[Federal Register Volume 59, Number 50 (Tuesday, March 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5849]
[[Page Unknown]]
[Federal Register: March 15, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
20 CFR Parts 404 and 416
RIN 0960-AD50
Payments for Vocational Rehabilitation Services
AGENCY: Social Security Administration, HHS.
ACTION: Final rules.
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SUMMARY: We are amending our regulations on the vocational
rehabilitation (VR) payment programs under titles II and XVI of the
Social Security Act (the Act). These changes: (1) Expand access to the
use of private and public non-State VR providers when a State VR agency
declines to provide VR services to an individual whom we refer for
services; (2) explain that, in appropriate cases, we will pay for only
those VR services which have a causal relationship to an individual's
performance of substantial gainful activity (SGA) for a continuous
period of 9 months; and (3) prescribe the specific kinds of VR services
for which we will pay. The changes are intended to make VR services
more readily available to individuals under our VR payment programs and
to improve the administration and cost effectiveness of these programs.
EFFECTIVE DATES: These rules are effective March 15, 1994, except that
paragraphs (c)(2), (f)(1) and (f)(2) of Secs. 404.2104 and 416.2204
shall become effective on October 1, 1994 with respect to Social
Security beneficiaries or Supplemental Security Income (SSI) recipients
whom the Social Security Administration (SSA) refers to a State VR
agency on or after October 1, 1994, and Secs. 404.2121 and 416.2221
shall become effective on October 1, 1994.
FOR FURTHER INFORMATION CONTACT: Jack Schanberger, Legal Assistant, 3-
B-1 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-8471.
SUPPLEMENTARY INFORMATION: These final rules amend our regulations at
Secs. 404.2101 et seq. and Secs. 416.2201 et seq., which prescribe the
rules for the title II and title XVI VR payment programs under sections
222(d) and 1615(d) of the Act. The final rules take into consideration
the comments we received from interested individuals and public and
private organizations and groups on the proposed rules we published on
July 24, 1992 (57 FR 32926). These comments and the changes we have
made in the proposed rules are discussed below.
In general, sections 222(d) and 1615(d) of the Act authorize the
Secretary of Health and Human Services (the Secretary) to use the title
II trust funds and the title XVI general fund to pay a State for the
reasonable and necessary costs of VR services provided to a title II
social security beneficiary who is disabled or blind or to a title XVI
recipient who is disabled or blind, in three categories of cases.
Specifically, these sections permit payment for VR services furnished
to such beneficiaries or recipients in cases where: (1) The furnishing
of such services results in the individual's performance of SGA for a
continuous period of 9 months; (2) the individual is continuing to
receive benefits, despite his or her medical recovery, under section
225(b) or 1631(a)(6) of the Act because of his or her participation in
a VR program; or (3) the individual, without good cause, refused to
continue to accept VR services or failed to cooperate in such a manner
as to preclude his or her successful rehabilitation. Payment may be
made for the reasonable and necessary costs of VR services provided in
these cases as determined in accordance with criteria established by
the Commissioner of Social Security (the Commissioner).
Sections 222(d) and 1615(d) of the Act permit payment to a State
for VR services if the services are provided by a State VR agency,
i.e., an agency administering a State plan for VR services approved
under title I of the Rehabilitation Act of 1973, as amended. However,
in the case of a State which is unwilling to participate or does not
have such a plan for VR services, section 222(d)(2) of the Act
authorizes the Commissioner to enter into agreements or contracts with
alternative VR service providers (alternate participants) for the
purpose of providing VR services to disability beneficiaries under the
title II VR payment program under the same conditions that would apply
to a State VR agency. While section 1615(d) of the Act is silent with
regard to alternate participants, section 1633(a) of the Act provides
authority for using alternate participants under the title XVI VR
payment program inasmuch as the latter section gives the Secretary the
authority to make administrative and other arrangements under title XVI
in the same manner as they are made under title II. Moreover, the
legislative history of section 1615(d) indicates that Congress intended
the title XVI VR payment program to parallel the title II program. Our
title II and title XVI regulations, therefore, contain virtually
identical provisions for the title II and title XVI VR payment
programs.
When we first published final regulations to implement sections
222(d) and 1615(d) of the Act on February 10, 1983, at 48 FR 6286, we
indicated that we would reexamine the provisions of the regulations and
consider possible changes after we had gained experience administering
the title II and title XVI VR payment programs. Certain recommendations
contained in the March 1988 Report of the Disability Advisory Council
also suggested a need to consider new approaches to these programs to
increase the availability of VR services for disabled or blind
beneficiaries and recipients and to ensure that such beneficiaries and
recipients are provided with those services that are necessary to
achieve and maintain employment.
The basic purpose of the title II and title XVI VR payment programs
is twofold: (1) To make VR services more readily available to disabled
or blind Social Security beneficiaries and SSI recipients; and (2) to
achieve savings for the title II trust funds and the title XVI general
fund. To promote these objectives more effectively, we are amending our
existing regulations to provide for greater use of alternate
participants under the VR payment programs and to improve the
administration and cost effectiveness of the programs so as to ensure
that savings will accrue to the trust funds and the general fund.
None of the changes to the VR regulations is a major departure from
the current program. The changes are meant to address the most
significant criticisms of the SSA VR program. By expanding the
opportunity for private VR providers to participate in the program, we
are responding to the recommendations of the 1988 Disability Advisory
Council, and the dictates of Congress. By permitting payment to
providers for only services which have a causal connection to the
individual's completion of nine months of SGA, we are responding to
criticisms by the General Accounting Office and the Inspector General
of the Department of Health and Human Services. The Inspector General
stated in his most recent and thorough report on SSA's VR program, in
April 1990, ``SSA should strengthen the linkage between the SSA
vocational rehabilitation payment program and actions to * * *
rehabilitate SSA clients.''
Use of Alternate Participants
These final regulations revise Secs. 404.2104 and 416.2204 to
provide for the use of alternate participants in cases where a State VR
agency declines to provide VR services to a disabled or blind Social
Security beneficiary or SSI recipient whom we referred to the State VR
agency. These regulations provide that in such cases, the State will be
considered unwilling to participate through its VR agency with respect
to such individual.
When we first published regulations for the VR payment programs, we
provided in Secs. 404.2104 and 416.2204 that the option of
participating through their VR agencies would be offered first to the
States and that a State had to notify us within 60 days after
publication of the regulations whether it intended to participate
through its VR agency(ies). All States chose to participate.
Existing Secs. 404.2104 and 416.2204 also give a State the option
of not participating, including terminating participation, or limiting
the scope of its participation. If a State decides not to participate
or to limit participation, the existing regulations provide that we may
arrange for VR services through an alternate participant for disabled
or blind beneficiaries or recipients in the State or, where the State
has limited its participation, for those beneficiaries and recipients
not included within the scope of the State's participation. While we
are making certain technical changes to the rules concerning a State's
option not to participate or to limit participation, the existing
provisions relating to these options remain substantially the same
under the revised regulations. However, while existing Secs. 404.2104
and 416.2204 provide each State the option of declaring its intent to
participate with respect to the title II or title XVI VR payment
program as a whole, the revised Secs. 404.2104 and 416.2204 afford each
State the opportunity to participate through its VR agency(ies) with
respect to disabled title II beneficiaries in that State, or disabled
or blind title XVI recipients in that State, on a case-by-case basis,
unless the State has notified us in advance of its decision not to
participate or to limit participation.
Under the revised Secs. 404.2104 and 416.2204, unless the State has
exercised its option not to participate or to limit participation
through its VR agency(ies), we will provide the State the opportunity
to participate with respect to disabled or blind Social Security
beneficiaries or SSI recipients in the State by referring such
individuals first to the State VR agency(ies) for necessary VR
services. The revised regulations require the State to declare, through
the State VR agency, whether it is willing to participate with respect
to a beneficiary or recipient whom we referred to that VR agency. Under
the revised regulations, the State may participate with respect to such
an individual only if the State VR agency decides to accept the
individual as a client for VR services or to place the individual into
an extended evaluation process and notifies us of such decision in
writing within a prescribed time period.
In response to comments we received concerning the proposed rules,
we are defining the phrases ``accept the beneficiary as a client for VR
services'' and ``accept the recipient as a client for VR services,''
which are used in Secs. 404.2104 and 416.2204, respectively, to mean
that the State VR agency determines that the individual is eligible for
VR services and places the individual into an active caseload status
for development of an individualized written rehabilitation program. We
are defining these phrases in Secs. 404.2103 and 416.2203,
respectively, since these sections provide the definitions of terms
used in the VR payment regulations.
In addition, we recognize that there are occasions when a State VR
agency places an individual whom we referred to that agency into an
extended evaluation process prior to deciding whether the individual is
eligible for State VR services. Therefore, the revised Secs. 404.2104
and 416.2204 provide that the State VR agency must notify the
appropriate SSA Regional Commissioner of its decision either to accept
the individual as a client for VR services or to place the individual
into an extended evaluation process no later than the close of the
fourth month following the month in which we referred the individual to
the State VR agency. As we explain later in this preamble, we have
changed ``third month'' in the proposed rules to ``fourth month'' in
the final rules in response to comments we received concerning the
proposed regulations. If we do not receive a notice with respect to an
individual within the prescribed time period, we will consider the
State unwilling to participate with respect to the individual and may
arrange for VR services for the individual through an alternate
participant.
We are adding provisions to Secs. 404.2103 and 416.2203 to define
the phrases ``place the beneficiary into an extended evaluation
process'' and ``place the recipient into an extended evaluation
process'' to mean that the State VR agency determines that an extended
evaluation of the individual's VR potential is necessary to determine
whether the individual is eligible for VR services and places the
individual into an extended evaluation status.
In those cases where the State VR agency notifies the appropriate
SSA Regional Commissioner within the prescribed time period of a
decision to place the Social Security beneficiary or SSI recipient into
an extended evaluation process, the State VR agency also must notify
the appropriate SSA Regional Commissioner, at the conclusion of the
extended evaluation, of the State VR Agency's final decision whether or
not to accept the individual for further VR services. If following the
completion of the extended evaluation we receive a notice of a decision
by the State VR agency to accept the individual as a client for VR
services, the State may continue to participate with respect to such
individual. If we receive a notice of a decision by the State VR agency
not to accept the individual as a client for VR services, we may
arrange for VR services for such individual through an alternate
participant.
These provisions also apply with respect to the class(es) of
disabled or blind beneficiaries or recipients whom we refer to a State
VR agency in a case in which a State has decided to limit participation
of its VR agency(ies) to such class(es) of beneficiaries or recipients.
Minimum Qualifications for Alternate Participants
Because the revisions of Secs. 404.2104 and 416.2204 provide for
greater use of alternate participants under the title II and title XVI
VR payment programs, we are adding new Secs. 404.2106 and 416.2206 to
our regulations to specify certain minimum qualifications for alternate
participants, that is, any for-profit or not-for-profit agency,
organization, institution, or individual, other than a State VR agency.
Existing Secs. 404.2104(a) and 416.2204(a) provide that an alternate
participant must have a plan for VR services that is similar to a State
plan approved under title I of the Rehabilitation Act of 1973, as
amended. The final regulations do not change this basic requirement.
However, we clarify in Secs. 404.2106 and 416.2206 of these final rules
that the plans of alternate participants must provide, among other
things, that the provision of VR services to disabled or blind
beneficiaries or recipients will meet certain minimum standards. We
also explain in Secs. 404.2106 and 416.2206 that we will use as
alternate participants only those VR service providers that are
licensed, certified, accredited or registered, as appropriate, in the
State in which they provide VR services, and are not precluded from
Federal procurement or nonprocurement programs.
Payments to Alternate Participants
The existing regulations provide that we will pay alternate
participants for VR services furnished to beneficiaries or recipients
under the same terms and conditions that apply to State VR agencies.
These final rules do not change this requirement.
Requirements for Payment
The final rules amend Secs. 404.2108 and 416.2208 to specify the
information that the State VR agency or alternate participant must
provide in order to claim and receive payment under our VR payment
programs. The final rules provide that each claim for payment must be
submitted on a form prescribed by us and contain the following
information: A description of each service provided; a statement of
when the service was provided; and the cost of the service. In response
to comments we received on the proposed rules, we deleted the
requirement in the proposed rules that the claim also contain, as
appropriate, an explanation of how the service contributed to the
individual's performance of a continuous 9-month period of SGA, or an
explanation of how the service was reasonably expected to motivate or
assist the individual to perform such a continuous period of SGA.
Instead, we are including provisions in Secs. 404.2121 and 416.2221 of
the final rules to require the State VR agency or alternate participant
to provide this information as part of the validation review process.
The final rules also amend Secs. 404.2108 and 416.2208 to provide
that the State VR agency or alternate participant must maintain, and
provide as we may require, adequate documentation of all services and
costs for all disabled or blind beneficiaries or recipients with
respect to whom a State VR agency or alternate participant could
potentially request payment for services and costs under our VR payment
programs.
VR Services Contributing to a Continuous Period of SGA
The final regulations amend Secs. 404.2111 and 416.2211 which
provide the criteria for determining when VR services will be
considered to have contributed to a continuous period of 9 months of
SGA. We are amending Secs. 404.2111(a)(1) and 416.2211(a)(1) to provide
that any VR services which significantly motivated or assisted the
individual in returning to, or continuing in, SGA will be considered to
have contributed to the continuous 9-month period of SGA in the
situation where the individual does not recover medically and the
continuous 9-month period of SGA begins 1 year or less after VR
services end. We are deleting the words ``might have'' before the
phrase ``significantly motivated or assisted'' in the existing
regulations to strengthen the casual relationship between the VR
services and the continuous period of SGA.
Refusal of VR Services
We are amending Secs. 404.2113 and 416.2213 to include a timeframe
within which State VR agencies and alternate participants are to report
cases of VR refusal. These are cases in which an individual refuses to
continue to accept VR services or fails to cooperate in such a manner
as to preclude his or her successful rehabilitation.
Services for Which Payment May Be Made
Under section 222(d)(5) of the Act, the Secretary may limit the
type, scope, or amount of VR services that are subject to payment in
accordance with regulations designed to achieve the purpose of section
222(d). In general, Secs. 404.2114 and 416.2214 of the existing
regulations permit payment for evaluation services and all services
provided by a State VR agency under an Individualized Written
Rehabilitation Program (IWRP) or by an alternate participant under a
similar document.
Consistent with section 222(d)(5) of the Act, we are revising
Secs. 404.2114 and 416.2214 to describe the specific kinds of VR
services for which payment may be made in all three categories of cases
under the VR payment programs. Under the final rules, VR services for
which payment may be made include only those services described in
Secs. 404.2114(b) and 416.2214(b). In addition, these services are
subject to payment only if: (1) The services are necessary to determine
an individual's eligibility for VR services or the nature and scope of
the services to be provided; or (2) the services are provided under an
IWRP, or under a similar document in the case of an alternate
participant, and could reasonably be expected to motivate or assist the
individual in returning to, or continuing in, SGA.
