communication, information concerning the availability and
scope of informed choice, the manner in which informed choice may be
exercised, and, consistent with section 12(e)(2)(F) of the Act, the
availability of support services for individuals with cognitive or
other disabilities who require assistance in exercising informed
choice. In addition, the Secretary has clarified in paragraph (b) that
the DSU shall provide the individual, or assist the individual in
acquiring, information regarding consumer satisfaction with relevant
services to the extent that that information is available.
Sec. 361.53 Availability of Comparable Services and Benefits
Comments: Several commenters requested clarification of the
proposed requirement that comparable services and benefits must be
available within a reasonable period of time. Other commenters sought
clarification of proposed paragraph (b) of this section, which
identifies those services for which a DSU is not required to determine
whether comparable services and benefits are available. Some commenters
recommended that the regulations direct DSUs to provide the services
specified in paragraph (b) in all instances. Other commenters asked
whether a DSU, although not required, has the discretion to search for
and use comparable services and benefits in connection with the
provision of the services identified in paragraph (b).
Discussion: The proposed regulations required DSUs to use
comparable services and benefits for all non-exempt services if
available to the eligible individual within a reasonable period of time
so that the intermediate rehabilitation objectives in the individual's
IWRP can be met. The proposed regulations were intended to require DSUs
to determine what constitutes a reasonable period of time on a case-by-
case basis according to the services and rehabilitation objectives
identified in each individual's IWRP. However, in light of the
confusion expressed by commenters about both this section of the
regulations and the proposed definition of ``comparable services and
benefits, the Secretary believes that requiring comparable services and
benefits to be available at the time that the service is needed to
accomplish the rehabilitation objectives in the individual's IWRP
represents a clearer standard for DSUs to follow.
The proposed regulations also were intended to exempt specific
services from the comparable services and benefits requirement
consistent with section 101(a)(8) of the Act. The statute requires DSUs
to provide certain services (e.g., rehabilitation technology) as
mandatory services without determining the availability of comparable
services and benefits as is required for the remaining VR services. The
Secretary agrees that the statement in proposed paragraph (b) of this
section that a comparable services and benefits determination ``is not
required'' prior to the provision of the services identified in section
101(a)(8) of the statute is unclear and that the final regulations
should clarify that the exempted services are not subject to a prior
comparable services and benefits determination, i.e., the DSU has the
affirmative responsibility to provide these services without
determining the availability of alternative funding sources.
Nevertheless, the Secretary agrees that, if an exempted service such as
an assistive technology device is known to be readily available from an
alternative source at the time the service is needed to accomplish a
rehabilitation objective in the individual's IWRP, it is prudent for
the DSU to use those sources in order to conserve funds provided under
this program. The Secretary notes, however, that projects supported by
the Technology-Related Assistance for Individuals with Disabilities Act
of 1988 (Tech Act) are not alternative sources to the VR program for
purposes of providing rehabilitation technology. Tech Act projects are
designed to assist States in developing and implementing effective
systems for securing from other programs technology-related assistance
for individuals with disabilities. These projects do not provide actual
assistive technology devices or services to individuals.
Changes: The Secretary has revised paragraph (a)(2) of Sec. 361.53
to require DSUs to use comparable services and benefits that are
available to the individual at the time the services are needed to
achieve the rehabilitation objectives in the individual's IWRP. This
change is consistent with the changes made to the proposed definition
of ``comparable services and benefits'' discussed previously in the
preamble analysis of comments under Sec. 361.5(b). In addition, the
Secretary has revised this section to clarify that the services listed
in paragraph (b) are exempt from a determination of the availability of
comparable services and benefits.
Sec. 361.54 Participation of Individuals in Cost of Services Based on
Financial Need
Comments: None.
Discussion: The Secretary believes it is necessary to clarify that
State policies governing individual participation levels in the cost of
VR services must take into consideration the disability-related
expenses born by an individual when determining the individual's
financial need. Although the Secretary presumes that DSUs already
consider the individual's disability-related expenses when determining
financial need, the Secretary seeks to emphasize the importance of
disability-related expenses given the significant impact that they may
have on an individual's ability to contribute to the cost of VR
services.
Changes: The Secretary has revised Sec. 361.54 by requiring in
paragraph (b)(2)(v)(C) that an individual's disability-related expenses
be considered in determining the extent to which an individual shall
contribute toward the cost of VR services.
Sec. 361.55 Review of extended employment in community rehabilitation
programs or other employment under section 14(c) of the Fair Labor
Standards Act
Comments: Some commenters requested that DSUs be permitted to limit
the number of annual reviews of individuals in extended employment that
DSUs are required to conduct. In addition, some commenters requested
that the regulations specify that the annual review requirement in this
section applies to individuals in supported employment who earn less
than the minimum wage.
Discussion: Section 101(a)(16) of the Act requires DSUs to review
annually the status of each eligible individual in extended employment
in order to determine the individual's needs and interests related to
competitive employment. The Act does not provide for any exceptions to
this annual review requirement. Thus, the Secretary interprets section
101(a)(16) of the Act to prohibit DSUs from discontinuing annual
reviews of individuals who remain in extended employment for extensive
periods. This position represents a modification to the policy in the
RSA Manual, which had permitted States to place limitations on the
number of annual reviews of those in extended employment. Given the
expanded scope of competitive employment, supported employment, and
other integrated employment opportunities that may become available
[[Page 6331]]
to individuals in extended employment in future years, the Secretary
believes that discontinuing annual reviews would be inconsistent with
the emphasis that the statute places on competitive and integrated
employment.
In addition to conducting reviews of individuals in extended
employment, section 101(a)(16) of the Act requires DSUs to review
annually the job status of individuals employed in ``other employment
settings'' in which the individual is compensated under section 14(c)
of the FLSA. This review requirement applies to any eligible individual
employed in an integrated setting who earns below the minimum wage,
including individuals in supported employment settings who are unable
to earn the minimum wage at the time of transition to extended
services. In each case, the DSU is required to review the individual's
employment status and determine his or her needs and interests in
becoming competitively employed.
Changes: None.
Sec. 361.56 Individuals determined to have achieved an employment
outcome
Comments: Several commenters responded to the Secretary's request
in the NPRM for comments on the potential effect of the proposed time
standard for maintaining a job placement in order to achieve an
employment outcome. Many of the commenters questioned the proposed
standard--the duration of the employers's probationary period or 90
days if the employer does not have an established probationary period--
by stating that reliance on employer probationary periods would be too
burdensome for DSUs to administer or would not ensure job stability in
instances in which the probationary period is very short (e.g., two
weeks). Some commenters supported the proposed standard, while others
suggested that the regulatory time period be 90 days or the employer's
probationary period, whichever is longer. However, a large majority of
the commenters recommended that the regulations establish a uniform
time period applicable to all job placements. Some commenters suggested
retaining the 60-day time period required under the current
regulations, whereas other commenters recommended that the current
standard be increased to 90 or 180 days.
Discussion: The requirement in the proposed regulations that an
individual maintain a job placement for the employer's probationary
period or, if the employer does not have a probationary period, for at
least 90 days was intended to better reflect whether an individual has
successfully achieved an employment outcome. Like many of the
commenters on the proposed regulations, the Secretary believes that the
60-day standard under the current regulations is too short a period to
determine whether the individual will be able to successfully maintain
the job placement over time. The proposed regulations were designed
both to strengthen the existing standard and to base the decision that
an individual has achieved an employment outcome, in part, on the
individual's ability to satisfy the requirements imposed by the
employer on any employee. If the employer did not have a probationary
period in place, the 90-day period was considered an adequate safeguard
to ensure that the individual is performing well and is likely to
maintain the employment outcome.
Nevertheless, the Secretary understands the concerns of many
commenters that the proposed standard may cause DSUs to avoid placing
individuals with employers who have lengthy probationary periods,
thereby shrinking the pool of potential job placements, or may be
inconsistent with the informed choice of an individual who seeks to
cease contact with the DSU prior to the end of the relevant
probationary period. In addition, it is clear that most commenters
prefer a fixed time period that applies equally to each individual who
receives VR services. At the same time, however, the Secretary
recognizes that in some instances 90 days may be too short a period to
ensure job stability. For these reasons, the final regulations contain
a uniform, minimum 90-day standard that applies to all individuals who
obtain employment under the VR program. This uniform standard, the
Secretary expects, enables DSU staff to conserve time and work more
efficiently than would be possible under an individual employer-based
standard and also affords DSUs the flexibility to increase the 90-day
minimum time period whenever circumstances warrant. For example, a DSU
may decide to extend the period to conform to an employer's longer
probationary period if at the end of 90 days it is uncertain whether
the individual will be able to successfully satisfy the probationary
period without DSU support. Similarly, a DSU should extend the job-
retention period if requested by the individual. The Secretary also
emphasizes that paragraph (e) precludes DSUs from ceasing contact with
an individual who obtains employment unless at the end of the
appropriate retention period (90 days or longer), the individual and
the rehabilitation counselor or coordinator consider the employment
outcome satisfactory and agree that the individual is performing well
on the job.
Additional safeguards that were specified in the proposed
regulations also are retained in the final regulations, including the
requirement that the employment outcome be consistent with the
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice of the individual and that the
employment outcome be located in the most integrated setting possible.
Changes: The Secretary has revised Sec. 361.56 to require in all
instances that an individual shall maintain employment for a period of
at least 90 days in order to be considered to have achieved an
employment outcome.
Sec. 361.57 Review of rehabilitation counselor and coordinator
determinations
Comments: One commenter requested that the prohibition in paragraph
(b)(2) of this section against suspending services being provided under
an IWRP pending resolution of a dispute be broadened to cover
assessment services. Another commenter stated that this prohibition
should apply to any service identified in an IWRP, including those
services that the individual has yet to receive.
Two commenters stated that State policies used as a basis for an
impartial hearing officer's decision under paragraph (b)(4) of this
section, or for a DSU director's decision under paragraph (b)(9) of
this section, must be consistent with Federal requirements. Other
commenters recommended that paragraph (b)(7) of this section identify
specific Federal standards of review for determining whether a DSU can
review the decision of a hearing officer. In addition, one commenter
stated that, anytime the DSU director reverses the decision of an
impartial hearing officer, the director should be required to inform
the individual of the statutory, regulatory, or policy basis for the
reversal.
Several commenters opposed the removal of the current regulatory
timelines governing key stages of the review process. These commenters
asserted that the timelines in the current regulations represent
essential protections for individuals with disabilities and are
critical to the timeliness of appeal procedures. These commenters also
stated that the current timelines are reasonable, do not pose
significant difficulties for DSUs, and are necessary to ensure that
issues related to
[[Page 6332]]
the provision of VR services are resolved in a timely fashion.
Finally, some commenters recommended that the regulations require
DSUs to inform individuals at each stage of the rehabilitation process
of their right to appeal a counselor's determination.
Discussion: The Secretary believes that it is necessary to clarify
in the final regulations that time extensions for informally resolving
an individual's appeal of a counselor's determination under paragraph
(a) of this section must be agreed to by both parties and must be
specific in length. This change is necessary to ensure the timely
resolution of disputes through formal review procedures.
Section 102(d)(5) of the Act, which is implemented by paragraph
(b)(2) of this section, states that the DSU may not institute a
suspension, reduction, or termination of services being provided under
the individual's IWRP pending final resolution of an individual's
challenge to a determination of a rehabilitation counselor unless the
individual so requests or the services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of
the individual. This statutory prohibition does not apply to assessment
or other services that are not included in the IWRP. Similarly, the
statutory reference to services ``being provided under the IWRP'' means
that the DSU is prohibited from suspending only those services in the
IWRP that the individual has begun to receive prior to requesting a
review of a counselor's determination. However, the Secretary notes
that the DSU cannot discontinue a service during a regular interruption
in that service (e.g., between semesters at an institution of higher
education in which training is provided) as long as the service is
included in the IWRP and has been initiated.
The Secretary agrees that any State policy used as a basis for an
impartial hearing officer's decision under paragraph (b)(4) of this
section or for a modification of that decision by the director of the
DSU under paragraph (b)(9) of this section must be consistent with
Federal statutory and regulatory requirements.
Section 361.57(b)(7) of the proposed and final regulations requires
that any decision by a DSU director to review the decision of an
impartial hearing officer must be based on standards of review
established under written State policy. Although DSUs have the
discretion to establish appropriate standards of review, the Secretary
intends that standards developed under paragraph (b)(7) of this section
be consistent with RSA policy, specifically Chapter 0545 of the
Rehabilitation Services Manual (Clients'' Rights to Appeal Decisions),
which specifies a number of fundamental issues that should be addressed
in connection with determining whether to review a hearing officer's
decision (e.g., Is the initial decision arbitrary, capricious, an abuse
of discretion or otherwise unreasonable? Is the initial decision
consistent with the facts of the case and applicable Federal and State
policies?).
Section 361.57(b)(10) of the proposed regulations provided that if
the DSU director decided to review the decision of an impartial hearing
officer, the director would provide to the individual a full report of
the director's final decision and of the findings and grounds for the
decision. The Secretary intended the term ``grounds'' to include any
applicable law or policy on which the decision was based and believes
that changing that term in the final regulations to ``statutory,
regulatory, and policy grounds'' will clarify this intention. As stated
previously, any State policy that is used to support the director's
decision must be consistent with Federal statutory and regulatory
requirements.
The proposed regulations would have afforded DSUs the discretion to
develop timelines for the prompt handling of appeals instead of
specifying Federal timelines for certain stages of the appeals process.
However, there was near-unanimity among commenters in opposing this
change from current regulations. The commenters stressed the importance
of protecting individuals from delays in the resolution of issues
affecting an individual's receipt of VR services and vigorously
asserted that Federal timelines are the best means of ensuring that
State appeal procedures are conducted in a timely fashion.
For the reasons stated by the commenters, the Secretary agrees that
the current regulatory timelines should be retained in the final
regulations. State units have not indicated that the Federal timelines
are unreasonable or unnecessarily burdensome. Moreover, commenters on
the proposed regulations indicated that a number of DSUs have failed to
meet the current timelines in the past. In light of these comments, the
Secretary believes that at this time affording DSUs the additional
flexibility to develop their own timelines for handling appeals is
neither warranted nor appropriate and that retaining the current
timelines does not impose additional costs on DSUs.
Finally, the Secretary agrees that individuals must be informed of
their appeal rights during key stages of the rehabilitation process.
Section 361.46 (a)(8) and (a)(9) requires that these rights, as well as
the availability of representation through the Client Assistance
Program (CAP) under 34 CFR part 370, be clearly delineated in the IWRP.
Moreover, Sec. 361.43(c) requires DSUs to provide individuals with
information concerning the CAP whenever an individual is found
ineligible to receive VR services. The Secretary believes that these
provisions sufficiently ensure that individuals are apprised of their
right to challenge any determination made by a counselor regarding the
provision or denial of services.
Changes: The Secretary has revised Sec. 361.57 to clarify that time
extensions for informally resolving an individual's request for review
of a counselor's determination under paragraph (a) must be specific and
agreed upon by both parties. In addition, paragraphs (b)(4) and (b)(9)
of this section have been revised to clarify that any State policy on
which the decision of an impartial hearing officer or DSU director is
based must be consistent with applicable Federal requirements.
Paragraph (b)(10) of this section also has been amended to clarify that
the director's decision and corresponding report must specify the
statutory, regulatory, or policy grounds for the decision. Finally, the
Secretary also has revised this section by applying specific timelines
to certain stages of the appeals process. Like the current regulations,
the final regulations require that an impartial hearing officer conduct
a formal hearing within 45 days of an individual's request for review;
that the hearing officer render a decision within 30 days of the
completion of the hearing; and that the DSU director issue a final
decision within 30 days of notifying the individual of the director's
intent to review the initial decision. The requirement that the
individual be notified of the director's intent to review the initial
decision within 20 days of its issuance is specified in the Act and is
implemented by Sec. 361.57(b)(5) of the regulations. Because the
current regulatory timelines have been reinserted into this section of
the final regulations, the Secretary has removed from the final
regulations the requirement under paragraph (c) of the proposed
regulations that the DSU develop timelines applicable to these stages
of the review process.
Sec. 361.60 Matching Requirements
Comments: Two commenters opposed the prohibition in this section
against using third party in-kind contributions to meet the non-Federal
share under the
[[Page 6333]]
VR program. Another commenter expressed concern about the impact of
this prohibition on the use, as non-Federal match, of funds provided by
other public agencies under third-party cooperative arrangements.
Discussion: ``Third party in-kind contributions,'' which are a
permissible source of State matching funds under the Education
Department General Administrative Regulations (EDGAR), are defined in
34 CFR 80.3 as ``property or services which benefit a federally
assisted project or program and which are contributed by non-Federal
third parties without charge to the grantee. * * *'' However, it is
RSA's policy to not allow the use of third-party in-kind contributions
to meet the State matching requirement under the VR program in the
absence of specific statutory authority. Where the Act permits the use
of in-kind expenditures as match for certain programs, that authority
is expressed (e.g., the State Independent Living Program under section
712(b)(2) of the Act). Thus, Sec. 361.60(b)(2) specifies that these
contributions may not be used as part of the DSU's non-Federal share
under the program. This provision is consistent with the definition of
``State and local funds'' under Sec. 361.76 of the current regulations
and with the current regulatory prohibition on the use of in-kind
contributions as match in Sec. 361.24(c).
Nevertheless, this prohibition has no effect on a DSU's ability to
enter into third-party cooperative arrangements under Sec. 361.28 of
the regulations for providing VR services with another public agency
that is furnishing part or all of the non-Federal share under the
program. As long as the third party is contributing funds to support VR
services, those dollars may be used as part of the DSU's non-Federal
share (e.g., staff salaries paid by the third party that are allowable
matching expenditures). If, on the other hand, the DSU enters into an
arrangement under which a third party provides equipment or property
used in the administration of the VR program, the costs associated with
those items cannot be used as non-Federal matching funds.
Changes: None.
Sec. 361.62 Maintenance of Effort Requirements
Comments: One commenter suggested that recoveries of State
maintenance of effort deficits should always be deducted from the
State's allotment in a future fiscal year.
Discussion: Section 111(a)(2)(B)(ii) of the Act, which is
implemented by Sec. 361.62(a)(1) of the regulations, requires the
Department to recover maintenance of effort deficits through a
deduction in the State's allotment for the following Federal fiscal
year. However, there is no statutory authority to deduct an allotment
other than in the year immediately following a maintenance of effort
shortfall. Thus, Sec. 361.62(a)(2) of the regulations specifies that
when a maintenance of effort deficit is discovered too late to adjust
the allotment for the following year, then the deficit will be
recovered through an audit disallowance.
Changes: None.
Sec. 361.71 Procedures for Developing the Strategic Plan
Comments: Two commenters recommended that the DSU be required to
consult the State Client Assistance Program prior to developing its
strategic plan. Other commenters recommended that DSUs be required only
to review rather than to revise the strategic plan on an annual basis
under paragraph (c) of this section.
Discussion: Section 122(b) of the Act specifies that, prior to
developing the strategic plan, the DSU shall hold public forums and
solicit recommendations specifically from the State Rehabilitation
Advisory Council and the Statewide Independent Living Council. The
Secretary agrees that the views of the CAP also should be considered in
connection with the development of the strategic plan. The public
participation requirements in Sec. 361.71(a) afford the CAP and other
interested parties the opportunity to provide the DSU with its comments
and recommendations. The annual revision requirement under paragraph
(c) of this section is based on section 122(a) of the Act, which states
that the strategic plan must be updated on an annual basis to reflect
actual experience over the previous year and input from the Council and
other interested parties. The Secretary believes that merely requiring
an annual review would be inconsistent with this statutory requirement.
Changes: None.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information unless it displays a valid
OMB control number. The valid OMB control number assigned to the
collections of information in these final regulations is displayed at
the end of the affected sections of the regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the notice of proposed rulemaking, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the proposed regulations and on its own
review, the Department has determined that the regulations in this
document do not require transmission of information that is being
gathered by or is available from any other agency or authority of the
United States.
List of Subjects
34 CFR Part 361
Reporting and recordkeeping requirements, State-administered grant
program--education, Vocational rehabilitation.
34 CFR Part 363
State-administered grant program--education, Supported employment.
34 CFR Part 376
Special projects and demonstrations, Transitional rehabilitation
services.
34 CFR Part 380
Special projects and demonstrations, Supported employment,
Technical assistance.
Dated: December 1, 1996.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Numbers: 84.126 The State
Vocational Rehabilitation Services Program; 84.187 The State
Supported Employment Services Program; 84.235 Special Projects and
Demonstrations for Providing Transitional Rehabilitation Services to
Youth with Disabilities; 84.128 Special Projects and Demonstrations
for Providing Supported Employment Services to Individuals with the
Most Severe Disabilities and Technical Assistance Projects)
The Secretary amends Title 34, Chapter III, of the Code of Federal
Regulations as follows:
1. Part 361 is revised to read as follows:
[[Page 6334]]
PART 361--THE STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
Subpart A--General
Sec.
361.1 Purpose.
361.2 Eligibility for a grant.
361.3 Authorized activities.
361.4 Applicable regulations.
361.5 Applicable definitions.
Subpart B--State Plan for Vocational Rehabilitation Services
361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.
