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PART 370--CLIENT ASSISTANCE PROGRAM

Subpart A—General

370.1 What is the Client Assistance Program (CAP)?

370.2 Who is eligible for an award?

370.3 Who is eligible for services and information under

the CAP?

370.4 What kinds of activities may the Secretary fund?

370.5 What regulations apply?

370.6 What definitions apply?

370.7 What shall the designated agency do to make its

services accessible?

Subpart B--What Requirements Apply to Redesignation?

370.10 When do the requirements for redesignation apply?

370.11 What requirements apply to a notice of proposed

redesignation?

370.12 How does a designated agency preserve its right to

appeal a redesignation?

370.13 What are the requirements for a decision to

redesignate?

370.14 How does a designated agency appeal a written

decision to redesignate?

370.15 What must the Governor of a State do upon receipt

of a copy of a designated agency's written appeal to the

Secretary?
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370.16 How does the Secretary review an appeal of a

redesignation?

370.17 When does a redesignation become effective?

Subpart C--What are the Requirements for Requesting a

Grant?

370.20 What must be included in a request for a grant?

Subpart D--How Does the Secretary Allocate and Reallocate

Funds to a State?

370.30 How does the Secretary allocate funds?

370.31 How does the Secretary reallocate funds?

Subpart E--What Post-Award Conditions Must Be Met by a

Designated Agency?

370.40 What are allowable costs?

370.41 What conflict of interest provision applies to

employees of a designated agency?

370.42 What access must the CAP be afforded to

policymaking and administrative personnel?

370.43 What requirement applies to the use of mediation

procedures?

370.44 What reporting requirement applies to each

designated agency?

370.45 What limitation applies to the pursuit of legal

remedies?
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370.46 What consultation requirement applies to a Governor

of a State?

370.47 What is program income and how may it be used?

370.48 When must grant funds and program income be

obligated?

370.49 What are the special requirements pertaining to the

protection, use, and release of personal information?

AUTHORITY: Section 112 of the Rehabilitation Act of 1973,

as amended; 29 U.S.C. 732, unless otherwise noted. 

Subpart A--General

§370.1 What is the Client Assistance Program (CAP)?

The purpose of this program is to establish and carry

out CAPs that--

(a) Advise and inform clients and client-applicants

of all services and benefits available to them through

programs authorized under the Rehabilitation Act of 1973,

as amended (Act), including activities carried out under

sections 113 and 511;

(b) Assist and advocate for clients and clientapplicants in their relationships with projects, programs,

and community rehabilitation programs providing services

under the Act; and

(c) Inform individuals with disabilities in the

State, especially individuals with disabilities who have
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traditionally been unserved or underserved by vocational

rehabilitation programs, of the services and benefits

available to them under the Act and under title I of the

Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.

12111 et seq.).

(Authority: Section 112(a) of the Rehabilitation Act

of 1973, as amended; 29 U.S.C. 732(a))

§370.2 Who is eligible for an award?

(a)(1) Any State, through its Governor, and the

protection and advocacy system serving the American Indian

Consortium, is eligible for an award under this part if the

State or eligible protection and advocacy system submits,

and receives approval of, an application in accordance with

§370.20.

(2) For purposes of this part, the terms-–

(i) “American Indian Consortium” has the meaning

given the term in section 102 of the Developmental

Disabilities Assistance and Bill of Rights Act of 2000 (DD

Act) (42 U.S.C. 15002); and

(ii) “Protection and advocacy system” means a

protection and advocacy system established under subtitle C

of title I of the DD Act (42 U.S.C. 15041 et seq.).

(b) Notwithstanding the protection and advocacy

system serving the American Indian Consortium, the Governor
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of each State shall designate a public or private agency to

conduct the State's CAP under this part.

(c) Except as provided in paragraph (d) of this

section, the Governor shall designate an agency that is

independent of any agency that provides treatment,

services, or rehabilitation to individuals under the Act.

(d) The Governor may, in the initial designation,

designate an agency that provides treatment, services, or

rehabilitation to individuals with disabilities under the

Act if, at any time before February 22, 1984, there was an

agency in the State that both--

(1) Was a grantee under section 112 of the Act by

serving as a client assistance agency and directly carrying

out a CAP; and

(2) Was, at the same time, a grantee under any other

provision of the Act.

(e) An agency designated by the Governor of a State

to conduct the State's CAP or the protection and advocacy

system serving the American Indian Consortium under this

part may not make a subaward to or enter into a contract

with an agency that provides services under this Act either

to carry out the CAP or to provide services under the CAP.