In response to comments we received on the proposed rules, we are
clarifying Secs. 404.2114(a)(1) and 416.2214(a)(1) to indicate that VR
services for which payment may be made include diagnostic or other
evaluation services which are provided after an individual has been
determined to be eligible for VR services and prior to the
implementation of an IWRP (or similar document in the case of an
alternate participant) and which are necessary to determine the nature
and scope of the VR services to be provided to the individual.
Additionally, we are clarifying Secs. 404.2114 (b)(3) and (b)(12)
and 416.2214 (b)(3) and (b)(12) to indicate that the employment
referred to in these sections may be at or above the SGA level. The
individual's employment is not restricted to the minimum SGA threshold.
Also, in these final rules, we have modified some of the descriptions
of the VR services in Secs. 404.2114(b) and 416.2214(b) to reflect
changes which the Rehabilitation Act Amendments of 1992 made to the
list of VR services covered under the Rehabilitation Act of 1973.
Cost Containment
We are amending Secs. 404.2117 and 416.2217 to require, rather than
to expect, State VR agencies and alternate participants to seek payment
or services from other sources in accordance with the ``similar
benefit'' provisions under 34 CFR part 361. The final rules also
provide that the cost incurred for VR services must comply with the
cost-containment policies of the State VR agency or, in the case of an
alternate participant, with similar written policies established under
a negotiated plan in accordance with a written agreement or contract
between us and the alternate participant. These cost-containment
policies must provide guidelines to ensure the lowest reasonable cost
for VR services while allowing flexibility to provide for an
individual's needs. With reference to the cost-containment policies of
the State VR agencies, the phrase ``established under 34 CFR part 361''
which appeared in proposed Secs. 404.2117(c)(1) and 416.2217(c)(1) has
been deleted in the final rules since the regulations in 34 CFR part
361 do not themselves explicitly mandate the establishment of specific
``cost-containment'' policies.
Under these final rules, a State VR agency or alternate participant
is required to maintain and use these cost-containment policies to
govern the costs incurred for all VR services for which payment will be
requested under the VR payment programs. In response to comments, the
requirement in the proposed rules that the State VR agency or alternate
participant send to us on a yearly basis a written summary of the
written cost-containment policies has been deleted. Instead, these
final rules require that, before the end of the first calendar quarter
of each year, the State VR agency must send to us a written
certification that approved cost-containment policies are in effect and
are adhered to in procuring and providing goods and services for which
the State VR agency requests payment under our VR payment programs. The
rules further specify who may sign such certification. In addition, the
final rules require that State VR agencies must specify the basis upon
which such certification is made, e.g., a recent audit by an authorized
State, Federal or private auditor, or other independent compliance
review, and the date of such audit or compliance review. In the case of
an alternate participant, these certification requirements shall be
incorporated into the negotiated agreement or contract. The final rules
also provide that we may request a copy(ies) of the specific written
cost-containment policies of a State VR agency or alternate participant
if we determine that such additional information is necessary to ensure
compliance with the requirements of our VR payment programs.
Validation Reviews
We are revising Secs. 404.2121 and 416.2221. The existing rules
provide for postpayment reviews of claims submitted by State VR
agencies or alternate participants for payment under our regulations.
Under the revised rules, we will institute a validation review of a
sample of claims filed by each State VR agency or alternate
participant. Some validation reviews will be conducted prior to payment
and some will be conducted after payment is made.
For each claim selected for review, the State VR agency or
alternate participant must submit records of the VR services and costs
for which payment has been requested or made to show that the services
and costs meet the requirements for payment. Also, we have modified the
proposed rules by providing in these final rules that for claims for
payment in cases described in Secs. 404.2101(a) and 416.2201(a), a
clear explanation or existing documentation that demonstrates how the
service contributed to the individual's performance of a continuous 9-
month period of SGA must be provided as part of the validation review
documentation. Similarly, for claims for payment in cases described in
Sec. 404.2101 (b) or (c), or Sec. 416.2201 (b) or (c), a clear
explanation or existing documentation which demonstrates how the
service was reasonably expected to motivate or assist the individual to
return to, or continue in, SGA must be provided. We are making these
changes in the final rules in response to comments we received on the
proposed rules from commenters who expressed strong objections about
the reporting burden related to the requirements of proposed
Secs. 404.2108(b)(4) and 416.2208(b)(4). These sections of the proposed
rules would have required that each claim for payment that is filed
with us include a clear explanation of how the service contributed to
the individual's performance of a continuous 9-month period of SGA, or
how the service was reasonably expected to motivate or assist the
individual to perform SGA, as appropriate. Rather than require this
information for each claim that is filed, we are including in
Secs. 404.2121 and 416.2221 of the final rules requirements that this
information or appropriate supporting documentation be provided as part
of the validation review process. We are including these requirements
as a substitute for the requirements in proposed Secs. 404.2108(b)(4)
and 416.2208(b)(4) which we are deleting in these final rules.
The purposes of these validation reviews are to ensure that the VR
services and costs meet the requirements for payment under our
regulations, to assess the validity of our documentation requirements,
and to assess the need for additional validation reviews or additional
documentation requirements for any State VR agency or alternate
participant to ensure compliance with the requirements under our
regulations.
In any validation review, we will determine the amount of payment
and will notify the State VR agency or alternate participant of our
determination. In any postpayment validation review, if we find that we
have paid more or less than the correct amount, we will determine that
there is an overpayment or underpayment and will notify the State VR
agency or alternate participant that we will make the appropriate
adjustment. In any case, if a State agency or alternate participant
disagrees with our determination, it may appeal our determination.
These regulations do not change the existing rules set out in
Secs. 404.2127 and 416.2227 for appealing determinations or resolving
disputes under the VR payment programs.
Other Changes
We are also making certain changes to Secs. 404.2102 and 416.2202,
404.2108 and 416.2208, and 404.2109 and 416.2209 to conform to the
changes to the other sections of the regulations discussed above.
Comments Received Following Publication of the Notice of Proposed
Rulemaking
We published proposed rules on payments for VR services as a notice
of proposed rulemaking in the Federal Register on July 24, 1992 (57 FR
32926). We also mailed copies of the proposed rules to State VR
agencies. We invited comments on the proposed rules and gave interested
parties 60 days within which to submit comments. The comment period
closed on September 22, 1992.
We received 45 letters with comments. These included comments from
State VR agencies, private VR agencies, national organizations and
other organizations active in the field of VR. Portions of some letters
dealt with operational or administrative issues outside the scope of
the proposed rules, or discussed provisions of the regulations that
were not being altered by the proposed regulations. Because these
matters are beyond the scope of the proposed rules, they are not
addressed here.
For ease of comprehension and perspective, we have grouped the
comments according to the issues raised. The comments and our responses
are presented in the sequence of the regulations.
Use of Alternate Participants--Secs. 404.2104 and 416.2204
Comment: Many commenters indicated that the proposed timeframe for
a State VR agency to notify us of its decision to accept an SSA-
referred beneficiary or recipient as a client for VR services was too
short. The proposed rules required a State VR agency to notify us no
later than the close of the third month following the month of
referral. Some of these commenters further indicated that the timeframe
for providing notification was too restrictive, particularly if the
referred individual required an extended evaluation prior to the State
VR agency deciding whether or not it could serve the individual's VR
needs.
Response: In consideration of the commenters' concerns about the
length of the proposed timeframe, we are extending the timeframe for
the State VR agency to notify us about its decision to accept an SSA-
referred beneficiary or recipient as a client for VR services. The
revised timeframe allows the State VR agency to notify us by the close
of the fourth month following the month of referral. This revised
timeframe considers:
--An increase in the time for State VR agencies to notify SSA as
suggested by many commenters;
--That a longer interval could cause the referred individual's
rehabilitation potential to deteriorate before re-referral to an
alternate participant occurs, thereby causing a potential
rehabilitation opportunity to slip away;
--That possible backlogs in the State VR agencies can delay the time it
takes for an SSA-referred beneficiary or recipient to be contacted
about the State's available VR services; and
--The requirement of the Rehabilitation Act Amendments of 1992 that a
State VR agency generally must make a determination of whether an
individual is eligible for VR services within 60 days after the
individual makes application for services.
We believe that the revised timeframe will permit adequate time, in
most cases, for a State VR agency to arrive at a decision and to notify
us of its acceptance of an SSA-referred beneficiary or recipient for
State VR services.
We recognize that some disabled or blind beneficiaries or
recipients whom we refer to the State VR agency may require a period of
extended evaluation prior to the State VR agency deciding whether the
individual is eligible for State VR services. Therefore, we are making
changes in the final rules to provide that if the State VR agency
decides that an extended evaluation is needed, then the State VR agency
will notify us no later than the close of the fourth month following
the month of referral, that the individual has been placed into an
extended evaluation process. The final rules also require the State VR
agency to notify us of the individual's ``accepted'' or ``not
accepted'' status following the conclusion of the extended evaluation.
This second notification, in extended evaluation situations, will
permit us to make an informed decision concerning possible re-referral
of the individual to an alternate participant in those cases where the
State VR agency has decided not to provide VR services beyond the
extended evaluation to an SSA-referred beneficiary or recipient.
Comment: Several commenters requested that we define the term
``accepted.'' Another commenter inquired as to what will constitute a
notification of acceptance.
Response: In these final rules, we are defining the phrases
``accept the beneficiary as a client for VR services'' and ``accept the
recipient as a client for VR services'' in Secs. 404.2103 and 416.2203,
respectively, to mean that the State VR agency determines that the
individual is eligible for VR services and places the individual into
an active caseload status for development of an IWRP. In addition, the
final rules provide that the State VR agencies also notify us of those
SSA referred beneficiaries or recipients whom the State VR agencies
place into an extended evaluation process prior to determining whether
such individuals are eligible for VR services.
In regard to how State notifications to us will be structured, we
will issue procedural instructions outlining the form and content of
State notifications. To the extent allowable, flexibility in reporting
formats will be taken into consideration, e.g., electronic
notification.
Comment: Several commenters indicated that the requirement to have
the State VR agencies notify us concerning which of the beneficiaries
and recipients whom we referred to the State VR agency are being
accepted for State VR services will present an administrative burden to
the States. Another commenter expressed concern that the reporting
provision will have an adverse impact upon the resources of the State
Disability Determination Services (DDS).
Response: The proposed rules recognized that an additional
reporting burden is associated with this regulatory change. However, in
order to expand rehabilitation opportunities for disabled or blind
beneficiaries and recipients, it is necessary for us to know which of
the individuals whom we referred to the State VR agency are accepted
for VR services so that we may consider those not accepted for possible
re-referral to an alternate participant.
In order to minimize the State's reporting burden, we are asking
for notification of acceptances (instead of the more voluminous number
of nonacceptances) of beneficiaries and recipients whom we referred to
the State VR agency, i.e., individuals who are determined to be
entitled to Social Security disability benefits or eligible for SSI
disability or blindness benefits (not those individuals whose claims
for benefits are denied). We believe that we have limited the referral
reporting burden on the State VR agencies while still achieving a
sufficient level of information to permit us to consider those disabled
or blind beneficiaries who are eligible for a possible re-referral to
an alternate provider for services.
We do not anticipate an adverse impact upon the resources of the
State DDS as this regulation does not prescribe changing the referral
process between the State's DDS and VR agency, nor does it entail
changing the existing process the DDS uses to report to SSA on these
referrals.
Comment: Some commenters asked whether we planned to limit payments
to State VR agencies under our VR payment programs to those cases
involving a beneficiary or recipient whom we referred to the State VR
agency.
Response: It is not our intention to limit payments to State VR
agencies under the VR payment programs to only those cases in which the
beneficiary or recipient was referred to the State VR agency by SSA.
Consistent with our past practices, we will continue to pay claims
filed by State VR agencies for payment of the costs of VR services
provided to a disabled or blind Social Security beneficiary or SSI
recipient in accordance with the requirements of our regulations,
regardless of the means by which the beneficiary or recipient came to
the attention of the State VR agency.
Comment: One commenter stated that the use of alternate
participants should be limited to those instances where a State VR
agency is not cooperating with us. Another commenter thought that State
VR agencies have the sole responsibility of providing services to those
who are disabled. In addition, one commenter stated that the services
available from an alternate participant should be referred to as ``VR
like'' services or as ``similar to'' VR services to acknowledge that
only State designated units are authorized to provide VR services under
the program carried out under title I of the Rehabilitation Act of
1973, as amended.
Response: Under sections 222(a) and 1615(a) of the Act, disabled or
blind Social Security beneficiaries and SSI recipients are to be
referred for VR services to the State agency administering a State plan
for VR services approved under title I of the Rehabilitation Act of
1973, as amended. Sections 222(d) and 1615(d) of the Act authorize
payment to the State for the costs of VR services provided to such
beneficiaries or recipients in certain categories of cases. However,
with respect to Social Security beneficiaries, section 222(d)(2) of the
Act provides that if a State is unwilling to participate or does not
have an approved State plan for VR services, the Commissioner is
authorized to provide such services by agreement or contract with
alternative VR service providers under the same conditions that would
apply to a State VR agency. Section 1633(a) provides authority for
making similar arrangements for VR services with respect to SSI
recipients. In order to make VR services more readily available to
beneficiaries and recipients, these final rules provide that a State
will be considered unwilling to participate with respect to an
individual whom we referred to the State VR agency if that agency
declines to provide VR services to that individual.
There is nothing in section 222(d)(2) of the Act to suggest a
distinction between the kind of services that are available from a
State VR agency and the services that would be provided by an alternate
participant. Consequently, for the purpose of our regulations regarding
the use of alternate participants, we do not believe that there is any
need to create a distinction in the nomenclature used to identify the
services available from the State VR agency and those provided by an
alternate participant. Additionally, Secs. 404.2103 and 416.2203
already define the terms ``alternate participants'' and ``Vocational
Rehabilitation services.'' In neither instance is a distinction made to
differentiate the services available from a State VR agency and those
that would be provided by an alternate participant. These final rules
do not amend those definitions.
Comment: Some commenters expressed concern that the practice of
making the first referral of the beneficiary or recipient to the State
VR agency will permit such agencies to select those referrals with the
best rehabilitation potential, thereby leaving the alternate
participants to serve the most difficult cases having a lesser
probability of rehabilitation success and provider payment. Another
commenter indicated that we should provide a mixture of cases in the
referrals made to VR service providers in order to balance the levels
of disability severity contained in the caseloads referred to each
provider.