State Plan Content: Administration
361.12 Methods of administration.
361.13 State agency for administration.
361.14 Substitute State agency.
361.15 Local administration.
361.16 Establishment of an independent commission or a State
Rehabilitation Advisory Council.
361.17 Requirements for a State Rehabilitation Advisory Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 State plan development.
361.21 Consultations regarding the administration of the State
plan.
361.22 Cooperation with agencies responsible for students with
disabilities.
361.23 Cooperation with other public agencies.
361.24 Coordination with the Statewide Independent Living Council.
361.25 Statewideness.
361.26 Waiver of statewideness.
361.27 Shared funding and administration of joint programs.
361.28 Third-party cooperative arrangements involving funds from
other public agencies.
361.29 Statewide studies and evaluations
361.30 Services to special groups of individuals with disabilities.
361.31 Utilization of community resources.
361.32 Utilization of profitmaking organizations for on-the-job
training in connection with selected projects.
361.33 Use, assessment, and support of community rehabilitation
programs.
361.34 Supported employment plan.
361.35 Strategic plan.
361.36 Ability to serve all eligible individuals; order of
selection for services
361.37 Establishment and maintenance of information and referral
programs.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports.
State Plan Content: Provision and Scope of Services
361.41 Processing referrals and applications.
361.42 Assessment for determining eligibility and priority for
services.
361.43 Procedures for ineligibility determination.
361.44 Closure without eligibility determination.
361.45 Development of the individualized written rehabilitation
program.
361.46 Content of the individualized written rehabilitation
program.
361.47 Record of services.
361.48 Scope of vocational rehabilitation services for individuals
with disabilities.
361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
361.50 Written policies governing the provision of services for
individuals with disabilities.
361.51 Written standards for facilities and providers of services.
361.52 Opportunity to make informed choices.
361.53 Availability of comparable services and benefits.
361.54 Participation of individuals in cost of services based on
financial need.
361.55 Review of extended employment in community rehabilitation
programs or other employment under section 14(c) of the Fair Labor
Standards Act.
361.56 Individuals determined to have achieved an employment
outcome.
361.57 Review of rehabilitation counselor or coordinator
determinations.
Subpart C--Financing of State Vocational Rehabilitation Programs
361.60 Matching requirements.
361.61 Limitation on use of funds for construction expenditures.
361.62 Maintenance of effort requirements.
361.63 Program income.
361.64 Obligation of Federal funds and program income.
361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
Subpart D--Strategic Plan for Innovation and Expansion of Vocational
Rehabilitation Services
361.70 Purpose of the strategic plan.
361.71 Procedures for developing the strategic plan.
361.72 Content of the strategic plan.
361.73 Use of funds.
361.74 Allotment of Federal funds.
Authority: 29 U.S.C. 711(c), unless otherwise noted.
Subpart A--General
Sec. 361.1 Purpose.
Under the State Vocational Rehabilitation Services Program
(program), the Secretary provides grants to assist States in operating
a comprehensive, coordinated, effective, efficient, and accountable
program that is designed to assess, plan, develop, and provide
vocational rehabilitation services for individuals with disabilities,
consistent with their strengths, resources, priorities, concerns,
abilities, capabilities, and informed choice, so that they may prepare
for and engage in gainful employment.
(Authority: Sec. 12(c) and 100(a)(2) of the Act; 29 U.S.C. 711(c)
and 720(a)(2))
Sec. 361.2 Eligibility for a grant.
Any State that submits to the Secretary a State plan that meets the
requirements of section 101(a) of the Act and this part is eligible for
a grant under this program.
(Authority: Sec. 101(a) of the Act; 29 U.S.C. 721(a))
Sec. 361.3 Authorized activities.
The Secretary makes payments to a State to assist in--
(a) The costs of providing vocational rehabilitation services under
the State plan;
(b) Administrative costs under the State plan; and
(c) The costs of developing and implementing the strategic plan.
(Authority: Sec. 111(a)(1) of the Act; 29 U.S.C. 731(a)(1))
Sec. 361.4 Applicable regulations.
The following regulations apply to this program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 74 (Administration of Grants to Institutions of
Higher Education, Hospitals, and Nonprofit Organizations), with respect
to subgrants to entities that are not State or local governments or
Indian tribal organizations.
(2) 34 CFR part 76 (State-Administered Programs).
(3) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(4) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(5) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments), except for
Sec. 80.24(a)(2).
(6) 34 CFR part 81 (General Education Provisions Act-Enforcement).
(7) 34 CFR part 82 (New Restrictions on Lobbying).
(8) 34 CFR part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants)).
(9) 34 CFR part 86 (Drug-Free Schools and Campuses).
(b) The regulations in this part 361.
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
[[Page 6335]]
Sec. 361.5 Applicable definitions.
(a) Definitions in EDGAR. The following terms used in this part are
defined in 34 CFR 77.1:
Department
EDGAR
Fiscal year
Nonprofit
Private
Public
Secretary
(b) Other definitions. The following definitions also apply to this
part:
(1) Act means the Rehabilitation Act of 1973 (29 U.S.C. 701 et
seq.), as amended.
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(2) Administrative costs under the State plan means expenditures
incurred in the performance of administrative functions under the
vocational rehabilitation program. Administrative costs include
expenses related to program planning, development, monitoring, and
evaluation, including, but not limited to, quality assurance;
budgeting, accounting, financial management, information systems, and
related data processing; providing information about the program to the
public; technical assistance to other State agencies, private nonprofit
organizations, and businesses and industries, except for technical
assistance and support services described in Sec. 361.49(a)(4); the
State Rehabilitation Advisory Council and other advisory committees;
professional organization membership dues for State unit employees; the
removal of architectural barriers in State vocational rehabilitation
agency offices and State-operated rehabilitation facilities; operating
and maintaining State unit facilities, equipment, and grounds;
supplies; administration of the comprehensive system of personnel
development, including personnel administration, administration of
affirmative action plans, and training and staff development;
administrative salaries, including clerical and other support staff
salaries, in support of these functions; travel costs related to
carrying out the program, other than travel costs related to the
provision of services; costs incurred in conducting reviews of
rehabilitation counselor or coordinator determinations under
Sec. 361.57; and legal expenses required in the administration of the
program.
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(3) American Indian means an individual who is a member of an
Indian tribe.
(Authority: Sec. 7(20) of the Act; 29 U.S.C. 706(20))
(4) Applicant means an individual who submits an application for
vocational rehabilitation services in accordance with
Sec. 361.41(b)(2).
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(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: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(6) Assistive technology device means any item, piece of equipment,
or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve
the functional capabilities of an individual with a disability.
(Authority: Sec. 7(23) of the Act; 29 U.S.C. 706(23))
(7) Assistive technology service means any service that directly
assists an individual with a disability in the selection, acquisition,
or use of an assistive technology device, including--
(i) The evaluation of the needs of an individual with a disability,
including a functional evaluation of the individual in his or her
customary environment;
(ii) Purchasing, leasing, or otherwise providing for the
acquisition by an individual with a disability of an assistive
technology device;
(iii) Selecting, designing, fitting, customizing, adapting,
applying, maintaining, repairing, or replacing assistive technology
devices;
(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: Sec. 7(24) and 12(c) of the Act; 29 U.S.C. 706(24) and
711(c))
(8) Community rehabilitation program.
(i) Community rehabilitation program means a program that provides
directly or facilitates the provision of one or more of the following
vocational rehabilitation services to individuals with disabilities to
enable those individuals to maximize their opportunities for
employment, including career advancement:
(A) Medical, psychiatric, psychological, social, and vocational
services that are provided under one management.
(B) Testing, fitting, or training in the use of prosthetic and
orthotic devices.
(C) Recreational therapy.
(D) Physical and occupational therapy.
(E) Speech, language, and hearing therapy.
(F) Psychiatric, psychological, and social services, including
positive behavior management.
(G) Assessment for determining eligibility and vocational
rehabilitation needs.
(H) Rehabilitation technology.
(I) Job development, placement, and retention services.
(J) Evaluation or control of specific disabilities.
(K) Orientation and mobility services for individuals who are
blind.
(L) Extended employment.
(M) Psychosocial rehabilitation services.
(N) Supported employment services and extended services.
(O) Services to family members if necessary to enable the applicant
or eligible individual to achieve an employment outcome.
(P) Personal assistance services.
(Q) Services similar to the services described in paragraphs (A)
through (P) of this definition.
(ii) For the purposes of this definition, the word program means an
agency, organization, or institution, or unit of an agency,
organization, or institution, that provides directly or facilitates the
provision of vocational rehabilitation services as one of its major
functions.
(Authority: Sec. 7(25) and 12(c) of the Act; 29 U.S.C. 706(25) and
711(c))
(9) Comparable services and benefits means services and benefits
that are--
[[Page 6336]]
(i) Provided or paid for, in whole or in part, by other Federal,
State, or local public agencies, by health insurance, or by employee
benefits;
(ii) Available to the individual at the time needed to achieve the
intermediate rehabilitation objectives in the individual's
Individualized Written Rehabilitation Program (IWRP) in accordance with
Sec. 361.53; and
(iii) Commensurate to the services that the individual would
otherwise receive from the vocational rehabilitation agency.
(Authority: Sec. 12(c) and 101(a)(8) of the Act; 29 U.S.C. 711(c)
and 721(a)(8))
(10) Competitive employment means work
(i) In the competitive labor market that is performed on a full-
time or part-time basis in an integrated setting; and
(ii) For which an individual is compensated at or above the minimum
wage, but not less than the customary wage and level of benefits paid
by the employer for the same or similar work performed by individuals
who are not disabled.
(Authority: Sec. 7(5), 7(18), and 12(c) of the Act; 29 U.S.C.
706(5), 706(18), and 711(c))
(11) Construction of a facility for a public or nonprofit community
rehabilitation program means--
(i) The acquisition of land in connection with the construction of
a new building for a community rehabilitation program;
(ii) The acquisition of existing buildings;
(iii) The remodeling, alteration, or renovation of existing
buildings;
(iv) The construction of new buildings and expansion of existing
buildings;
(v) Architect's fees, site surveys, and soil investigation, if
necessary, in connection with the construction project;
(vi) The acquisition of initial fixed or movable equipment of any
new, newly acquired, newly expanded, newly remodeled, newly altered, or
newly renovated buildings that are to be used for community
rehabilitation program purposes; and
(vii) Other direct expenditures appropriate to the construction
project, except costs of off-site improvements.
(Authority: Sec. 7(1) and 12(c) of the Act; 29 U.S.C. 706(1) and
711(c))
(12) Designated State agency or State agency means the sole State
agency, designated in accordance with Sec. 361.13(a), to administer, or
supervise local administration of, the State plan for vocational
rehabilitation services. The term includes the State agency for
individuals who are blind, if designated as the sole State agency with
respect to that part of the plan relating to the vocational
rehabilitation of individuals who are blind.
(Authority: Sec. 7(3)(A) and 101(a)(1)(A) of the Act; 29 U.S.C.
706(3)(A) and 721(a)(1)(A))
(13) Designated State unit or State unit means either--
(i) The State agency vocational rehabilitation bureau, division, or
other organizational unit that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities and that is responsible for the administration of the
vocational rehabilitation program of the State agency, as required
under Sec. 361.13(b); or
(ii) The independent State commission, board, or other agency that
has vocational rehabilitation, or vocational and other rehabilitation,
as its primary function.
(Authority: Sec. 7(3)(B) and 101(a)(2)(A) of the Act; 29 U.S.C.
706(3)(B) and 721(a)(2)(A))
(14) Eligible individual means an applicant for vocational
rehabilitation services who meets the eligibility requirements of
Sec. 361.42(a).
(Authority: Sec. 7(8)(a) and 102(a)(1) of the Act; 29 U.S.C. 706(8)
and 722(a)(1))
(15) Employment outcome means, with respect to an individual,
entering or retaining full-time or, if appropriate, part-time
competitive employment in the integrated labor market to the greatest
extent practicable; supported employment; or any other type of
employment that is consistent with an individual's strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice.
(Authority: Sec. 7(5), 12(c), 100(a)(2), and 102(b)(1)(B)(i) of the
Act; 29 U.S.C. 706(5), 711(c), 720(a)(2), and 722(b)(1)(B)(i))
(16) Establishment, development, or improvement of a public or
nonprofit community rehabilitation program means--
(i) The establishment of a facility for a public or nonprofit
community rehabilitation program as defined in paragraph (b)(17) 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 four years, with Federal financial
participation available at the applicable matching rate for the
following levels of staffing costs:
(A) 100 percent of staffing costs for the first year.
(B) 75 percent of staffing costs for the second year.
(C) 60 percent of staffing costs for the third year.
(D) 45 percent of staffing costs for the fourth year; and
(iii) Other expenditures related to the establishment, development,
or improvement of a community rehabilitation program that are necessary
to make the program functional or increase its effectiveness in
providing vocational rehabilitation services to applicants or eligible
individuals, but are not ongoing operating expenses of the program.
(Authority: Secs. 7(6) and 12(c) of the Act; 29 U.S.C. 706(6) and
711(c))
(17) Establishment of a facility for a public or nonprofit
community rehabilitation program means--
(i) The acquisition of an existing building, and if necessary the
land in connection with the acquisition, if the building has been
completed in all respects for at least one year prior to the date of
acquisition and the Federal share of the cost of the acquisition is not
more than $300,000;
(ii) The remodeling or alteration of an existing building, provided
the estimated cost of remodeling or alteration does not exceed the
appraised value of the existing building;
(iii) The expansion of an existing building, provided that--
(A) The existing building is complete in all respects;
(B) The total size in square footage of the expanded building,
notwithstanding the number of expansions, is not greater than twice the
size of the existing building;
(C) The expansion is joined structurally to the existing building
and does not constitute a separate building; and
(D) The costs of the expansion do not exceed the appraised value of
the existing building;
(iv) Architect's fees, site survey, and soil investigation, if
necessary in connection with the acquisition, remodeling, alteration,
or expansion of an existing building; and
(v) The acquisition of fixed or movable equipment, including the
costs of installation of the equipment, if necessary to establish,
develop, or improve a community rehabilitation program;
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(18) Extended employment means work in a non-integrated or
sheltered setting for a public or private nonprofit
[[Page 6337]]
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: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(19) Extended services, as used in the definition of ``Supported
employment,'' means ongoing support services and other appropriate
services that are needed to support and maintain an individual with a
most severe disability in supported employment and that are provided by
a State agency, a private nonprofit organization, employer, or any
other appropriate resource, from funds other than funds received under
this part, 34 CFR part 363, 34 CFR part 376, or 34 CFR part 380, after
an individual with a most severe disability has made the transition
from support provided by the designated State unit.
(Authority: Sec. 7(27) of the Act; 29 U.S.C. 706(27))
(20) Extreme medical risk means a probability of substantially
increasing functional impairment or death if medical services,
including mental health services, are not provided expeditiously.
(Authority: Secs. 12(c) and 101(a)(8) of the Act; 29 U.S.C. 711(c)
and 721(a)(8))
(21) Family member, for purposes of receiving vocational
rehabilitation services in accordance with Sec. 361.48(a)(9), means an
individual--
(i) Who either--
(A) Is a relative or guardian of an applicant or eligible
individual; or
(B) Lives in the same household as an applicant or eligible
individual;
(ii) Who has a substantial interest in the well-being of that
individual; and
(iii) Whose receipt of vocational rehabilitation services is
necessary to enable the applicant or eligible individual to achieve an
employment outcome.
(Authority: Secs. 12(c) and 103(a)(3) of the Act; 29 U.S.C. 711(c)
and 723(a)(3))
(22) Impartial hearing officer.
(i) Impartial hearing officer means an individual who--
(A) Is not an employee of a public agency (other than an
administrative law judge, hearing examiner, or employee of an
institution of higher education);
(B) Is not a member of the State Rehabilitation Advisory Council
for the designated State unit;
(C) Has not been involved in previous decisions regarding the
vocational rehabilitation of the applicant or eligible individual;
(D) Has knowledge of the delivery of vocational rehabilitation
services, the State plan, and the Federal and State regulations
governing the provision of services;
(E) Has received training with respect to the performance of
official duties; and
(F) Has no personal, professional, or financial interest that would
be in conflict with the objectivity of the individual.
(ii) An individual may not be considered to be an employee of a
public agency for the purposes of this definition solely because the
individual is paid by the agency to serve as a hearing officer.
(Authority: Sec. 7(28) of the Act; 29 U.S.C. 706(28))
(23) Indian tribe means any Federal or State Indian tribe, band,
rancheria, pueblo, colony, or community, including any Alaskan native
village or regional village corporation (as defined in or established
pursuant to the Alaska Native Claims Settlement Act).
(Authority: Sec. 7(21) of the Act; 29 U.S.C. 706(21))
(24) Individual who is blind means a person who is blind within the
meaning of the applicable State law.
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(25) Individual with a disability, except in Secs. 361.17 (a), (b),
(c), and (j), 361.19, 361.20, and 361.51(b)(2), means an individual--
(i) Who has a physical or mental impairment;
(ii) Whose impairment constitutes or results in a substantial
impediment to employment; and
(iii) Who can benefit in terms of an employment outcome from the
provision of vocational rehabilitation services.
(Authority: Sec. 7(8)(A) of the Act; 29 U.S.C. 706(8)(A))
(26) Individual with a disability, for purposes of Secs. 361.17
(a), (b), (c), and (j), 361.19, 361.20, and 361.51(b)(2), means an
individual--
(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: Sec. 7(8)(B) of the Act; 29 U.S.C. 706(8)(B))
(27) Individual with a most severe disability means an individual
with a severe disability who meets the designated State unit's criteria
for an individual with a most severe disability. These criteria must be
consistent with the requirements in Sec. 361.36(c)(3).
(Authority: Sec. 101(a)(5) of the Act; 29 U.S.C. 721(a)(5))
(28) Individual with a severe disability means an individual with a
disability--
(i) Who has a severe physical or mental impairment that seriously
limits one or more functional capacities (such as mobility,
communication, self-care, self-direction, interpersonal skills, work
tolerance, or work skills) in terms of an employment outcome;
(ii) Whose vocational rehabilitation can be expected to require
multiple vocational rehabilitation services over an extended period of
time; and
(iii) Who has one or more physical or mental disabilities resulting
from amputation, arthritis, autism, blindness, burn injury, cancer,
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease,
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental
retardation, mental illness, multiple sclerosis, muscular dystrophy,
musculo-skeletal disorders, neurological disorders (including stroke
and epilepsy), spinal cord conditions (including paraplegia and
quadriplegia), sickle cell anemia, specific learning disability, end-
stage renal disease, or another disability or combination of
disabilities determined on the basis of an assessment for determining
eligibility and vocational rehabilitation needs to cause comparable
substantial functional limitation.
(Authority: Sec. 7(15)(A) of the Act; 29 U.S.C. 708(15)(A))
(29) Individual's representative means any representative chosen by
an applicant or eligible individual, including a parent, guardian,
other family member, or advocate, unless a representative has been
appointed by a court to represent the individual, in which case the
court-appointed representative is the individual's representative.
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(30) 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 providing services to those applicants or
eligible individuals;
[[Page 6338]]
(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: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
(31) Maintenance means monetary support provided to an eligible
individual or an individual receiving extended evaluation services for
those 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 a program of vocational
rehabilitation services.
(Authority: Secs. 12(c) and 103(a)(5) of the Act; 29 U.S.C. 711(c)
and 723(a)(5))
Note: The following are examples of expenses that would meet the
definition of maintenance. The examples are purely illustrative, do
not address all possible circumstances, and are not intended to
substitute for individual counselor judgement.
Example: The cost of a uniform or other suitable clothing that
is required for an individual's job placement or job seeking
activities.
Example: The cost of short-term shelter that is required in
order for an individual to participate in vocational training at a
site that is not within commuting distance of an individual's home.
Example: The initial one-time costs, such as a security deposit
or charges for the initiation of utilities, that are required in
order for an individual to relocate for a job placement.
Example: The costs of an individual's participation in
enrichment activities related to that individual's training program.
(32) Nonprofit, with respect to a community rehabilitation program,
means a community rehabilitation program carried out by a corporation
or association, no part of the net earnings of which inures, or may
lawfully inure, to the benefit of any private shareholder or individual
and the income of which is exempt from taxation under section 501(c)(3)
of the Internal Revenue Code of 1954.
(Authority: Sec. 7(10) of the Act; 29 U.S.C. 706(10))
(33) Ongoing support services, as used in the definition of
``Supported employment''--
(i) Means services that are--
(A) Needed to support and maintain an individual with a most severe
disability in supported employment;
(B) Identified based on a determination by the designated State
unit of the individual's needs as specified in an individualized
written rehabilitation program; and
(C) Furnished by the designated State unit from the time of job
placement until transition to extended services, unless post-employment
services are provided following transition, and thereafter by one or
more extended services providers throughout the individual's term of
employment in a particular job placement or multiple placements if
those placements are being provided under a program of transitional
employment;
(ii) Must include an assessment of employment stability and
provision of specific services or the coordination of services at or
away from the worksite that are needed to maintain stability based on--
(A) At a minimum, twice-monthly monitoring at the worksite of each
individual in supported employment; or
(B) If under special circumstances, especially at the request of
the individual, the individualized written rehabilitation program
provides for off-site monitoring, twice-monthly meetings with the
individual;
(iii) Consist of--
(A) Any particularized assessment supplementary to the
comprehensive assessment of rehabilitation needs described in this
part;
(B) The provision of skilled job trainers who accompany the
individual for intensive job skill training at the work site;
(C) Job development and placement;
(D) Social skills training;
(E) Regular observation or supervision of the individual;
(F) Follow-up services including regular contact with the
employers, the individuals, the parents, family members, guardians,
advocates or authorized representatives of the individuals, and other
suitable professional and informed advisors, in order to reinforce and
stabilize the job placement;
(G) Facilitation of natural supports at the worksite;
(H) Any other service identified in the scope of vocational
rehabilitation services for individuals, described in Sec. 361.48; or
(I) Any service similar to the foregoing services.