(f) A designated agency, including the protection and

advocacy system serving the American Indian Consortium,
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that contracts to provide CAP services with another entity

or individual remains responsible for--

(1) The conduct of a CAP that meets all of the

requirements of this part;

(2) Ensuring that the entity or individual expends

CAP funds in accordance with--

(i) The regulations in this part; and

(ii) The regulations at 2 CFR part 200 applicable to

the designated agency identified in paragraph (b) or the

protection and advocacy system serving the American Indian

Consortium, as described in paragraph (a) of this section;

and

(3) The direct day-to-day supervision of the CAP

services being carried out by the contractor. This day-today supervision must include the direct supervision of the

individuals who are employed or used by the contractor to

provide CAP services.

(Authority: Sections 12(c) and 112(a), (c)(1)(A), and

(e)(1)(E) of the Rehabilitation Act of 1973, as amended; 29

U.S.C. 709(c) and 732(a), (c)(1)(A), and (e)(1)(E))

§370.3 Who is eligible for services and information under

the CAP?

(a) Any client or client applicant is eligible for

the services described in §370.4.
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(b) Any individual with a disability is eligible to

receive information on the services and benefits available

to individuals with disabilities under the Act and title I

of the ADA.

(Authority: Section 112(a) of the Rehabilitation Act

of 1973, as amended; 29 U.S.C. 732(a))

§370.4 What kinds of activities may the Secretary fund?

(a) Funds made available under this part must be used

for activities consistent with the purposes of this

program, including--

(1) Advising and informing clients, clientapplicants, and individuals with disabilities in the State,

especially individuals with disabilities who have

traditionally been unserved or underserved by vocational

rehabilitation programs, of--

(i) All services and benefits available to them

through programs authorized under the Act; and

(ii) Their rights in connection with those services

and benefits;

(2) Informing individuals with disabilities in the

State, especially individuals with disabilities who have

traditionally been unserved or underserved by vocational

rehabilitation programs, of the services and benefits

available to them under title I of the ADA;
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(3) Upon the request of the client or client

applicant, assisting and advocating on behalf of the client

or client applicant in his or her relationship with

projects, programs, and community rehabilitation programs

that provide services under the Act by engaging in

individual or systemic advocacy and pursuing, or assisting

and advocating on behalf of the client or client applicant

to pursue, legal, administrative, and other available

remedies, if necessary--

(i) To ensure the protection of the rights of a

client or client applicant under the Act; and

(ii) To facilitate access by individuals with

disabilities, including students and youth with

disabilities who are making the transition from school

programs, to services funded under the Act; and

(4) Providing information to the public concerning

the CAP.

(b) In providing assistance and advocacy services

under this part with respect to services under title I of

the Act, a designated agency may provide assistance and

advocacy services to a client or client applicant to

facilitate the individual's employment, including

assistance and advocacy services with respect to the

individual's claims under title I of the ADA, if those
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claims under title I of the ADA are directly related to

services under title I of the Act that the individual is

receiving or seeking.

(Authority: Sections 12(c) and 112(a) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(a))

§370.5 What regulations apply?

The following regulations apply to the expenditure of

funds and the administration of the program under this

part:

(a) The Education Department General Administrative

Regulations (EDGAR) as follows:

(1) 34 CFR part 75 (Direct Grant Programs) for

purposes of an award made under §370.30(d)(1) when the CAP

appropriation equals or exceeds $14,000,000.

(2) 34 CFR part 76 (State-Administered Programs)

applies to the State and, if the designated agency is a

State or local government agency, to the designated agency,

except for—

(i) Section 76.103;

(ii) Sections 76.125 through 76.137;

(iii) Sections 76.300 through 76.401;

(iv) Section 76.708;

(v) Section 76.734; and
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(vi) Section 76.740.

(3) 34 CFR part 77 (Definitions That Apply to

Department Regulations).

(4) 34 CFR part 79 (Intergovernmental Review of

Department of Education Programs and Activities).

(5) 34 CFR part 81 (General Education Provisions ActEnforcement) applies to both the State and the designated

agency, whether or not the designated agency is the actual

recipient of the CAP grant. As the entity that eventually,

if not directly, receives the CAP grant funds, the

designated agency is considered a recipient for purposes of

Part 81.

(6) 34 CFR part 82 (New Restrictions on Lobbying).