Response: Sections 222(a) and 1615(a) of the Act require us to
refer disabled or blind Social Security beneficiaries and SSI
recipients for VR services to the State agency administering a State
plan for VR services approved under title I of the Rehabilitation Act
of 1973, as amended. Section 222(d)(2) of the Act provides that it is
only in the event that the State is unwilling to participate or does
not have an approved State plan that we may arrange for such services
through an agreement or contract with an alternative VR service
provider. Therefore, the law directs SSA to follow a prescribed order
in determining where to refer individuals for VR services.
In addition, the Federal regulations governing the State plan for
VR services (34 CFR 361.36) provide that the ``* * * plan must assure
that those individuals with the most severe handicaps are selected for
service before other individuals with handicaps.'' Thus, the State VR
agencies are required to select those individuals with the most severe
impairments for VR services before selecting other individuals.
We also believe that a sufficiently large pool of disabled or blind
beneficiaries and recipients exists so that both the State VR agencies
and the alternate participants will have the opportunity to offer VR
services to a diverse cross section of these beneficiaries and
recipients.
Comment: One commenter asked whether a State VR agency could be
reimbursed for services provided to a beneficiary or recipient whom SSA
had referred previously to an alternate participant.
Response: A State VR agency which provides VR services to a
beneficiary or recipient who becomes its client after having been
referred to an alternate participant may be paid for such services if
the services and costs meet the requirements for payment under our
regulations, including the requirements in Secs. 404.2108-404.2117 for
cases involving Social Security beneficiaries or Secs. 416.2208-
416.2217 for cases involving SSI recipients. Among other things, the
services must have been provided during the period specified in
Secs. 404.2115 or 416.2215, as appropriate. Also, Secs. 404.2117(d) and
416.2217(d) provide that the total payment for the costs of services
provided to an individual in each case, including any prior payments
made under our VR payment programs, must not be so high as to preclude
a ``net savings'' to the title II trust funds or the title XVI general
fund, as the case may be. In addition, Secs. 404.2117(f) and
416.2217(f) provide that payment will not be made more than once for
the same VR service or cost.
While a State VR agency or alternate participant which provided
only evaluation services to a beneficiary or recipient may be paid for
such services in certain, limited circumstances described in
Secs. 404.2111, 404.2113, 416.2211 and 416.2213, the regulations
generally permit payment only to a State VR agency which provided
services under an IWRP, or to an alternate participant which provided
services under a similar document, as provided under
Secs. 404.2114(a)(2) and 416.2214(a)(2). Thus, with few exceptions, we
would pay only a State VR agency or alternate participant which
developed an IWRP, or similar document in the case of an alternate
participant, with the individual and coordinated the services. At any
given time, only one VR service provider would be providing services to
the individual under an IWRP or similar document. We will not pay more
than one provider for the costs of the same services provided during
the period specified in Secs. 404.2115 or 416.2215.
Comment: One commenter stated that regional staff of the
Rehabilitation Services Administration (RSA) should approve the plan
for VR services developed by an alternate participant to assure that
the requirements for a State plan under title I of the Rehabilitation
Act of 1973, as amended, have been included in the alternate
participant's plan.
Response: While Secs. 404.2104(a) and 416.2204(a) provide that an
alternate participant must have a plan for VR services similar to an
approved State plan, the details of the plan of an alternate
participant will be developed under the terms of the negotiated
agreement or contract between us and the alternate participant. The
agreement or contract will include procedures for the review and
approval of such plan. However, we do not believe that it is necessary
to include such procedures in the regulations.
Comment: A commenter stated that our plan to expand the use of
alternate participants suggested that there are problems with State VR
agencies in providing VR services to individuals with disabilities.
Response: Our desire to increase the availability of sources of VR
services for disabled or blind beneficiaries and recipients is not
intended to question the quality of work performed by the State VR
agencies, but rather to address a mutual goal shared with the States,
i.e., that all those desiring VR services shall have the opportunity to
receive them.
SSA's interest is in arranging for the maximum number of disabled
or blind beneficiaries and recipients to have access to the
availability of rehabilitation and employment opportunities which can
assist them in achieving and sustaining employment at or above the SGA
threshold. We believe a sufficiently large pool of disabled or blind
beneficiaries and recipients exists so that both the State VR agencies
and alternate participants have ample opportunity to serve such
beneficiaries and recipients. For this reason, we believe that an
increased number of disabled or blind beneficiaries and recipients
could achieve and sustain rehabilitation and employment opportunities
if an increased number of VR provider sources are available to serve
the needs of such beneficiaries and recipients.
Basic Qualifications for Alternate Participants--Secs. 404.2106 and
416.2206
Comment: Three commenters questioned the adequacy of the
qualifications for alternate participants in Secs. 404.2106 and
416.2206 and recommended that we include a specific provision in the
regulations providing for ongoing monitoring of alternate participants.
The commenters believed that the provisions requiring that alternate
participants be licensed, certified, accredited, or registered would be
inadequate without providing for ongoing monitoring of the services
provided. They also believed that periodic accreditation or
certification, e.g., every three years, would not be an adequate
substitute for ongoing monitoring of such participants. One commenter
asked for a definition of the term ``qualified personnel'' as used in
proposed Secs. 404.2106(b)(2) and 416.2206(b)(2), which provide that
the plans of alternate participants must provide that only qualified
personnel will be used to furnish VR services. One commenter asked how
and on what basis alternate participants would provide services.
Another commenter suggested that we require IWRPs from alternate
participants to document the relationship of the services provided to
the performance by an individual of a continuous 9-month period of SGA
in appropriate cases.
Response: We did not adopt the recommendation to include a specific
provision in the regulations to provide for ongoing monitoring of the
services of alternate participants. Rather, the negotiated agreement or
contract which we enter into with an alternate participant will include
procedures for monitoring such services. In addition, we will monitor
the services provided by alternate participants by conducting
validation reviews under Secs. 404.2121 and 416.2221 of the claims for
payment that are filed by such participants.
We do not believe it is necessary to expand the requirements of
Secs. 404.2106 and 416.2206 since these sections are intended to state
only the basic qualifications for alternate participants. Under
Secs. 404.2106 and 416.2206, we will select as alternate participants
only those VR service providers that are licensed, certified,
accredited, or registered, as appropriate, to provide VR services in
the State in which they operate. In addition, Secs. 404.2104(a),
404.2106(a)(1)(ii), 416.2204(a), and 416.2206(a)(1)(ii) provide that to
be an alternate participant, a VR service provider must have a plan for
VR services that is similar to a State plan for VR services approved
under title I of the Rehabilitation Act of 1973, as amended. Sections
404.2106(a)(1)(ii) and 416.2206(a)(1)(ii) also state that this plan
shall govern the provision of VR services to individuals. While the
plan of an alternate participant for providing VR services to
individuals will include provisions similar to those of an approved
State plan, the details of the plan will be developed under the
negotiated agreement between us and the alternate participant. We state
in Secs. 404.2106(b) and 416.2206(b), however, that the plan of an
alternate participant must provide that the provision of VR services to
individuals will meet certain minimum standards, including the
requirement that only qualified personnel and facilities will be used
to furnish such services. Specific criteria relating to this and other
requirements for providing services will be prescribed in the plan for
VR services in accordance with the terms of the negotiated agreement or
contract.
The VR services furnished to an individual by an alternate
participant will be provided under a document similar to the IWRP used
by State VR agencies. With respect to validation reviews under
Secs. 404.2121 and 416.2221, the documentation requirements for claims
for payment in cases in which the individual completes a continuous 9-
month period of SGA are the same for both State VR agencies and
alternate participants.
Comment: Four commenters stated that proposed Secs. 404.2106 and
416.2206 concerning the basic qualifications for alternate participants
would not ensure the protection of client rights to the same extent
provided in the Rehabilitation Act of 1973, as amended, and required in
State plans. They recommended that the plans of alternate participants
include specific provisions to protect consumer rights, including
procedural safeguards and the right to a review of decisions by the
provider affecting the individual. One commenter indicated that clients
of State VR agencies are protected because State plans are required to
undergo public hearings and States are required to provide procedural
safeguards and advise clients of their rights. Another commenter
expressed the view that the rights of client participation provided by
an alternate participant should be equal to the rights that are
required to be provided by State VR agencies, including providing for
participation by the client in the development of an IWRP and providing
procedural safeguards and the right to appeal decisions affecting the
individual.
Response: We agree with the comments regarding the need to protect
client rights when we make arrangements for VR services for
beneficiaries or recipients through alternate participants. The
regulations provide that an alternate participant must have a plan for
VR services that is similar to a State plan approved under title I of
the Rehabilitation Act of 1973, as amended. We will include provisions
in the negotiated agreement or contract with each alternate participant
to ensure that the plan of the alternate participant includes
provisions to protect client rights.
Comment: Two commenters questioned whether there were sufficient
incentives for private or public non-State VR service providers to meet
the requirements that an alternate participant have a plan similar to
the State plan governing the provision of VR services to individuals
and that such plan include certain minimum standards for the provision
of services. They also questioned whether there are interested private
or public non-State VR service providers that would be able to meet
these requirements of the regulations.
Response: The regulations require that an alternate participant
have a plan for providing services to individuals that is similar to a
State plan approved under title I of the Rehabilitation Act of 1973, as
amended. We will solicit expressions of interest in serving as
alternate participants from qualified private or public non-State VR
service providers, and will negotiate agreements or contracts with
those VR service providers that are interested in providing services to
disabled or blind beneficiaries or recipients under the conditions
prescribed in the regulations.
Comment: One non-State VR provider indicated that most providers
are subject to national accreditation for services rendered and asked
what outside quality control indicators exist for State VR agencies.
Response: A State plan for providing VR services must comply with
the requirements of the Rehabilitation Act of 1973, as amended, and RSA
regulations. In addition, the 1992 amendments to the Rehabilitation Act
of 1973 require RSA to develop and publish performance standards and
indicators for State VR programs. These regulations are in the process
of development at this writing.
Requirements for Payment--Secs. 404.2108 and 416.2208
Comment: One commenter believed it was unnecessary to require in
each claim for payment the information specified in Secs. 404.2108(b)
(1), (2) and (3) and 416.2208(b) (1), (2) and (3), i.e., a description
of each service, when the service was provided, and the cost of the
service. Two commenters objected to providing this information on a
form prescribed by us.
Response: We believe that SSA should know what it pays for and,
therefore, that it is not unreasonable to require that every claim for
payment must include such basic information as a description of each
service provided, when the service was provided, and the cost of the
service. By specifying that the claim for payment containing this
information be in a form prescribed by us, we did not intend to
preclude a provider from requesting our approval to use reasonable
facsimiles of our claim form, such as those generated by a provider's
automated system.
Comment: Many commenters objected to the documentation requirements
set forth in Secs. 404.2108(b)(4) (i) and (ii) and 416.2208(b)(4) (i)
and (ii), i.e., an explanation of how the service contributed to the
individual's performance of a continuous 9-month period of SGA, or how
the service was reasonably expected to motivate or assist the
individual to perform such a continuous period of SGA, as appropriate.
The commenters believed that providing this documentation for all
claims would be burdensome and time-consuming, and would emphasize
reporting rather than program improvements. These requirements were
also viewed by a few commenters as a disincentive to serving
beneficiaries or seeking payment from SSA. Several other commenters
thought that these requirements questioned the integrity of
rehabilitation counselors and could lead to second guessing of their
decisions. Most of these commenters suggested that we delete paragraphs
(b)(4) (i) and (ii) from these sections. A few suggested that if these
requirements are retained in the final rules, we should require this
documentation for some but not all claims for VR payment. For example,
one commenter suggested that documentation be required for claims for
payment in cases involving the completion of a continuous 9-month
period of SGA only where the link between the services provided and the
accomplishment of 9 continuous months of SGA was not routine or
apparent. Some commenters did not request that we delete paragraphs
(b)(4)(i) and (ii), but did recommend that we accept existing
documentation in lieu of requiring providers to record information on a
prescribed form.
Response: Under the Act and our existing regulations, payment may
be made for services furnished to disabled or blind Social Security
beneficiaries or SSI recipients in three categories of cases. In cases
described in Secs. 404.2101(a) and 416.2201(a), payment may be made
only for services which contributed to the individual's performance of
a continuous 9-month period of SGA. We continue to believe that there
are sound reasons for requiring that documentation establishing this
causal relationship be available for all claims for payment in these
cases. We also believe that documentation showing how the VR services
could reasonably be expected to motivate or assist the individual to
perform SGA must be available for all claims for payment in cases
described in Secs. 404.2101 (b) and (c) and 416.2201 (b) and (c).
However, we agree that these requirements could be accomplished in a
less burdensome manner. Therefore, we will not require that such
documentation be included for each claim submitted for payment and have
deleted Secs. 404.2108(b)(4)(i) and (ii) and 416.2208(b)(4)(i) and (ii)
in the final rules. Instead, such documentation must now be submitted
only for those claims selected for validation review. This option was
recommended by a number of commenters and is reflected in
Secs. 404.2121 and 416.2221 of these final rules. Additionally, in
revising these sections to require this information in the validation
review process, we have adopted the recommendation to accept existing
documentation, such as pertinent parts of the IWRP, as sufficient for
compliance with these requirements.
Comment: A few commenters, in commenting on proposed Secs. 404.2108
and 416.2208, raised questions concerning how we will make VR payments
to alternate providers. Specifically, questions were raised concerning
whether private providers would be able to wait until 9 months of SGA
had been achieved before receiving payment, and whether we will advance
funds to private providers.
Response: Alternate providers are subject to the same payment
provisions as the State VR agencies.
VR Services Contributing to a Continuous Period of SGA-- Secs. 404.2111
and 416.2211
Comment: We received comments relating to Secs. 404.2111 and
416.2211 from nine commenters. Only two commenters acknowledged the
changes we had proposed to make in these sections of the existing
rules, and no commenter objected to the proposed changes. Instead, most
commenters raised questions or sought clarification relating to
provisions that were unchanged by the proposed rules. Although
unrelated to the changes in the proposed rules, suggestions were made
by two commenters that we should specifically state in the final rules
that supported employment should be considered transitional work
activity.
Response: Since no commenters objected to our proposed deletion of
the words ``might have'' before the phrase ``significantly motivated or
assisted,'' or to the other changes we proposed to Secs. 404.2111 and
416.2211, these sections are unchanged from the proposed rules.
We did not adopt the recommendation to amend Secs. 404.2111 and
416.2211 to provide that supported employment will be considered
transitional work activity under these sections. Supported employment
will qualify as transitional work activity only if it meets the
definition of transitional work activity already included in
Secs. 404.2111(a)(2)(i) and 416.2211(a)(2)(i), i.e., employment or
self-employment which gradually evolved, with or without periodic
interruption, into SGA. To unequivocally include supported employment
in these sections might lead to the erroneous conclusion that supported
employment should always be viewed as transitional employment, whether
it does or does not meet this definition.