(Authority: Sec. 7(33) and 12(c) of the Act; 29 U.S.C. 706(33) and
711(c))
(34) Personal assistance services means a range of services
provided by one or more persons designed to assist an individual with a
disability to perform daily living activities on or off the job that
the individual would typically perform without assistance if 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: Sec. 7(11) and 103(a)(15) of the Act; 29 U.S.C. 706(11)
and 29 U.S.C. 723)
(35) Physical and mental restoration services means--
(i) Corrective surgery or therapeutic treatment that is likely,
within a reasonable period of time, to correct or modify substantially
a stable or slowly progressive physical or mental impairment that
constitutes a substantial impediment to employment;
(ii) Diagnosis of and treatment for mental or emotional disorders
by qualified personnel in accordance with State licensure laws;
(iii) Dentistry;
(iv) Nursing services;
(v) Necessary hospitalization (either inpatient or outpatient care)
in connection with surgery or treatment and clinic services;
(vi) Drugs and supplies;
(vii) Prosthetic, orthotic, or other assistive devices, including
hearing aids;
(viii) Eyeglasses and visual services, including visual training,
and the examination and services necessary for the prescription and
provision of eyeglasses, contact lenses, microscopic lenses, telescopic
lenses, and other special visual aids prescribed by personnel that are
qualified in accordance with State licensure laws;
(ix) Podiatry;
(x) Physical therapy;
(xi) Occupational therapy;
(xii) Speech or hearing therapy;
(xiii) Mental health services;
(xiv) Treatment of either acute or chronic medical complications
and emergencies that are associated with or arise out of the provision
of physical and mental restoration services, or that are inherent in
the condition under treatment;
(xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial
kidneys, and supplies; and
(xvi) Other medical or medically related rehabilitation services.
[[Page 6339]]
(Authority: Sec. 12(c) and 103(a)(4) of the Act; 29 U.S.C. 711(c)
and 723(a)(4))
(36) Physical or mental impairment means an injury, disease, or
other condition that materially limits, or if not treated is expected
to materially limit, mental or physical functioning.
(Authority: Sec. 7(8)(A) and 12(c) of the Act; 29 U.S.C. 706(8)(A)
and 711(c))
(37) Post-employment services means one or more of the services
identified in Sec. 361.48 that are provided subsequent to the
achievement of an employment outcome and that are necessary for an
individual to maintain, regain, or advance in employment, consistent
with the individual's strengths, resources, priorities, concerns,
abilities, capabilities, and interests.
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
Note: Post-employment services are intended to ensure that the
employment outcome remains consistent with the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
and interests. These services are available to meet rehabilitation
needs that do not require a complex and comprehensive provision of
services and, thus, should be limited in scope and duration. If more
comprehensive services are required, then a new rehabilitation
effort should be considered. Post-employment services are to be
provided under an amended individualized written rehabilitation
program; thus, a re-determination of eligibility is not required.
The provision of post-employment services is subject to the same
requirements in this part as the provision of any other vocational
rehabilitation service. Post-employment services are available to
assist an individual to maintain employment, e.g., the individual's
employment is jeopardized because of conflicts with supervisors or
co-workers and the individual needs mental health services and
counseling to maintain the employment; to regain employment, e.g.,
the individual's job is eliminated through reorganization and new
placement services are needed; and to advance in employment, e.g.,
the employment is no longer consistent with the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
and interests.
(38) Rehabilitation engineering means the systematic application of
engineering sciences to design, develop, adapt, test, evaluate, apply,
and distribute technological solutions to problems confronted by
individuals with disabilities in functional areas, such as mobility,
communications, hearing, vision, and cognition, and in activities
associated with employment, independent living, education, and
integration into the community.
(Authority: Secs. 7(13) and 12(c) of the Act; 29 U.S.C. 706(13) and
711(c))
(39) Rehabilitation technology means the systematic application of
technologies, engineering methodologies, or scientific principles to
meet the needs of, and address the barriers confronted by, individuals
with disabilities in areas that include education, rehabilitation,
employment, transportation, independent living, and recreation. The
term includes rehabilitation engineering, assistive technology devices,
and assistive technology services.
(Authority: Sec. 7(13) of the Act; 29 U.S.C. 706(13))
(40) Reservation means a Federal or State Indian reservation,
public domain Indian allotment, former Indian reservation in Oklahoma,
and land held by incorporated Native groups, regional corporations, and
village corporations under the provisions of the Alaska Native Claims
Settlement Act.
(Authority: Sec. 130(c) of the Act; 29 U.S.C. 750(c))
(41) Sole local agency means a unit or combination of units of
general local government or one or more Indian tribes that has the sole
responsibility under an agreement with, and the supervision of, the
State agency to conduct a local or tribal vocational rehabilitation
program, in accordance with the State plan.
(Authority: Sec. 7(9) of the Act; 29 U.S.C. 706(9))
(42) State means any of the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, the United States Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
(Authority: Sec. 7(16) of the Act; 29 U.S.C. 706(16))
(43) State plan means the State plan for vocational rehabilitation
services or the vocational rehabilitation services part of a
consolidated rehabilitation plan under Sec. 361.10(c).
(Authority: Secs. 12(c) and 101 of the Act; 29 U.S.C. 711(c) and
721)
(44) Substantial impediment to employment means that a physical or
mental impairment (in light of attendant medical, psychological,
vocational, educational, and other related factors) hinders an
individual from preparing for, entering into, engaging in, or retaining
employment consistent with the individual's abilities and capabilities.
(Authority: Secs. 7(8)(A) and 12(c) of the Act; 29 U.S.C. 706(8)(A)
and 711(c))
(45) Supported employment means--
(i) Competitive employment in an integrated setting with ongoing
support services for individuals with the most severe disabilities--
(A) For whom competitive employment has not traditionally occurred
or for whom competitive employment has been interrupted or intermittent
as a result of a severe disability; and
(B) Who, because of the nature and severity of their disabilities,
need intensive supported employment services from the designated State
unit and extended services after transition in order to perform this
work; or
(ii) Transitional employment for individuals with the most severe
disabilities due to mental illness.
(Authority: Sec. 7(18) of the Act; 29 U.S.C. 706(18)(A))
(46) Supported employment services means ongoing support services
and other appropriate services needed to support and maintain an
individual with a most severe disability in supported employment that
are provided by the designated State unit--
(i) For a period of time not to exceed 18 months, unless under
special circumstances the eligible individual and the rehabilitation
counselor or coordinator jointly agree to extend the time in order to
achieve the rehabilitation objectives identified in the individualized
written rehabilitation program; and
(ii) Following transition, as post-employment services that are
unavailable from an extended services provider and that are necessary
to maintain or regain the job placement or advance in employment.
(Authority: Sec. 7(34) and 12(c) of the Act; 29 U.S.C. 706(34) and
711(c))
(47) Transition services means a coordinated set of activities for
a student designed within an outcome-oriented process that promotes
movement from school to post-school activities, including postsecondary
education, vocational training, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, or community participation. The coordinated set of
activities must be based upon the individual student's needs, taking
into account the student's preferences and interests, and must include
instruction, community experiences, the development of employment and
other post-school adult living objectives, and, if appropriate,
acquisition of daily living skills and functional vocational
evaluation. Transition services must
[[Page 6340]]
promote or facilitate the accomplishment of long-term rehabilitation
goals and intermediate rehabilitation objectives identified in the
student's IWRP.
(Authority: Section 7(35) and 103(a)(14) of the Act; 29 U.S.C.
706(35) and 723(a)(14))
(48) Transitional employment, as used in the definition of
``Supported employment,'' means a series of temporary job placements in
competitive work in integrated settings with ongoing support services
for individuals with the most severe disabilities due to mental
illness. In transitional employment, the provision of ongoing support
services must include continuing sequential job placements until job
permanency is achieved.
(Authority: Secs. 7(18) and 12(c) of the Act; 29 U.S.C. 706(18) and
711(c))
(49) Transportation means travel and related expenses that are
necessary to enable an applicant or eligible individual to participate
in a vocational rehabilitation service.
(Authority: Secs. 12(c) and 103(a)(10) of the Act; 29 U.S.C. 711(c)
and 723(a)(10))
Note: The following are examples of expenses that would meet the
definition of transportation. The examples are purely illustrative,
do not address all possible circumstances, and are not intended to
substitute for individual counselor judgement.
Example: Travel and related expenses for a personal care
attendant or aide if the services of that person are necessary to
enable the applicant or eligible individual to travel to participate
in any vocational rehabilitation service.
Example: Short-term travel-related expenses, such as food and
shelter, incurred by an applicant participating in evaluation or
assessment services that necessitates travel.
Example: Relocation expenses incurred by an eligible individual
in connection with a job placement that is a significant distance
from the eligible individual's current residence.
Example: The purchase and repair of vehicles, including vans,
but not the modification of these vehicles, as modification would be
considered a rehabilitation technology service.
(50) 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: Sec. 103 (a) and (b) of the Act; 29 U.S.C. 723 (a) and
(b))
Subpart B--State Plan for Vocational Rehabilitation Services
Sec. 361.10 Submission, approval, and disapproval of the State plan.
(a) Purpose. In order for a State to receive a grant under this
part, the designated State agency shall submit to the Secretary, and
obtain approval of, a State plan that contains a description of the
State's vocational rehabilitation services program, the plans and
policies to be followed in carrying out the program, and other
information requested by the Secretary, in accordance with the
requirements of this part.
(b) Separate part relating to rehabilitation of individuals who are
blind. If a separate State agency administers or supervises the
administration of a separate part of the State plan relating to the
rehabilitation of individuals who are blind, that part of the State
plan must separately conform to all requirements under this part that
are applicable to a State plan.
(c) Consolidated rehabilitation plan. The State may choose to
submit a consolidated rehabilitation plan that includes the State plan
for vocational rehabilitation services and the State's plan for its
program for persons with developmental disabilities. The State planning
and advisory council for developmental disabilities and the agency
administering the State's program for persons with developmental
disabilities must concur in the submission of a consolidated
rehabilitation plan. A consolidated rehabilitation plan must comply
with, and be administered in accordance with, the Act and the
Developmental Disabilities Assistance and Bill of Rights Act, as
amended.
(d) Public participation. The State shall develop the State plan
with input from the public, through public meetings, in accordance with
the requirements of Sec. 361.20.
(e) Duration. The State plan must cover a multi-year period to be
determined by the Secretary.
(f) Submission of the State plan. The State shall submit the State
plan to the Secretary for approval--
(1) No later than July 1 of the year preceding the first fiscal
year for which the State plan is submitted; or
(2) With the prior approval of the Secretary, no later than the
date on which the State is required to submit a State plan under
another Federal law.
(g) Revisions to the State plan. The State shall submit to the
Secretary for approval revisions to the State plan in accordance with
the requirements of this part and 34 CFR 76.140.
(h) Approval. The Secretary approves a State plan and revisions to
the State plan that conform to the requirements of this part and
section 101(a) of the Act.
(i) Disapproval. The Secretary disapproves a State plan that does
not conform to the requirements of this part and section 101(a) of the
Act, in accordance with the following procedures:
(1) Informal resolution. Prior to disapproving a State plan, the
Secretary attempts to resolve disputes informally with State officials.
(2) Notice. If, after reasonable effort has been made to resolve
the dispute, no resolution has been reached, the Secretary provides
notice to the State agency of the intention to disapprove the State
plan and of the opportunity for a hearing.
(3) State plan hearing. If the State agency requests a hearing, the
Secretary designates one or more individuals, either from the
Department or elsewhere, not responsible for or connected with the
administration of this program, to conduct a hearing in accordance with
the provisions of 34 CFR Part 81, Subpart A.
(4) Initial decision. The hearing officer issues an initial
decision in accordance with 34 CFR 81.41.
(5) Petition for review of an initial decision. The State agency
may seek the Secretary's review of the initial decision in accordance
with 34 CFR 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.
(Approved by the Office of Management and Budget under control
number 1820-0500.
(Authority: Sec. 6, 101 (a) and (b), and 107(d) of the Act; 20
U.S.C. 1231g(a); and 29 U.S.C. 705, 721 (a) and (b), and 727(d))
Sec. 361.11 Withholding of funds.
(a) Basis for withholding. The Secretary may withhold or limit
payments under sections 111, 124, or 632(a) of the Act, as provided by
section 107 (c) and (d) of the Act, if the Secretary determines that--
(1) The State plan, including the supported employment supplement,
has been so changed that it no longer conforms with the requirements of
this part or 34 CFR part 363; or
[[Page 6341]]
(2) In the administration of the State plan, there has been a
failure to comply substantially with any provision of that plan or a
program improvement plan established in accordance with section 106 of
the Act.
(b) Informal resolution. Prior to withholding or limiting payments
in accordance with this section, the Secretary attempts to resolve
disputed issues informally with State officials.
(c) Notice. If, after reasonable effort has been made to resolve
the dispute, no resolution has been reached, the Secretary provides
notice to the State agency of the intention to withhold or limit
payments and of the opportunity for a hearing.
(d) Withholding hearing. If the State agency requests a hearing,
the Secretary designates one or more individuals, either from the
Department or elsewhere, not responsible for or connected with the
administration of this program, to conduct a hearing in accordance with
the provisions of 34 CFR part 81, Subpart A.
(e) Initial decision. The hearing officer issues an initial
decision in accordance with 34 CFR 81.41.
(f) Petition for review of an initial decision. The State agency
may seek the Secretary's review of the initial decision in accordance
with 34 CFR 81.42.
(g) Review by the Secretary. The Secretary reviews the initial
decision in accordance with 34 CFR 81.43.
(h) Final decision of the Department. The final decision of the
Department is made in accordance with 34 CFR 81.44
(i) Judicial review. A State may appeal the Secretary's decision to
withhold or limit payments by filing a petition for review with the
U.S. Court of Appeals for the circuit in which the State is located, in
accordance with section 107(d) of the Act.
(Authority: Secs. 101(b), 107(c), and 107(d) of the Act; 29 U.S.C.
721(b), 727(c)(1) and (2), and 727(d))
State Plan Content: Administration
Sec. 361.12 Methods of administration.
The State plan must assure that the State agency, and the
designated State unit if applicable, employs methods of administration
found necessary by the Secretary for the proper and efficient
administration of the plan and for carrying out all functions for which
the State is responsible under the plan and this part. These methods
must include procedures to ensure accurate data collection and
financial accountability.
(Authority: Sec. 101(a)(6) of the Act; 29 U.S.C. 721(a)(6))
Sec. 361.13 State agency for administration.
(a) Designation of State agency. The State plan must designate a
State agency as the sole State agency to administer the State plan, or
to supervise its administration in a political subdivision of the State
by a sole local agency, in accordance with the following requirements:
(1) General. Except as provided in paragraphs (a) (2) and (3) of
this section, the State plan must provide that the designated State
agency is one of the following types of agencies:
(i) A State agency that is an independent State commission, board,
or other agency that has as its major function vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities.
(ii) The State agency administering or supervising the
administration of education or vocational education in the State,
provided that it includes a vocational rehabilitation unit as provided
in paragraph (b) of this section.
(iii) A State agency that includes a vocational rehabilitation
unit, as provided in paragraph (b) of this section, and at least two
other major organizational units, each of which administers one or more
of the State's major programs of public education, public health,
public welfare, or labor.
(2) American Samoa. In the case of American Samoa, the State plan
must designate the Governor.
(3) Designated State agency for individuals who are blind. If a
State commission or other agency that provides assistance or services
to individuals who are blind is authorized under State law to provide
vocational rehabilitation services to individuals who are blind, and
this commission or agency is primarily concerned with vocational
rehabilitation or includes a vocational rehabilitation unit as provided
in paragraph (b) of this section, the State plan may designate that
agency as the sole State agency to administer the part of the plan
under which vocational rehabilitation services are provided for
individuals who are blind or to supervise its administration in a
political subdivision of the State by a sole local agency.
(b) Designation of State unit. (1) If the designated State agency
is of the type specified in paragraph (a)(1)(ii) or (a)(1)(iii) of this
section, or if the designated State agency specified in paragraph
(a)(3) of this section does not have as its major function vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities, the State plan must assure that the agency (or each
agency if two agencies are designated) includes a vocational
rehabilitation bureau, division, or unit that--
(i) Is primarily concerned with vocational rehabilitation or
vocational and other rehabilitation of individuals with disabilities
and is responsible for the administration of the State agency's
vocational rehabilitation program under the State plan, including those
responsibilities specified in paragraph (c) of this section;
(ii) Has a full-time director;
(iii) Has a staff, at least 90 percent of whom are employed full
time on the rehabilitation work of the organizational unit; and
(iv) Is located at an organizational level and has an
organizational status within the State agency comparable to that of
other major organizational units of the agency or, in the case of an
agency described in paragraph (a)(1)(ii) of this section, is so located
and has that status or has a director who is the executive officer of
the State agency.
(2) In the case of a State that has not designated a separate State
agency for individuals who are blind, as provided for in paragraph
(a)(3) of this section, the State may assign responsibility for the
part of the plan under which vocational rehabilitation services are
provided to individuals who are blind to one organizational unit of the
designated State agency and may assign responsibility for the rest of
the plan to another organizational unit of the designated State agency,
with the provisions of paragraph (b)(1) of this section applying
separately to each of these units.
(c) Responsibility for administration. (1) The State plan must
assure that, 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 that an individual has achieved an
employment outcome under Sec. 361.56.
(iii) Policy formulation and implementation.
(iv) The allocation and expenditure of vocational rehabilitation
funds.
(2) This responsibility may not be delegated to any other agency or
individual.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 101(a)(1) and 101(a)(2) of the Act; 29 U.S.C.
721(a)(1) and 721(a)(2))
[[Page 6342]]
Sec. 361.14 Substitute State agency.
(a) General provisions. (1) If the Secretary has withheld all
funding from a State under Sec. 361.11, the State may designate another
agency to substitute for the designated State agency in carrying out
the State's program of vocational rehabilitation services.
(2) Any public or nonprofit private organization or agency within
the State or any political subdivision of the State is eligible to be a
substitute agency.
(3) The substitute agency shall submit a State plan that meets the
requirements of this part.
(4) The Secretary makes no grant to a substitute agency until the
Secretary approves its plan.
(b) Substitute agency matching share. The Secretary does not make
any payment to a substitute agency unless it has provided assurances
that it will contribute the same matching share as the State would have
been required to contribute if the State agency were carrying out the
vocational rehabilitation program.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 107(c)(3) of the Act; 29 U.S.C. 727(c)(3))
Sec. 361.15 Local administration.
(a) If the State plan provides for local administration, it must--
(1) Identify each local agency;
(2) Assure that each local agency is under the supervision of the
designated State unit and is the sole local agency as defined in
Sec. 361.5(b)(41) that is responsible for the administration of the
program within the political subdivision that it serves; and
(3) Describe the methods each local agency will use to administer
the vocational rehabilitation program, in accordance with the State
plan.
(b) A separate local agency serving individuals who are blind may
administer that part of the plan relating to vocational rehabilitation
of individuals who are blind, under the supervision of the designated
State unit for individuals who are blind.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 7(9) and 101(a)(1)(A) of the Act; 29 U.S.C. 706(9)
and 721(a)(1)(A))
Sec. 361.16 Establishment of an independent commission or a State
Rehabilitation Advisory Council.
(a) General requirement. Except as provided in paragraph (b) of
this section, the State plan must contain one of the following two
assurances:
(1) An assurance that the State agency is an independent State
commission that--
(i) Is primarily concerned with vocational rehabilitation or
vocational and other rehabilitation services, in accordance with
Sec. 361.13(a)(1)(i);
(ii) Is consumer-controlled by persons who--
(A) Are individuals with physical or mental impairments that
substantially limit major life activities; and
(B) Represent individuals with a broad range of disabilities;
(iii) Includes individuals representing family members, advocates,
and authorized representatives of individuals with mental impairments;
and
(iv) Conducts a review and analysis of the effectiveness of and
consumer satisfaction with vocational rehabilitation services and
providers in the State, in accordance with the provisions in
Sec. 361.17(h)(3).