(b) Other regulations as follows:

(1) 2 CFR part 180 (OMB Guidelines to Agencies on

Debarment and Suspension (Nonprocurement)), as adopted at 2

CFR part 3485.

(2) 2 CFR part 200 (Uniform Administrative

Requirements, Cost Principles, and Audit Requirements for

Federal Awards), as adopted at 2 CFR part 3474.

(c) The regulations in this part 370.

NOTE TO §370.5: Any funds made available to a State

under this program that are transferred by a State to a

designated agency do not make a subaward as that term is
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defined in 2 CFR 200.330. The designated agency is not,

therefore, in these circumstances a subrecipient, as that

term is defined in 2 CFR 200.330.

(Authority: Sections 12(c) and 112 of the

Rehabilitation Act, as amended; 29 U.S.C. §§709(c) and 732)

§370.6 What definitions apply?

(a) Definitions in EDGAR at 34 CFR part 77.

(b) Definitions in 2 CFR part 200, subpart A.

(c) 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 tribal,

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 tribal, 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
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government agencies (whether tribal, 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 of

individuals, in which case it is systems (or systemic)

advocacy, but systems or systemic advocacy, for the

purposes of this part, may not include class actions, or

(3) Oneself, in which case it is self advocacy.

American Indian Consortium means that entity described

in §370.2(a).

Class action means a formal legal suit on behalf of a

group or class of individuals filed in a Federal or State

court that meets the requirements for a “class action”

under Federal or State law. “Systems (or systemic)

advocacy” that does not include filing a formal class

action in a Federal or State court is not considered a

class action for purposes of this part.

Client or client applicant means an individual

receiving or seeking services under the Act, respectively.

Designated agency means the agency designated by the

Governor under §370.2 or the protection and advocacy system

serving the American Indian Consortium that is conducting a

CAP under this part.
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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 may 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.

Protection and Advocacy System has the meaning set

forth at §370.2(a).

Services under the Act means vocational

rehabilitation, independent living, supported employment,

and other similar rehabilitation services provided under

the Act. For purposes of the CAP, the term “services under

the Act” does not include activities carried out under the

protection and advocacy program authorized by section 509

of the Act (i.e., the Protection and Advocacy of Individual

Rights (PAIR) program, 34 CFR part 381).

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
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Islands, Guam, American Samoa, and the Commonwealth of the

Northern Mariana Islands, except for purposes of the

allotments under §370.30, in which case “State” does not

mean or include Guam, American Samoa, the United States

Virgin Islands, and the Commonwealth of the Northern

Mariana Islands.

(Authority: Sections 7(34), 12(c), and 112 of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(34),

709(c), and 732)

§370.7 What shall the designated agency do to make its

services accessible?

The designated agency shall provide, as appropriate,

the CAP services described in §370.4 in formats that are

accessible to clients or client-applicants who seek or

receive CAP services.

(Authority: Section 12(c) of the Rehabilitation Act

of 1973, as amended; 29 U.S.C. 709(c))

Subpart B—What Requirements Apply to Redesignation?

§370.10 When do the requirements for redesignation apply?

(a) The Governor shall redesignate the designated

agency for carrying out the CAP to an agency that is

independent of any agency that provides treatment,

services, or rehabilitation to individuals under the Act

if, after August 7, 1998--
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(1) The designated State agency undergoes any change

in the organizational structure of the agency that results

in one or more new State agencies or departments, or

results in the merger with one or more other State agencies

or departments, and

(2) The designated State agency contains an office or

unit conducting the CAP.

(3) For purposes of paragraph (a) of this section,

the designated State agency has the meaning given to that

term at 34 CFR 361.5(c)(12) and described at 34 CFR 361.13.

(b) The Governor may not redesignate the agency

designated pursuant to section 112(c) of the Act and

§370.2(b) without good cause and without complying with the

requirements of §§370.10 through 370.17.

(c) For purposes of §§370.10 through 370.17, a

“redesignation of” or “to redesignate” a designated agency

means any change in or transfer of the designation of an

agency previously designated by the Governor to conduct the

State's CAP to a new or different agency, unit, or

organization, including--

(1) A decision by a designated agency to cancel its

existing contract with another entity with which it has

previously contracted to carry out and operate all or part

of its responsibilities under the CAP (including providing
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advisory, assistance, or advocacy services to eligible

clients and client-applicants); or

(2) A decision by a designated agency not to renew

its existing contract with another entity with which it has

previously contracted. Therefore, an agency that is

carrying out a State's CAP under a contract with a

designated agency is considered a designated agency for

purposes of §§370.10 through 370.17.

