Protection and Advocacy of Individual Rights (PAIR)

34 CFR § 381

Title 34\-- Education

Subtitle B\-- Regulations of the Offices of the Department of Education

Chapter III \-- Office of Special Education and Rehabilitative Services,
Department of Education

Part 381\--Protection and Advocacy of Individual Rights

Subpart A\-- General

§ 381.1 What is the Protection and Advocacy of Individual Rights
Program?

This program is designed to support a system in each State to protect
the legal and human rights of eligible individuals with disabilities.

§ 381.2 Who is eligible for an award?\
\
(a) A protection and advocacy system that is established under part C of
the Developmental Disabilities Assistance and Bill of Rights Act (DDA),
[42 U.S.C.
6041](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=42USCAS6041&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)-[6043](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=42USCAS6043&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split),
and that meets the requirements of [§
381.10](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS381.10&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
is eligible to apply for a grant award under this program.\
\
(b) In any fiscal year in which the amount appropriated to carry out
this section is less than \$5,500,000, a protection and advocacy system
from any State or from Guam, American Samoa, the United States Virgin
Islands, the Commonwealth of the Northern Mariana Islands, or the
Republic of Palau may apply for a grant under the Protection and
Advocacy of Individual Rights (PAIR) program to plan for, develop
outreach strategies for, and carry out a protection and advocacy program
authorized under this part, except that the Republic of Palau may not
apply for a grant under the PAIR program after the Compact of Free
Association with Palau takes effect.\
\
(c) In any fiscal year in which the amount appropriated to carry out
this section is equal to or greater than \$5,500,000, an eligible system
from any State and from any of the jurisdictions named in paragraph (b)
of this section may apply to receive the amount allotted pursuant to
section 509(c)-(e) of the Act, except that the Republic of Palau may
receive an allotment under section 509 of the Act only until the Compact
of Free Association with Palau takes effect.

§ 381.3 What activities may the Secretary fund?\
\
(a) Funds made available under this part must be used for the following
activities:

> \(1\) Establishing a system to protect, and advocate for, the rights
> of individuals with disabilities.
>
> \(2\) Pursuing legal, administrative, and other appropriate remedies
> or approaches to ensure the protection of, and advocacy for, the
> rights of eligible individuals with disabilities within the State.
>
> \(3\) Providing information on and making referrals to programs and
> services addressing the needs of individuals with disabilities in the
> State, including individuals with disabilities who are exiting from
> public school programs.
>
> \(4\) Coordinating the protection and advocacy program provided
> through an eligible system with the advocacy programs under---
>
> \(i\) Section 112 of the Act (the Client Assistance Program (CAP));
>
> (ii)The Older Americans Act of 1965 (the State long-term care
> ombudsman program);
>
> \(iii\) Part C of the DDA; and
>
> \(iv\) The Protection and Advocacy for Individuals with Mental Illness
> Act of 1986 (PAIMI), [42 U.S.C.
> 10801](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=42USCAS10801&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)-[10851](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=42USCAS10851&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split).
>
> \(5\) Developing a statement of objectives and priorities on an annual
> basis and a plan for achieving these objectives and priorities.

> \(6\) Providing to the public, including individuals with disabilities
> and, as appropriate, their representatives, an opportunity to comment
> on the objectives and priorities described in [§
> 381.10(f)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS381.10&FindType=L&ReferencePositionType=T&ReferencePosition=SP%3Bae0d0000c5150&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split).
>
> \(7\) Establishing a grievance procedure for clients or prospective
> clients of the eligible system to ensure that individuals with
> disabilities are afforded equal access to the services of the eligible
> system.

\(b\) Funds made available under this part also may be used to carry out
any other activities consistent with the purpose of this part and the
activities listed in paragraph (a) of this section.

§ 381.4 What regulations apply?

The following regulations apply to the PAIR program:\
\
(a) The Education Department General Administrative Regulations (EDGAR)
as follows:

> \(1\) 34 CFR Part 74 (Administration of Grants to Institutions of
> Higher Education, Hospitals and Nonprofit Organizations), if the
> eligible system is not a State or local government agency or Indian
> tribal organization.
>
> \(2\) 34 CFR Part 75 (Direct Grant Programs), if the appropriation for
> the PAIR program is less than \$5,500,000.
>
> \(3\) 34 CFR Part 76 (State-Administered Programs), if the
> appropriation for the PAIR program is equal to or greater than
> \$5,500,000 and the eligible system is a State or local government
> agency, except for---
>
> \(i\) [Section
> 76.103](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.103&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split);
>
> \(ii\) [Sections
> 76.125](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.125&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
> through
> [76.137](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.137&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split);
>
> \(iii\) [Sections
> 76.300](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.300&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
> through
> [76.401](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.401&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split);
>
> \(iv\) [Section
> 76.704](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.704&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split);
>
> \(v\) [Section
> 76.734](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.734&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split);
> and
>
> \(vi\) [Section
> 76.740](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.740&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split).