(2) An assurance that--
(i) The State has established a State Rehabilitation Advisory
Council (Council) that meets the requirements of Sec. 361.17;
(ii) The designated State unit seeks and seriously considers, on a
regular and ongoing basis, advice from the Council regarding the
development, implementation, and amendment of the State plan, the
strategic plan, and other policies and procedures of general
applicability pertaining to the provision of vocational rehabilitation
services in the State;
(iii) The designated State unit transmits to the Council--
(A) All plans, reports, and other information required under the
Act to be submitted to the Secretary;
(B) Copies of all written policies, practices, and procedures of
general applicability provided to or used by rehabilitation personnel;
and
(C) Copies of due process hearing decisions in a manner that
preserves the confidentiality of the participants in the hearings; and
(iv) The State plan summarizes annually the advice provided by the
Council, including recommendations from the annual report of the
Council, the survey of consumer satisfaction, and other reports
prepared by the Council, and the State agency's response to the advice
and recommendations, including the manner in which the State will
modify its policies and procedures based on the survey of consumer
satisfaction and explanations of reasons for rejecting any advice or
recommendations of the Council.
(b) Exception for separate State agency for individuals who are
blind. In the ase of a State that designates a separate State agency,
under Sec. 361.13(a)(3), to administer the part of the State plan under
which vocational rehabilitation services are provided to individuals
who are blind, the State plan must contain one of the following four
assurances:
(1) An assurance that an independent commission in accordance with
paragraph (a)(1) of this section is responsible under State law for
operating or overseeing the operation of the vocational rehabilitation
program of both the State agency that administers the part of the State
plan under which vocational rehabilitation services are provided to
individuals who are blind and the State agency that administers the
remainder of the State plan.
(2) An assurance that--
(i) An independent commission that is consumer-controlled by, and
represents the interests of, individuals who are blind and conducts a
review and analysis of the effectiveness of and consumer satisfaction
with vocational rehabilitation services and providers, in accordance
with the provisions of Sec. 361.17(h)(3), is responsible under State
law for operating, or overseeing the operation of, the vocational
rehabilitation program in the State for individuals who are blind; and
(ii) An independent commission that is consumer-controlled in
accordance with paragraph (a)(1)(i) of this section and conducts a
review and analysis of the effectiveness of and consumer satisfaction
with vocational rehabilitation services and providers, in accordance
with Sec. 361.17(h)(3), is responsible under State law for operating,
or overseeing the operation of, the vocational rehabilitation program
in the State for all individuals with disabilities, except individuals
who are blind.
(3) An assurance that--
(i) An independent commission that is consumer-controlled by, and
represents the interests of, individuals who are blind and that
conducts a review and analysis of the effectiveness of and consumer
satisfaction with vocational rehabilitation services and providers, in
accordance with Sec. 361.17(h)(3), is responsible under State law for
operating, or overseeing the operation of, the vocational
rehabilitation program in the State for individuals who are blind; and
(ii) The State has established a State Rehabilitation Advisory
Council that meets the criteria in Sec. 361.17 and carries out the
duties of a Council with respect to functions for, and services
provided to, individuals with disabilities, except for individuals who
are blind.
(4) An assurance that--
(i) An independent commission that is consumer-controlled in
accordance
[[Page 6343]]
with paragraph (a)(1)(i) of this section and conducts a review and
analysis of the effectiveness of and consumer satisfaction with
vocational rehabilitation services and providers, in accordance with
the provisions of Sec. 361.17(h)(3), is responsible under State law for
operating or overseeing the operation of the vocational rehabilitation
services for all individuals in the State, except individuals who are
blind; and
(ii) The State has established a State Rehabilitation Advisory
Council that meets the criteria in Sec. 361.17 and carries out the
duties of a Council with respect to functions for, and services
provided to, individuals who are blind.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 101(a)(32) and 101(a)(36) of the Act; 29 U.S.C.
721(a)(32) and 721(a)(36))
Sec. 361.17 Requirements for a State Rehabilitation Advisory Council.
If the State plan contains an assurance that the State has
established a Council under Sec. 361.16(a)(2), (b)(3)(ii), or
(b)(4)(ii), the State plan must also contain an assurance that the
Council meets the following requirements:
(a) Appointment. (1) The members of the Council shall be--
(i) Appointed by the Governor; or
(ii) If State law vests appointment authority in an entity other
than, or in conjunction with, the Governor (such as one or more houses
of the State legislature or an independent board that has general
appointment authority), appointed by that entity or entities.
(2) The appointing authority shall select members of the Council
after soliciting recommendations from representatives of organizations
representing a broad range of individuals with disabilities and
organizations interested in individuals with disabilities.
(b) Composition.--(1) General. Except as provided in paragraph
(b)(3) of this section, the Council shall be composed of at least 13
members, including--
(i) At least one representative of the Statewide Independent Living
Council, who shall be the chairperson of, or other individual
recommended by, the Statewide Independent Living Council;
(ii) At least one representative of a parent training and
information center established pursuant to section 631(e)(1) of IDEA;
(iii) At least one representative of the Client Assistance Program
(CAP), established under 34 CFR Part 370, who shall be the director of,
or other individual recommended by, the CAP;
(iv) At least one vocational rehabilitation counselor with
knowledge of and experience with vocational rehabilitation programs who
serves as an ex officio, nonvoting member if employed by the designated
State agency;
(v) At least one representative of community rehabilitation program
service providers;
(vi) Four representatives of business, industry, and labor;
(vii) Representatives of disability groups that include a cross
section of--
(A) Individuals with physical, cognitive, sensory, and mental
disabilities; and
(B) Parents, family members, guardians, advocates, or authorized
representatives of individuals with disabilities who have difficulty
representing themselves due to their disabilities;
(viii) Current or former applicants for, or recipients of,
vocational rehabilitation services; and
(ix) The director of the designated State unit as an ex officio,
nonvoting member.
(2) Employees of the designated State agency. Employees of the
designated State agency may serve only as nonvoting members of the
Council.
(3) Composition of a separate Council for a separate State agency
for individuals who are blind. Except as provided in paragraph (b)(4)
of this section, if the State establishes a separate Council for a
separate State agency for individuals who are blind, that Council
shall--
(i) Conform with all of the composition requirements for a Council
under paragraph (b)(1) of this section, except the requirements in
paragraph (b)(1)(vii), unless the exception in paragraph (b)(4) of this
section applies; and
(ii) Include--
(A) At least one representative of a disability advocacy group
representing individuals who are blind; and
(B) At least one parent, family member, guardian, advocate, or
authorized representative of an individual who is blind, has multiple
disabilities, and has difficulty representing himself or herself due to
disabilities.
(4) Exception. If State law in effect on October 29, 1992 requires
a separate Council under paragraph (b)(3) of this section to have fewer
than 13 members, the separate Council is deemed to be in compliance
with the composition requirements in paragraphs (b)(1)(vi) and
(b)(1)(viii) of this section if it includes at least one representative
who meets the requirements for each of those paragraphs.
(c) Majority. A majority of the Council members shall be
individuals with disabilities who are not employed by the designated
State unit.
(d) Chairperson. The chairperson shall be--
(1) Selected by the members of the Council from among the voting
members of the Council, subject to the veto power of the Governor; or
(2) If the Governor does not have veto power pursuant to State law,
selected by the Governor, or by the Council if required by the
Governor, from among the voting members of the Council.
(e) Terms of appointment. (1) Each member of the Council shall be
appointed for a term of no more than three years and may serve for no
more than two consecutive full terms.
(2) A member appointed to fill a vacancy occurring prior to the end
of the term for which the predecessor was appointed shall be appointed
for the remainder of the predecessor's term.
(3) The terms of service of the members initially appointed must be
for varied numbers of years to ensure that terms expire on a staggered
basis.
(f) Vacancies. (1) A vacancy in the membership of the Council must
be filled in the same manner as the original appointment.
(2) No vacancy affects the power of the remaining members to
execute the duties of the Council.
(g) Conflict of interest. No member of the Council shall cast a
vote on any matter that would provide direct financial benefit to the
member or the member's organization or otherwise give the appearance of
a conflict of interest under State law.
(h) Functions. The Council shall--
(1) Review, analyze, and advise the designated State unit regarding
the performance of the State unit's responsibilities under this part,
particularly responsibilities related to--
(i) Eligibility, including order of selection;
(ii) The extent, scope, and effectiveness of services provided; and
(iii) Functions performed by State agencies that affect or
potentially affect the ability of individuals with disabilities to
achieve rehabilitation goals and objectives under this part;
(2) Advise, and at the discretion of the State agency assist, the
State unit in the preparation of applications, the State plan, the
strategic plan, and amendments to the plans, reports, needs
assessments, and evaluations required by this part;
(3) To the extent feasible, conduct a review and analysis of the
effectiveness of, and consumer satisfaction with--
(i) The functions performed by State agencies and other public and
private
[[Page 6344]]
entities responsible for serving individuals with disabilities; and
(ii) The vocational rehabilitation services provided by State
agencies and other public and private entities responsible for
providing vocational rehabilitation services to individuals with
disabilities from funds made available under the Act or through other
public or private sources;
(4) Prepare and submit to the Governor, or appropriate State
entity, and to the Secretary no later than 90 days after the end of the
Federal fiscal year an annual report on the status of vocational
rehabilitation programs operated within the State and make the report
available to the public through appropriate modes of communication;
(5) Coordinate with other councils within the State, including the
Statewide Independent Living Council established under 34 CFR part 364,
the advisory panel established under section 613(a)(12) of IDEA, the
State Planning Council described in section 124 of the Developmental
Disabilities Assistance and Bill of Rights Act, and the State mental
health planning council established under section 1916(e) of the Public
Health Service Act;
(6) Advise the designated State agency and provide for coordination
and the establishment of working relationships between the designated
State agency and the Statewide Independent Living Council and centers
for independent living within the State; and
(7) Perform other comparable functions, consistent with the purpose
of this part, that the Council determines to be appropriate.
(i) Resources. (1) The Council, in conjunction with the designated
State unit, shall prepare a plan for the provision of resources,
including staff and other personnel, that may be necessary for the
Council to carry out its functions under this part.
(2) In implementing the resources plan, the Council shall rely on
existing resources to the maximum extent possible.
(3) Any disagreements between the designated State unit and the
Council regarding the amount of resources necessary must be resolved by
the Governor or other appointing entity, consistent with paragraphs
(i)(1) and (2) of this section.
(4) The Council shall, consistent with State law, supervise and
evaluate the staff and personnel that are necessary to carry out its
functions.
(5) Those staff and personnel that are assisting the Council in
carrying out its functions may not be assigned duties by the designated
State unit or any other agency or office of the State that would create
a conflict of interest.
(j) Meetings. The Council shall--
(1) Convene at least four meetings a year to conduct Council
business that are publicly announced, open and accessible to the
public, including individuals with disabilities, unless there is a
valid reason for an executive session; and
(2) Conduct forums or hearings, as appropriate, that are publicly
announced, open and accessible to the public, including individuals
with disabilities.
(k) Compensation. Funds appropriated under Title I of the Act,
except funds to carry out sections 112 and 130 of the Act, may be used
to compensate and reimburse the expenses of Council members in
accordance with section 105(g) of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 105 of the Act; 29 U.S.C. 725)
Sec. 361.18 Comprehensive system of personnel development.
The State plan must describe the procedures and activities the
State agency will undertake to establish and maintain a comprehensive
system of personnel development designed to ensure an adequate supply
of qualified rehabilitation personnel, including professionals and
paraprofessionals, for the designated State unit. If the State agency
has a State Rehabilitation Advisory Council, this description must, at
a minimum, 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) and paragraph
(f) of this section. This description must also conform with the
following requirements:
(a) Data system on personnel and personnel development. The State
plan must describe the development and maintenance of a system by the
State agency for collecting and analyzing on an annual basis data on
qualified personnel needs and personnel development, in accordance with
the following requirements:
(1) Data on qualified personnel needs must include--
(i) The number of personnel who are employed by the State agency in
the provision of vocational rehabilitation services in relation to the
number of individuals served, broken down by personnel category;
(ii) The number of personnel currently needed by the State agency
to provide vocational rehabilitation services, broken down by personnel
category; and
(iii) Projections of the number of personnel, broken down by
personnel category, who will be needed by the State agency to provide
vocational rehabilitation services in the State in five years based on
projections of the number of individuals to be served, including
individuals with severe disabilities, the number of personnel expected
to retire or leave the field, and other relevant factors.
(2) Data on personnel development must include--
(i) A list of the institutions of higher education in the State
that are preparing vocational rehabilitation professionals, by type of
program;
(ii) The number of students enrolled at each of those institutions,
broken down by type of program; and
(iii) The number of students who graduated during the prior year
from each of those institutions with certification or licensure, or
with the credentials for certification or licensure, broken down by the
personnel category for which they have received, or have the
credentials to receive, certification or licensure.
(b) Plan for recruitment, preparation, and retention of qualified
personnel. The State plan must describe the development, updating, and
implementation of a plan to address the current and projected needs for
personnel who are qualified in accordance with paragraph (c) of this
section. The plan must identify the personnel needs based on the data
collection and analysis system described in paragraph (a) of this
section and must provide for the coordination and facilitation of
efforts between the designated State unit and institutions of higher
education and professional associations to recruit, prepare, and retain
personnel who are qualified in accordance with paragraph (c) of this
section, including personnel from minority backgrounds and personnel
who are individuals with disabilities.
(c) Personnel standards. (1) The State plan must include the State
agency's policies and describe the procedures the State agency will
undertake to establish and maintain standards to ensure that
professional and paraprofessional personnel needed within the State
unit to carry out this part are appropriately and adequately prepared
and trained, including--
(i) Standards that are consistent with any national or State-
approved or -recognized certification, licensing, or registration
requirements, or, in the absence of these requirements, other
[[Page 6345]]
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.
(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 other comparable requirements that apply to that
profession or discipline. The current requirements of all State
statutes and regulations of other agencies in the State applicable to
that profession or discipline must be considered and must be kept on
file by the designated State unit and available to the public.
(ii) Profession or discipline means a specific occupational
category, including any paraprofessional occupational category, that--
(A) Provides rehabilitation services to individuals with
disabilities;
(B) Has been established or designated by the State; and
(C) Has a specified scope of responsibility.
(d) Staff development. (1) The State plan must include the State
agency's policies and describe the procedures and activities the State
agency will undertake to ensure that all personnel employed by the
State unit receive appropriate and adequate training, including a
description of--
(i) A system of staff development for rehabilitation professionals
and paraprofessionals within the State unit, particularly with respect
to rehabilitation technology; and
(ii) Procedures for acquiring and disseminating to rehabilitation
professionals and paraprofessionals within the designated State unit
significant knowledge from research and other sources, including
procedures for providing training regarding the amendments to the
Rehabilitation Act of 1973 made by the Rehabilitation Act Amendments of
1992.
(2) The specific training areas for staff development must be based
on the needs of each State unit and may include, but are not limited
to, training with respect to the requirements of the Americans with
Disabilities Act, IDEA, and Social Security work incentive programs,
training to facilitate informed choice under this program, and training
to improve the provision of services to culturally diverse populations.
(e) Personnel to address individual communication needs. The State
plan must describe how the State unit--
(1) Includes among its personnel, or obtains the services of,
individuals able to communicate in the native languages of applicants
and eligible individuals who have limited English speaking ability; and
(2) Includes among its personnel, or obtains the services of,
individuals able to communicate with applicants and eligible
individuals in appropriate modes of communication.
(f) Performance evaluation system. The State plan must describe how
the system for evaluating the performance of rehabilitation counselors,
coordinators, and other personnel used in the State unit facilitates,
and in no way impedes, the accomplishment of the purpose and policy of
the program as described in sections 100(a)(2) and 100(a)(3) of the
Act, including the policy of serving, among others, individuals with
the most severe disabilities.
(g) Coordination with personnel development under IDEA. The State
plan must describe the procedures and activities the State agency will
undertake to coordinate its comprehensive system of personnel
development under the Act with personnel development under IDEA.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 101 (a)(7) and (a)(35) of the Act; 29 U.S.C. 721(a)
(7) and (35))
Note: Under the Act and the regulations in this part, the State
agency is required to collect and analyze data regarding personnel
needs by type or category of personnel. The personnel data must be
collected and analyzed according to personnel category breakdowns
that are based on the major categories of staff in the State unit.
Similarly, the data from institutions of higher education must be
broken down by type of program to correspond as closely as possible
with the personnel categories of the State unit.
Sec. 361.19 Affirmative action for individuals with disabilities.
The State plan must assure that the State agency takes affirmative
action to employ and advance in employment qualified individuals with
disabilities.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 101(a)(6)(A) of the Act; 29 U.S.C. 721(a)(6)(A))
Sec. 361.20 State plan development.
(a) Public participation requirements.--(1) Plan development and
revisions. The State plan must assure that the State unit conducts
public meetings throughout the State to provide all segments of the
public, including interested groups, organizations, and individuals, an
opportunity to comment on the State plan prior to its development and
to comment on any revisions to the State plan.
(2) Notice requirements. The State plan must assure that the State
unit, prior to conducting public meetings, provides appropriate and
sufficient notice throughout the State of the meetings in accordance
with--
(i) State law governing public meetings; or
(ii) In the absence of State law governing public meetings,
procedures developed by the State unit in consultation with the State
Rehabilitation Advisory Council.
(3) Revisions based on consumer satisfaction surveys. The State
plan must describe the manner in which the State's policies and
procedures will be revised based on the results of consumer
satisfaction surveys conducted by the State Rehabilitation Advisory
Council under Sec. 361.17(h)(3) or by the State agency if it is an
independent commission in accordance with the requirements of
Sec. 361.16.
(b) Special consultation requirements. The State plan must assure
that, as appropriate, the State unit actively consults in the
development and revision of the State plan with the CAP director, the
State Rehabilitation Advisory Council, and, as appropriate, those
Indian tribes, tribal organizations, and native Hawaiian organizations
that represent significant numbers of individuals with disabilities
within the State.
(c) Summary of public comments. The State plan must include a
summary of the public comments on the State plan, including comments on
revisions to the State plan and the State unit's response to those
comments.
(d) Appropriate modes of communication. The State unit shall
provide, through appropriate modes of communication, the notices of the
public meetings, any materials furnished prior to or during the public
meetings, and the approved State plan.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
[[Page 6346]]
(Authority: Sec. 101(a)(20), 101(a)(23), 101(a)(32), and 105(c)(2)
of the Act; 29 U.S.C. 721(a)(20), (23), and (32) and 725(c)(2))
Sec. 361.21 Consultations regarding the administration of the State
plan.
(a) The State plan must assure that, in connection with matters of
general policy development and implementation arising in the
administration of the State plan, the State unit seeks and takes into
account the views of--
(1) Individuals who receive vocational rehabilitation services or,
as appropriate, the individuals' representatives;
(2) Personnel working in the field of vocational rehabilitation;
(3) Providers of vocational rehabilitation services;
(4) The CAP director; and
(5) The State Rehabilitation Advisory Council, if the State has a
Council.
(b) The State plan must specifically describe the manner in which
the State unit will take into account the views regarding State policy
and administration of the State plan that are expressed in the consumer
satisfaction surveys conducted by the State Rehabilitation Advisory
Council under Sec. 361.17(h)(3) or by the State agency if it is an
independent commission in accordance with the requirements of
Sec. 361.16(a)(1).
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(18), 101(a)(32), and 105(c)(2) of the Act;
29 U.S.C. 721(a)(18), 721(a)(32), and 725(c)(2))
Sec. 361.22 Cooperation with agencies responsible for students with
disabilities.
(a) Students with disabilities who are receiving special education
services.--(1) General. The State plan must contain plans, policies,
and procedures that are designed to facilitate the transition of
students who are receiving special education services from the
provision of a free appropriate public education under the
responsibility of an educational agency to the provision of vocational
rehabilitation services under the responsibility of the designated
State unit. These plans, policies, and procedures must provide for the
development and completion of the IWRP before the student leaves the
school setting for each student determined to be eligible for
vocational rehabilitation services or, if the designated State unit is
operating under an order of selection, for each eligible student able
to be served under the order. The IWRP must, at a minimum, identify the
long-term rehabilitation goals, intermediate rehabilitation objectives,
and goals and objectives related to enabling the student to live
independently, to the extent these goals and objectives are included in
the student's individualized education program.
(2) Formal interagency agreement. The State plan must assure that
the State unit enters into formal interagency agreements with the State
educational agency and, as appropriate, with local educational
agencies, that are responsible for the free appropriate public
education of students with disabilities who are receiving special
education services. Formal interagency agreements must, at a minimum,
identify--
(i) Policies, practices, and procedures that can be coordinated
between the agencies, including definitions, standards for eligibility,
policies and procedures for making referrals, procedures for outreach
to and identification of youth who are receiving special education
services and are in need of transition services, and procedures and
timeframes for evaluation and follow-up of those students;
(ii) The roles of each agency, including provisions for determining
State lead agencies and qualified personnel responsible for transition
services;
(iii) Procedures for providing training for staff of State and
local educational agencies as to the availability, benefits of, and
eligibility standards for vocational rehabilitation services, to the
extent practicable;
(iv) Available resources, including sources of funds for the
development and expansion of services;
(v) The financial responsibility of each agency in providing
services to students with disabilities who are receiving special
education services, consistent with State law;
(vi) Procedures for resolving disputes between the agencies that
are parties to the agreement; and
(vii) All other components necessary to ensure meaningful
cooperation among agencies, including procedures to facilitate the
development of local teams to coordinate the provision of services to
individuals, sharing data, and coordinating joint training of staff in
the provision of transition services.