(d) For purposes of paragraph (b) of this section, a

designated agency that does not renew a contract for CAP

services because it is following State procurement laws

that require contracts to be awarded through a competitive

bidding process is presumed to have good cause for not

renewing an existing contract. However, this presumption

may be rebutted.

(e) If State procurement laws require a designated

agency to award a contract through a competitive bidding

process, the designated agency must hold public hearings on

the request for proposal before awarding the new contract.

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.11 What requirements apply to a notice of proposed

redesignation?
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(a) Prior to any redesignation of the agency that

conducts the CAP, the Governor shall give written notice of

the proposed redesignation to the designated agency, the

State Rehabilitation Council (SRC), and the State

Independent Living Council (SILC) and publish a public

notice of the Governor's intention to redesignate. Both the

notice to the designated agency, the SRC, and the SILC and

the public notice must include, at a minimum, the

following:

(1) The Federal requirements for the CAP (section 112

of the Act).

(2) The goals and function of the CAP.

(3) The name of the current designated agency.

(4) A description of the current CAP and how it is

administered.

(5) The reason or reasons for proposing the

redesignation, including why the Governor believes good

cause exists for the proposed redesignation.

(6) The effective date of the proposed redesignation.

(7) The name of the agency the Governor proposes to

administer the CAP.

(8) A description of the system that the redesignated

(i.e., new) agency would administer.

(b) The notice to the designated agency must--
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(1) Be given at least 30 days in advance of the

Governor's written decision to redesignate; and

(2) Advise the designated agency that it has at least

30 days from receipt of the notice of proposed

redesignation to respond to the Governor and that the

response must be in writing.

(c) The notice of proposed redesignation must be

published in a place and manner that provides the SRC, the

SILC, individuals with disabilities or their

representatives, and the public with at least 30 days to

submit oral or written comments to the Governor.

(d) Following public notice, public hearings

concerning the proposed redesignation must be conducted in

an accessible format that provides individuals with

disabilities or their representatives an opportunity for

comment. The Governor shall maintain a written public

record of these hearings.

(e) The Governor shall fully consider any public

comments before issuing a written decision to redesignate.

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.12 How does a designated agency preserve its right to

appeal a redesignation?
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(a) To preserve its right to appeal a Governor's

written decision to redesignate (see §370.13), a designated

agency must respond in writing to the Governor within 30

days after it receives the Governor's notice of proposed

redesignation.

(b) The designated agency shall send its response to

the Governor by registered or certified mail, return

receipt requested, or other means that provides a record

that the Governor received the designated agency's

response.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.13 What are the requirements for a decision to

redesignate?

(a) If, after complying with the requirements of

§370.11, the Governor decides to redesignate the designated

agency, the Governor shall provide to the designated agency

a written decision to redesignate that includes the

rationale for the redesignation. The Governor shall send

the written decision to redesignate to the designated

agency by registered or certified mail, return receipt
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requested, or other means that provides a record that the

designated agency received the Governor's written decision

to redesignate.

(b) If the designated agency submitted to the

Governor a timely response to the Governor's notice of

proposed redesignation, the Governor shall inform the

designated agency that it has at least 15 days from receipt

of the Governor's written decision to redesignate to file a

formal written appeal with the Secretary.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.14 How does a designated agency appeal a written

decision to redesignate?

(a) A designated agency may appeal to the Secretary a

Governor's written decision to redesignate only if the

designated agency submitted to the Governor a timely

written response to the Governor's notice of proposed

redesignation in accordance with §370.12.

(b) To appeal to the Secretary a Governor's written

decision to redesignate, a designated agency shall file a

formal written appeal with the Secretary within 15 days
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after the designated agency's receipt of the Governor's

written decision to redesignate. The date of filing of the

designated agency's written appeal with the Secretary will

be determined in a manner consistent with the requirements

of 34 CFR 81.12.

(c) If the designated agency files a written appeal

with the Secretary, the designated agency shall send a

separate copy of this appeal to the Governor by registered

or certified mail, return receipt requested, or other means

that provides a record that the Governor received a copy of

the designated agency's appeal to the Secretary.

(d) The designated agency's written appeal to the

Secretary must state why the Governor has not met the

burden of showing that good cause for the redesignation

exists or has not met the procedural requirements under

§§370.11 and 370.13.