Refusal of VR Services--Secs. 404.2113 and 416.2213
Comment: Six commenters questioned the requirement in proposed
Secs. 404.2113 and 416.2213 for reporting VR refusals within 60 days
after the State VR agency or alternate participant makes a preliminary
finding that an individual refuses to continue to accept VR services or
fails to cooperate in a VR program. One commenter indicated that
reporting refusals within a timeframe would create an additional
administrative burden for State VR agencies. Three commenters
recommended that this deadline for reporting refusals be deleted to
allow the State VR agencies the latitude they currently have in
reporting VR refusals to SSA. Another commenter indicated that many
times individuals who initially refuse services will change their
minds. The commenter believed that in such cases, reporting their
refusal too early might undermine the rehabilitation process instead of
helping. One commenter suggested that the 60-day reporting requirement
be waived in cases where the State VR agency can provide good cause
justification for not reporting a refusal within the timeframe.
Response: We did not adopt the recommendation to delete this
provision. The purpose of the 60-day reporting requirement is to
encourage disabled or blind beneficiaries and recipients to participate
in VR services by providing for stricter enforcement of the VR refusal
provisions of the law. We believe that providing procedures in the
regulations to strengthen such enforcement will encourage participation
of beneficiaries and recipients in VR programs. The requirement for
reporting refusals within 60 days does not change the latitude State VR
agencies currently have in determining whether a person can benefit
from VR services and in working with a person to encourage him or her
to participate or continue participation in a VR program; it only
requires that they report within 60 days after making a finding of VR
refusal. It also should not create an additional administrative burden
on State or other VR service providers because it does not change how
refusals are currently reported or the procedures for processing
refusal cases.
We do not believe that the reporting of a refusal will undermine
the rehabilitation process in cases of individuals who have initially
refused VR services. Instead, it should provide an incentive for such a
person to decide to participate in services rather than to delay such
participation and risk losing benefits. We did not provide a waiver of
this reporting requirement in cases where a provider can establish good
cause justification for not reporting a refusal within the timeframe.
Once a provider has completed its evaluation and determined that a
refusal situation exists, it should not be necessary to delay the
reporting of the refusal beyond 60 days.
Comment: One advocacy group wanted to know how a reported refusal
situation affects payment to a provider. It wanted to know whether a
provider would be paid in situations where a client drops out of a
program after several months but is provided assistance that is
designed to improve the client's quality of life.
Response: Under the Act and our existing regulations, State VR
agencies and alternate participants may be paid for the costs of VR
services furnished to disabled or blind beneficiaries or recipients in
three categories of cases. One of the categories of cases is where the
individual, without good cause, refuses to continue to accept VR
services or fails to cooperate in such a manner as to preclude the
individual's successful rehabilitation. Our existing regulations
provide for payments to providers for the costs of VR services provided
to beneficiaries/recipients in refusal situations only when the
individual has at least applied for services and his or her benefits
have been suspended because SSA has determined that the refusal to
participate or continue in the VR program is without good cause.
Comment: Two commenters suggested that we should place more of an
emphasis on encouraging beneficiaries to participate in VR services
rather than on the reporting of refusals. One commenter recommended
that the final regulations should require State VR agencies and
alternate participants to make substantial efforts to encourage
individuals to participate in VR services prior to their reporting a
refusal. Another commenter indicated that stricter enforcement of the
VR refusal provisions would not motivate more people to continue in a
VR program unless SSA becomes more involved earlier in the VR process
and directly informs beneficiaries of the importance of working with VR
agencies.
Response: Our current operating instructions on processing VR
refusal cases include procedures which emphasize the importance of
encouraging participation of beneficiaries and recipients in VR
programs. These procedures require State VR agencies and alternate
participants to report refusals only after they have made substantial
efforts to encourage disabled or blind individuals to participate in VR
services and to resolve problems preventing participation prior to
reporting a refusal. We are currently working to improve the procedures
we follow when referring beneficiaries and recipients for VR services
and to provide more information to beneficiaries and recipients
regarding rehabilitation and employment opportunities and the
importance of working with VR service providers.
Comment: Two commenters suggested that SSA should place more
emphasis on enforcing the VR refusal sanctions rather than on the
reporting of VR refusal cases. One State VR agency stated that it
reports few refusal cases because few beneficiaries or recipients have
sanctions imposed against their benefits because of VR refusal. The
agency recommended that the process of enforcing VR cooperation be
improved to make the reporting provision viable.
Response: We do not believe that a change to the regulation is
necessary to enhance our enforcement of the VR refusal sanctions. Our
current operating instructions for processing refusal cases, which were
issued in December 1991, emphasize enforcement of the refusal sanctions
and provide specific instructions for suspending benefits in cases
where we have determined that good cause does not exist for refusing to
participate in VR services.
Comment: Several commenters expressed concern about whether a VR
provider would be able to distinguish between the effects of a
psychiatric impairment in refusing VR services and an actual refusal.
The commenters recommended that SSA obtain a thorough psychiatric
evaluation or new report from the treating psychiatrist prior to any
actions based on the person's motivation to participate in VR services.
Two commenters noted that people with psychiatric disabilities who
refuse VR services or fail to cooperate may too easily be considered
unwilling to cooperate, even though such unwillingness may be due to
their illness rather than to a non-valid reason. They were concerned
that our proposed regulations would permit such people to be removed
from the rolls because of refusal to cooperate when the refusal is due
to the person's illness. Another commenter recommended that the
definition of VR refusal be more specific regarding mental retardation,
mental illness, and other psychological disorders.
Response: We did not make any changes to Secs. 404.2113 and
416.2213 in response to these comments. Sections 404.422 and 416.1715
of our existing regulations provide that deductions will not be imposed
against an individual's Social Security benefits, and an individual's
SSI benefits will not be suspended, on account of a refusal of VR
services if we find that the individual has good cause for refusing
such services. Section 416.1715(b) of our SSI regulations lists
examples of good cause, including being physically or mentally unable
to participate in the services that are offered. We use the same
criteria for Social Security cases. Consequently, a person's
psychiatric and/or medical condition must be evaluated and taken into
account in determining whether good cause for refusing VR services
exists and prior to any determination that deductions will be imposed
against Social Security benefits or that SSI benefits will be
suspended. In addition, we published final rules in the Federal
Register on January 12, 1994 (59 FR 1629) to amend Secs. 404.422 and
416.1715 to provide that we will take into account any physical,
mental, educational, or linguistic limitations of an individual in
determining whether the individual has good cause for refusing VR
services.
Services for Which Payment May Be Made--Secs. 404.2114 and 416.2214
Comment: In commenting on proposed Secs. 404.2114 and 416.2214,
many commenters expressed the belief that there is no need to list the
specific services for which payment may be made since such services are
already identified in the Rehabilitation Act of 1973, as amended, and
in the RSA regulations. Commenters were concerned that SSA's listing of
such services would create confusion with those already identified in
the Rehabilitation Act of 1973, as amended, and in the implementing
regulations promulgated by RSA, and could create a double standard
between Social Security beneficiaries or SSI recipients and other
vocational rehabilitation clients. A few commenters expressed concern
that the list was intended to permit more VR payment denials.
Response: Our intent in listing specific services in these sections
was to further clarify the services for which payment may be made under
our programs and to provide a reference under SSA's regulations for use
with potential alternate providers. With some modifications to take
account of the Rehabilitation Act Amendments of 1992, discussed below,
the services listed in these final rules are essentially the same as
those currently described in the RSA regulations. There are minor
differences in our final regulations, relating primarily to the issue
of the individual's attainment of employment at or above the SGA level,
which is the basic objective of our VR payment programs. Our final
regulations, therefore, do not precisely mirror the descriptions of VR
services contained in the RSA regulations or in the Rehabilitation Act
Amendments of 1992.
It is not our intent, in making this change in our rules, to
introduce conflicts between the handling of cases of Social Security
beneficiaries or SSI recipients and the cases of other vocational
rehabilitation clients, nor do we intend, by including this list in our
rules, to permit more denials of payments to providers of such
services. We believe that the list of services is as extensive as that
provided in the RSA regulations or in the Rehabilitation Act Amendments
of 1992. Moreover, it provides a general category of VR services in
Secs. 404.2114(b)(15) and 416.2214(b)(15), for ``Other goods and
services that can reasonably be expected to motivate or assist the
individual in returning to, or continuing in, SGA.'' In these final
regulations, we have modified some of the descriptions of the VR
services in Secs. 404.2114(b) and 416.2214(b) to reflect changes which
the Rehabilitation Act Amendments of 1992 made to the list of VR
services covered under the Rehabilitation Act of 1973. As the need
arises, we will consider making further changes to Secs. 404.2114(b)
and 416.2214(b), as may be necessary and appropriate, to reflect other
relevant changes that may be made in the law or in RSA regulations to
ensure that the list of VR services in these sections of our
regulations is up-to-date.
Comment: A few commenters expressed concern that the references to
``SGA'' and ``the SGA level'' contained in proposed Secs. 404.2114 and
416.2214 could be read to permit the exclusion of payment of those
expenses aimed at achieving employment at a level higher than the SGA
threshold. One commenter specifically recommended that the reference to
SGA be revised to state, ``at or above SGA level.''
Response: It was not our intent to exclude payment for services
aimed at employment above the SGA threshold. However, we recognize that
the phrase ``at the SGA level'' in paragraphs (b)(3) and (b)(12) of
proposed Secs. 404.2114 and 416.2214 could be misleading. Therefore, we
have revised these paragraphs in the final rules to state ``at or above
the SGA level,'' to prevent any misunderstandings in this regard.
Comment: One commenter requested further clarification as to what
costs for diagnostic services would be paid, believing that the
proposed rules appeared to limit these costs to determining eligibility
for vocational rehabilitation services. This commenter believed that
the proposed rules would exclude payment for certain diagnostic
services provided later in the rehabilitation process, such as
preparing the rehabilitation plan and determining appropriate
rehabilitation goals. Another commenter thought that the proposed rules
would preclude payment for the cost of vocational evaluation and
disagreed with the rules for this reason. This commenter stated that
vocational evaluation is often necessary to determine an individual's
eligibility to receive services, and provides a template for developing
the IWRP.
Response: It was not our intent to preclude payment for diagnostic
or other evaluation services, including vocational evaluations, which
are necessary to assist an individual and a VR counselor in preparing
an IWRP or in determining an appropriate vocational goal. Such services
are covered under Secs. 404.2114(b)(1) and 416.2214(b)(1). We
recognize, however, that Secs. 404.2114(a) and 416.2214(a) of the
proposed rules could be read to preclude payment for the costs of
diagnostic or other evaluation services which are provided after an
individual has been determined to be eligible for VR services and prior
to the implementation of an IWRP (or similar document in the case of an
alternate participant). Therefore, to address the concerns raised by
the commenters and avoid any misunderstanding regarding our intent, we
are adding the phrase ``or the nature and scope of the services to be
provided'' to Secs. 404.2114(a)(1) and 416.2214(a)(1) to clarify that
payment may be made for diagnostic or other evaluation services which
are provided between these two stages of the rehabilitation process and
which are necessary to determine the nature and scope of the services
to be provided to the individual.
Comment: Three commenters believed that there was no need to
include provisions for seeking grant assistance for educational
services under Secs. 404.2114(b)(4) and 416.2214(b)(4) since similar
provisions are already mandated by the Rehabilitation Act of 1973, as
amended.
Response: While we acknowledge that such ``similar benefit''
provisions are already mandated under the Rehabilitation Act of 1973,
as amended, and the RSA regulations, we are including the requirement
for seeking grant assistance from other sources for the costs of
training or training services in institutions of higher education in
our final regulations to ensure compliance with this requirement by
alternate participants. The requirements of the Federal/State
rehabilitation program administered by RSA under title I of the
Rehabilitation Act of 1973, as amended, apply to State VR agencies.
With the expanded use of private or public non-State VR service
providers as alternate participants under our VR payment programs, we
believe it is necessary to include in our regulations certain
requirements for payment of services and cost under our programs, even
if such requirements when applied to State VR agencies are duplicative
of the requirements under the Rehabilitation Act of 1973, as amended,
and RSA regulations.
Comment: One State VR agency raised a question about the
qualifications of the SSA personnel who will determine whether the
services provided could reasonably be expected to motivate or assist
the individual in returning to, or continuing in, SGA as expressed in
Secs. 404.2114(a)(2) and 416.2214(a)(2). The commenter believed that
since a counselor has specialized training and experience, and has
extensive client information, SSA personnel who will determine this
issue should have equal qualifications in order to make appropriate
decisions and ensure that the review process does not unnecessarily
delay the VR payment process.
Response: We appreciate the need for SSA to ensure that qualified
personnel are involved in the review process. It is not our intent
under these regulations to attempt to ``second guess'' the decisions
made by the VR counselor so long as the VR services involved could
reasonably have been expected to motivate or assist the individual in
progressing toward the goal of performing SGA. We will ensure that the
reviewers are trained and qualified to perform such a review.
Cost Containment--Secs. 404.2117 and 416.2217
Comment: A few commenters stated that our ``requirement'' (rather
than our expectation) that they seek similar benefits when providing
services to beneficiaries or recipients is duplicative of an RSA
requirement. They viewed this duplication as unnecessary or as imposing
an additional reporting burden.
Response: It was our intent to establish consistency with the RSA
regulations in 34 CFR part 361. We see no additional reporting
requirement and regard this as a change for reasons of consistency
only.
Comment: The requirement in proposed Secs. 404.2117(c)(2) and
416.2217(c)(2) that State VR agencies and alternate participants submit
to SSA on a yearly basis a summary of their cost-containment policies
drew strong criticism from a number of State VR agencies. It was
described as duplicative of RSA reporting requirements and
administratively burdensome. One commenter believed that the
requirement in these sections represented gross over-regulation;
another believed that it would result in nonessential documentation.
Commenters who did not recommend deleting this requirement
suggested that the timeframe for submitting cost-containment policies
be changed from annually to every 3 years. This would make SSA's
reporting requirements consistent with the timeframe States must use
when submitting plans to RSA.
Response: In proposing the requirement in paragraph (c)(2) of
Secs. 404.2117 and 416.2217, it was our intent to have some written
assurance that providers of rehabilitation services would have cost-
containment policies in effect and to ensure that these policies were
adhered to when providing or procuring goods and services for which
payment would be requested from SSA. In consideration of the comments
we received and our own reevaluation of the requirement set forth in
the proposed rules, we have made substantial changes to paragraph
(c)(2) in the final rules.