(b) Students with disabilities who are not receiving special
education services. The State plan must contain plans, policies, and
procedures, including cooperation with appropriate agencies, designed
to ensure that students with disabilities who are not receiving special
education services have access to and can receive vocational
rehabilitation services, if appropriate, and to ensure outreach to and
identification of those students.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(11)(C), 101(a)(24) and 101(a)(30) of the
Act; 29 U.S.C. 721 (a)(11), (a)(24), and (a)(30))
Note: The following excerpt from page 33 of Senate Report No.
102-357 further clarifies the provision of transition services by
the State vocational rehabilitation agency:
The overall purpose of this provision is to ensure that all
students who require vocational rehabilitation services receive
those services in a timely manner. There should be no gap in
services between the education system and the vocational
rehabilitation system * * *. The committee intends that students
with disabilities who are eligible for, and who need, vocational
rehabilitation services will receive those services as soon as
possible, consistent with Federal and State law. These provisions
are not intended in any way to shift the responsibility of service
delivery from education to rehabilitation during the transition
years. School officials will continue to be responsible for
providing a free and appropriate public education as defined by the
IEP. The role of the rehabilitation system is primarily one of
planning for the student's years after leaving school. (S. Rep. No.
357, 102d Cong., 2d. Sess. 33 (1992))
Sec. 361.23 Cooperation with other public agencies.
(a) Coordination of services with vocational education and Javits-
Wagner-O'Day programs. The State plan must assure that specific
arrangements or agreements are made for the coordination of services
for any individual who is eligible for vocational rehabilitation
services and is also eligible for services under the Carl D. Perkins
Vocational and Applied Technology Education Act or the Javits-Wagner-
O'Day Act.
(b) Cooperation with other Federal, State, and local public
agencies providing services related to the rehabilitation of
individuals with disabilities. (1) The State plan must assure that the
State unit cooperates with other Federal, State, and local public
agencies providing services related to the rehabilitation of
individuals with disabilities, including, as appropriate, establishing
interagency working groups or entering into formal interagency
cooperative agreements with, and using the services and facilities of--
(i) Federal agencies providing services related to the
rehabilitation of individuals with disabilities, including the Social
Security Administration, the Office of Workers' Compensation Programs
of the Department of Labor,
[[Page 6347]]
and the Department of Veterans Affairs; and
(ii) State and local public agencies providing services related to
the rehabilitation of individuals with disabilities, including State
and local public agencies administering the State's social services and
financial assistance programs and other State programs for individuals
with disabilities, such as the State's developmental disabilities
program, veterans programs, health and mental health programs,
education programs (including adult education, higher education, and
vocational education programs), workers' compensation programs, job
training and placement programs, and public employment offices.
(2) Interagency cooperation under paragraph (b)(1) of this section,
to the extent practicable, must provide for training for staff of the
agencies as to the availability, benefits of, and eligibility standards
for vocational rehabilitation services.
(3) If the State unit chooses to enter into formal interagency
cooperative agreements developed under paragraph (b)(1) of this
section, the agreements must--
(i) Identify policies, practices, and procedures that can be
coordinated among the agencies (particularly definitions, standards for
eligibility, the joint sharing and use of evaluations and assessments,
and procedures for making referrals);
(ii) Identify available resources and define the financial
responsibility of each agency for paying for necessary services
(consistent with State law) and procedures for resolving disputes
between agencies; and
(iii) Include all additional components necessary to ensure
meaningful cooperation and coordination.
(c) Reciprocal referral services with a separate agency for
individuals who are blind. If there is a separate State unit for
individuals who are blind, the State plan must assure that the two
State units establish reciprocal referral services, use each other's
services and facilities to the extent feasible, jointly plan activities
to improve services in the State for individuals with multiple
impairments, including visual impairments, and otherwise cooperate to
provide more effective services, including, if appropriate, entering
into a written cooperative agreement.
(Authority: Secs. 101(a)(11) and 101(a)(22) of the Act; 29 U.S.C.
721(a)(11) and 721(a)(22))
Sec. 361.24 Coordination with the Statewide Independent Living
Council.
The State plan must assure that the State unit will coordinate and
establish working relationships with the Statewide Independent Living
Council established under 34 CFR Part 364 and with independent living
centers within the State.
(Authority: Sec. 101(a)(33) of the Act; 29 U.S.C. 721(a)(33))
Sec. 361.25 Statewideness.
The State plan must assure that services provided under the State
plan will be available in all political subdivisions of the State,
unless a waiver of statewideness is requested and approved in
accordance with Sec. 361.26.
(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))
Sec. 361.26 Waiver of statewideness.
(a) Availability. The State unit may provide services in one or
more political subdivisions of the State that increase services or
expand the scope of services that are available statewide under the
State plan if--
(1) The non-Federal share of the cost of these services is met from
funds provided by a local public agency, including funds contributed to
a local public agency by a private agency, organization, or individual;
(2) The services are likely to promote the vocational
rehabilitation of substantially larger numbers of individuals with
disabilities or of individuals with disabilities with particular types
of impairments; and
(3) The State includes in its State plan, and the Secretary
approves, a request for a waiver of the statewideness requirement, in
accordance with the requirements of paragraph (b) of this section.
(b) Request for waiver. The request for a waiver of statewideness
must--
(1) Identify the types of services to be provided;
(2) Contain a written assurance from the local public agency that
it will make available to the State unit the non-Federal share of
funds;
(3) Contain a written assurance that State unit approval will be
obtained for each proposed service before it is put into effect; and
(4) Contain a written assurance that all other State plan
requirements, including a State's order of selection requirements, will
apply to all services approved under the waiver.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 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 a joint program involving shared
funding and administrative responsibility with another State agency or
a local public agency to provide services to individuals with
disabilities, the plan must include a description of the nature and
scope of the joint program, the services to be provided, the respective
roles of each participating agency in the provision of services and in
their administration, and the share of the costs to be assumed by each
agency.
(b) If a proposed joint program does not comply with the
statewideness requirement in Sec. 361.25, the State unit shall obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))
Sec. 361.28 Third-party cooperative arrangements involving funds from
other public agencies.
(a) If the designated State unit enters into a third-party
cooperative arrangement for providing or administering vocational
rehabilitation services with another State agency or a local public
agency that is furnishing part or all of the non-Federal share, the
State plan must assure that--
(1) The services provided by the cooperating agency are not the
customary or typical services provided by that agency but are new
services that have a vocational rehabilitation focus or existing
services that have been modified, adapted, expanded, or reconfigured to
have a vocational rehabilitation focus;
(2) The services provided by the cooperating agency are only
available to applicants for, or recipients of, services from the
designated State unit;
(3) Program expenditures and staff providing services under the
cooperative arrangement are under the administrative supervision of the
designated State unit; and
(4) All State plan requirements, including a State's order of
selection, will apply to all services provided under the cooperative
program.
(b) If a third party cooperative agreement does not comply with the
statewideness requirement in Sec. 361.25, the State unit shall obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Authority: Sec. 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))
[[Page 6348]]
Sec. 361.29 Statewide studies and evaluations.
(a) Statewide studies. The State plan must assure that the State
unit conducts continuing statewide studies to determine the current
needs of individuals with disabilities within the State and the best
methods to meet those needs. As part of the development of the State
plan, the continuing statewide studies, at a minimum, must include--
(1) A triennial comprehensive assessment of the rehabilitation
needs of individuals with severe disabilities who reside in the State;
(2) A triennial review of the effectiveness of outreach procedures
used to identify and serve individuals with disabilities who are
minorities and individuals with disabilities who are unserved and
underserved by the vocational rehabilitation system; and
(3) A triennial review of a broad variety of methods to provide,
expand, and improve vocational rehabilitation services to individuals
with the most severe disabilities, including individuals receiving
supported employment services under 34 CFR part 363.
(b) Annual evaluation. The State plan must assure that the State
unit conducts an annual evaluation of the effectiveness of the State's
vocational rehabilitation program in providing vocational
rehabilitation and supported employment services, especially to
individuals with the most severe disabilities. The annual evaluation
must analyze the extent to which--
(1) The State has achieved the goals and priorities established in
the State plan and annual amendments to the plan; and
(2) The State is in compliance with the evaluation standards and
performance indicators established by the Secretary pursuant to section
106 of the Act.
(c) Reporting requirements. (1) The State plan must describe
annually those changes that have been adopted in policy, in the State
plan and its amendments, and in the strategic plan and its amendments
as a result of the statewide studies and the annual program evaluation.
(2) The State plan must contain an annual description of the
methods used to expand and improve vocational rehabilitation services
to individuals with the most severe disabilities, including the State
unit's criteria for determining which individuals are individuals with
the most severe disabilities.
(3) The State plan must contain an annual analysis of the
characteristics of individuals determined to be ineligible for services
and the reasons for the ineligibility determinations.
(4) The State unit shall maintain copies of the statewide studies
and the annual evaluations and shall make the copies available to the
Secretary upon request.
(d) Role of the State Rehabilitation Advisory Council. The State
plan must assure that the State unit seeks the advice of the State
Rehabilitation Advisory Council, if the State has a Council, regarding
the continuing statewide studies and the annual evaluation and, at the
discretion of the State agency, seeks assistance from the Council in
the preparation and analysis of the studies and evaluation.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sections 101(a)(5) (A) and (B), 101(a)(9)(D), 101(a)(15)
(A), (C), and (D), 101(a)(19), and 105(c)(2) of the Act; 29 U.S.C.
721(a) (5), (9), (15), and (19) and 725(c)(2))
Sec. 361.30 Services to special groups of individuals with
disabilities.
(a) Civil employees of the United States. The State plan must
assure that vocational rehabilitation services are available to civil
employees of the U.S. Government who are disabled in the line of duty,
under the same terms and conditions applied to other individuals with
disabilities.
(b) Public safety officers. (1) The State plan must assure that
special consideration will be given to those individuals with
disabilities whose disability arose from an impairment sustained in the
line of duty while performing as a public safety officer and the
immediate cause of that impairment was a criminal act, apparent
criminal act, or a hazardous condition resulting directly from the
officer's performance of duties in direct connection with the
enforcement, execution, and administration of law or fire prevention,
firefighting, or related public safety activities.
(2) For the purposes of paragraph (b) of this section, special
consideration for States under an order of selection means that those
public safety officers who meet the requirements of paragraph (b)(1) of
this section must receive priority for services over other eligible
individuals in the same priority category of the order of selection.
(3) For the purposes of paragraph (b) of this section, criminal act
means any crime, including an act, omission, or possession under the
laws of the United States, a State, or a unit of general local
government that poses a substantial threat of personal injury,
notwithstanding that by reason of age, insanity, intoxication, or
otherwise, the person engaging in the act, omission, or possession was
legally incapable of committing a crime.
(4) For the purposes of paragraph (b) of this section, public
safety officer means a person serving the United States or a State or
unit of local government, with or without compensation, in any activity
pertaining to--
(i) The enforcement of the criminal laws, including highway patrol,
or the maintenance of civil peace by the National Guard or the Armed
Forces;
(ii) A correctional program, facility, or institution if the
activity is potentially dangerous because of contact with criminal
suspects, defendants, prisoners, probationers, or parolees;
(iii) A court having criminal or juvenile delinquent jurisdiction
if the activity is potentially dangerous because of contact with
criminal suspects, defendants, prisoners, probationers, or parolees; or
(iv) Firefighting, fire prevention, or emergency rescue missions.
(c) American Indians. (1) The State plan must assure that
vocational rehabilitation services are provided to American Indians
with disabilities residing in the State to the same extent that these
services are provided to other significant groups of individuals with
disabilities residing in the State.
(2) The State plan also must assure that the designated State unit
continues to provide vocational rehabilitation services, including, as
appropriate, services traditionally used by Indian tribes, to American
Indians with disabilities who reside on reservations and are eligible
for services by a special tribal program under 34 CFR part 371.
(Authority: Secs. 7, 101(a)(13), 101(a)(20), and 130(b)(3) of the
Act; 29 U.S.C. 706, 721(a)(13), 721(a)(20), and 750(b)(3))
Sec. 361.31 Utilization of community resources.
The State plan must assure that, in providing vocational
rehabilitation services, public or other vocational or technical
training programs or other appropriate community resources are used to
the maximum extent feasible.
(Authority: Sec. 101(a)(12)(A) of the Act; 29 U.S.C. 721(a)(12)(A))
Sec. 361.32 Utilization of profitmaking organizations for on-the-job
training in connection with selected projects.
The State plan must assure that the State unit has the authority to
enter into contracts with profitmaking organizations for the purpose of
providing on-the-job training and related programs for individuals with
[[Page 6349]]
disabilities under the Projects With Industry program, 34 CFR part 379,
if it has been determined that they are better qualified to provide
needed services than nonprofit agencies, organizations, or programs in
the State.
(Authority: Sec. 101(a)(21) of the Act; 29 U.S.C. 721(a)(21))
Sec. 361.33 Use, assessment, and support of community rehabilitation
programs.
(a) The State plan must contain a description of how the designated
State unit uses community rehabilitation programs to the maximum extent
feasible to provide vocational rehabilitation services in the most
integrated settings possible, consistent with the informed choices of
the individuals. This description must--
(1) Include the methods the designated State unit uses to ensure
the appropriate use of community rehabilitation programs;
(2) Provide, as appropriate, for entering into agreements with the
operators of those community rehabilitation programs;
(3) Specify the manner in which the designated State unit will
establish cooperative agreements with private nonprofit vocational
rehabilitation service providers;
(4) Contain the findings resulting from an assessment of the
capacity and effectiveness of community rehabilitation programs,
including programs under the Javits-Wagner-O'Day Act, based on the use
of those programs; and
(5) Contain plans for improving community rehabilitation programs
based on the assessment in paragraph (a)(4) of this section.
(b) If the State plan provides for the establishment, development,
or improvement of a public or nonprofit community rehabilitation
program, the State plan must contain a description of the need to
establish, develop, or improve, as appropriate, the community
rehabilitation program to provide vocational rehabilitation services to
applicants and eligible individuals, based on the assessment and
improvement plans required in paragraphs (a)(4) and (a)(5) of this
section.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(5)(A), 101(a)(12)(B), 101(a)(15)(B),
101(a)(27), 101(a)(28), and 103(b)(2) of the Act; 29 U.S.C.
721(a)(5), (12), (15), (27), and (28) and 723(b)(2))
Sec. 361.34 Supported employment plan.
(a) The State plan must assure that the State has an acceptable
plan under 34 CFR part 363 that provides for the use of funds under
that part to supplement funds under this part for the cost of services
leading to supported employment.
(b) The supported employment plan, including any needed annual
revisions, must be submitted as a supplement to the State plan.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(25) and 635(a) of the Act; 29 U.S.C.
721(a)(25))
Sec. 361.35 Strategic plan.
(a) The State plan must assure that the State--
(1) Has developed and implemented a strategic plan for expanding
and improving vocational rehabilitation services for individuals with
disabilities on a statewide basis in accordance with subpart D of this
part; and
(2) Will use at least 1.5 percent of its allotment under this
program for expansion and improvement activities in accordance with
Sec. 361.73(b).
(b) The strategic plan must be submitted at the same time as the
State plan.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(34) and 120 of the Act; 29 U.S.C.
721(a)(34) and 740)
Sec. 361.36 Ability to serve all eligible individuals; order of
selection for services.
(a) General provisions. (1) The State plan must contain--
(i) An assurance that the designated State unit is able to provide
the full range of services listed in section 103(a) of the Act, as
appropriate, to all eligible individuals. The assurance must be
supported by an explanation that satisfies the requirements of
paragraph (a)(2) or (a)(3) of this section and describes how, on the
basis of the designated State unit's projected fiscal and personnel
resources and its assessment of the rehabilitation needs of individuals
with severe disabilities within the State, it will--
(A) Continue to provide services to all individuals currently
receiving services;
(B) Provide assessment services to all individuals expected to
apply for services in the next fiscal year;
(C) Provide services to all individuals who are expected to be
determined eligible in the next fiscal year; and
(D) Meet all program requirements; or
(ii) The order to be followed in selecting eligible individuals to
be provided services, a justification of that order of selection, and a
description of the outcome and service goals and service costs to be
achieved for individuals with disabilities in each category within the
order and the time within which these goals may be achieved.
(2) For those designated State units that provided assurances in
their State plans for the current fiscal year and the preceding fiscal
year that they are able to provide the full range of services, as
appropriate, to all eligible individuals, the explanation required by
paragraph (a)(1)(i) of this section must include a statement that,
during the current fiscal year and the preceding fiscal year, the DSU
has 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
written rehabilitation programs (IWRPs) for individuals determined
eligible, or the provision of services for eligible individuals for
whom IWRPs have been developed.
(3) For those designated State units unable to provide the full
range of services to all eligible individuals during the current or
preceding fiscal year, or unable to provide the statement required in
paragraph (a)(2) of this section, the explanation required by paragraph
(a)(1)(i) of this section must include--
(i) A description of the circumstances that have changed that will
allow the DSU to meet the requirements of paragraph (a)(1)(i) of this
section in the next fiscal year, including a description of--
(A) The estimated number of and projected costs of serving, in the
next fiscal year, individuals with existing IWRPs;
(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
[[Page 6350]]
paragraphs (a)(3)(i) (A) through (C) of this section and the resources
identified in paragraph (a)(3)(i)(D) of this section and an explanation
of any projected increases or decreases in these costs and resources;
and
(iii) A demonstration 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 (a)(3)(i) (A)
through (C) of this section so as to ensure the provision of the full
range of services, as appropriate, to all eligible individuals.
(b) Time for determining need for an order of selection. (1) The
designated State unit shall 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 shall 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.
(c) 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 severe
disability'' in section 7(15)(A) of the Act.
(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, creed, 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.
(3) Priority for individuals with the most severe disabilities. The
State plan must assure that those individuals with the most severe
disabilities are selected for service before other individuals with
disabilities. The designated State unit shall establish criteria for
determining which individuals are individuals with the most severe
disabilities. The criteria must be consistent with the definition of
``individual with a severe disability'' in section 7(15)(A) of the Act
and the requirements in paragraphs (c) (1) and (2) of this section.
(d) Administrative requirements. In administering the order of
selection, the designated State unit shall--
(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 IWRP prior to the
effective date of the order of selection, irrespective of the severity
of the individual's disability;
(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 shall renegotiate these funding
arrangements so that they are consistent with the order of selection.
(e) State Rehabilitation Advisory Council. The designated State
unit shall consult with and seriously consider the advice of the State
Rehabilitation Advisory Council regarding the--
(1) Need to establish an order of selection, including any
reevaluation of the need under paragraph (b)(2) of this section;
(2) Priority categories of the particular order of selection;
(3) Criteria for determining individuals with the most severe
disabilities; and
(4) Administration of the order of selection.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 7(15)(A); 12(d); 17; 101(a)(4); 101(a)(5)(A);
101(a)(7); 101(a)(11)(A); 101(a)(15)(D); 101(a)(24); 101(a)(30);
101(a)(36)(A)(ii); 107(a)(4)(B); and 504(a) of the Act; 29 U.S.C.
706(15)(A), 711(d), 716, 721(a)(4), 721(a)(5)(A), 721(a)(7),
721(a)(11)(A), 721(a)(15)(D), 721(a)(24), 721(a)(30),
721(a)(36)(A)(ii), 727(a)(4)(B), and 794(a))
Sec. 361.37 Establishment and maintenance of information and referral
programs.
(a) General provisions. The State plan must assure that--
(1) The designated State unit will establish and maintain
information and referral programs adequate to ensure that individuals
with disabilities within the State are given accurate information about
State vocational rehabilitation services, independent living services,
vocational rehabilitation services available from other agencies,
organizations, and community rehabilitation programs, and, to the
extent possible, other Federal and State services and programs that
assist individuals with disabilities, including client assistance and
other protection and advocacy programs;
(2) The State unit will refer individuals with disabilities to
other appropriate Federal and State programs that might be of benefit
to them; and
(3) The State unit will use existing information and referral
systems in the State to the greatest extent possible.
(b) Appropriate modes of communication. The State plan further must
assure that information and referral programs use appropriate modes of
communication.
(c) Special circumstances. If the State unit is operating under an
order of selection for services, the State unit may elect to establish
an expanded information and referral program that includes counseling,
guidance, and referral for job placements for those eligible
individuals who are not in the priority category or categories to
receive vocational rehabilitation services under the State's order of
selection.
(1) If a State unit elects to establish an expanded information and
referral program under paragraph (c) of this section, the State plan
must include--
(i) A description of how the expanded information and referral
program will be established and how it will function, including the
level of commitment of State unit staff and resources; and
(ii) An assurance that, in carrying out this program, the State
unit will not use funds that are needed to provide vocational
rehabilitation services under IWRPs for eligible individuals in the
priority category or categories receiving services under the State
unit's order of selection or for other eligible individuals who have
begun to receive services prior to the effective date of the order of
selection.
(2) If the designated State unit chooses to track the individuals
who obtain employment through participation in an expanded information
and referral program established under paragraph (c) of this section,
the State plan must include a report of the number of individuals
served and the number of individuals who obtain employment through this
program.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 101(a)(22) of the Act; 29 U.S.C. 721(a)(22))
[[Page 6351]]
Sec. 361.38 Protection, use, and release of personal information.