(e) The designated agency's written appeal must be

accompanied by the designated agency's written response to

the Governor's notice of proposed redesignation and may be

accompanied by any other written submissions or

documentation the designated agency wishes the Secretary to

consider.

(f) As part of its submissions under this section,

the designated agency may request an informal meeting with
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the Secretary at which representatives of both parties will

have an opportunity to present their views on the issues

raised in the appeal.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.15 What must the Governor of a State do upon receipt

of a copy of a designated agency's written appeal to the

Secretary?

(a) If the designated agency files a formal written

appeal in accordance with §370.14, the Governor shall,

within 15 days of receipt of the designated agency's

appeal, submit to the Secretary copies of the following:

(1) The written notice of proposed redesignation sent

to the designated agency.

(2) The public notice of proposed redesignation.

(3) Transcripts of all public hearings held on the

proposed redesignation.

(4) Written comments received by the Governor in

response to the public notice of proposed redesignation.

(5) The Governor's written decision to redesignate,

including the rationale for the decision.
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(6) Any other written documentation or submissions

the Governor wishes the Secretary to consider.

(7) Any other information requested by the Secretary.

(b) As part of the submissions under this section,

the Governor may request an informal meeting with the

Secretary at which representatives of both parties will

have an opportunity to present their views on the issues

raised in the appeal.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.16 How does the Secretary review an appeal of a

redesignation?

(a) If either party requests a meeting under

§370.14(f) or §370.15(b), the meeting is to be held within

30 days of the submissions by the Governor under §370.15,

unless both parties agree to waive this requirement. The

Secretary promptly notifies the parties of the date and

place of the meeting.

(b) Within 30 days of the informal meeting permitted

under paragraph (a) of this section or, if neither party

has requested an informal meeting, within 60 days of the
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submissions required from the Governor under §370.15, the

Secretary issues to the parties a final written decision on

whether the redesignation was for good cause.

(c) The Secretary reviews a Governor's decision based

on the record submitted under §§370.14 and 370.15 and any

other relevant submissions of other interested parties. 

The Secretary may affirm or, if the Secretary finds that

the redesignation is not for good cause, remand for further

findings or reverse a Governor's redesignation.

(d) The Secretary sends copies of the decision to the

parties by registered or certified mail, return receipt

requested, or other means that provide a record of receipt

by both parties.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

§370.17 When does a redesignation become effective?

A redesignation does not take effect for at least 15

days following the designated agency's receipt of the

Governor's written decision to redesignate or, if the

designated agency appeals, for at least 5 days after the
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Secretary has affirmed the Governor's written decision to

redesignate.

(Authority: Sections 12(c) and 112(c)(1)(B) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(1)(B))

Subpart C-— What are the Requirements for Requesting a

Grant?

§370.20 What must be included in a request for a grant?

(a) Each State and the protection and advocacy system

serving the American Indian Consortium seeking assistance

under this part shall submit to the Secretary, in writing,

at the time and in the manner determined by the Secretary

to be appropriate, an application that includes, at a

minimum--

(1) The name of the designated agency; and

(2) An assurance that the designated agency meets the

independence requirement of section 112(c)(1)(A) of the Act

and §370.2(c), or that the State is exempted from that

requirement under section 112(c)(1)(A) of the Act and

§370.2(d).

(b)(1) Each State and the protection and advocacy

system serving the American Indian Consortium also shall

submit to the Secretary an assurance that the designated

agency has the authority to pursue legal, administrative,
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and other appropriate remedies to ensure the protection of

the rights of clients or client-applicants within the State

or American Indian Consortium.

(2) The authority to pursue remedies described in

paragraph (b)(1) of this section must include the authority

to pursue those remedies against the State vocational

rehabilitation agency and other appropriate State agencies.

The designated agency meets this requirement if it has the

authority to pursue those remedies either on its own behalf

or by obtaining necessary services, such as legal

representation, from outside sources.

(c) Each State and the protection and advocacy system

serving the American Indian Consortium also shall submit to

the Secretary assurances that--

(1) All entities conducting, administering,

operating, or carrying out programs within the State that

provide services under the Act to individuals with

disabilities in the State will advise all clients and

client-applicants of the existence of the CAP, the services

provided under the program, and how to contact the

designated agency;

(2) The designated agency will meet each of the

requirements in this part; and
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(3) The designated agency will provide the Secretary

with the annual report required by section 112(g)(4) of the

Act and §370.44.