\(4\) 34 CFR Part 77 (Definitions that Apply to Department Regulations).

> \(5\) 34 CFR Part 79 (Intergovernmental Review of Department of
> Education Programs and Activities).
>
> \(6\) 34 CFR Part 80 (Uniform Administrative Requirements for Grants
> and Cooperative Agreements to State and Local Governments), if the
> eligible system is a State or local government agency.

\(7\) 34 CFR Part 81 (General Education Provisions Act\-- Enforcement).

\(8\) 34 CFR Part 82 (New Restrictions on Lobbying).

> \(9\) 34 CFR Part 85 (Governmentwide Debarment and Suspension
> (Nonprocurement) and Governmentwide Requirements for Drug-Free
> Workplace (Grants)).

\(10\) 34 CFR Part 86 (Drug-Free Schools and Campuses).

\(b\) The regulations in this part 381.\
\
(c) The regulations in [34 CFR
369.43](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS369.43&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split),
[369.46](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS369.46&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
and
[369.48](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS369.48&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
relating to certain conditions that must be met by grantees.\

§ 381.5 What definitions apply?

\(a\) Definitions in EDGAR: The following terms used in this part are
defined in [34 CFR
77.1](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS77.1&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)\--

Award

EDGAR

Fiscal year

Nonprofit

Private

Public

Secretary

\(b\) Other definitions: The following definitions also apply to this
part---

Act means the Rehabilitation Act of 1973, as amended.

> Advocacy means pleading an individual\'s cause or speaking or writing
> in support of an individual. Advocacy may be formal, as in the case of
> a lawyer representing an individual in a court of law or in formal
> administrative proceedings before government agencies (whether State,
> local or Federal). Advocacy also may be informal, as in the case of a
> lawyer or non-lawyer representing an individual in negotiations,
> mediation, or informal administrative proceedings before government
> agencies (whether State, local or Federal), or as in the case of a
> lawyer or non-lawyer representing an individual\'s cause before
> private entities or organizations, or government agencies (whether
> State, local or Federal). Advocacy may be on behalf of---
>
> \(1\) A single individual, in which case it is individual advocacy;\
> \
> (2) More than one individual or a group or class of individuals, in
> which case it is systems (or systemic) advocacy; or\
> \
> (3) Oneself, in which case it is self advocacy.
>
> Eligible individual with a disability means an individual who---
>
> \(1\) Needs protection and advocacy services that are beyond the scope
> of services authorized to be provided by the CAP under section 112 of
> the Act; and
>
> \(2\) Is ineligible for---
>
> \(i\) Protection and advocacy programs under Part C of the DDA; and
>
> \(ii\) Protection and advocacy programs under the PAIMI.
>
> Eligible system means a protection and advocacy system that is
> established under part C of the DDA, [42 U.S.C.
> 6041](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=42USCAS6041&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)-[6043](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=42USCAS6043&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split),
> and that meets the requirements of [§
> 381.10](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS381.10&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
> of this part.\
> \
> Mediation means the act or process of using an independent third party
> to act as a mediator, intermediary, or conciliator to settle
> differences or disputes between persons or parties. The third party
> who acts as a mediator, intermediary, or conciliator must not be any
> entity or individual who is connected in any way with the eligible
> system or the agency, entity, or individual with whom the individual
> with a disability has a dispute. Mediation may involve the use of
> professional mediators or any other independent third party mutually
> agreed to by the parties to the dispute.\
> \
> State means, in addition to each of the several States of the United
> States, the District of Columbia, the Commonwealth of Puerto Rico, the
> United States Virgin Islands, Guam, American Samoa, the Commonwealth
> of the Northern Mariana Islands, and the Republic of Palau (until the
> Compact of Free Association takes effect), except for purposes of
> section 509(c)(3)(B) and (c)(4) of the Act, in which case State does
> not mean or include Guam, American Samoa, the United States Virgin
> Islands, the Commonwealth of the Northern Mariana Islands, and the
> Republic of Palau.

§ 381.10 What are the application requirements?