The final rules require that State VR agencies submit to SSA, by
the end of the first quarter of each calendar year, a certification
that approved cost-containment policies are in effect and are adhered
to in procuring and providing goods and services for which the State VR
agency requests payment under our regulations. Such certification must
be signed by the State's chief financial official or the head of the VR
agency. Additionally, such certification must specify the basis upon
which it is made, e.g., a recent audit by an authorized State, Federal
or private auditor, or other independent compliance review, and the
date of such audit or compliance review. In the case of an alternate
participant, these certification requirements will be incorporated into
the negotiated agreement or contract. We also provide in the final
rules that we may request copies of a provider's specific written cost-
containment policies if we determine that such additional information
is necessary to ensure compliance with the requirements of our
regulations, and that the provider shall submit copies of these
policies when requested. We believe that these certification
requirements set forth in the final rules will minimize any
administrative burden that might have resulted from annual submissions
of summaries of cost-containment policies to SSA, while still assuring
that such policies are in effect and in use.
Comment: Several private providers commented that alternate
participants would need additional guidance on what constitutes a cost-
containment plan for SSA purposes.
Response: We agree that alternate participants will need such
guidance but believe that it would be inappropriate to include such
guidance in these regulations. Instead, we will provide specific
guidance when we develop contractual agreements with potential
alternate participants who express an interest in serving disabled or
blind beneficiaries and recipients.
Validation Reviews--Secs. 404.2121 and 416.2221
Comment: Thirteen State VR agencies, as well as the Council of
State Administrators of Vocational Rehabilitation and RSA, commented on
proposed Secs. 404.2121 and 416.2221. Most commenters identified two
major areas of concern about the proposal permitting prepayment or
postpayment validation review of claims for payment for VR services.
First, many commenters questioned the need for prepayment reviews since
a process for postpayment review of State VR agency claims has been in
place for a substantial period of time and, in their experience, has
proven to be an effective and viable approach. These commenters
expressed the view that prepayment reviews would unnecessarily delay
payments and would constitute increased paperwork and administrative
costs for the State VR agencies.
Second, many commenters were concerned that the proposed rules
would give SSA extremely broad discretionary authority to conduct an
unspecified number of reviews on a prepayment or postpayment basis,
without providing any guidelines regarding the frequency of such
reviews or permitting any negotiation or appeal procedures for the
State VR agencies with respect to the initiation of such reviews. Some
commenters suggested revising these proposed sections to specify the
frequency and timing of the validation reviews and to allow an appeal
by the State VR agency prior to our initiating an increase in
validation reviews. Also, some commenters suggested that the expanded
use of validation reviews be limited to situations where evidence
already pointed to inaccurate or noncompliant claims.
Response: In proposing the revisions to Secs. 404.2121 and
416.2221, it was not our intention to set review standards which would
be arbitrarily burdensome or time-consuming, or which would needlessly
delay the VR payment process. We envisioned the proposed validation
reviews as a mechanism to ensure a cost-effective payment program which
would be supported by sufficient documentation to provide for
reasonable accountability and sound business practices.
To maintain appropriate accountability and oversight of this
growing program, we intend to conduct some validation reviews on a
prepayment basis and some on a postpayment basis for all VR providers,
i.e., State VR agencies and alternate participants. We intentionally
did not specify in the proposed rules particular guidelines for the
implementation of these prepayment and postpayment reviews. We intended
to allow some discretion under these sections in order to permit
flexibility for implementing reviews for both State VR agencies and
alternate participants; ensure compliance with the provisions for
payment; and reinforce our goal of conducting quality, comprehensive
validation reviews. We are aware that sample sizes will have to be
determined based upon the availability of resources, workload levels,
and the volume and accuracy of claims being presented by individual
States and alternate participants. While it is not our intention to
unnecessarily impede or delay the process for paying claims, we must
have the discretion and flexibility to determine the volume of claims
selected for prepayment and postpayment reviews. For these reasons, we
have not made changes in response to the above comments.
Comment: One State VR agency interpreted the documentation
requirements under the validation review process as meaning that SSA
would only accept original documents as acceptable proof of costs and
services provided. The agency stated that this requirement was
unreasonable and would present unnecessary burdens to the State VR
agencies to attempt to maintain and provide such original
documentation, particularly since many rehabilitation cases require
more time to complete than record retention guidelines call for. It
recommended that our documentation and retention requirements comply
with the Federal Grants Management Handbook criteria.
Response: We believe the commenter may have misinterpreted
Secs. 404.2121(a) and 416.2221(a) in regard to acceptable proofs of
costs for services provided. We stated in these proposed sections that
copies of records of the services and costs would be sufficient
documentation, and that we reserved the right to examine any records
relating to services and costs. We did not intend to require that only
original documents would be acceptable as proofs of costs under these
sections. Also, under Secs. 404.2108(f) and 416.2208(f), a requirement
for participation in SSA's VR payment program is that the State VR
agency or alternate participant must maintain, and provide as we may
require (i.e., for validation reviews), adequate documentation of all
services or costs, regardless of other record retention requirements
governing such VR agencies or alternate participants.
Comment: One State VR agency recommended that onsite reviews be
considered for conducting the validation review process in order to
expedite the process and resolve any payment problems, as well as to
permit the reviewers to gain a better understanding of the
rehabilitation program's impact on individual clients.
Response: We appreciate this recommendation and will consider
onsite reviews as a possible option for some validation review
activities to the extent that resources will permit.
Comment: One commenter recommended that Secs. 404.2121 and 416.2221
include a time requirement under which SSA must provide the State VR
agency a report of the validation review findings. The commenter
recommended that a State VR agency be notified of the validation review
determination within 45 days after the review was completed. The
commenter believed that timely feedback to the State VR agencies would
permit corrective actions to be initiated as quickly as possible.
Response: We are not including in these regulations a specific
timeframe for notifying the State VR agency or alternate participant of
validation review determinations. However, we believe that notifying
the VR provider of our determination within 45 days of the completion
of a validation review is reasonable, and we expect to provide such
notification sooner than 45 days.
Other Comments
Comment: As we requested in the NPRM, most of the commenters
provided their views on the feasibility of SSA establishing an
experience-based fee schedule mechanism as a means for achieving a
simplified payment process which would also ensure a fair
representation of actual costs incurred by State VR agencies and
alternate participants. Almost all of these commenters were opposed to
this initiative. A number of reasons for this position were presented,
including the view that such a fee schedule could act as an inhibiting
factor to the State VR agencies' achievement of their goal of being
able to provide individualized rehabilitation services which would be
most likely to benefit a given client. Most commenters expressed the
belief that an experience-based fee schedule would not be able to
fairly represent the costs incurred by the various State agencies
because these costs can vary considerably from State to State and
region to region. Many commenters also argued that there is no need for
SSA to establish a fee schedule because individual States are required
to have fee schedules which are based on local conditions and provider/
consumer negotiations. Many commenters believed that imposing a fee
schedule would not improve the payment process and recommended instead
that the current process be continued.
Response: Given the overwhelmingly negative response we received to
this question, we will not establish an experience-based fee schedule
at this time.
Comment: One commenter recommended that the references to
individuals with certain disabilities or impairments be made consistent
with the terms used in the Americans with Disabilities Act and the
Rehabilitation Reauthorization Act.
Response: We have not adopted this recommendation. Because of the
special meanings of terms used in the Social Security and SSI programs,
we must ensure that the references we make to blind or disabled
beneficiaries and recipients in these rules remain consistent with the
applicable provisions of the Social Security Act and the other Social
Security and SSI regulations we have issued pursuant to this Act.
Comment: Many commenters expressed general displeasure with the
proposed regulatory changes in total, believing them to represent undue
interference and bureaucratic overcontrol in the work of the State VR
agencies. They stated that the proposed changes would constitute
serious administrative burdens, and would act as a disincentive to
State participation. Some of the State VR agencies believed these
proposed changes were intentionally adversarial to them and represented
an attempt on the part of SSA to unduly restrict VR payments.
Response: Our intention was not to restrict VR payments, institute
interference or overcontrol, or to be adversarial in nature. In reply
to these comments, we can only reiterate that we proposed and are now
making regulatory changes to improve the administration and cost-
effectiveness of the SSA VR payment program, to ensure that the
services we pay for bear a reasonable relationship to our goal of
returning individuals to substantial gainful work activity, and to make
VR services more readily available to disabled or blind beneficiaries
and recipients.
Our VR payment program has expanded over the last 10 years and is
rapidly approaching a $100 million program. It is understandable that a
program of such size would come under closer scrutiny and would require
assurances of proper administration. A minimal element for ensuring
proper administration is to know what SSA is paying for; hence, we
proposed and are now issuing additional requirements for submitting a
claim. In addition, for us to expand our referral mechanism to include
alternate participants, we need to know the outcome of the referrals we
send to the State VR agencies.
As a result of the comments which discussed additional
administrative burdens under the proposed rules, we have made certain
revisions, which are discussed in the individual sections above, to
lessen the impact of these regulatory changes.
Regulatory Procedures
Executive Order 12291
The Secretary has determined that these are not major rules under
Executive Order 12291. We expect that these regulations would be at
least cost-neutral over time. While it is not yet possible to present
realistic estimates, the expectation is that the program savings from
the additional successful rehabilitations and resultant benefit
terminations would exceed any additional administrative costs,
including the cost of providing VR evaluations and services.
Nevertheless, it is clear that the potential exists for VR payment
costs to increase, even if they are later offset by benefit savings. If
the current workload of claims for successful rehabilitations were to
increase, the annual cost in VR program payments would be an additional
$5.8 million for each 1000 claims submitted. In its 1988 report, the
Disability Advisory Council estimated that the trust funds save at
least $4 for each $1 spent. Using that as a basis, savings to the trust
funds could increase by $23.2 million for each additional 1000 claims.
Because these regulations do not meet any of the threshold criteria
for a major rule, a regulatory impact analysis is not required.
Paperwork Reduction Act
These rules contain information collection requirements. The
requirements in Sec. 404.2108 (b) and (f) and in Sec. 416.2208 (b) and
(f), which deal with claims for reimbursement for vocational
rehabilitation (VR) services, already have partial clearance by the
Office of Management and Budget (OMB) under OMB No. 0960-0310 (form
SSA-199; State Vocational Rehabilitation Agency Claim). However, these
sections expand the requirements of the previous regulations to provide
for the collection of additional information. Also, the changes to
Secs. 404.2104, 404.2117, 404.2121, 416.2204, 416.2217 and 416.2221
contain new reporting requirements.
As required by section 2(a) of the Paperwork Reduction Act of 1980,
44 U.S.C. 3504(h), we submitted a copy of the proposed rules to OMB for
its review of these information collection requirements. Other
organizations and individuals that wanted to submit comments on these
information collection requirements were asked to direct them to the
Social Security Administration, Attn: Reports Clearance Officer, 1-A-21
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235, and
to the Office of Information and Regulatory Affairs, OMB, New Executive
Office Building, Room 3208, Washington, DC 20503, ATTENTION: Desk
Officer for HHS.
Public reporting burden for these collections of information is
estimated as follows according to the section of the rule:
Secs. 404.2104 and 416.2204--80 minutes per response times 960
responses yearly = 1,280 hours; Secs. 404.2108 and 416.2208--15 minutes
per response times 12,000 responses yearly = 3,525 hours. (Note: The
burden shown here is in addition to that already approved by OMB);
Secs. 404.2113 and 416.2213--No additional burden; Secs. 404.2117 and
416.2217--4 hours per response for the first year times 80 responses =
320 hours; thereafter, responses are estimated to take 1 hour, so the
burden is estimated to be 80 hours in subsequent years; and
Secs. 404.2121 and 416.2221--70 minutes per response times 1,500
responses annually = 1,750 hours. (Note: The burden shown here is in
addition to that already approved by OMB.)
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities. Therefore, a
regulatory flexibility analysis as provided in Public Law 96-354, the
Regulatory Flexibility Act of 1980, is not required.
These regulations apply to States and certain alternate providers
of VR services which are willing to provide services to disabled or
blind beneficiaries or recipients under our VR payment programs under
the conditions specified in the regulations. While the changes to the
regulations permit us to make greater use of alternate participants
under these programs, the regulations do not impose any significant
economic burdens on these alternate VR service providers which may be
small entities. Under the Act, we may arrange for VR services for
beneficiaries or recipients by agreement or contract with alternate VR
service providers where the State is unwilling to participate or does
not have an appropriate plan for VR services. The Act requires that the
provision of VR services by alternate participants, and the payment to
alternate participants for such services, shall be subject to the same
conditions that would apply to the States. Our existing regulations
provide that an alternate participant must have a plan for VR services
that is similar to an appropriate State plan. These amended regulations
do not change this requirement but clarify that the plans of alternate
participants, like a State plan for VR services, must ensure, among
other things, that the provision of VR services will meet certain
minimum standards. These regulations also clarify that we will not
enter into a written agreement or contract with a private or other non-
State VR provider to serve as an alternate participant unless such
provider meets certain basic qualifications. The regulations do not
require private or other non-State VR providers to participate in the
VR payment programs. Rather, the regulations increase the opportunity
for these providers to participate in these programs if they wish to do
so.
(Catalog of Federal Domestic Assistance Programs Nos. 93.802, Social
Security-Disability Insurance; 93.807, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative Practice and Procedure, Blind, Disability benefits,
Old-Age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative Practice and Procedure, Aged, Blind, and Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: September 8, 1993.
Lawrence H. Thompson,
Principal Deputy Commissioner of Social Security.
Approved: November 29, 1993.
Donna E. Shalala,
Secretary of Health and Human Services.
For the reasons set out in the preamble, we are amending part 404,
subpart V, and part 416, subpart V, of chapter III of title 20, Code of
Federal Regulations, as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart V--Payments for Vocational Rehabilitation Services
1. The authority citation for subpart V of part 404 continues to
read as follows:
Authority: Secs. 205(a), 222, and 1102 of the Social Security
Act; 42 U.S.C. 405(a), 422, and 1302.
2. Section 404.2102 is amended by revising paragraph (b), by
redesignating paragraphs (c) through (n) as paragraphs (d) through (o),
by adding a new paragraph (c), and by revising redesignated paragraphs
(e) and (l) to read as follows:
Sec. 404.2102 Purpose and scope.
* * * * *
(b) Section 404.2104 explains how State VR agencies or alternate
participants may participate in the payment program under this subpart.
(c) Section 404.2106 describes the basic qualifications for
alternate participants.
* * * * *
(e) Sections 404.2110 through 404.2111 describe when an individual
has completed a continuous period of SGA and when VR services will be
considered to have contributed to that period.
* * * * *
(l) Sections 404.2120 and 404.2121 describe the audits and the
prepayment and postpayment validation reviews we will conduct.