(d) To allow a designated agency to receive direct

payment of funds under this part, a State or the protection

and advocacy system serving the American Indian Consortium

must provide to the Secretary, as part of its application

for assistance, an assurance that direct payment to the

designated agency is not prohibited by or inconsistent with

State or tribal law, regulation, or policy.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(b) and (f) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(b) and (f))

Subpart D--How Does the Secretary Allocate and Reallocate

Funds to a State?

§370.30 How does the Secretary allocate funds?

(a) After reserving funds required under paragraphs

(c) and (d) of this section, the Secretary shall allot the

remainder of the sums appropriated for each fiscal year

under this section among the States on the basis of

relative population of each State, except that no such

entity shall receive less than $50,000. 
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(b) The Secretary allocates $30,000 each, unless the

provisions of section 112(e)(1)(D) of the Act are

applicable, to American Samoa, Guam, the Virgin Islands,

and the Commonwealth of Northern Mariana Islands.

(c) The Secretary shall reserve funds, from the

amount appropriated to carry out this part, to make a grant

to the protection and advocacy system serving the American

Indian Consortium to provide services in accordance with

this part. The amount of the grant to the protection and

advocacy system serving the American Indian Consortium

shall be the same amount as is provided to a territory

under paragraph (b) of this section.

(d)(1) For any fiscal year for which the amount

appropriated equals or exceeds $14,000,000, the Secretary

may reserve not less than 1.8 percent and not more than 2.2

percent of such amount to provide a grant for training and

technical assistance for the programs established under

this part. 

(2) All training and technical assistance shall be

coordinated with activities provided under 34 CFR 381.22. 

(3) The Secretary shall make a grant pursuant to

paragraph (d)(1) of this section to an entity that has

experience in or knowledge related to the provision of

services authorized under this part.
29

(4) An entity receiving a grant under paragraph

(d)(1) of this section shall provide training and technical

assistance to the designated agencies or entities carrying

out the CAP to assist them in improving the provision of

services authorized under this part and the administration

of the program. 

(e)(1) Unless prohibited or otherwise provided by

State or tribal law, regulation, or policy, the Secretary

pays to the designated agency, from the State allotment

under paragraph (a), (b), or (c) of this section, the

amount specified in the State's or the eligible protection

and advocacy system’s approved request. Because the

designated agency, including the protection and advocacy

system serving the American Indian Consortium, is the

eventual, if not the direct, recipient of the CAP funds, 34

CFR part 81 and 2 CFR part 200 apply to the designated

agency, whether or not the designated agency is the actual

recipient of the CAP grant.

(2) Notwithstanding the grant made to the protection

and advocacy system serving the American Indian Consortium

under paragraph (c) of this section, the State remains the

grantee for purposes of 34 CFR part 76 and 2 CFR part 200

because it is the State that submits an application for and

receives the CAP grant. In addition, both the State and
30

the designated agency are considered recipients for

purposes of 34 CFR part 81.

(Authority: Sections 12(c) and 112(b) and (e) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(b) and (e))

§370.31 How does the Secretary reallocate funds?

(a) The Secretary reallocates funds in accordance

with section 112(e)(2) of the Act.

(b) A designated agency shall inform the Secretary at

least 45 days before the end of the fiscal year for which

CAP funds were received whether the designated agency is

making available for reallotment any of those CAP funds

that it will be unable to obligate in that fiscal year or

the succeeding fiscal year.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c), 19, and 112(e)(2) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),

716, and 732(e)(2))

Subpart E--What Post-Award Conditions Must Be Met by a

Designated Agency?

§370.40 What are allowable costs?
31

(a) The designated agency, including the eligible

protection and advocacy system serving the American Indian

Consortium, shall apply the regulations at 2 CFR part 200.

(b) Consistent with the program activities listed in

§370.4, the cost of travel in connection with the provision

to a client or client applicant of assistance under this

program is allowable, in accordance with 2 CFR part 200.

The cost of travel includes the cost of travel for an

attendant if the attendant must accompany the client or

client applicant.

(c)(1) The State and the designated agency are

accountable, both jointly and severally, to the Secretary

for the proper use of funds made available under this part.

However, the Secretary may choose to recover funds under

the procedures in 34 CFR part 81 from either the State or

the designated agency, or both, depending on the

circumstances of each case.