(a) General provisions. (1) The State plan must assure that the
State agency and the State unit will adopt and implement policies and
procedures to safeguard the confidentiality of all personal
information, including photographs and lists of names. These policies
and procedures must assure that--
(i) Specific safeguards protect current and stored personal
information;
(ii) All applicants and eligible individuals and, as appropriate,
those individuals' representatives, service providers, cooperating
agencies, and interested persons are informed through appropriate modes
of communication of the confidentiality of personal information and the
conditions for accessing and releasing this information;
(iii) All applicants or their representatives are informed about
the State unit need to collect personal information and the policies
governing its use, including--
(A) Identification of the authority under which information is
collected;
(B) Explanation of the principal purposes for which the State unit
intends to use or release the information;
(C) Explanation of whether providing requested information to the
State unit is mandatory or voluntary and the effects of not providing
requested information;
(D) Identification of those situations in which the State unit
requires or does not require informed written consent of the individual
before information may be released; and
(E) Identification of other agencies to which information is
routinely released;
(iv) An explanation of State policies and procedures affecting
personal information will be provided to each individual in that
individual's native language or through the appropriate mode of
communication; and
(v) These policies and procedures provide no fewer protections for
individuals than State laws and regulations.
(2) The State unit may establish reasonable fees to cover
extraordinary costs of duplicating records or making extensive searches
and shall establish policies and procedures governing access to
records.
(b) State program use. All personal information in the possession
of the State agency or the designated State unit must be used only for
the purposes directly connected with the administration of the
vocational rehabilitation program. Information containing identifiable
personal information may not be shared with advisory or other bodies
that do not have official responsibility for administration of the
program. In the administration of the program, the State unit may
obtain personal information from service providers and cooperating
agencies under assurances that the information may not be further
divulged, except as provided under paragraphs (c), (d), and (e) of this
section.
(c) Release to applicants and eligible individuals. (1) Except as
provided in paragraphs (c)(2) and (c)(3) of this section, if requested
in writing by an applicant or eligible individual, the State unit shall
make all requested information in that individual's record of services
accessible to and shall 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.
(d) Release for audit, evaluation, and research. Personal
information may be released to an organization, agency, or individual
engaged in audit, evaluation, or research only for purposes directly
connected with the administration of the vocational rehabilitation
program, or for purposes that would significantly improve the quality
of life for applicants and eligible individuals and only if the
organization, agency, or individual assures that--
(1) The information will be used only for the purposes for which it
is being provided;
(2) The information will be released only to persons officially
connected with the audit, evaluation, or research;
(3) The information will not be released to the involved
individual;
(4) The information will be managed in a manner to safeguard
confidentiality; and
(5) The final product will not reveal any personal identifying
information without the informed written consent of the involved
individual or the individual's representative.
(e) Release to other programs or authorities. (1) Upon receiving
the informed written consent of the individual or, if appropriate, the
individual's representative, the State unit may release personal
information to another agency or organization for its program purposes
only to the extent that the information may be released to the involved
individual or the individual's representative and only to the extent
that the other agency or organization demonstrates that the information
requested is necessary for its program.
(2) Medical or psychological information that the State unit
determines may be harmful to the individual may be released if the
other agency or organization assures the State unit that the
information will be used only for the purpose for which it is being
provided and will not be further released to the individual.
(3) The State unit shall release personal information if required
by Federal law or regulations.
(4) The State unit shall release personal information in response
to investigations in connection with law enforcement, fraud, or abuse,
unless expressly prohibited by Federal or State laws or regulations,
and in response to an order issued by a 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: Secs. 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C.
711(c) and 721(a)(6)(A))
Sec. 361.39 State-imposed requirements.
The State plan must assure that the designated State unit
identifies upon request those regulations and policies relating to the
administration or operation of its vocational rehabilitation program
that are State-imposed, including any regulations or policy based on
State interpretation of any Federal law, regulations, or guideline.
(Authority: Sect. 17 of the Act; 29 U.S.C. 716)
[[Page 6352]]
Sec. 361.40 Reports.
The State plan must assure that the State unit--
(a) Will submit reports in the form and detail and at the time
required by the Secretary, including reports required under sections
13, 14, and 101(a)(10) of the Act; and
(b) Will comply with any requirements necessary to ensure the
correctness and verification of those reports.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 101(a)(10) of the Act; 29 U.S.C. 721(a)(10))
State Plan Content: Provision and Scope of Services
Sec. 361.41 Processing referrals and applications.
(a) Referrals. The State plan must assure that the designated State
unit has established and implemented standards for the prompt and
equitable handling of referrals of individuals for vocational
rehabilitation services. The standards must include timelines for
making good faith efforts to inform these individuals of application
requirements and to gather information necessary to initiate an
assessment for determining eligibility and priority for services.
(b) Applications. (1) The State plan must assure that once an
individual has submitted an application for vocational rehabilitation
services, an eligibility determination will be made within 60 days,
unless--
(i) Exceptional and unforeseen circumstances beyond the control of
the agency preclude a determination within 60 days and the agency and
the individual agree to a specific extension of time; or
(ii) An extended evaluation is necessary, in accordance with
Sec. 361.42(d).
(2) An individual is considered to have submitted an application
when the individual or the individual's representative, as
appropriate,--
(i) Has completed and signed an agency application form or has
otherwise requested services;
(ii) Has provided 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 shall ensure that its application
forms are widely available throughout the State.
(Authority: Sec. 101(a)(6)(A) and 102(a)(5)(A) of the Act; 29 U.S.C.
721(a)(6)(A) and 722(a)(5)(A))
Sec. 361.42 Assessment for determining eligibility and priority for
services.
The State plan must assure that, in order to determine whether an
individual is eligible for vocational rehabilitation services and the
individual's priority under an order of selection for services (if the
State is operating under an order of selection), the designated State
unit will conduct an assessment for determining eligibility and
priority for services. The assessment must be conducted in the most
integrated setting possible, consistent with the individual's needs and
informed choice, and in accordance with the following provisions:
(a) Eligibility requirements.--(1) Basic requirements. The State
plan must assure that the State unit's determination of an applicant's
eligibility for vocational rehabilitation services is based only on the
following requirements:
(i) A determination that the applicant has a physical or mental
impairment.
(ii) A determination that the applicant's physical or mental
impairment constitutes or results in a substantial impediment to
employment for the applicant.
(iii) A 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.
(iv) A determination that the applicant requires vocational
rehabilitation services to prepare for, enter into, engage in, or
retain gainful employment consistent with the applicant's strengths,
resources, priorities, concerns, abilities, capabilities, and informed
choice.
(2) Presumption of benefit. The State plan must assure that the
designated State unit will presume that an applicant who meets the
eligibility requirements in paragraphs (a)(1) (i) and (ii) of this
section can benefit in terms of an employment outcome unless it
demonstrates, based on clear and convincing evidence, that the
applicant is incapable of benefitting in terms of an employment outcome
from vocational rehabilitation services.
(3) Limited presumption for Social Security beneficiaries. The
State plan must assure that, if an applicant has appropriate evidence,
such as an award letter, that establishes the applicant's eligibility
for Social Security benefits under Title II or Title XVI of the Social
Security Act, the designated State unit will presume that the
applicant--
(i) Meets the eligibility requirements in paragraphs (a)(1) (i) and
(ii) of this section; and
(ii) Has a severe physical or mental impairment that seriously
limits one or more functional capacities in terms of an employment
outcome.
(b) Prohibited factors. The State plan must assure that-- (1) No
duration of residence requirement is imposed that excludes from
services any applicant who is present in the State;
(2) No applicant or group of applicants is excluded or found
ineligible solely on the basis of the type of disability;
(3) The eligibility requirements are applied without regard to the
age, gender, race, color, creed, or national origin of the applicant;
and
(4) The eligibility requirements are applied without regard to the
particular service needs or anticipated cost of services required by an
applicant or the income level of an applicant or applicant's family.
(c) Review and assessment of data for eligibility determination.
Except as provided in paragraph (d) of this section, the designated
State unit shall base its determination of each of the basic
eligibility requirements in paragraph (a) of this section on--
(1) A review and assessment of existing data, including counselor
observations, education records, information provided by the individual
or the individual's family, information used by the Social Security
Administration, and determinations made by officials of other agencies;
and
(2) To the extent existing data do not describe the current
functioning of the individual or are unavailable, insufficient, or
inappropriate to make an eligibility determination, an assessment of
additional data resulting from the provision of vocational
rehabilitation services, including assistive technology devices and
services and worksite assessments, that are necessary to determine
whether an individual is eligible.
(d) Extended evaluation for individuals with severe disabilities.
(1) Prior to any determination that an individual with a severe
disability is incapable of benefitting from vocational rehabilitation
services in terms of an employment outcome because of the severity of
that individual's disability, the State unit shall conduct an extended
evaluation to determine whether or not there is clear and convincing
evidence to support such a determination.
(2) During the extended evaluation period, which may not exceed 18
months, vocational rehabilitation services must be provided in the most
integrated setting possible, consistent with the informed choice of the
individual.
[[Page 6353]]
(3) During the extended evaluation period, the State unit shall
develop a written plan for determining eligibility and for determining
the nature and scope of services required to achieve an employment
outcome. The State unit may provide during this period only those
services that are necessary to make these two determinations.
(4) The State unit shall assess the individual's progress as
frequently as necessary, but at least once every 90 days, during the
extended evaluation period.
(5) The State unit shall terminate extended evaluation services at
any point during the 18-month extended evaluation period if the State
unit determines that--
(i) There is sufficient evidence to conclude that the individual
can benefit from the provision of vocational rehabilitation services in
terms of an employment outcome; or
(ii) There is clear and convincing evidence that the individual is
incapable of benefiting from vocational rehabilitation services in
terms of an employment outcome.
(e) Data for determination of priority for services under an order
of selection. If the State unit is operating under an order of
selection for services, as provided in Sec. 361.36, the State unit
shall base its priority assignments on--
(1) A review of the data that was developed under paragraphs (c)
and (d) of this section to make the eligibility determination; and
(2) An assessment of additional data, to the extent necessary.
(Authority: Secs. 7(22)(A)(ii), 7(22)(C)(iii), 101(a)(9)(A),
101(a)(14), 101(a)(31), 102(a)(1), 102(a)(2), 102(a)(3), 102(a)(4),
103(a)(4), and 103(a)(6) of the Act; 29 U.S.C. 706(22)(A)(ii),
706(22)(C)(iii), 721(a)(9)(a), 721(a)(14), 721(a)(31), 722(a)(1),
722(a)(2), 722(a)(3), 722(a)(4), 723(a)(4), and 723(a)(6))
Note: 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. Given these requirements, a review
of existing information generally would not provide clear and
convincing evidence. For example, the use of an intelligence test
result alone would not constitute clear and convincing evidence.
Clear and convincing evidence might include a description of
assessments, including situational assessments and supported
employment assessments, from service providers who have concluded
that they would be unable to meet the individual's needs due to the
severity of the individual's disability. The demonstration of
``clear and convincing evidence'' must include, if appropriate, a
functional assessment of skill development activities, with any
necessary supports (including assistive technology), in real life
settings. (S. Rep. No. 357, 102d Cong., 2d. Sess. 37-38 (1992))
Sec. 361.43 Procedures for ineligibility determination.
The State plan must assure that if the State unit determines that
an applicant is ineligible for vocational rehabilitation services or
determines that an individual receiving services under an
individualized written rehabilitation program is no longer eligible for
services, the State unit shall--
(a) Make the determination only after providing an opportunity for
full consultation with the individual or, as appropriate, with the
individual's representative;
(b) Inform the individual in writing, 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
a determination by the rehabilitation counselor or coordinator in
accordance with Sec. 361.57;
(c) Provide the individual with a description of services available
from a client assistance program established under 34 CFR part 370 and
information on how to contact that program; and
(d) Review 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: Secs. 101(a)(9)(D), 102(a)(6), and 102(c) of the Act; 29
U.S.C. 721(a)(9), 722(a)(6), and 722(c))
Sec. 361.44 Closure without eligibility determination.
The State plan must assure that the State unit may not close an
applicant's 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: Secs. 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C.
711(c) and 721(a)(6))
Sec. 361.45 Development of the individualized written rehabilitation
program.
(a) Purpose. The State plan must assure that the State unit
conducts an assessment for determining vocational rehabilitation needs
for each eligible individual or, if the State is operating under an
order of selection, for each eligible individual to whom the State is
able to provide services. The purpose of this assessment is to
determine the long-term vocational goal, intermediate rehabilitation
objectives, and the nature and scope of vocational rehabilitation
services to be included in the IWRP, which must be designed to achieve
an employment outcome that is consistent with the individual's unique
strengths, priorities, concerns, abilities, capabilities, career
interests, and informed choice.
(b) Procedural requirements. The State plan must assure that--
(1) The IWRP is developed jointly, agreed to, and signed by the
vocational rehabilitation counselor or coordinator and the individual
or, as appropriate, the individual's representative within the
framework of a counseling and guidance relationship;
(2) The State unit has established and implemented standards for
the prompt development of IWRPs for the individuals identified under
paragraph (a) of this section, including timelines that take into
consideration the needs of the individual;
(3) The State unit advises each individual or, as appropriate, the
individual's representative of all State unit procedures and
requirements affecting the development and review of an IWRP, including
the availability of appropriate modes of communication;
(4) In developing an IWRP for a student with a disability who is
receiving special education services, the State unit considers the
student's individualized education program;
(5) The State unit reviews the IWRP with the individual or, as
appropriate, the individual's representative as often as necessary, but
at least once each year to assess the individual's progress in meeting
the objectives identified in the IWRP;
(6) The State unit incorporates into the IWRP any revisions that
are necessary to reflect changes in the individual's vocational goal,
intermediate objectives, or vocational rehabilitation services, and
obtains the
[[Page 6354]]
agreement and signature of the individual or, as appropriate, of the
individual's representative to the revisions; and
(7) The State unit promptly provides each individual or, as
appropriate, the individual's representative, a copy of the IWRP and
its amendments in the native language, or appropriate mode of
communication, of the individual or, as appropriate, of the
individual's representative.
(c) Data for preparing the IWRP.--(1) Preparation without
comprehensive assessment. To the extent possible, the vocational goal,
intermediate objectives, and the nature and scope of rehabilitation
services to be included in the individual's IWRP must be determined
based on the data used for the assessment of eligibility and priority
for services under section Sec. 361.42.
(2) Preparation based on comprehensive assessment. (i) If
additional data are necessary to prepare the IWRP, the designated State
unit shall conduct a comprehensive assessment of the unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and needs, including the need for supported employment services, of an
eligible individual, in the most integrated setting possible,
consistent with the informed choice of the individual.
(ii) The comprehensive assessment must be limited to information
that is necessary to identify the rehabilitation needs of the
individual and develop the IWRP and may, to the extent needed,
include--
(A) An analysis of pertinent medical, psychiatric, psychological,
neuropsychological, and other pertinent vocational, educational,
cultural, social, recreational, and environmental factors, and related
functional limitations, that affect the employment and rehabilitation
needs of the individual;
(B) An analysis of the individual's personality, career interests,
interpersonal skills, intelligence and related functional capacities,
educational achievements, work experience, vocational aptitudes,
personal and social adjustments, and employment opportunities;
(C) An appraisal of the individual's patterns of work behavior and
services needed to acquire occupational skills and to develop work
attitudes, work habits, work tolerance, and social and behavior
patterns suitable for successful job performance; and
(D) An assessment, through provision of rehabilitation technology
services, of the individual's capacities to perform in a work
environment, including in an integrated setting, to the maximum extent
feasible and consistent with the individual's informed choice.
(iii) In preparing a comprehensive assessment, the State unit shall
use, to the maximum extent possible and appropriate and in accordance
with confidentiality requirements, existing information, including
information that is provided by the individual, the family of the
individual, and education agencies.
(Authority: Secs. 7(22)(B), 102(b)(1)(A), and 102(b)(2); 29 U.S.C.
706(5), 721(a)(9), 722, and 723(a)(1))
Sec. 361.46 Content of the individualized written rehabilitation
program.
(a) General requirements. The State plan must assure that each IWRP
includes, as appropriate, statements concerning--
(1) The specific long-term vocational goal, which must be based on
the assessment for determining vocational rehabilitation needs,
including the individual's career interests, and must be, to the extent
appropriate and consistent with the informed choice of the individual,
in an integrated setting;
(2) The specific intermediate rehabilitation objectives related to
the attainment of the long-term vocational goal, based on the
assessment for determining vocational rehabilitation needs and
consistent with the informed choice of the individual;
(3) The specific rehabilitation services under Sec. 361.48 to be
provided to achieve the established intermediate rehabilitation
objectives, including, if appropriate, rehabilitation technology
services and on-the-job and related personal assistance services;
(4) The projected dates for the initiation of each vocational
rehabilitation service, the anticipated duration of each service, and
the projected timeframe for the achievement of the individual's
vocational goal;
(5) A procedure and schedule for periodic review and evaluation of
progress toward achieving intermediate rehabilitation objectives based
upon objective criteria;
(6) How, in the words of the individual or, as appropriate, in the
words of the individual's representative, the individual was informed
about and involved in choosing among alternative goals, objectives,
services, providers, and methods used to procure or provide services;
(7) The terms and conditions for the provision of vocational
rehabilitation services, including--
(i) The responsibilities of the individual in implementing the
IWRP;
(ii) The extent of the individual's participation in the cost of
services;
(iii) The extent to which goods and services will be provided in
the most integrated settings possible, consistent with the informed
choices of the individual;
(iv) The extent to which comparable services and benefits are
available to the individual under any other program; and
(v) The entity or entities that will provide the services and the
process used to provide or procure the services;
(8) The rights of the individual under this part and the means by
which the individual may express and seek remedy for any
dissatisfaction, including the opportunity for a review of
rehabilitation counselor or coordinator determinations under
Sec. 361.57;
(9) The availability of a client assistance program established
under 34 CFR part 370; and
(10) The basis on which the individual has been determined to have
achieved an employment outcome in accordance with Sec. 361.56.
(b) Supported employment requirements. The State plan must assure
that the IWRP for individuals with the most severe disabilities for
whom a vocational goal in a supported employment setting has been
determined to be appropriate will also contain--
(1) A description of the supported employment services to be
provided by the State unit; and
(2) A description of the extended services needed and
identification of the source of extended services or, in the event that
identification of the source is not possible at the time the IWRP is
developed, a statement explaining the basis for concluding that there
is a reasonable expectation that services will become available.
(c) Post-employment services. The State plan must assure that the
IWRP for each individual contains statements concerning--
(1) The expected need for post-employment services, based on an
assessment during the development of the IWRP;
(2) A reassessment of the need for post-employment services prior
to the determination that the individual has achieved an employment
outcome;
(3) A description of the terms and conditions for the provision of
any post-employment services, including the anticipated duration of
those services, subsequent to the achievement of an employment outcome
by the individual; and
(4) If appropriate, a statement of how post-employment services
will be provided or arranged through
[[Page 6355]]
cooperative agreements with other service providers.
(d) Coordination of services for students with disabilities who are
receiving special education services. The State plan must assure that
the IWRP for a student with a disability who is receiving special
education services is coordinated with the individualized education
program (IEP) for that individual in terms of the goals, objectives,
and services identified in the IEP.
(e) Ineligibility. The State plan must assure that the decision
that an individual is not capable of achieving an employment outcome
and is no longer eligible to receive services under an IWRP is made in
accordance with the requirements in Sec. 361.43. The decision, and the
reasons on which the decision was based, must be included as an
amendment to the IWRP.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(9), 102(b)(1), 102(c), and 635(b)(6) of the
Act; 29 U.S.C. 721(a)(9), 722, and 795n)
Sec. 361.47 Record of services.
The State plan must assure that the designated State unit maintains
for each applicant or eligible individual a record of services that
includes, to the extent pertinent, the following documentation:
(a) If an applicant has been determined to be an eligible
individual, documentation supporting that determination in accordance
with the requirements in Sec. 361.42.
(b) If an applicant has been determined to be ineligible,
documentation supporting that determination in accordance with the
requirements of Sec. 361.43.
(c) Documentation supporting the determination that an individual
has a severe disability or a most severe disability.
(d) If an individual with a severe disability requires an extended
evaluation in order to determine whether the individual is an eligible
individual, documentation supporting the need for an extended
evaluation, documentation supporting the periodic assessments conducted
during the extended evaluation, and the written plan developed during
the extended evaluation, in accordance with the requirements in
Sec. 361.42(d).
(e) The IWRP, and any amendments to the IWRP, containing the
information required under Sec. 361.46.
(f) In accordance with Sec. 361.45(a), documentation supporting the
development of the long-term vocational goal, intermediate
rehabilitation objectives, and nature and scope of services included in
the individual's IWRP and, for students with disabilities who are
receiving special education services, in the student's IEP.
(g) In the event that an individual's IWRP provides for services or
a job placement in a non-integrated setting, a justification for that
non-integrated setting.
(h) Documentation of the periodic reviews and evaluations of
progress toward achieving intermediate rehabilitation objectives
conducted under Sec. 361.46(a)(5).
(i) 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)(10)(ii).
(j) Documentation concerning any action and decision resulting from
a request by an individual for review of a rehabilitation counselor or
coordinator determination under Sec. 361.57.
(Authority: Secs. 101(a)(6) and 101(a)(9) of the Act; 29 U.S.C.
721(a)(6) and 721(a)(9))
Sec. 361.48 Scope of vocational rehabilitation services for
individuals with disabilities.
