2014-10943. Proposed Priority-Assistive Technology: Alternative Financing Program

[CFDA Number: 84.224D.]

AGENCY:

Office of Special Education and Rehabilitative Services, Department of Education.

ACTION:

Proposed priority.

SUMMARY:

The Assistant Secretary for Special Education and Rehabilitative Services proposes a priority under the Assistive Technology Alternative Financing Program. The Assistant Secretary may use this priority for competitions in fiscal year (FY) 2014 and later years. This priority is designed to ensure that the Department funds high-quality assistive technology alternative financing programs that meet rigorous standards in order to enable individuals with disabilities to access and acquire assistive technology devices and services necessary to achieve education, community living, and employment goals.

DATES:

We must receive your comments on or before June 12, 2014.

ADDRESSES:

Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.

• Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “Are you new to the site?”
• Postal Mail, Commercial Delivery, or Hand Delivery: If you mail or deliver your comments about this notice, address them to Brian Bard, U.S. Department of Education, 400 Maryland Avenue SW., Room 5021, Potomac Center Plaza (PCP), Washington, DC 20202-2800.

Privacy Note: The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

FOR FURTHER INFORMATION CONTACT:

Brian Bard. Telephone: [phone].

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Invitation to Comment: We invite you to submit comments regarding this notice. To ensure that your comments have maximum effect in developing the final priority, we urge you to identify clearly the specific topic that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about this notice in Room 5025, 550 12th Street SW., PCP, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Purpose of Program: The goal of the Assistive Technology Alternative Financing Program is to provide funds to allow greater access by people with disabilities to affordable financing for the purchase of specialized technologies they need to live independently, succeed at school and work, and otherwise lead active and productive lives.

Program Authority: Consolidated Appropriations Act, 2014 (Pub. L. 113-76)

Applicable Program Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 74, 75, 77, 79, 80, 81, 82, 84, 86, 97, 98, and 99. (b) The Education Department suspension and debarment regulations in 2 CFR part 3485.

Note:

The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

Note:

The regulations in 34 CFR part 86 apply to institutions of higher education only.

Note:

In general, EDGAR applies to these grants, except to the extent it is inconsistent with the applicable statute for the program.

Proposed Priority:

This notice contains one proposed priority.

Assistive Technology Alternative Financing Program.

Background:

Many individuals with disabilities do not have the private financial resources to purchase the AT they need. In addition, programs such as Medicaid, Medicare, and vocational rehabilitation cannot meet the growing demand for AT. Financial loan services, such as alternative financing programs (AFPs), offer individuals with disabilities affordable options that can significantly enhance their access to AT. These programs offer alternatives to the traditional payment options of public assistance and out-of-pocket financing, and maximize independence and community participation by individuals with disabilities through the acquisition of AT.

Between 2000 and 2006, the Office of Special Education and Rehabilitative Services (OSERS) awarded competitive one-year grants to 33 States under title III of the Assistive Technology Act of 1998 (AT Act of 1998) for the establishment, maintenance, or expansion of AFPs. The AFPs feature one or more alternative financing mechanisms that provide loans for individuals with disabilities and their family members, guardians, advocates, and authorized representatives to purchase AT devices and services.

Although only funded for one year, these AFPs were required to implement a sustainability plan and maintain permanent programs that continue project activities after the end of the project period. The 33 States that were awarded grants during fiscal years 2000 through 2006 received a cumulative total of $60,285,260 in Federal funding. All of these AFPs are still operating. From FY 2000 through the end of FY 2012, AFPs using alternative financing mechanisms such as a revolving loan or partnership loan program processed 13,593 loans totaling $148,021,369 in financial assistance for the purchase of AT devices and services, an amount more than twice the original Federal funding.

To build upon the success of these AFPs and to help individuals with disabilities purchase assistive technology devices, the Consolidated Appropriations Act, 2012 (Pub. L. 112-74) provided $1,996,220 for competitive grants to support AFPs in FY 2012; and the Continuing Appropriations Act, 2013 (Pub. L. 113-46), provided an additional $1,891,806 to support AFPs in FY 2013. FY 2012 and 2013 funds were used to establish three new AFPs and to expand two existing high performing AFPs. There are currently a total of 36 AFPs.

The Consolidated Appropriations Act of 2014 (the Act) provides $2,000,000 for competitive grants to support AFPs that provide for the purchase of AT devices, such as a low-interest loan fund, an interest buy-down program, a revolving loan fund, a loan guarantee, or an insurance program. The Act requires applicants for these grants to provide an assurance that, and information describing the manner in which, the AFP will expand and emphasize consumer choice and control. It also specifies that State agencies and community-based disability organizations that are directed by and operated for individuals with disabilities shall be eligible to compete. In addition, language in the Manager's Statement accompanying the Act provides that applicants should incorporate credit-building activities in their programs, including financial education and information about other possible funding sources. Successful applicants must emphasize consumer choice and control and build programs that will provide financing for the full array of AT devices and services and ensure that all people with disabilities, regardless of type of disability or health condition, age, level of income, and residence have access to the program.

While all States can apply, the Department's objective is to establish AFPs in States that have not previously received funding from the Federal Government for this purpose or to expand small or underfunded AFPs that have received less than $1 million from competitions under title III of the AT Act of 1998 during FYs 2000 through 2006 and under the Appropriations Acts during FY 2012 and 2013.

Proposed Priority:

The Assistant Secretary for Special Education and Rehabilitative Services proposes a priority to fund one-year grant awards to support AFPs that assist individuals with disabilities to obtain financial assistance for AT devices and services.

Under this priority, applicants must establish or expand one or more of the following types of AFPs:

(1) A low-interest loan fund.

(2) An interest buy-down program.

(3) A revolving loan fund.