(2) For purposes of the grant made under this part to

the protection and advocacy system serving the American

Indian Consortium, such entity will be solely accountable

to the Secretary for the proper use of funds made available

under this part. If the Secretary determines it necessary,

the Secretary may recover funds from the protection and
32

advocacy system serving the American Indian Consortium

pursuant to the procedures in 34 CFR part 81.

(Authority: Sections 12(c) and 112(c)(3) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(c)(3))

§370.41 What conflict of interest provision applies to

employees of a designated agency?

(a) Except as permitted by paragraph (b) of this

section, an employee of a designated agency, or of an

entity or individual under contract with a designated

agency, who carries out any CAP duties or responsibilities,

while so employed, may not--

(1) Serve concurrently as a staff member of,

consultant to, or in any other capacity within, any other

rehabilitation project, program, or community

rehabilitation program receiving assistance under the Act

in the State; or

(2) Provide any services under the Act, other than

CAP and PAIR services.

(b) An employee of a designated agency under contract

with a designated agency, may—

(1) Receive a traineeship under section 302 of the

Act;

(2) Provide services under the PAIR program;
33

(3) Represent the CAP on any board or council (such

as the SRC) if CAP representation on the board or council

is specifically permitted or mandated by the Act; and

(4) Consult with policymaking and administrative

personnel in State and local rehabilitation programs,

projects, and community rehabilitation programs, if

consultation with the designated agency is specifically

permitted or mandated by the Act.

(Authority: Sections 12(c) and 112(g)(1) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(g)(1))

§370.42 What access must the CAP be afforded to

policymaking and administrative personnel?

The CAP must be afforded reasonable access to

policymaking and administrative personnel in State and

local rehabilitation programs, projects, and community

rehabilitation programs. One way in which the CAP may be

provided that access would be to include the director of

the designated agency among the individuals to be consulted

on matters of general policy development and

implementation, as required by section 101(a)(16) of the

Act.
34

(Authority: Sections 12(c), 101(a)(16), and 112(g)(2)

of the Rehabilitation Act of 1973, as amended; 29 U.S.C.

709(c), 721(a)(16), and 732(g)(2))

§370.43 What requirement applies to the use of mediation

procedures?

(a) Each designated agency shall implement procedures

designed to ensure that, to the maximum extent possible,

good faith negotiations and mediation procedures are used

before resorting to formal administrative or legal

remedies. In designing these procedures, the designated

agency may take into account its level of resources.

(b) For purposes of this section, mediation may

involve the use of professional mediators, other

independent third parties mutually agreed to by the parties

to the dispute, or an employee of the designated agency

who--

(1) Is not assigned to advocate for or otherwise

represent or is not involved with advocating for or

otherwise representing the client or client applicant who

is a party to the mediation; and

(2) Has not previously advocated for or otherwise

represented or been involved with advocating for or

otherwise representing that same client or client

applicant.
35

(Authority: Section 112(g)(3) of the Rehabilitation

Act of 1973, as amended; 29 U.S.C. 732(g)(3))

§370.44 What reporting requirement applies to each

designated agency?

In addition to the program and fiscal reporting

requirements in 37 CFR 76.270 and 2 CFR 200.327 that are

applicable to this program, each designated agency shall

submit to the Secretary, no later than 90 days after the

end of each fiscal year, an annual report on the operation

of its CAP during the previous year, including a summary of

the work done and the uniform statistical tabulation of all

cases handled by the program. The annual report must

contain information on—

(a) The number of requests received by the designated

agency for information on services and benefits under the

Act and title I of the ADA;

(b) The number of referrals to other agencies made by

the designated agency and the reason or reasons for those

referrals;

(c) The number of requests for advocacy services

received by the designated agency from clients or clientapplicants;
36

(d) The number of requests for advocacy services from

clients or client-applicants that the designated agency was

unable to serve;

(e) The reasons that the designated agency was unable

to serve all of the requests for advocacy services from

clients or client-applicants; and

(f) Any other information that the Secretary may

require.

(Approved by the Office of Management and Budget under

control number 1820-0520)

(Authority: Sections 12(c) and 112(g)(4) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(g)(4))

§370.45 What limitation applies to the pursuit of legal

remedies?

A designated agency may not bring any class action in

carrying out its responsibilities under this part.

(Authority: Section 112(d) of the Rehabilitation Act

of 1973, as amended; 29 U.S.C. 732(d))

§370.46 What consultation requirement applies to a

Governor of a State?