* * * * *
3. Section 404.2103 is amended by adding a new definition of
``Accept the beneficiary as a client for VR services'' immediately
before the definition of ``Act'' and adding a new definition of ``Place
the beneficiary into an extended evaluation process'' immediately
before the definition of ``Secretary'' to read as follows:
Sec. 404.2103 Definitions.
* * * * *
Accept the beneficiary as a client for VR services means that the
State VR agency determines that the individual is eligible for VR
services and places the individual into an active caseload status for
development of an individualized written rehabilitation program.
* * * * *
Place the beneficiary into an extended evaluation process means
that the State VR agency determines that an extended evaluation of the
individual's VR potential is necessary to determine whether the
individual is eligible for VR services and places the individual into
an extended evaluation status.
* * * * *
4. Section 404.2104 is revised to read as follows:
Sec. 404.2104 Participation by State VR agencies or alternate
participants.
(a) General. In order to participate in the payment program under
this subpart through its VR agency(ies), a State must have a plan which
meets the requirements of title I of the Rehabilitation Act of 1973, as
amended. An alternate participant must have a similar plan and
otherwise qualify under Sec. 404.2106.
(b) Participation by States. (1) The opportunity to participate
through its VR agency(ies) with respect to disability beneficiaries in
the State will be offered first to the State in accordance with
paragraph (c) of this section, unless the State has notified us in
advance under paragraph (e)(1) of this section of its decision not to
participate or to limit such participation.
(2) A State with one or more approved VR agencies may choose to
limit participation of those agencies to a certain class(es) of
disability beneficiaries. For example, a State with separate VR
agencies for the blind and disabled may choose to limit participation
to the VR agency for the blind. In such a case, we would give the
State, through its VR agency for the blind, the opportunity to
participate with respect to blind disability beneficiaries in the State
in accordance with paragraph (d) of this section. We would arrange for
VR services for non-blind disability beneficiaries in the State through
an alternate participant(s). A State that chooses to limit
participation of its VR agency(ies) must notify us in advance under
paragraph (e)(1) of this section of its decision to limit such
participation.
(3) If a State chooses to participate by using a State agency other
than a VR agency with a plan for VR services approved under title I of
the Rehabilitation Act of 1973, as amended, that State agency may
participate only as an alternate participant.
(c) Opportunity for participation through State VR agencies. (1)
Unless a State has decided not to participate or to limit
participation, we will give the State the opportunity to participate
through its VR agency(ies) with respect to disability beneficiaries in
the State by referring such beneficiaries first to the State VR
agency(ies) for necessary VR services. A State, through its VR
agency(ies), may participate with respect to any beneficiary so
referred by accepting the beneficiary as a client for VR services or
placing the beneficiary into an extended evaluation process and
notifying us under paragraph (c)(2) of this section of such acceptance
or placement.
(2)(i) In order for the State to participate with respect to a
disability beneficiary whom we referred to a State VR agency, the State
VR agency must notify the appropriate Regional Commissioner (SSA) in
writing or through electronic notification of its decision either to
accept the beneficiary as a client for VR services or to place the
beneficiary into an extended evaluation process. The notice must be
received by the appropriate Regional Commissioner (SSA) no later than
the close of the fourth month following the month in which we referred
the beneficiary to the State VR agency. If we do not receive such
notice with respect to a beneficiary whom we referred to the State VR
agency, we may arrange for VR services for that beneficiary through an
alternate participant.
(ii) In any case in which a State VR agency notifies the
appropriate Regional Commissioner (SSA) in writing within the stated
time period under paragraph (c)(2)(i) of this section of its decision
to place the beneficiary into an extended evaluation process, the State
VR agency also must notify that Regional Commissioner in writing upon
completion of the evaluation of its decision whether or not to accept
the beneficiary as a client for VR services. If we receive a notice of
a decision by the State VR agency to accept the beneficiary as a client
for VR services following the completion of the extended evaluation,
the State may continue to participate with respect to such beneficiary.
If we receive a notice of a decision by the State VR agency not to
accept the beneficiary as a client for VR services following the
completion of the extended evaluation, we may arrange for VR services
for that beneficiary through an alternate participant.
(d) Opportunity for limited participation through State VR
agencies. If a State has decided under paragraph (e)(1) of this section
to limit participation of its VR agency(ies) to a certain class(es) of
disability beneficiaries in the State, we will give the State the
opportunity to participate with respect to such class(es) of disability
beneficiaries by referring such beneficiaries first to the State VR
agency(ies) for necessary VR services. The State, through its VR
agency(ies), may participate with respect to any beneficiary so
referred by accepting the beneficiary as a client for VR services or
placing the beneficiary into an extended evaluation process and
notifying us under paragraph (c)(2) of this section of such acceptance
or placement.
(e) Decision of a State not to participate or to limit
participation. (1) A State may choose not to participate through its VR
agency(ies) with respect to any disability beneficiaries in the State,
or it may choose to limit participation of its VR agency(ies) to a
certain class(es) of disability beneficiaries in the State. A State
which decides not to participate or to limit participation must provide
advance written notice of that decision to the appropriate Regional
Commissioner (SSA). Unless a State specifies a later month, a decision
not to participate or to limit participation will be effective
beginning with the third month following the month in which the notice
of the decision is received by the appropriate Regional Commissioner
(SSA). The notice of the State decision must be submitted by an
official authorized to act for the State for this purpose. A State must
provide to the appropriate Regional Commissioner (SSA) an opinion from
the State's Attorney General verifying the authority of the official
who sent the notice to act for the State. This opinion will not be
necessary if the notice is signed by the Governor of the State.
(2)(i) If a State has decided not to participate through its VR
agency(ies), we may arrange for VR services through an alternate
participant(s) for disability beneficiaries in the State.
(ii) If a State has decided to limit participation of its VR
agency(ies) to a certain class(es) of disability beneficiaries, we may
arrange for VR services through an alternate participant(s) for the
class(es) of disability beneficiaries in the State excluded from the
scope of the State's participation.
(3) A State which has decided not to participate or to limit
participation may participate later through its VR agency(ies) in
accordance with paragraph (c) of this section, provided that such
participation will not conflict with any previous commitment which we
may have made to an alternate participant(s) under paragraph (e)(2) of
this section. A State which decides to resume participation under
paragraph (c) of this section must provide advance written notice of
that decision to the appropriate Regional Commissioner (SSA). Unless a
commitment to an alternate participant(s) requires otherwise, a
decision of a State to resume participation under paragraph (c) of this
section will be effective beginning with the third month following the
month in which the notice of the decision is received by the
appropriate Regional Commissioner (SSA) or, if later, with a month
specified by the State. The notice of the State decision must be
submitted by an official authorized to act for the State as explained
in paragraph (e)(1) of this section.
(f) Use of alternate participants. The Commissioner, by written
agreement or contract, may arrange for VR services through an alternate
participant(s) for any disability beneficiary in the State with respect
to whom the State is unwilling to participate through its VR
agency(ies). In such a case, we may refer the beneficiary to such
alternate participant for necessary VR services. The Commissioner will
find that a State is unwilling to participate with respect to any of
the following disability beneficiaries in that State:
(1) A disability beneficiary whom we referred to a State VR agency
under paragraph (c) or (d) of this section if we do not receive a
notice within the stated time period under paragraph (c)(2)(i) of this
section of a decision by the VR agency either to accept the beneficiary
as a client for VR services or to place the beneficiary into an
extended evaluation process;
(2) A disability beneficiary with respect to whom we receive a
notice under paragraph (c)(2)(ii) of this section of a decision by the
VR agency not to accept the beneficiary as a client for VR services
following the completion of the extended evaluation;
(3) The class(es) of disability beneficiaries excluded from the
scope of the State's participation if the State has decided to limit
participation of its VR agency(ies); and
(4) All disability beneficiaries in the State if the State has
decided not to participate through its VR agency(ies).
5. A new Sec. 404.2106 is added to read as follows:
Sec. 404.2106 Basic qualifications for alternate participants.
(a) General. We may arrange for VR services through an alternate
participant by written agreement or contract as explained in
Sec. 404.2104(f). An alternate participant may be a public or private
agency, organization, institution or individual (that is, any entity
whether for-profit or not-for-profit), other than a State VR agency.
(1) An alternate participant must--
(i) Be licensed, certified, accredited, or registered, as
appropriate, to provide VR services in the State in which it provides
services; and
(ii) Under the terms of the written contract or agreement, have a
plan similar to the State plan described in Sec. 404.2104(a) which
shall govern the provision of VR services to individuals.
(2) We will not use as an alternate participant any agency,
organization, institution, or individual--
(i) Whose license, accreditation, certification, or registration is
suspended or revoked for reasons concerning professional competence or
conduct or financial integrity;
(ii) Who has surrendered such license, accreditation,
certification, or registration pending a final determination of a
formal disciplinary proceeding; or
(iii) Who is precluded from Federal procurement or nonprocurement
programs.
(b) Standards for the provision of VR services. An alternate
participant's plan must provide, among other things, that the provision
of VR services to individuals will meet certain minimum standards,
including, but not limited to, the following:
(1) All medical and related health services furnished will be
prescribed by, or provided under the formal supervision of, persons
licensed to prescribe or supervise the provision of these services in
the State;
(2) Only qualified personnel and rehabilitation facilities will be
used to furnish VR services; and
(3) No personnel or rehabilitation facility described in paragraph
(a)(2) (i), (ii), or (iii) of this section will be used to provide VR
services.
6. Section 404.2108 is amended by redesignating paragraphs (b)
through (f) as (c) through (g), by adding a new paragraph (b), and by
revising redesignated paragraphs (d) and (f) to read as follows:
Sec. 404.2108 Requirements for payment.
* * * * *
(b) The claim for payment must be in a form prescribed by us and
contain the following information:
(1) A description of each service provided;
(2) When the service was provided; and
(3) The cost of the service;
* * * * *
(d) The VR services for which payment is being requested must have
been provided under a State plan for VR services approved under title I
of the Rehabilitation Act of 1973, as amended, or, in the case of an
alternate participant, under a negotiated plan, and must be services
that are described in Sec. 404.2114;
* * * * *
(f) The State VR agency or alternate participant must maintain, and
provide as we may require, adequate documentation of all services and
costs for all disability beneficiaries with respect to whom a State VR
agency or alternate participant could potentially request payment for
services and costs under this subpart; and
* * * * *
7. Section 404.2109 is amended by revising paragraph (c), by
removing the word ``and'' at the end of paragraph (f), by redesignating
paragraph (g) as paragraph (h), and by adding a new paragraph (g) to
read as follows:
Sec. 404.2109 Responsibility for making payment decisions.
* * * * *
(c) Whether an individual, without good cause, refused to continue
to accept VR services or failed to cooperate in a VR program for a
month(s) after October 1984, and whether deductions should be imposed
against the individual's disability benefits;
* * * * *
(g) Whether a VR service is a service described in Sec. 404.2114;
and
* * * * *
8. Section 404.2111 is amended by revising the introductory text by
revising paragraphs (a)(1) and (a)(2), and by revising the introductory
text of paragraph (b)(1) to read as follows:
Sec. 404.2111 Criteria for determining when VR services will be
considered to have contributed to a continuous period of 9 months.
The State VR agency or alternate participant may be paid for VR
services if such services contribute to the individual's performance of
a continuous 9-month period of SGA. The following criteria apply to
individuals who received more than just evaluation services. If a State
VR agency or alternate participant claims payment for services to an
individual who received only evaluation services, it must establish
that the individual's continuous period or medical recovery (if medical
recovery occurred before completion of a continuous period) would not
have occurred without the services provided. In applying the criteria
below, we will consider services described in Sec. 404.2114 that were
initiated, coordinated or provided, including services before October
1, 1981.
(a) * * *
(1) One year or less. Any VR services which significantly motivated
or assisted the individual in returning to, or continuing in, SGA will
be considered to have contributed to the continuous period.
(2) More than one year. (i) If the continuous period was preceded
by transitional work activity (employment or self-employment which
gradually evolved, with or without periodic interruption, into SGA),
and that work activity began less than a year after VR services ended,
any VR services which significantly motivated or assisted the
individual in returning to, or continuing in, SGA will be considered to
have contributed to the continuous period.
(ii) If the continuous period was not preceded by transitional work
activity that began less than a year after VR services ended, VR
services will be considered to have contributed to the continuous
period only if it is reasonable to conclude that the work activity
which constitutes a continuous period could not have occurred without
the VR services (e.g., training).
(b) Continuous period with medical recovery occurring before
completion. (1) If an individual medically recovers before a continuous
period has been completed, VR services under paragraph (a) of this
section will not be payable unless some VR services contributed to the
medical recovery. VR services will be considered to have contributed to
the medical recovery if--
* * * * *
9. Section 404.2113 is revised to read as follows:
Sec. 404.2113 Payment for VR services in a case of VR refusal.
(a) For purposes of this section, VR refusal means an individual's
refusal to continue to accept VR services or failure to cooperate in
such a manner as to preclude the individual's successful
rehabilitation.
(b) No later than the 60th day after the State VR agency or
alternate participant makes a preliminary finding that an individual
refuses to continue to accept VR services or fails to cooperate in a VR
program, the State VR agency or alternate participant shall report to
the appropriate Regional Commissioner (SSA) in writing such
individual's VR refusal so that we may make the determination described
in Sec. 404.2109(c).
(c) Payment can be made to a State VR agency or alternate
participant for the costs of VR services provided to an individual who,
after filing an application with the State VR agency or alternate
participant for rehabilitation services, without good cause, refuses to
continue to accept VR services or fails to cooperate in such a manner
as to preclude the individual's successful rehabilitation. A State VR
agency or alternate participant may be paid, subject to the provisions
of this subpart, for the costs of VR services provided to an individual
if deductions have been imposed against the individual's monthly
disability benefits for a month or months after October 1984 because of
VR refusal.
10. Section 404.2114 is revised to read as follows:
Sec. 404.2114 Services for which payment may be made.
(a) General. Payment may be made for VR services provided by a
State VR agency in accordance with title I of the Rehabilitation Act of
1973, as amended, or by an alternate participant under a negotiated
plan, subject to the limitations and conditions in this subpart. VR
services for which payment may be made under this subpart include only
those services described in paragraph (b) of this section which are--
(1) Necessary to determine an individual's eligibility for VR
services or the nature and scope of the services to be provided; or
(2) Provided by a State VR agency under an IWRP, or by an alternate
participant under a similar document, but only if the services could
reasonably be expected to motivate or assist the individual in
returning to, or continuing in, SGA.