(a) The State plan must assure that, as appropriate to the
vocational rehabilitation needs of each individual and consistent with
each individual's informed choice, the following vocational
rehabilitation services are available:
(1) Assessment for determining eligibility and priority for
services in accordance with Sec. 361.42.
(2) Assessment for determining vocational rehabilitation needs in
accordance with Sec. 361.45.
(3) Vocational rehabilitation counseling and guidance.
(4) Referral and other services necessary to help applicants and
eligible individuals secure needed services from other agencies and to
advise those individuals about client assistance programs established
under 34 CFR part 370.
(5) Physical and mental restoration services in accordance with the
definition of that term in Sec. 361.5(b)(35).
(6) Vocational and other training services, including personal and
vocational adjustment training, books, tools, and other training
materials, except that no training or training services in an
institution of higher education (universities, colleges, community or
junior colleges, vocational schools, technical institutes, or hospital
schools of nursing) may be paid for with funds under this part unless
maximum efforts have been made by the State unit and the individual to
secure grant assistance in whole or in part from other sources to pay
for that training.
(7) Maintenance, in accordance with the definition of that term in
Sec. 361.5(b)(31).
(8) Transportation in connection with the rendering of any
vocational rehabilitation service and in accordance with the definition
of that term in Sec. 361.5(b)(49).
(9) Vocational rehabilitation services to family members of an
applicant or eligible individual if necessary to enable the applicant
or eligible individual to achieve an employment outcome.
(10) Interpreter services for individuals who are deaf and tactile
interpreting services for individuals who are deaf-blind.
(11) Reader services, rehabilitation teaching services, and
orientation and mobility services for individuals who are blind.
(12) Recruitment and training services to provide new employment
opportunities in the fields of rehabilitation, health, welfare, public
safety, law enforcement, and other appropriate public service
employment.
(13) Job search and placement assistance and job retention
services.
(14) Supported employment services in accordance with the
definition of that term in Sec. 361.5(b)(46).
(15) Personal assistance services in accordance with the definition
of that term in Sec. 361.5(b)(34).
(16) Post-employment services in accordance with the definition of
that term in Sec. 361.5(b)(37).
(17) Occupational licenses, tools, equipment, initial stocks, and
supplies.
(18) Rehabilitation technology in accordance with the definition of
that term in Sec. 361.5(b)(39), including vehicular modification,
telecommunications, sensory, and other technological aids and devices.
(19) Transition services in accordance with the definition of that
term in Sec. 361.5(b)(47).
(20) Other goods and services determined necessary for the
individual with a disability to achieve an employment outcome.
(b) The State plan also must describe--
(1) The manner in which a broad range of rehabilitation technology
services will be provided at each stage of the rehabilitation process
and on a statewide basis;
(2) The training that will be provided to vocational rehabilitation
counselors, client assistance personnel, and other
[[Page 6356]]
related services personnel on the provision of rehabilitation
technology services;
(3) The manner in which assistive technology devices and services
will be provided or worksite assessments will be made as part of the
assessment for determining eligibility and vocational rehabilitation
needs of an individual; and
(4) The manner in which on-the-job and other related personal
assistance services will be provided to assist individuals while they
are receiving vocational rehabilitation services.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 101(a)(5)(C), 101(a)(26), 101(a)(31), and 103(a)
of the Act; 29 U.S.C. 721(a)(5)(C), 721(a)(26), 721(a)(31), and
723(a))
Sec. 361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
(a) The State plan may also provide for the following vocational
rehabilitation services for the benefit of groups of individuals with
disabilities:
(1) The establishment, development, or improvement of a public or
other nonprofit community rehabilitation program that is used to
provide services that promote integration and competitive employment,
including under special circumstances, the construction of a facility
for a public or nonprofit community rehabilitation program. Examples of
``special circumstances'' include the destruction by natural disaster
of the only available center serving an area or a State determination
that construction is necessary in a rural area because no other public
agencies or private nonprofit organizations are currently able to
provide services to individuals.
(2) Telecommunications systems that have the potential for
substantially improving vocational rehabilitation service delivery
methods and developing appropriate programming to meet the particular
needs of individuals with disabilities, including telephone,
television, video description services, satellite, tactile-vibratory
devices, and similar systems, as appropriate.
(3) Special services to provide recorded material or video
description services for individuals who are blind, captioned
television, films, or video cassettes for individuals who are deaf,
tactile materials for individuals who are deaf-blind, and other special
services that provide information through tactile, vibratory, auditory,
and visual media.
(4) Technical assistance and support services, such as job site
modification and other reasonable accommodations, to businesses that
are not subject to Title I of the Americans with Disabilities Act of
1990 and that are seeking to employ individuals with disabilities.
(5) In the case of small business enterprises operated by
individuals with the most severe disabilities under the supervision of
the State unit, including enterprises established under the Randolph-
Sheppard program, management services and supervision, acquisition of
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 the most severe disabilities. ``Management services and
supervision'' may be provided throughout the operation of the small
business enterprise.
(ii) ``Initial stocks and supplies'' includes those items necessary
to the establishment of a new business enterprise during the initial
establishment period, which may not exceed six months.
(iii) Costs of establishing a small business enterprise may include
operational costs during the initial establishment period, which may
not exceed six months.
(iv) If the State plan provides for these services, it must contain
an assurance that only individuals with the most severe disabilities
will be selected to participate in this supervised program.
(v) If the State plan provides for these services and the State
unit chooses to set aside funds from the proceeds of the operation of
the small business enterprises, the State plan also must assure that
the State unit maintains a description of the methods used in setting
aside funds and the purposes for which funds are set aside. Funds may
be used only for small business enterprises purposes, and benefits that
are provided to operators from set-aside funds must be provided on an
equitable basis.
(6) Other services that promise to contribute substantially to the
rehabilitation of a group of individuals but that are not related
directly to the IWRP of any one individual. Examples of those other
services might include the purchase or lease of a bus to provide
transportation to a group of applicants or eligible individuals or the
purchase of equipment or instructional materials that would benefit a
group of applicants or eligible individuals.
(b) If the State plan provides for vocational rehabilitation
services for groups of individuals, the State plan must assure that the
designated State unit--
(1) Develops and maintains 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) Maintains information to ensure the proper and efficient
administration of those services in the form and detail and at the time
required by the Secretary, including the types of services provided,
the costs of those services, and, to the extent feasible, estimates of
the numbers of individuals benefitting from those services.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 12(c), 101(a)(6), and 103(b) of the Act; 29 U.S.C.
711(c), 721(a)(6), and 723(b))
Sec. 361.50 Written policies governing the provision of services for
individuals with disabilities.
The State plan must assure that the State unit develops and
maintains written policies covering the nature and scope of each of the
vocational rehabilitation services specified in Sec. 361.48 and the
criteria under which each service is provided. The policies must ensure
that the provision of services is based on the rehabilitation needs of
each individual as identified in that individual's IWRP 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:
(a) Out-of-State services. (1) The State unit may establish a
preference for in-State services, provided that the preference does not
effectively deny an individual a necessary service. If the individual
chooses an out-of-State service at a higher cost than an in-State
service, if either service would meet the individual's rehabilitation
needs, the designated State unit is not responsible for those costs in
excess of the cost of the in-State service.
(2) The State unit may not establish policies that effectively
prohibit the provision of out-of-State services.
(b) Payment for services. (1) The State unit shall establish and
maintain written policies to govern the rates of payment for all
purchased vocational rehabilitation services.
[[Page 6357]]
(2) The State unit may establish a fee schedule designed to ensure
a reasonable cost to the program for each service, provided that the
schedule is--
(i) Not so low as to effectively deny an individual a necessary
service; and
(ii) Not absolute and permits exceptions so that individual needs
can be addressed.
(3) The State unit may not place absolute dollar limits on specific
service categories or on the total services provided to an individual.
(c) Duration of services. (1) The State unit may establish
reasonable time periods for the provision of services provided that the
time periods are--
(i) Not so short as to effectively deny an individual a necessary
service; and
(ii) Not absolute and permit exceptions so that individual needs
can be addressed.
(2) The State unit may not establish absolute time limits on the
provision of specific services or on the provision of services to an
individual. The duration of each service needed by an individual must
be determined on an individual basis and reflected in that individual's
IWRP.
(d) Authorization of services. The State unit shall establish
policies related to the timely authorization of services, including any
conditions under which verbal authorization can be given.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 12(c), 12(e)(2)(A), and 101(a)(6) of the Act and
29 U.S.C. 711(c), 711(e)(2)(A), and 721(a)(6))
Sec. 361.51 Written standards for facilities and providers of
services.
The State plan must assure that the designated State unit
establishes, maintains, makes available to the public, and implements
written minimum standards for the various types of facilities and
providers of services used by the State unit in providing vocational
rehabilitation services, in accordance with the following requirements:
(a) Accessibility of facilities. Any facility in which vocational
rehabilitation services are provided must be accessible to individuals
receiving services and must comply with the requirements of the
Architectural Barriers Act of 1968, the Uniform Accessibility Standards
and their implementing regulations in 41 CFR part 101, subpart 101-
19.6, the Americans with Disabilities Act of 1990, and section 504 of
the Act.
(b) Personnel standards. (1) Qualified personnel. Providers of
vocational rehabilitation services shall use qualified personnel, in
accordance with any applicable national or State-approved or -
recognized certification, licensing, 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.
(2) Affirmative action. Providers of vocational rehabilitation
services shall take affirmative action to employ and advance in
employment qualified individuals with disabilities.
(3) Special communication needs personnel. Providers of vocational
rehabilitation services shall--
(i) Include among their personnel, or obtain the services of,
individuals able to communicate in the native languages of applicants
and eligible individuals who have limited English speaking ability; and
(ii) Ensure that appropriate modes of communication for all
applicants and eligible individuals are used.
(c) Fraud, waste, and abuse. Providers of vocational rehabilitation
services shall have adequate and appropriate policies and procedures to
prevent fraud, waste, and abuse.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 12(e)(2) (B), (D), and (E) and 101(a)(6)(B) of the
Act; 29 U.S.C. 711(e) and 721(a)(6)(B))
Sec. 361.52 Opportunity to make informed choices.
The State plan must describe the manner in which the State unit
will provide each applicant, including individuals who are receiving
services during an extended evaluation, and each eligible individual
the opportunity to make informed choices throughout the vocational
rehabilitation process in accordance with the following requirements:
(a) Each State unit, in consultation with its State Rehabilitation
Advisory Council, if it has one, shall develop and implement written
policies and procedures that enable each individual to make an informed
choice with regard to the selection of a long-term vocational goal,
intermediate rehabilitation objectives, vocational rehabilitation
services, including assessment services, and service providers. These
policies and procedures must ensure that each individual receives,
through appropriate modes of communication, information concerning the
availability and scope of informed choice, the manner in which informed
choice may be exercised, and the availability of support services for
individuals with cognitive or other disabilities who require assistance
in exercising informed choice.
(b) In developing an individual's IWRP, the State unit shall
provide the individual, or assist the individual in acquiring,
information necessary to make an informed choice about the specific
services, including the providers of those services, that are needed to
achieve the individual's vocational goal. This information must
include, at a minimum, information relating to the cost, accessibility,
and duration of potential services, the consumer satisfaction with
those services to the extent that information relating to consumer
satisfaction is available, the qualifications of potential service
providers, the types of services offered by those providers, and the
degree to which services are provided in integrated settings.
(c) In providing, or assisting the individual in acquiring, the
information required under paragraph (b) of this section, the State
unit may use, but is not limited to, the following methods or sources
of information:
(1) State or regional lists of services and service providers.
(2) Periodic consumer satisfaction surveys and reports.
(3) Referrals to other consumers, local consumer groups, or
disability advisory councils qualified to discuss the services or
service providers.
(4) Relevant accreditation, certification, or other information
relating to the qualifications of service providers.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 12(e)(1), 12(e)(2) (C) and (F), and 101(a)(29) of
the Act; 29 U.S.C. 711(e) and 721(a)(29))
Sec. 361.53 Availability of comparable services and benefits.
(a) The State plan must assure that--
(1) Prior to providing any vocational rehabilitation services to an
eligible individual, or to members of the individual's family, except
those services listed in paragraph (b) of this section, the State unit
shall determine whether comparable services and benefits exist under
any other program and whether those services and benefits are available
to the individual;
(2) If comparable services or benefits exist under any other
program and are available to the eligible individual at the time needed
to achieve the rehabilitation objectives in the individual's IWRP, the
State unit shall use those comparable services or benefits to meet, in
whole or in part, the
[[Page 6358]]
cost of vocational rehabilitation services; and
(3) If comparable services or benefits exist under any other
program, but are not available to the individual at the time needed to
satisfy the rehabilitation objectives in the individual's IWRP, the
State unit shall provide vocational rehabilitation services until those
comparable services and benefits become available.
(b) The following services 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 priority for
services.
(2) Assessment for determining vocational rehabilitation needs.
(3) Vocational rehabilitation counseling, guidance, and referral
services.
(4) Vocational and other training services, such as personal and
vocational adjustment training, books (including alternative format
books accessible by computer and taped books), tools, and other
training materials in accordance with Sec. 361.48(a)(6).
(5) Placement services.
(6) Rehabilitation technology.
(7) Post-employment services consisting of the services listed
under paragraphs (b) (1) through (6) of this section.
(c) The requirements of paragraph (a) of this section also do not
apply if--
(1) The determination of the availability of comparable services
and benefits under any other program would delay the provision of
vocational rehabilitation services to any individual who is determined
to be at extreme medical risk, based on medical evidence provided by an
appropriate qualified medical professional; or
(2) An immediate job placement would be lost due to a delay in the
provision of comparable services and benefits.
(Authority: Sec. 101(a)(8) of the Act; 29 U.S.C. 721(a)(8))
Sec. 361.54 Participation of individuals in cost of services based on
financial need.
(a) No Federal requirement. There is no Federal requirement that
the financial need of individuals be considered in the provision of
vocational rehabilitation services.
(b) State unit requirements. (1) The State unit may choose to
consider the financial need of eligible individuals or individuals who
are receiving services during an extended evaluation for purposes of
determining the extent of their participation in the costs of
vocational rehabilitation services, other than those services
identified in paragraph (b)(3) of this section.
(2) If the State unit chooses to consider financial need--
(i) It shall maintain written policies covering the determination
of financial need;
(ii) The State plan must specify the types of vocational
rehabilitation services for which the unit has established a financial
needs test;
(iii) The policies must be applied uniformly to all individuals in
similar circumstances;
(iv) The policies may require different levels of need for
different geographic regions in the State, but must be applied
uniformly to all individuals within each geographic region; and
(v) The policies must ensure that the level of an individual's
participation in the cost of vocational rehabilitation services is--
(A) Reasonable;
(B) Based on the individual's financial need, 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 State plan must assure that no financial needs test is
applied and no financial participation is required as a condition for
furnishing the following vocational rehabilitation services:
(i) Assessment for determining eligibility and priority for
services, except those non-assessment services that are provided during
an extended evaluation for an individual with a severe disability under
Sec. 361.42(d).
(ii) Assessment for determining vocational rehabilitation needs.
(iii) Vocational rehabilitation counseling, guidance, and referral
services.
(iv) Placement services.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))
Sec. 361.55 Review of extended employment in community rehabilitation
programs or other employment under section 14(c) of the Fair Labor
Standards Act.
The State plan must assure that the State unit--
(a) Reviews and re-evaluates at least annually the status of each
individual determined by the State unit to have achieved an employment
outcome in an extended employment setting in a community rehabilitation
program or other employment setting in which the individual is
compensated in accordance with section 14(c) of the Fair Labor
Standards Act. This review or re-evaluation must include input from the
individual or, in an appropriate case, the individual's representative
to determine the interests, priorities, and needs of the individual for
employment in, or training for, competitive employment in an integrated
setting in the labor market;
(b) Makes maximum effort, including the identification of
vocational rehabilitation services, reasonable accommodations, and
other support services, to enable the eligible individual to benefit
from training in, or to be placed in employment in, an integrated
setting; and
(c) Provides services designed to promote movement from extended
employment to integrated employment, including supported employment,
independent living, and community participation.
(Authority: Sec. 101(a)(16) of the Act; 29 U.S.C. 721(a)(16))
Sec. 361.56 Individuals determined to have achieved an employment
outcome.
The State plan must assure that an individual is determined to have
achieved an employment outcome only if the following requirements are
met:
(a) The provision of services under the individual's IWRP has
contributed to the achievement of the employment outcome.
(b) The employment outcome is consistent with the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice.
(c) The employment outcome is in the most integrated setting
possible, consistent with the individual's informed choice.
(d) The individual has maintained the employment outcome for a
period of at least 90 days.
(e) At the end of the appropriate period under paragraph (d) of
this section, the individual and the rehabilitation counselor or
coordinator consider the employment outcome to be satisfactory and
agree that the individual is performing well on the job.
(Authority: Secs. 12(c), 101(a)(6), and 106(a)(2) of the Act; 29
U.S.C. 711(c), 721(a)(6), and 726(a)(2))
Sec. 361.57 Review of rehabilitation counselor or coordinator
determinations.
The State plan must contain procedures, including standards of
review under paragraph (b)(7) of this section, established by the
director of the designated State unit to ensure that any applicant or
eligible individual who is dissatisfied with any determinations made by
a rehabilitation counselor or coordinator concerning the furnishing or
denial of services may request, or, if
[[Page 6359]]
appropriate, may request through the individual's representative, a
timely review of those determinations. The procedures established by
the director of the State unit must be in accordance with the following
provisions:
(a) Informal resolution. The State unit may establish an informal
process to resolve a request for review without conducting a formal
hearing. However, a State's informal process must be conducted and
concluded within the time period established under paragraph (b)(1) of
this section for holding a formal hearing. If informal resolution is
not successful, a formal hearing must be conducted by the end of this
same period, unless the parties agree to a specific extension of time.
(b) Formal hearing procedures. Except as provided in paragraph (d)
of this section, the State unit shall establish formal review
procedures that provide that--
(1) A hearing by an impartial hearing officer, selected in
accordance with paragraph (c) of this section, must be held within 45
days of an individual's request for review, unless informal resolution
is achieved prior to the 45th day or the parties agree to a specific
extension of time;
(2) The State unit may not institute a suspension, reduction, or
termination of services being provided under an IWRP pending a final
determination of the formal hearing under this paragraph or informal
resolution under paragraph (a) of this section, unless the individual
or, in an appropriate case, the individual's representative so requests
or the agency has evidence that the services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of
the individual;
(3) The individual or, if appropriate, the individual's
representative must be afforded an opportunity to present additional
evidence, information, and witnesses to the impartial hearing officer,
to be represented by counsel or other appropriate advocate, and to
examine all witnesses and other relevant sources of information and
evidence;
(4) The impartial hearing officer shall make a decision based on
the provisions of the approved State plan, the Act, Federal vocational
rehabilitation regulations, and State regulations and policies that are
consistent with Federal requirements and shall provide to the
individual or, if appropriate, the individual's representative and to
the director of the designated State unit a full written report of the
findings and grounds for the decision within 30 days of the completion
of the hearing;
(5) If the director of the designated State unit decides to review
the decision of the impartial hearing officer, the director shall
notify in writing the individual or, if appropriate, the individual's
representative of that intent within 20 days of the mailing of the
impartial hearing officer's decision;
(6) If the director of the designated State unit fails to provide
the notice required by paragraph (b)(5) of this section, the impartial
hearing officer's decision becomes a final decision;
(7) The decision of the director of the designated State unit to
review any impartial hearing officer's decision must be based on
standards of review contained in written State unit policy;
(8) If the director of the designated State unit decides to review
the decision of the impartial hearing officer, the director shall
provide the individual or, if appropriate, the individual's
representative an opportunity to submit additional evidence and
information relevant to the final decision;
(9) The director may not overturn or modify a decision, or part of
a decision, of an impartial hearing officer that supports the position
of the individual unless the director concludes, based on clear and
convincing evidence, that the decision of the impartial hearing officer
is clearly erroneous because it is contrary to the approved State plan,
the Act, Federal vocational rehabilitation regulations, or State
regulations or policies that are consistent with Federal requirements;
(10) Within 30 days of providing notice of intent to review the
impartial hearing officer's decision, the director of the designated
State unit shall make a final decision and provide a full report in
writing of the decision, including the findings and the statutory,
regulatory, or policy grounds for the decision, to the individual or,
if appropriate, the individual's representative;
(11) The director of the designated State unit may not delegate
responsibility to make any final decision to any other officer or
employee of the designated State unit; and
(12) Except for the time limitations established in paragraphs
(b)(1) and (b)(5) of this section, each State's review procedures may
provide for reasonable time extensions for good cause shown at the
request of a party or at the request of both parties.
(c) Selection of impartial hearing officers. Except as provided in
paragraph (d) of this section, the impartial hearing officer for a
particular case must be selected--
(1) From among the pool of persons qualified to be an impartial
hearing officer, as defined in Sec. 361.5(b)(22), who are identified by
the State unit, if the State unit is an independent commission, or
jointly by the designated State unit and those members of the State
Rehabilitation Advisory Council designated in section 102(d)(2)(C) of
the Act, if the State has a Council; and
(2)(i) On a random basis; or
(ii) By agreement between the director of the designated State unit
and the individual or, if appropriate, the individual's representative.