(4) A loan guarantee or insurance program.

(5) Another mechanism that is approved by the Secretary.

AFPs must be designed to allow individuals with disabilities and their family members, guardians, advocates, and authorized representatives to purchase AT devices or services. If family members, guardians, advocates, and authorized representatives (including employers who have been designated by an individual with a disability as an authorized representative) receive AFP support to purchase AT devices or services, the purchase must be solely for the benefit of an individual with a disability.

To be considered for funding, an applicant must identify the type or types of AFP(s) to be supported by the grant and submit all of the following assurances:

(1) Permanent Separate Account: An assurance from the applicant that—

(a) All funds that support the AFP, including funds repaid during the life of the program, will be deposited in a permanent separate account and identified and accounted for separately from any other funds;

(b) If the grantee administering the program invests funds within this account, the grantee will invest the funds in low-risk securities in which a regulated insurance company may invest under the law of the State; and

(c) The grantee will administer the funds with the same judgment and care that a person of prudence, discretion, and intelligence would exercise in the management of the financial affairs of that person.

(2) Permanence of the Program: An assurance that the AFP will continue on a permanent basis.

An applicant's obligation to implement the AFP consistent with all of the requirements, including reporting requirements, continues until there are no longer any funds available to operate the AFP and all outstanding loans have been repaid. If a grantee decides to terminate its AFP while there are still funds available to operate the program, the grantee must return the funds remaining in the permanent separate account to the U.S. Department of Education except for funds being used for grant purposes, such as loan guarantees for outstanding loans. However, before closing out its grant, the grantee also must return any principal and interest remitted to it on outstanding loans and any other funds remaining in the permanent separate account, such as funds being used as loan guarantees for those loans.

(3) Consumer Choice and Control: An assurance that, and information describing the manner in which, the AFP will expand and emphasize consumer choice and control.

(4) Supplement-Not-Supplant: An assurance that the funds made available through the grant to support the AFP will be used to supplement and not supplant other Federal, State, and local public funds expended to provide alternative financing mechanisms.

(5) Use and Control of Funds: An assurance that— funds comprised of the principal and interest from the account described in paragraph (1) Permanent Separate Account of this priority will be available solely to support the AFP.

This assurance regarding the use and control of funds applies to all funds derived from the AFP including the original Federal award, AFP funds generated by either interest bearing accounts or investments, and all principal and interest paid by borrowers of the AFP who are extended loans from the permanent separate account.

(6) Indirect Costs: An assurance that the percentage of the funds used for indirect costs will not exceed 10 percent of the portion of the grant award that is used annually for program administration (excluding funds used for loan activity).

For each 12-month budget period, grantees must recalculate their allowable indirect cost rate, which may not exceed 10 percent of the portion of the grant award that is used annually for program administration related to the AFP.

(7) Administrative Policies and Procedures: An assurance that the applicant receiving a grant under this priority will submit to the Secretary for review and approval within the 12 month project period the following policies and procedures for administration of the AFP:

(a) A procedure to review and process in a timely manner requests for financial assistance for immediate and potential technology needs, including consideration of methods to reduce paperwork and duplication of effort, particularly relating to need, eligibility, and determination of the specific AT device or service to be financed through the program.

(b) A policy and procedure to ensure that individuals are allowed to apply for financing for a full array of AT devices and services regardless of type of disability or health condition, age, income level, location of residence in the State, or type of AT device or service for which financing is requested through the program. It is permissible for programs to target individuals with disabilities who would have been denied conventional financing as a priority for AFP funding.

(c) A procedure to ensure consumer choice and consumer-controlled oversight of the program.

(d) A sustainability plan, including information on the percentage of funds expected to be used for operating expenses and loan capital.

(8) Data Collection: An assurance that the applicant will collect and report data requested by the Secretary in the format, with the frequency, and using the method established by the Secretary until there are no longer any funds available to operate the AFP and all outstanding loans have been repaid.

(9) Credit Building Activities: An assurance that the AFP will incorporate credit-building activities into their programs, including financial education and information about other possible funding sources.

Competitive Preference Priorities: Within this priority, we propose two competitive preference priorities.

These priorities are:

Need to Establish an AFP (10 additional points.): This applies to an applicant located in a State or outlying area where an AFP grant has not been previously awarded under title III of the AT Act of 1998 or in FY 2012 or FY 2013 for Assistive Technology Alternative Financing Programs funded under the Consolidated Appropriations Acts, 2012 and 2013.

Need to Expand an AFP (5 additional points.): This applies to an applicant located in a State or outlying territory where an AFP grant has been previously awarded under title III of the AT Act of 1998 or in FY 2012 or FY 2013 for Assistive Technology Alternative Financing Programs under the Consolidated Appropriations Act, 2012, but the State or territory has received less than a total of $1 million in Federal grant funds under title III of the AT Act of 1998 during fiscal years 2000 through 2006 and the Federal grant funds awarded in FY 2012 and FY 2013 under the Consolidated Appropriations Act, 2012 for the operation of its AFP.

Types of Priorities:

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Final Priority:

We will announce the final priority in a notice in the Federal Register. We will determine the final priority after considering responses to this notice and other information available to the Department. This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note:

This notice does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the Federal Register.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this proposed priority only on a reasoned determination that its benefits would justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

The benefits of the Assistive Technology Alternative Financing Program have been well established since FY 2000 through the successful, ongoing performance of alternative financing programs funded under title III of the AT Act of 1998. This proposed priority would promote financial loan programs that will better prepare and assist individuals with disabilities to achieve education, community living, and employment goals in today's challenging economy.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/​fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Dated: May 7, 2014.

Michael K. Yudin,

Acting Assistant Secretary for Special Education and Rehabilitative Services.