(b) Specific services. Payment may be made under this subpart only
for the following VR services:
(1) An assessment for determining an individual's eligibility for
VR services and vocational rehabilitation needs by qualified personnel,
including, if appropriate, an assessment by personnel skilled in
rehabilitation technology, and which includes determining--
(i) The nature and extent of the physical or mental impairment(s)
and the resultant impact on the individual's employability;
(ii) The likelihood that an individual will benefit from vocational
rehabilitation services in terms of employability; and
(iii) An employment goal consistent with the capacities of the
individual and employment opportunities;
(2) Counseling and guidance, including personal adjustment
counseling, and those referrals and other services necessary to help an
individual secure needed services from other agencies;
(3) Physical and mental restoration services necessary to correct
or substantially modify a physical or mental condition which is stable
or slowly progressive and which constitutes an impediment to suitable
employment at or above the SGA level;
(4) Vocational and other training services, including personal and
vocational adjustment, books, tools, and other training materials,
except that training or training services in institutions of higher
education will be covered under this section only if maximum efforts
have been made by the State VR agency or alternate participant to
secure grant assistance in whole or in part from other sources;
(5) Maintenance expenses that are extra living expenses over and
above the individual's normal living expenses and that are incurred
solely because of and while the individual is participating in the VR
program and that are necessary in order for the individual to benefit
from other necessary VR services;
(6) Travel and related expenses necessary to transport an
individual for purpose of enabling the individual's participation in
other necessary VR services;
(7) Services to family members of a disabled individual only if
necessary to the successful vocational rehabilitation of that
individual;
(8) Interpreter services and note-taking services for an individual
who is deaf and tactile interpreting for an individual who is deaf and
blind;
(9) Reader services, rehabilitation teaching services, note-taking
services, and orientation and mobility services for an individual who
is blind;
(10) Telecommunications, sensory, and other technological aids and
devices;
(11) Work-related placement services to secure suitable employment;
(12) Post-employment services necessary to maintain, regain or
advance into suitable employment at or above the SGA level;
(13) Occupational licenses, tools, equipment, initial stocks, and
supplies;
(14) Rehabilitation technology services; and
(15) Other goods and services that can reasonably be expected to
motivate or assist the individual in returning to, or continuing in,
SGA.
11. Section 404.2117 is amended by revising the introductory text
and by revising paragraphs (b) and (c) to read as follows:
Sec. 404.2117 What costs will be paid.
In accordance with section 222(d) of the Social Security Act, the
Secretary will pay the State VR agency or alternate participant for the
VR services described in Sec. 404.2114 which were provided during the
period described in Sec. 404.2115 and which meet the criteria in
Sec. 404.2111, Sec. 404.2112, or Sec. 404.2113, but subject to the
following limitations:
* * * * *
(b) The cost must not have been paid or be payable from some other
source. For this purpose, State VR agencies or alternate participants
will be required to seek payment or services from other sources in
accordance with the ``similar benefit'' provisions under 34 CFR part
361, including making maximum efforts to secure grant assistance in
whole or part from other sources for training or training services in
institutions of higher education. Alternate participants will not be
required to consider State VR services a similar benefit.
(c)(1) The cost must be reasonable and necessary, in that it
complies with the written cost-containment policies of the State VR
agency or, in the case of an alternate participant, it complies with
similar written policies established under a negotiated plan. A cost
which complies with these policies will be considered necessary only if
the cost is for a VR service described in Sec. 404.2114. The State VR
agency or alternate participant must maintain and use these cost-
containment policies, including any reasonable and appropriate fee
schedules, to govern the costs incurred for all VR services, including
the rates of payment for all purchased services, for which payment will
be requested under this subpart. For the purpose of this subpart, the
written cost-containment policies must provide guidelines designed to
ensure--
(i) The lowest reasonable cost for such services; and
(ii) Sufficient flexibility so as to allow for an individual's
needs.
(2) The State VR agency shall submit to us before the end of the
first calendar quarter of each year a written statement certifying that
cost-containment policies are in effect and are adhered to in procuring
and providing goods and services for which the State VR agency requests
payment under this subpart. Such certification must be signed by the
State's chief financial official or the head of the VR agency. Each
certification must specify the basis upon which it is made, e.g., a
recent audit by an authorized State, Federal or private auditor (or
other independent compliance review) and the date of such audit (or
compliance review). In the case of an alternate participant, these
certification requirements shall be incorporated into the negotiated
agreement or contract. We may request the State VR agency or alternate
participant to submit to us a copy(ies) of its specific written cost-
containment policies and procedures (e.g., any guidelines and fee
schedules for a given year) if we determine that such additional
information is necessary to ensure compliance with the requirements of
this subpart. The State VR agency or alternate participant shall
provide such information when requested by us.
* * * * *
12. Section 404.2121 is revised to read as follows:
Sec. 404.2121 Validation reviews.
(a) General. We will conduct a validation review of a sample of the
claims for payment filed by each State VR agency or alternate
participant. We will conduct some of these reviews on a prepayment
basis and some on a postpayment basis. We may review a specific claim,
a sample of the claims, or all the claims filed by any State VR agency
or alternate participant, if we determine that such review is necessary
to ensure compliance with the requirements of this subpart. For each
claim selected for review, the State VR agency or alternate participant
must submit such records of the VR services and costs for which payment
has been requested or made under this subpart, or copies of such
records, as we may require to ensure that the services and costs meet
the requirements for payment. For claims for cases described in
Sec. 404.2101(a), a clear explanation or existing documentation which
demonstrates how the service contributed to the individual's
performance of a continuous 9-month period of SGA must be provided. For
claims for cases described in Sec. 404.2101(b) or (c), a clear
explanation or existing documentation which demonstrates how the
service was reasonably expected to motivate or assist the individual to
return to or continue in SGA must be provided. If we find in any
prepayment validation review, that the scope or content of the
information is inadequate, we will request additional information and
will withhold payment until adequate information has been provided. The
State VR agency or alternate participant shall permit us (including
duly authorized representatives) access to, and the right to examine,
any records relating to such services and costs. Any review performed
under this section will not be considered an audit for purposes of this
subpart.
(b) Purpose. The primary purpose of these reviews is--
(1) To ensure that the VR services and costs meet the requirements
for payment under this subpart;
(2) To assess the validity of our documentation requirements; and
(3) To assess the need for additional validation reviews or
additional documentation requirements for any State VR agency or
alternate participant to ensure compliance with the requirements under
this subpart.
(c) Determinations. In any validation review, we will determine
whether the VR services and costs meet the requirements for payment and
determine the amount of payment. We will notify in writing the State VR
agency or alternate participant of our determination. If we find in any
postpayment validation review that more or less than the correct amount
of payment was made for a claim, we will determine that an overpayment
or underpayment has occurred and will notify the State VR agency or
alternate participant that we will make the appropriate adjustment.
(d) Appeals. If the State VR agency or alternate participant
disagrees with our determination under this section, it may appeal that
determination in accordance with 404.2127. For purposes of this
section, an appeal must be filed within 60 days after receiving the
notice of our determination.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart V--Payments for Vocational Rehabilitation Services
1. The authority citation for subpart V of part 416 continues to
read as follows:
Authority: Secs. 1102, 1615, and 1631(d)(1) and (e) of the
Social Security Act; 42 U.S.C. 1302, 1382d, and 1383(d)(1) and (e);
sec. 2344 of Pub. L. 97-35, 95 Stat. 867.
2. Section 416.2202 is amended by revising paragraph (b), by
redesignating paragraphs (c) through (n) as paragraphs (d) through (o),
by adding a new paragraph (c), and by revising redesignated paragraphs
(e) and (l) to read as follows:
Sec. 416.2202 Purpose and scope.
* * * * *
(b) Section 416.2204 explains how State VR agencies or alternate
participants may participate in the payment program under this subpart.
(c) Section 416.2206 describes the basic qualifications for
alternate participants.
* * * * *
(e) Sections 416.2210 through 416.2211 describe when an individual
has completed a continuous period of SGA and when VR services will be
considered to have contributed to that period.
* * * * *
(l) Sections 416.2220 and 416.2221 describe the audits and the
prepayment and postpayment validation reviews we will conduct.
* * * * *
3. Section 416.2203 is amended by adding a new definition of
``Accept the recipient as a client for VR services'' immediately before
the definition of ``Act'' and adding a new definition of ``Place the
recipient into an extended evaluation process'' immediately before the
definition of ``Secretary'' to read as follows:
Sec. 416.2203 Definitions.
* * * * *
Accept the recipient as a client for VR services means that the
State VR agency determines that the individual is eligible for VR
services and places the individual into an active caseload status for
development of an individualized written rehabilitation program.
* * * * *
Place the recipient into an extended evaluation process means that
the State VR agency determines that an extended evaluation of the
individual's VR potential is necessary to determine whether the
individual is eligible for VR services and places the individual into
an extended evaluation status.
* * * * *
4. Section 416.2204 is revised to read as follows:
Sec. 416.2204 Participation by State VR agencies or alternate
participants.
(a) General. In order to participate in the payment program under
this subpart through its VR agency(ies), a State must have a plan which
meets the requirements of title I of the Rehabilitation Act of 1973, as
amended. An alternate participant must have a similar plan and
otherwise qualify under Sec. 416.2206.
(b) Participation by States. (1) The opportunity to participate
through its VR agency(ies) with respect to disabled or blind recipients
in the State will be offered first to the State in accordance with
paragraph (c) of this section, unless the State has notified us in
advance under paragraph (e)(1) of this section of its decision not to
participate or to limit such participation.
(2) A State with one or more approved VR agencies may choose to
limit participation of those agencies to a certain class(es) of
disabled or blind recipients. For example, a State with separate VR
agencies for the blind and disabled may choose to limit participation
to the VR agency for the blind. In such a case, we would give the
State, through its VR agency for the blind, the opportunity to
participate with respect to blind recipients in the State in accordance
with paragraph (d) of this section. We would arrange for VR services
for disabled recipients in the State through an alternate
participant(s). A State that chooses to limit participation of its VR
agency(ies) must notify us in advance under paragraph (e)(1) of this
section of its decision to limit such participation.
(3) If a State chooses to participate by using a State agency other
than a VR agency with a plan for VR services approved under title I of
the Rehabilitation Act of 1973, as amended, that State agency may
participate only as an alternate participant.
(c) Opportunity for participation through State VR agencies. (1)
Unless a State has decided not to participate or to limit
participation, we will give the State the opportunity to participate
through its VR agency(ies) with respect to disabled or blind recipients
in the State by referring such recipients first to the State VR
agency(ies) for necessary VR services. A State, through its VR
agency(ies), may participate with respect to any recipient so referred
by accepting the recipient as a client for VR services or placing the
recipient into an extended evaluation process and notifying us under
paragraph (c)(2) of this section of such acceptance or placement.
(2)(i) In order for the State to participate with respect to a
disabled or blind recipient whom we referred to a State VR agency, the
State VR agency must notify the appropriate Regional Commissioner (SSA)
in writing or through electronic notification of its decision either to
accept the recipient as a client for VR services or to place the
recipient into an extended evaluation process. The notice must be
received by the appropriate Regional Commissioner (SSA) no later than
the close of the fourth month following the month in which we referred
the recipient to the State VR agency. If we do not receive such notice
with respect to a recipient whom we referred to the State VR agency, we
may arrange for VR services for that recipient through an alternate
participant.
(ii) In any case in which a State VR agency notifies the
appropriate Regional Commissioner (SSA) in writing within the stated
time period under paragraph (c)(2)(i) of this section of its decision
to place the recipient into an extended evaluation process, the State
VR agency also must notify that Regional Commissioner in writing upon
completion of the evaluation of its decision whether or not to accept
the recipient as a client for VR services. If we receive a notice of a
decision by the State VR agency to accept the recipient as a client for
VR services following the completion of the extended evaluation, the
State may continue to participate with respect to such recipient. If we
receive a notice of a decision by the State VR agency not to accept the
recipient as a client for VR services following the completion of the
extended evaluation, we may arrange for VR services for that recipient
through an alternate participant.
(d) Opportunity for limited participation through State VR
agencies. If a State has decided under paragraph (e)(1) of this section
to limit participation of its VR agency(ies) to a certain class(es) of
disabled or blind recipients in the State, we will give the State the
opportunity to participate with respect to such class(es) of disabled
or blind recipients by referring such recipients first to the State VR
agency(ies) for necessary VR services. The State, through its VR
agency(ies), may participate with respect to any recipient so referred
by accepting the recipient as a client for VR services or placing the
recipient into an extended evaluation process and notifying us under
paragraph (c)(2) of this section of such acceptance or placement.
(e) Decision of a State not to participate or to limit
participation. (1) A State may choose not to participate through its VR
agency(ies) with respect to any disabled or blind recipients in the
State, or it may choose to limit participation of its VR agency(ies) to
a certain class(es) of disabled or blind recipients in the State. A
State which decides not to participate or to limit participation must
provide advance written notice of that decision to the appropriate
Regional Commissioner (SSA). Unless a State specifies a later month, a
decision not to participate or to limit participation will be effective
beginning with the third month following the month in which the notice
of the decision is received by the appropriate Regional Commissioner
(SSA). The notice of the State decision must be submitted by an
official authorized to act for the State for this purpose. A State must
provide to the appropriate Regional Commissioner (SSA) an opinion from
the State's Attorney General, verifying the authority of the official
who sent the notice to act for the State. This opinion will not be
necessary if the notice is signed by the Governor of the State.
(2)(i) If a State has decided not to participate through its VR
agency(ies), we may arrange for VR services through an alternate
participant(s) for disabled or blind recipients in the State.
(ii) If a State has decided to limit participation of its VR
agency(ies) to a certain class(es) of disabled or blind recipients, we
may arrange for VR services through an alternate participant(s) for the
class(es) of disabled or blind recipients in the State excluded from
the scope of the State's participation.
(3) A State which has decided not to participate or to limit
participation may participate later through its VR agency(ies) in
accordance with paragraph (c) of this section, provided that such
participation will not conflict with any previous commitment which we
may have made to an alternate participant(s) under paragraph (e)(2) of
this section. A State which decides to resume participation under
paragraph (c) of this section must provide advance written notice of
that decision to the appropriate Regional Commissioner (SSA). Unless a
commitment to an alternate participant(s) requires otherwise, a
decision of a State to resume participation under paragraph (c) of this
section will be effective beginning with the third month following the
month in which the notice of the decision is received by the
appropriate Regional Commissioner (SSA) or, if later, with a month
specified by the State. The notice of the State decision must be
submitted by an official authorized to act for the State as explained
in paragraph (e)(1) of this section.