In designating a client assistance agency under

§370.2, redesignating a client assistance agency under

§370.10, and carrying out the other provisions of this
37

part, the Governor shall consult with the director of the

State vocational rehabilitation agency (or, in States with

both a general agency and an agency for the blind, the

directors of both agencies), the head of the developmental

disability protection and advocacy agency, and

representatives of professional and consumer organizations

serving individuals with disabilities in the State.

(Authority: Section 112(c)(2) of the Rehabilitation

Act of 1973, as amended; 29 U.S.C. 732(c)(2))

§370.47 What is program income and how may it be used?

(a) (1) Definition. Program income means gross 

income earned by the designated agency that is directly 

generated by an activity supported under this part. 

(2) Funds received through the transfer of Social 

Security Administration payments from the designated State 

unit, as defined in 34 CFR 361.5(c)(13), in accordance with 

34 CFR 361.63(c)(2) will be treated as program income 

received under this part.

(b) Use of program income. 

(1) Program income, whenever earned or received, must 

be used for the provision of services authorized under 

§370.4.

(2) Designated Agencies are authorized to treat 

program income as—
38

(i) A deduction from total allowable costs charged to 

a Federal grant, in accordance with 2 CFR 200.307(e)(1); or

(ii) An addition to the grant funds to be used for 

additional allowable program expenditures, in accordance 

with 2 CFR 200.307(e)(2).

(Authority: Sections 12(c) and 108 of the 

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),

728, and 3474; 

§370.48 When must grant funds and program income be

obligated?

Any Federal funds, including reallotted funds, that

are appropriated for a fiscal year to carry out the

activities under this part that are not obligated or

expended by the designated agency prior to the beginning of

the succeeding fiscal year, and any program income received

during a fiscal year that is not obligated or expended by

the designated agency prior to the beginning of the

succeeding fiscal year in which the program income was

received, remain available for obligation and expenditure

by the designated agency during that succeeding fiscal year

in accordance with section 19 of the Act and 34 CFR 76.709.

(Approved by the Office of Management and Budget under

control number 1820-0520)
39

(Authority: sections 12(c) and 19 of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 716)

§370.49 What are the special requirements pertaining to

the protection, use, and release of personal information?

(a) All personal information about individuals served

by any designated agency under this part, including lists

of names, addresses, photographs, and records of

evaluation, must be held strictly confidential.

(b) The designated agency's use of information and

records concerning individuals must be limited only to

purposes directly connected with the CAP, including program

evaluation activities. Except as provided in paragraphs

(c) and (e) of this section, this information may not be

disclosed, directly or indirectly, other than in the

administration of the CAP, unless the consent of the

individual to whom the information applies, or his or her

parent, legal guardian, or other legally authorized

representative or advocate (including the individual's

advocate from the designated agency), has been obtained in

writing. A designated agency 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.
40

(c) Except as limited in paragraphs (d) and (e) of

this section, the Secretary or other Federal or State

officials responsible for enforcing legal requirements are

to have complete access to all--

(1) Records of the designated agency that receives

funds under this program; and

(2) All individual case records of clients served

under this part without the consent of the client.

(d) For purposes of conducting any periodic audit,

preparing or producing any report, or conducting any

evaluation of the performance of the CAP established or

assisted under this part, the Secretary does not require

the designated agency to disclose the identity of, or any

other personally identifiable information related to, any

individual requesting assistance under the CAP.

(e) Notwithstanding paragraph (d) of this section and

consistent with paragraph (f) of this section, a designated

agency shall disclose to the Secretary, if the Secretary so

requests, the identity of, or any other personally

identifiable information (i.e., name, address, telephone

number, social security number, or any other official code

or number by which an individual may be readily identified)

related to, any individual requesting assistance under the

CAP if--
41

(1) An audit, evaluation, monitoring review, State

plan assurance review, or other investigation produces

reliable evidence that there is probable cause to believe

that the designated agency has violated its legislative

mandate or misused Federal funds; or

(2) The Secretary determines that this information

may reasonably lead to further evidence that is directly

related to alleged misconduct of the designated agency.

(f) In addition to the protection afforded by

paragraph (d) of this section, the right of a person or

designated agency not to produce documents or disclose

information to the Secretary is governed by the common law

of privileges, as interpreted by the courts of the United

States.

(Authority: Sections 12(c) and 112(g)(4) of the

Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)

and 732(g)(4))