\(a\) Regardless of the amount of funds appropriated for the PAIR
program in a fiscal year, an eligible system shall submit to the
Secretary an application for assistance under this part at the time and
in the form and manner determined by the Secretary that contains all
information that the Secretary determines necessary, including
assurances that the eligible system will\--

> \(1\) Have in effect a system to protect, and advocate for, the rights
> of eligible individuals with disabilities;
>
> \(2\) Have the same general authorities, including access to records
> and program income, as in part C of the DDA;
>
> \(3\) Have the authority to pursue legal, administrative, and other
> appropriate remedies or approaches to ensure the protection of, and
> advocacy for, the rights of eligible individuals with disabilities
> within the State;
>
> \(4\) Provide information on and make referrals to programs and
> services addressing the needs of individuals with disabilities in the
> State, including individuals with disabilities who are exiting from
> public school programs;
>
> \(5\) Develop a statement of objectives and priorities on an annual
> basis and a plan for achieving these objectives and priorities;
>
> \(6\) Provide to the public, including individuals with disabilities
> and, as appropriate, their representatives, an opportunity to comment
> on the objectives and priorities established by, and activities of,
> the eligible system including\--
>
> \(i\) The objectives and priorities for the activities of the eligible
> system for each year and the rationale for the establishment of those
> objectives and priorities; and
>
> \(ii\) The coordination of programs provided through eligible systems
> with the advocacy programs under---
>
> (A)Section 112 of the Act (CAP);
>
> (B)The Older Americans Act of 1965 (the State long-term care ombudsman
> program);
>
> (C)Part C of the DDA; and
>
> (D)The PAIMI;
>
> \(7\) Establish a grievance procedure for clients or prospective
> clients of the eligible system to ensure that individuals with
> disabilities are afforded equal access to the services of the eligible
> system;
>
> \(8\) Use funds made available under this part to supplement and not
> supplant the non-Federal funds that would otherwise be made available
> for the purpose for which Federal funds are provided; and
>
> \(9\) Implement procedures designed to ensure that, to the maximum
> extent possible, mediation (and other alternative dispute resolution)
> procedures, which include good faith negotiation, are used before
> resorting to formal administrative or legal remedies.

\(b\) To receive direct payment of funds under this part, an eligible
system must provide to the Secretary, as part of its application for
assistance, an assurance that direct payment is not prohibited by or
inconsistent with State law, regulation, or policy.

§ 381.20 How does the Secretary evaluate an application?\
In any fiscal year in which the amount appropriated for the PAIR program
is less than \$5,500,000, the Secretary evaluates applications under the
procedures in 34 CFR Part 75.

§ 381.21 \[Reserved\]

§ 381.22 How does the Secretary allocate funds under this program?

\(a\) In any fiscal year in which the amount appropriated for this
program is equal to or greater than \$5,500,000\--

> \(1\) The Secretary sets aside not less than 1.8 percent but not more
> than 2.2 percent of the amount appropriated to provide training and
> technical assistance to eligible systems established under this
> program.
>
> \(2\) After the reservation required by paragraph (a)(1) of this
> section, the Secretary makes allotments from the remainder of the
> amount appropriated in accordance with section 509(c)(2)-(e) of the
> Act.

\(b\) Notwithstanding any other provision of law, in any fiscal year in
which the amount appropriated for this program is equal to or greater
than \$5,500,000, the Secretary pays directly to an eligible system that
submits an application that meets the requirements of [§
381.10](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS381.10&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
the amount of the allotment to the State pursuant to section 509 of the
Act, unless the State provides otherwise.

§ 381.30 How are services to be administered?

\(a\) Each eligible system shall carry out the protection and advocacy
program authorized under this part.\
\
(b) An eligible system may not award a grant or subgrant to another
entity to carry out, in whole or in part, the protection and advocacy
program authorized under this part.\
\
(c) An eligible system may contract with another agency, entity, or
individual to carry out the PAIR program in whole or in part, but only
if the agency, entity, or individual with whom the eligible system has
contracted\--

> \(1\) Does not provide services under the Act or does not provide
> treatment, services, or habilitation to persons with disabilities; and
>
> \(2\) Is independent of, and not connected financially or through a
> board of directors to, an entity or individual that provides services
> under the Act or that provides treatment, services, or habilitation to
> persons with disabilities.

\(d\) For purposes of paragraph (c) of this section, \"services under
the Act\" and \"treatment, services, or habilitation\" does not include
client assistance services under CAP, protection and advocacy services
authorized under the protection and advocacy programs under Part C of
the DDA and the PAIMI, or any other protection and advocacy services.

§ 381.31 What are the requirements pertaining to the protection, use,
and release of personal information?