(f) Use of alternate participants. The Commissioner, by written
agreement or contract, may arrange for VR services through an alternate
participant(s) for any disabled or blind recipient in the State with
respect to whom the State is unwilling to participate through its VR
agency(ies). In such a case, we may refer the recipient to such
alternate participant for necessary VR services. The Commissioner will
find that a State is unwilling to participate with respect to any of
the following disabled or blind recipients in that State:
(1) A disabled or blind recipient whom we referred to a State VR
agency under paragraph (c) or (d) of this section if we do not receive
a notice within the stated time period under paragraph (c)(2)(i) of
this section of a decision by the VR agency either to accept the
recipient as a client for VR services or to place the recipient into an
extended evaluation process;
(2) A disabled or blind recipient with respect to whom we receive a
notice under paragraph (c)(2)(ii) of this section of a decision by the
VR agency not to accept the recipient as a client for VR services
following the completion of the extended evaluation;
(3) The class(es) of disabled or blind recipients excluded from the
scope of the State's participation if the State has decided to limit
participation of its VR agency(ies); and
(4) All disabled or blind recipients in the State if the State has
decided not to participate through its VR agency(ies).
5. A new Sec. 416.2206 is added to read as follows:
Sec. 416.2206 Basic qualifications for alternate participants.
(a) General. We may arrange for VR services through an alternate
participant by written agreement or contract as explained in
Sec. 416.2204(f). An alternate participant may be a public or private
agency, organization, institution or individual (that is, any entity
whether for-profit or not-for-profit), other than a State VR agency.
(1) An alternate participant must--
(i) Be licensed, certified, accredited, or registered, as
appropriate, to provide VR services in the State in which it provides
services; and
(ii) Under the terms of the written contract or agreement, have a
plan similar to the State plan described in Sec. 416.2204(a) which
shall govern the provision of VR services to individuals.
(2) We will not use as an alternate participant any agency,
organization, institution, or individual--
(i) Whose license, accreditation, certification, or registration is
suspended or revoked for reasons concerning professional competence or
conduct or financial integrity;
(ii) Who has surrendered such license, accreditation,
certification, or registration pending a final determination of a
formal disciplinary proceeding; or
(iii) Who is precluded from Federal procurement or nonprocurement
programs.
(b) Standards for the provision of VR services. An alternate
participant's plan must provide, among other things, that the provision
of VR services to individuals will meet certain minimum standards,
including, but not limited to, the following:
(1) All medical and related health services furnished will be
prescribed by, or provided under the formal supervision of, persons
licensed to prescribe or supervise the provision of these services in
the State;
(2) Only qualified personnel and rehabilitation facilities will be
used to furnish VR services; and
(3) No personnel or rehabilitation facility described in paragraph
(a)(2)(i), (ii), or (iii) of this section will be used to provide VR
services.
6. Section 416.2208 is amended by redesignating paragraphs (b)
through (f) as (c) through (g), by adding a new paragraph (b), and by
revising redesignated paragraphs (d) and (f) to read as follows:
Sec. 416.2208 Requirements for payment.
* * * * *
(b) The claim for payment must be in a form prescribed by us and
contain the following information:
(1) A description of each service provided;
(2) When the service was provided; and
(3) The cost of the service;
* * * * *
(d) The VR services for which payment is being requested must have
been provided under a State plan for VR services approved under title I
of the Rehabilitation Act of 1973, as amended, or, in the case of an
alternate participant, under a negotiated plan, and must be services
that are described in Sec. 416.2214;
* * * * *
(f) The State VR agency or alternate participant must maintain, and
provide as we may require, adequate documentation of all services and
costs for all disabled or blind recipients with respect to whom a State
VR agency or alternate participant could potentially request payment
for services and costs under this subpart; and
* * * * *
7. Section 416.2209 is amended by revising paragraph (c), by
removing the word ``and'' at the end of paragraph (f), by redesignating
paragraph (g) as paragraph (h), and by adding a new paragraph (g) to
read as follows:
Sec. 416.2209 Responsibility for making payment decisions.
* * * * *
(c) Whether an individual, without good cause, refused to continue
to accept VR services or failed to cooperate in a VR program for a
month(s) after October 1984, and whether an individual's disability or
blindness payment should be suspended;
* * * * *
(g) Whether a VR service is a service described in Sec. 416.2214;
and
* * * * *
8. Section 416.2211 is amended by revising the introductory text,
by revising paragraphs (a)(1) and (a)(2), and by revising the
introductory text of paragraph (b)(1) to read as follows:
Sec. 416.2211 Criteria for determining when VR services will be
considered to have contributed to a continuous period of 9 months.
The State VR agency or alternate participant may be paid for VR
services if such services contribute to the individual's performance of
a continuous 9-month period of SGA. The following criteria apply to
individuals who received more than just evaluation services. If a State
VR agency or alternate participant claims payment for services to an
individual who received only evaluation services, it must establish
that the individual's continuous period or medical recovery (if medical
recovery occurred before completion of a continuous period) would not
have occurred without the services provided. In applying the criteria
below, we will consider services described in Sec. 416.2214 that were
initiated, coordinated or provided, including services before October
1, 1981.
(a) * * *
(1) One year or less. Any VR services which significantly motivated
or assisted the individual in returning to, or continuing in, SGA will
be considered to have contributed to the continuous period.
(2) More than one year. (i) If the continuous period was preceded
by transitional work activity (employment or self-employment which
gradually evolved, with or without periodic interruption, into SGA),
and that work activity began less than a year after VR services ended,
any VR services which significantly motivated or assisted the
individual in returning to, or continuing in, SGA will be considered to
have contributed to the continuous period.
(ii) If the continuous period was not preceded by transitional work
activity that began less than a year after VR services ended, VR
services will be considered to have contributed to the continuous
period only if it is reasonable to conclude that the work activity
which constitutes a continuous period could not have occurred without
the VR services (e.g., training).
(b) Continuous period with medical recovery occurring before
completion. (1) If an individual medically recovers before a continuous
period has been completed, VR services under paragraph (a) of this
section will not be payable unless some VR services contributed to the
medical recovery. VR services will be considered to have contributed to
the medical recovery if--
* * * * *
9. Section 416.2213 is revised to read as follows:
Sec. 416.2213 Payment for VR services in a case of VR refusal.
(a) For purposes of this section, VR refusal means an individual's
refusal to continue to accept VR services or failure to cooperate in
such a manner as to preclude the individual's successful
rehabilitation.
(b) No later than the 60th day after the State VR agency or
alternate participant makes a preliminary finding that an individual
refuses to continue to accept VR services or fails to cooperate in a VR
program, the State VR agency or alternate participant shall report to
the appropriate Regional Commissioner (SSA) in writing such
individual's VR refusal so that we may make the determination described
in Sec. 416.2209(c).
(c) Payment can be made to a State VR agency or alternate
participant for the costs of VR services provided to an individual who,
after filing an application with the State VR agency or alternate
participant for rehabilitation services, without good cause, refuses to
continue to accept VR services or fails to cooperate in such a manner
as to preclude the individual's successful rehabilitation. A State VR
agency or alternate participant may be paid, subject to the provisions
of this subpart, for the costs of VR services provided to an individual
if the individual's monthly disability or blindness payment has been
suspended or terminated for a month or months after October 1984
because of VR refusal.
10. Section 416.2214 is revised to read as follows:
Sec. 416.2214 Services for which payment may be made.
(a) General. Payment may be made for VR services provided by a
State VR agency in accordance with title I of the Rehabilitation Act of
1973, as amended, or by an alternate participant under a negotiated
plan, subject to the limitations and conditions in this subpart. VR
services for which payment may be made under this subpart include only
those services described in paragraph (b) of this section which are--
(1) Necessary to determine an individual's eligibility for VR
services or the nature and scope of the services to be provided; or
(2) Provided by a State VR agency under an IWRP, or by an alternate
participant under a similar document, but only if the services could
reasonably be expected to motivate or assist the individual in
returning to, or continuing in, SGA.
(b) Specific services. Payment may be made under this subpart only
for the following VR services:
(1) An assessment for determining an individual's eligibility for
VR services and vocational rehabilitation needs by qualified personnel,
including, if appropriate, an assessment by personnel skilled in
rehabilitation technology, and which includes determining--
(i) The nature and extent of the physical or mental impairment(s)
and the resultant impact on the individual's employability;
(ii) The likelihood that an individual will benefit from vocational
rehabilitation services in terms of employability; and
(iii) An employment goal consistent with the capacities of the
individual and employment opportunities;
(2) Counseling and guidance, including personal adjustment
counseling, and those referrals and other services necessary to help an
individual secure needed services from other agencies;
(3) Physical and mental restoration services necessary to correct
or substantially modify a physical or mental condition which is stable
or slowly progressive and which constitutes an impediment to suitable
employment at or above the SGA level;
(4) Vocational and other training services, including personal and
vocational adjustment, books, tools, and other training materials,
except that training or training services in institutions of higher
education will be covered under this section only if maximum efforts
have been made by the State VR agency or alternate participant to
secure grant assistance in whole or in part from other sources;
(5) Maintenance expenses that are extra living expenses over and
above the individual's normal living expenses and that are incurred
solely because of and while the individual is participating in the VR
program and that are necessary in order for the individual to benefit
from other necessary VR services;
(6) Travel and related expenses necessary to transport an
individual for purpose of enabling the individual's participation in
other necessary VR services;
(7) Services to family members of a disabled or blind individual
only if necessary to the successful vocational rehabilitation of that
individual;
(8) Interpreter services and note-taking services for an individual
who is deaf and tactile interpreting for an individual who is deaf and
blind;
(9) Reader services, rehabilitation teaching services, note-taking
services, and orientation and mobility services for an individual who
is blind;
(10) Telecommunications, sensory, and other technological aids and
devices;
(11) Work-related placement services to secure suitable employment;
(12) Post-employment services necessary to maintain, regain or
advance into suitable employment at or above the SGA level;
(13) Occupational licenses, tools, equipment, initial stocks, and
supplies;
(14) Rehabilitation technology services; and
(15) Other goods and services that can reasonably be expected to
motivate or assist the individual in returning to, or continuing in,
SGA.
11. Section 416.2217 is amended by revising the introductory text
and by revising paragraphs (b) and (c) to read as follows:
Sec. 416.2217 What costs will be paid.
In accordance with section 1615(d) of the Social Security Act, the
Secretary will pay the State VR agency or alternate participant for the
VR services described in Sec. 416.2214 which were provided during the
period described in Sec. 416.2215 and which meet the criteria in
Sec. 416.2211, Sec. 416.2212, or Sec. 416.2213, but subject to the
following limitations:
* * * * *
(b) The cost must not have been paid or be payable from some other
source. For this purpose, State VR agencies or alternate participants
will be required to seek payment or services from other sources in
accordance with the ``similar benefit'' provisions under 34 CFR part
361, including making maximum efforts to secure grant assistance in
whole or part from other sources for training or training services in
institutions of higher education. Alternate participants will not be
required to consider State VR services a similar benefit.
(c)(1) The cost must be reasonable and necessary, in that it
complies with the written cost-containment policies of the State VR
agency or, in the case of an alternate participant, it complies with
similar written policies established under a negotiated plan. A cost
which complies with these policies will be considered necessary only if
the cost is for a VR service described in Sec. 416.2214. The State VR
agency or alternate participant must maintain and use these cost-
containment policies, including any reasonable and appropriate fee
schedules, to govern the costs incurred for all VR services, including
the rates of payment for all purchased services, for which payment will
be requested under this subpart. For the purpose of this subpart, the
written cost-containment policies must provide guidelines designed to
ensure--
(i) The lowest reasonable cost for such services; and
(ii) Sufficient flexibility so as to allow for an individual's
needs.
(2) The State VR agency shall submit to us before the end of the
first calendar quarter of each year a written statement certifying that
cost-containment policies are in effect and are adhered to in procuring
and providing goods and services for which the State VR agency requests
payment under this subpart. Such certification must be signed by the
State's chief financial official or the head of the VR agency. Each
certification must specify the basis upon which it is made, e.g., a
recent audit by an authorized State, Federal or private auditor (or
other independent compliance review) and the date of such audit (or
compliance review). In the case of an alternate participant, these
certification requirements shall be incorporated into the negotiated
agreement or contract. We may request the State VR agency or alternate
participant to submit to us a copy(ies) of its specific written cost-
containment policies and procedures (e.g., any guidelines and fee
schedules for a given year), if we determine that such additional
information is necessary to ensure compliance with the requirements of
this subpart. The State VR agency or alternate participant shall
provide such information when requested by us.
* * * * *
12. Section 416.2221 is revised to read as follows:
Sec. 416.2221 Validation reviews.
(a) General. We will conduct a validation review of a sample of the
claims for payment filed by each State VR agency or alternate
participant. We will conduct some of these reviews on a prepayment
basis and some on a postpayment basis. We may review a specific claim,
a sample of the claims, or all the claims filed by any State VR agency
or alternate participant, if we determine that such review is necessary
to ensure compliance with the requirements of this subpart. For each
claim selected for review, the State VR agency or alternate participant
must submit such records of the VR services and costs for which payment
has been requested or made under this subpart, or copies of such
records, as we may require to ensure that the services and costs meet
the requirements for payment. For claims for cases described in
Sec. 416.2201(a), a clear explanation or existing documentation which
demonstrates how the service contributed to the individual's
performance of a continuous 9-month period of SGA must be provided. For
claims for cases described in Sec. 416.2201(b) or (c), a clear
explanation or existing documentation which demonstrates how the
service was reasonably expected to motivate or assist the individual to
return to or continue in SGA must be provided. If we find in any
prepayment validation review that the scope or content of the
information is inadequate, we will request additional information and
will withhold payment until adequate information has been provided. The
State VR agency or alternate participant shall permit us (including
duly authorized representatives) access to, and the right to examine,
any records relating to such services and costs. Any review performed
under this section will not be considered an audit for purposes of this
subpart.
(b) Purpose. The primary purpose of these reviews is--
(1) To ensure that the VR services and costs meet the requirements
for payment under this subpart;
(2) To assess the validity of our documentation requirements; and
(3) To assess the need for additional validation reviews or
additional documentation requirements for any State VR agency or
alternate participant to ensure compliance with the requirements under
this subpart.
(c) Determinations. In any validation review, we will determine
whether the VR services and costs meet the requirements for payment and
determine the amount of payment. We will notify in writing the State VR
agency or alternate participant of our determination. If we find in any
postpayment validation review that more or less than the correct amount
of payment was made for a claim, we will determine that an overpayment
or underpayment has occurred and will notify the State VR agency or
alternate participant that we will make the appropriate adjustment.
(d) Appeals. If the State VR agency or alternate participant
disagrees with our determination under this section, it may appeal that
determination in accordance with Sec. 416.2227. For purposes of this
section, an appeal must be filed within 60 days after receiving the
notice of our determination.
[FR Doc. 94-5849 Filed 3-14-94; 8:45 am]
BILLING CODE 4190-29-P