(d) State fair hearing board. The provisions of paragraphs (b) and
(c) of this section are not applicable if the State has a fair hearing
board that was established before January 1, 1985, that is authorized
under State law to review rehabilitation counselor or coordinator
determinations and to carry out the responsibilities of the director of
the designated State unit under this section.
(e) Informing affected individuals. The State unit shall inform,
through appropriate modes of communication, all applicants and eligible
individuals of--
(1) Their right to review under this section, including the names
and addresses of individuals with whom appeals may be filed; and
(2) The manner in which an impartial hearing officer will be
selected consistent with the requirements of paragraph (c) of this
section.
(f) Data collection. The director of the designated State unit
shall collect and submit, at a minimum, the following data to the
Secretary for inclusion each year in the annual report to Congress
under section 13 of the Act:
(1) The number of appeals to impartial hearing officers and the
State director, including the type of complaints and the issues
involved.
(2) The number of decisions by the State director reversing in
whole or in part a decision of the impartial hearing officer.
(3) The number of decisions affirming the position of the
dissatisfied individual assisted through the client assistance program,
when that assistance is known to the State unit.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Secs. 102(b) and 102(d) of the Act; 29 U.S.C. 722(b) and
722(d))
Subpart C--Financing of State Vocational Rehabilitation Programs
Sec. 361.60 Matching requirements.
(a) Federal share--(1) General. Except as provided in paragraphs
(a)(2) and (a)(3) of this section, the Federal share for expenditures
made by the State unit under the State plan, including
[[Page 6360]]
expenditures for the provision of vocational rehabilitation services,
administration of the State plan, and the development and
implementation of the strategic plan, is 78.7 percent.
(2) Construction projects. The Federal share for expenditures made
for the construction of a facility for community rehabilitation program
purposes may not be more than 50 percent of the total cost of the
project.
(3) Innovation and expansion grant activities. The Federal share
for the cost of innovation and expansion grant activities funded by
appropriations under Part C of Title I of the Act is 90 percent.
(b) Non-Federal share--(1) General. Except as provided in
paragraphs (b)(2) and (b)(3) of this section, expenditures made under
the State plan to meet the non-Federal share under this section must be
consistent with the provisions of 34 CFR 80.24.
(2) Third party in-kind contributions. Third party in-kind
contributions specified in 34 CFR 80.24(a)(2) may not be used to meet
the non-Federal share under this section.
(3) Contributions by private entities. Expenditures made from
contributions by private organizations, agencies, or individuals that
are deposited in the account of the State agency or sole local agency
in accordance with State law and that are earmarked, under a condition
imposed by the contributor, may be used as part of the non-Federal
share under this section if the following requirements are met:
(i) The funds are earmarked for meeting in whole or in part the
State's share for establishing a community rehabilitation program or
constructing a particular facility for community rehabilitation program
purposes.
(ii) If the funds are earmarked for any other purpose under the
State plan, the expenditures do not benefit in any way the donor, an
individual to whom the donor is related by blood or marriage or with
whom the donor has a close personal relationship, or an individual,
entity, or organization with whom the donor shares a financial
interest. The Secretary does not consider a donor's receipt from the
State unit of a grant, subgrant, or contract with funds allotted under
this part to be a benefit for the purposes of this paragraph if the
grant, subgrant, or contract is awarded under the State's regular
competitive procedures.
(Authority: Secs. 7(7), 101(a)(3), and 104 of the Act; 29 U.S.C.
706(7), 721(a)(3) and 724)
Note: The Secretary notes that contributions may be earmarked in
accordance with paragraph (b)(3)(ii) of this section for providing
particular services (e.g., rehabilitation technology services);
serving individuals with certain types of disabilities (e.g.,
individuals who are blind), consistent with the State's order of
selection, if applicable; providing services to special groups that
State or Federal law permits to be targeted for services (e.g.,
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. However, if a contribution is earmarked for a restricted
geographic area, expenditures from that contribution may be used to
meet the non-Federal share requirement only if the State unit
requests and the Secretary approves a waiver of statewideness, in
accordance with Sec. 361.26.
Sec. 361.61 Limitation on use of funds for construction expenditures.
No more than 10 percent of a State's allotment for any fiscal year
under section 110 of the Act may be spent on the construction of
facilities for community rehabilitation program purposes.
(Authority: Sec. 101(a)(17)(A) of the Act; 29 U.S.C. 721(a)(17)(A))
Sec. 361.62 Maintenance of effort requirements.
(a) General requirements. (1) The Secretary reduces the amount
otherwise payable to a State for a fiscal year by the amount by which
the total expenditures from non-Federal sources under the State plan
for the previous fiscal year were less than the total of those
expenditures for the fiscal year two years prior to the previous fiscal
year. For example, for fiscal year 1996, a State's maintenance of
effort level is based on the amount of its expenditures from non-
Federal sources for fiscal year 1994. Thus, if the State's non-Federal
expenditures in 1996 are less than they were in 1994, the State has a
maintenance of effort deficit, and the Secretary reduces the State's
allotment in 1997 by the amount of that deficit.
(2) If, at the time the Secretary makes a determination that a
State has failed to meet its maintenance of effort requirements, it is
too late for the Secretary to make a reduction in accordance with
paragraph (a)(1) of this section, then the Secretary recovers the
amount of the maintenance of effort deficit through audit disallowance.
(b) Specific requirements for construction of facilities. If the
State plan provides for the construction of a facility for community
rehabilitation program purposes, the amount of the State's share of
expenditures for vocational rehabilitation services under the plan,
other than for the construction of a facility for community
rehabilitation program purposes or the establishment of a facility for
community rehabilitation purposes, must be at least equal to the
expenditures for those services for the second prior fiscal year. If a
State fails to meet the requirements of this paragraph, the Secretary
recovers the amount of the maintenance of effort deficit through audit
disallowance.
(c) Separate State agency for vocational rehabilitation services
for individuals who are blind. If there is a separate part of the State
plan administered by a separate State agency to provide vocational
rehabilitation services for individuals who are blind--
(1) Satisfaction of the maintenance of effort requirements under
paragraphs (a) and (b) of this section are determined based on the
total amount of a State's non-Federal expenditures under both parts of
the State plan; and
(2) If a State fails to meet any maintenance of effort requirement,
the Secretary reduces the amount otherwise payable to the State for
that fiscal year under each part of the plan in direct relation to the
amount by which expenditures from non-Federal sources under each part
of the plan in the previous fiscal year were less than they were for
that part of the plan for the fiscal year two years prior to the
previous fiscal year.
(d) Waiver or modification. (1) The Secretary may waive or modify
the maintenance of effort requirement in paragraph (a)(1) of this
section if the Secretary determines that a waiver or modification is
necessary to permit the State to respond to exceptional or
uncontrollable circumstances, such as a major natural disaster or a
serious economic downturn, that--
(i) Cause significant unanticipated expenditures or reductions in
revenue; and
(ii) Result in--
(A) A general reduction of programs within the State; or
(B) The State making substantial expenditures in the vocational
rehabilitation program for long-term purposes due to the one-time costs
associated with the construction of a facility for community
rehabilitation program purposes, the establishment of a facility for
community rehabilitation program purposes, or the acquisition of
equipment.
(2) The Secretary may waive or modify the maintenance of effort
requirement in paragraph (b) of this section or the 10 percent
allotment limitation in Sec. 361.61 if the Secretary
[[Page 6361]]
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: Secs. 101(a)(17) and 111(a)(2) of the Act; 29 U.S.C.
721(a)(17) and 731(a)(2))
Sec. 361.63 Program income.
(a) Definition. Program income means gross income received by the
State that is directly generated by an activity supported under this
part.
(b) Sources. Sources of program income include, but are not limited
to, payments from the Social Security Administration for rehabilitating
Social Security beneficiaries, payments received from workers'
compensation funds, fees for services to defray part or all of the
costs of services provided to particular individuals, and income
generated by a State-operated community rehabilitation program.
(c) Use of program income. (1) Except as provided in paragraph
(c)(2) of this section, program income, whenever earned, must be used
for the provision of vocational rehabilitation services, the
administration of the State plan, and developing and implementing the
strategic plan. Program income is considered earned when it is
received.
(2) Payments provided to a State from the Social Security
Administration for rehabilitating Social Security beneficiaries may
also be used to carry out programs under Part B of Title I of the Act
(client assistance), Part C of Title I of the Act (innovation and
expansion), Part C of Title VI of the Act (supported employment) and
Title VII of the Act (independent living).
(3) The State is authorized to treat program income as--
(i) An addition to the grant funds to be used for additional
allowable program expenditures, in accordance with 34 CFR 80.25(g)(2);
or
(ii) A deduction from total allowable costs, in accordance with 34
CFR 80.25(g)(1).
(4) Program income may not be used to meet the non-Federal share
requirement under Sec. 361.60.
(Authority: Sec. 108 of the Act; 29 U.S.C. 728; 34 CFR 80.25)
Sec. 361.64 Obligation of Federal funds and program income.
(a) Except as provided in paragraph (b) of this section, any
Federal funds, including reallotted funds, that are appropriated for a
fiscal year to carry out a program under this part that are not
obligated by the State unit by the beginning of the succeeding fiscal
year and any program income received during a fiscal year that is not
obligated by the State unit by the beginning of the succeeding fiscal
year must remain available for obligation by the State unit during that
succeeding fiscal year.
(b) Federal funds appropriated for a fiscal year remain available
for obligation in the succeeding fiscal year only to the extent that
the State unit met the matching requirement for those Federal funds by
obligating, in accordance with 34 CFR 76.707, the non-Federal share in
the fiscal year for which the funds were appropriated.
(Authority: Sec. 19 of the Act; 29 U.S.C. 718)
Sec. 361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
(a) Allotment. (1) The allotment of Federal funds for vocational
rehabilitation services for each State is computed in accordance with
the requirements of section 110 of the Act, and payments are made to
the State on a quarterly basis, unless some other period is established
by the Secretary.
(2) If the State plan designates one State agency to administer, or
supervise the administration of, the part of the plan under which
vocational rehabilitation services are provided for individuals who are
blind and another State agency to administer the rest of the plan, the
division of the State's allotment is a matter for State determination.
(b) Reallotment. (1) The Secretary determines not later than 45
days before the end of a fiscal year which States, if any, will not use
their full allotment.
(2) As soon as possible, but not later than the end of the fiscal
year, the Secretary reallots these funds to other States that can use
those additional funds during the current or subsequent fiscal year,
provided the State can meet the matching requirement by obligating the
non-Federal share of any reallotted funds in the fiscal year for which
the funds were appropriated.
(3) Funds reallotted to another State are considered to be an
increase in the recipient State's allotment for the fiscal year for
which the funds were appropriated.
(Authority: Secs. 110 and 111 of the Act; 29 U.S.C. 730 and 731)
Subpart D--Strategic Plan for Innovation and Expansion of
Vocational Rehabilitation Services
Sec. 361.70 Purpose of the strategic plan.
The State shall prepare a statewide strategic plan, in accordance
with Sec. 361.71, to develop and use innovative approaches for
achieving long-term success in expanding and improving vocational
rehabilitation services, including supported employment services,
provided under the State plan, including the supported employment
supplement to the State plan required under 34 CFR part 363.
(Authority: Sec. 120 of the Act; 29 U.S.C. 740)
Sec. 361.71 Procedures for developing the strategic plan.
(a) Public input. (1) The State unit shall meet with and receive
recommendations from members of the State Rehabilitation Advisory
Council, if the State has a Council, and the Statewide Independent
Living Council prior to developing the strategic plan.
(2) The State unit shall solicit public input on the strategic plan
prior to or at the public meetings on the State plan, in accordance
with the requirements of Sec. 361.20.
(3) The State unit shall consider the recommendations received
under paragraphs (a)(1) and (a)(2) of this section and, if the State
rejects any recommendations, shall include a written explanation of the
reasons for those rejections in the strategic plan.
(4) The State unit shall develop a procedure to ensure ongoing
comment from the Council or Councils, if applicable, as the plan is
being implemented.
(b) Duration. The strategic plan must cover a three-year period.
(c) Revisions. The State unit shall revise the strategic plan on an
annual basis to reflect the unit's actual experience over the previous
year and input from the State Rehabilitation Advisory Council, if the
State has a Council, individuals with disabilities, and other
interested parties.
(d) Dissemination. The State unit shall disseminate widely the
strategic plan to individuals with disabilities, disability
organizations, rehabilitation professionals, and other interested
persons and shall make the strategic plan available in accessible
formats and appropriate modes of communication.
[[Page 6362]]
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 122 of the Act; 29 U.S.C. 742)
Sec. 361.72 Content of the strategic plan.
The strategic plan must include--
(a) A statement of the mission, philosophy, values, and principles
of the vocational rehabilitation program in the State;
(b) Specific goals and objectives for expanding and improving the
system for providing vocational rehabilitation services;
(c) Specific multi-faceted and systemic approaches for
accomplishing the objectives, including interagency coordination and
cooperation, that build upon state-of-the-art practices and research
findings and that implement the State plan and the supplement to the
State plan submitted under 34 CFR Part 363;
(d) A description of the specific programs, projects, and
activities funded under this subpart, including how the programs,
projects, and activities accomplish the objectives of the subpart, and
the resource allocation and budget for the programs, projects, and
activities; and
(e) Specific criteria for determining whether the objectives have
been achieved, including an assurance that the State will conduct an
annual evaluation to determine the extent to which the objectives have
been achieved and, if specific objectives have not been achieved, the
reasons that the objectives have not been achieved and a description of
alternative approaches that will be taken.
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sec. 121 of the Act; 29 U.S.C. 741)
Sec. 361.73 Use of funds.
(a) A State unit shall use all grant funds received under Title I,
Part C of the Act to carry out programs and activities that are
identified under the State's strategic plan, including but not limited
to those programs and activities that are identified in paragraph (b)
of this section.
(b) A State unit shall use at least 1.5 percent of the funds
received under section 111 of the Act to carry out one or more of the
following types of programs and activities that are identified in the
State's strategic plan:
(1) Programs to initiate or expand employment opportunities for
individuals with severe disabilities in integrated settings that allow
for the use of on-the-job training to promote the objectives of Title I
of the Americans with Disabilities Act of 1990.
(2) Programs or activities to improve or expand the provision of
employment services in integrated settings to individuals with sensory,
cognitive, physical, and mental impairments who traditionally have not
been served by the State vocational rehabilitation agency.
(3) Programs or activities to maximize the ability of individuals
with disabilities to use rehabilitation technology in employment
settings.
(4) Programs or activities that assist employers in accommodating,
evaluating, training, or placing individuals with disabilities in the
workplace of the employer consistent with the provisions of the Act and
Title I of the Americans with Disabilities Act of 1990. These programs
or activities may include short-term technical assistance or other
effective strategies.
(5) Programs or activities that expand and improve the extent and
type of an individual's involvement in the review and selection of his
or her training and employment goals.
(6) Programs or activities that expand and improve opportunities
for career advancement for individuals with severe disabilities.
(7) Programs, projects, or activities designed to initiate, expand,
or improve working relationships between vocational rehabilitation
services provided under Title I of the Act and independent living
services provided under Title VII of the Act.
(8) Programs, projects, or activities designed to improve
functioning of the system for delivering vocational rehabilitation
services and to improve coordination and working relationships with
other State agencies and local public agencies, business, industry,
labor, community rehabilitation programs, and centers for independent
living, including projects designed to--
(i) Increase the ease of access to, timeliness of, and quality of
vocational rehabilitation services through the development and
implementation of policies, procedures, systems, and interagency
mechanisms for providing vocational rehabilitation services;
(ii) Improve the working relationships between State vocational
rehabilitation agencies and other State agencies, centers for
independent living, community rehabilitation programs, educational
agencies involved in higher education, adult basic education, and
continuing education, and businesses, industry, and labor
organizations, in order to create and facilitate cooperation in--
(A) Planning and implementing services; and
(B) Developing an integrated system of community-based vocational
rehabilitation services that includes appropriate transitions between
service systems; and
(iii) Improve the ability of professionals, advocates, business,
industry, labor, and individuals with disabilities to work in
cooperative partnerships to improve the quality of vocational
rehabilitation services and job and career opportunities for
individuals with disabilities.
(9) Projects or activities that ensure that the annual evaluation
of the effectiveness of the program in meeting the goals and objectives
in the State plan, including the system for evaluating the performance
of rehabilitation counselors, coordinators, and other personnel used in
the State, facilitates and does not impede the accomplishment of the
purpose of this part, including serving individuals with the most
severe disabilities.
(10) Projects or activities to support the initiation, expansion,
and improvement of a comprehensive system of personnel development.
(11) Programs, projects, or activities to support the provision of
training and technical assistance to individuals with disabilities,
business, industry, labor, community rehabilitation programs, and
others regarding the implementation of the Rehabilitation Act
Amendments of 1992, of Title V of the Act, and of the Americans with
Disabilities Act of 1990.
(12) Projects or activities to support the funding of the State
Rehabilitation Advisory Council and the Statewide Independent Living
Council.
(Authority: Secs. 101(a)(34)(B) and 123 of the Act; 29 U.S.C.
721(a)(34)(B) and 743)
Sec. 361.74 Allotment of Federal funds.
(a) The allotment and any reallotment of Federal funds under Title
I, Part C of the Act are computed in accordance with the requirements
of section 124 of the Act.
(b) If at any time the Secretary determines that any amount will
not be expended by a State in carrying out the purpose of this subpart,
the Secretary makes that amount available to one or more other States
that the Secretary determines will be able to use additional amounts
during the fiscal year. Any amount made available to any State under
this paragraph of this section is regarded as an increase in the
State's allotment for that fiscal year.
p(Authority: Sec. 124 of the Act; 29 U.S.C. 744)
[[Page 6363]]
PART 363--THE STATE SUPPORTED EMPLOYMENT SERVICES PROGRAM
2. The authority citation for part 363 continues to read as
follows:
Authority: 29 U.S.C. 795j-q, unless otherwise noted.
3. In Sec. 363.6, paragraphs (c)(1), (c)(2)(i), (c)(2)(ii), and the
authority citation are revised to read as follows:
Sec. 363.6 What definitions apply?
* * * * *
(c) * * *
(1) Supported employment means--
(i) Competitive employment in an integrated setting with ongoing
support services for individuals with the most severe disabilities--
(A) For whom competitive employment has not traditionally occurred
or for whom competitive employment has been interrupted or intermittent
as a result of a severe disability; and
(B) Who, because of the nature and severity of their disabilities,
need intensive supported employment services from the designated State
unit and extended services after transition in order to perform this
work; or
(ii) Transitional employment for individuals with the most severe
disabilities due to mental illness.
(2) As used in the definition of ``Supported employment''--
(i) Competitive employment means work--
(A) In the competitive labor market that is performed on a full-
time or part-time basis in an integrated setting; and
(B) For which an individual is compensated at or above the minimum
wage, but not less than the customary or usual wage paid by the
employer for the same or similar work performed by individuals who are
not disabled.
(ii) Integrated setting means a setting typically found in the
community in which an individual with the most severe disabilities
interacts with non-disabled individuals, other than non-disabled
individuals who are providing services to that individual, to the same
extent that non-disabled individuals in comparable positions interact
with other persons.
* * * * *
(Authority: 29 U.S.C. 706(18), 711(c), and 795j)
PART 376--SPECIAL PROJECTS AND DEMONSTRATIONS FOR PROVIDING
TRANSITIONAL REHABILITATION SERVICES TO YOUTH WITH DISABILITIES
4. The authority citation for part 376 continues to read as
follows:
Authority: 29 U.S.C. 777a(b), unless otherwise noted.
5. In Sec. 376.4, paragraph (c) and the authority citation are
revised to read as follows:
Sec. 376.4 What definitions apply to this program?
* * * * *
(c) The definitions of ``Competitive employment'', ``Integrated
setting'', ``On-going support services'', ``Transitional employment'',
and ``Time-limited services'' in 34 CFR part 380.
* * * * *
(Authority: 29 U.S.C. 711(c) and 777a(b))
PART 380--SPECIAL PROJECTS AND DEMONSTRATIONS FOR PROVIDING
SUPPORTED EMPLOYMENT SERVICES TO INDIVIDUALS WITH THE MOST SEVERE
DISABILITIES AND TECHNICAL ASSISTANCE PROJECTS
6. The authority citation for part 380 continues to read as
follows:
Authority: 29 U.S.C. 711(c) and 777a(c), unless otherwise noted.
7. In Sec. 380.9, paragraphs (c)(1)(i) and (c)(1)(ii) are revised
to read as follows:
Sec. 380.9 What definitions apply?
* * * * *
(c) * * *
(1) * * *
(i) Competitive employment means work--
(A) In the competitive labor market that is performed on a full-
time or part-time basis in an integrated setting; and
(B) For which an individual is compensated at or above the minimum
wage, but not less than the customary or usual wage paid by the
employer for the same or similar work performed by individuals who are
not disabled.
(ii) Integrated setting means a setting typically found in the
community in which an individual with the most severe disabilities
interacts with non-disabled individuals, other than non-disabled
individuals who are providing services to that individual, to the same
extent that non-disabled individuals in comparable positions interact
with other persons.
* * * * *
[FR Doc. 97-3159 Filed 2-10- 97; 8:45 am]
BILLING CODE 4000-01-P