\(a\) All personal information about individuals served by any eligible
system under this part, including lists of names, addresses,
photographs, and records of evaluation, must be held confidential.\
\
(b) The eligible system\'s use of information and records concerning
individuals must be limited only to purposes directly connected with the
protection and advocacy program, including program evaluation
activities. Except as provided in paragraph (c) of this section, an
eligible system may not disclose personal information about an
individual, directly or indirectly, other than in the administration of
the protection and advocacy program, unless the consent of the
individual to whom the information applies, or his or her guardian,
parent, or other authorized representative or advocate (including the
individual\'s advocate from the eligible system), has been obtained in
writing. An eligible system may not produce any report, evaluation, or
study that reveals any personally identifying information without the
written consent of the individual or his or her representative.\
\
(c) Except as limited in paragraph (d) of this section, the Secretary or
other Federal or State officials responsible for enforcing legal
requirements must be given complete access to all\--

\(1\) Records of the eligible system receiving funds under this program;
and

> \(2\) All individual case records of clients served under this part
> without the consent of the client.

\(d\) (1) The privilege of a person or eligible system not to produce
documents or provide information pursuant to paragraph (c) of this
section is governed by the principles of common law as interpreted by
the courts of the United States, except that, for purposes of any
periodic audit, report, or evaluation of the performance of the eligible
system established or assisted under this part, the Secretary does not
require the eligible system to disclose the identity of, or any other
personally identifiable information related to, any individual
requesting assistance under the PAIR program.

> \(2\) However, notwithstanding paragraph (d)(1) of this section, if an
> audit, monitoring review, State plan assurance review, evaluation, or
> other investigation has already produced independent and reliable
> evidence that there is probable cause to believe that the eligible
> system has violated its legislative mandate or misused Federal funds,
> the eligible system shall disclose, if the Secretary so requests, the
> identity of, or any other personally identifiable information (i.e.,
> name, address, telephone number, social security number, or other
> official code or number by which an individual may be readily
> identified) related to, any individual requesting assistance under the
> PAIR program, in accordance with the principles of common law as
> interpreted by the courts of the United States.

§ 381.32 What are the reporting requirements?

Each eligible system shall provide to the Secretary, no later than 90
days after the end of each fiscal year, an annual report that includes
information on the following:

\(a\) The types of services and activities undertaken by the eligible
system and how these services and activities addressed the objectives
and priorities developed pursuant to

[§
381.10(e)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS381.10&FindType=L&ReferencePositionType=T&ReferencePosition=SP%3B7fdd00001ca15&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split).\
\
(b) The total number of individuals, by race, color, national origin,
gender, age, and disabling condition, who requested services from the
eligible system and the total number of individuals, by race, color,
national origin, gender, age, and disabling condition, who were served
by the eligible system.\
\
(c) The types of disabilities represented by individuals served by the
eligible system.\
\
(d) The types of issues being addressed on behalf of individuals served
by the eligible system.\
\
(e) Any other information that the Secretary may require.

§ 381.33 What are the requirements related to the use of funds provided
under this part?

\(a\) Funds made available under this part must be used to supplement
and not supplant the non-Federal funds that would otherwise be made
available for the purpose for which Federal funds are provided under
this part.\
\
(b) In any State in which an eligible system is located within a State
agency, that State or State agency may not use more than five percent of
any allotment for the costs of administration of the eligible system
supported under this part. For purposes of this paragraph, \"costs of
administration\" include, but are not limited to, administrative
salaries (including salaries for clerical and support staff), supplies,
depreciation or use allowances, the cost of operating and maintaining
facilities, equipment, and grounds (e.g., rental of office space or
equipment, telephone, postage, maintenance agreements), and other
similar types of costs that may be incurred by the State or State agency
to administer the eligible system.\
\
(c) Funds paid to a State or an eligible system within a State for a
fiscal year to carry out this program that are not expended or obligated
prior to the end of that fiscal year remain available to the State or an
eligible system within a State for obligation during the succeeding
fiscal year in accordance with [34 CFR
76.705](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.705&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)-[76.707](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.707&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split).\
\
(d) For determining when an eligible system makes an obligation for
various kinds of property or services, [34 CFR
75.707](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS75.707&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
and
[76.707](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.707&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split),
as appropriate, apply to this program. If the appropriation for the PAIR
program is less than \$5,500,000, [§
75.707](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS75.707&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
applies. If the appropriation for the PAIR program is equal to or
greater than \$5,500,000, [§
76.707](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.707&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split)
applies. An eligible system is considered a State for purposes of [§
76.707](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=34CFRS76.707&FindType=L&AP=&fn=_top&rs=WLW6.06&mt=LawSchoolPractitioner&vr=2.0&sv=Split).