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PART 381—PROTECTION AND ADVOCACY OF INDIVIDUAL RIGHTS

Subpart A—General

381.1 What is the Protection and Advocacy of Individual 

Rights program? 

381.2 Who is eligible for an award? 

381.3 What activities may the Secretary fund? 

381.4 What regulations apply? 

381.5 What definitions apply? 

Subpart B—How Does One Apply for an Award? 

381.10 What are the application requirements?

Subpart C—How Does the Secretary Make an Award? 

381.20 How does the Secretary evaluate an 

application?§381.22 How does the Secretary allocate funds 

under this program? 

Subpart D—What Conditions Must Be Met After an Award? 

381.30 How are services to be administered? 

381.31 What are the requirements pertaining to the 

protection, use, and release of personal information? 

381.32 What are the reporting requirements? 

381.33 What are the requirements related to the use of 

funds provided under this part? 

AUTHORITY: Section 509 of the Rehabilitation Act of 1973, 

as amended; 29 U.S.C. 794e, unless otherwise noted.

Subpart A—General
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§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.

(Authority: Section 509(a) of the Rehabilitation Act

of 1973, as amended; 29 U.S.C. 794e(a))

§381.2 Who is eligible for an award?

(a)(1) A protection and advocacy system that is 

established under part C of title I of the Developmental 

Disabilities Assistance and Bill of Rights Act of 2000 (DD 

Act), 42 U.S.C. 15041 et seq., and that meets the 

requirements of §381.10 is eligible to apply for a grant 

award under this part.

(2)(i) For any fiscal year in which the appropriation 

to carry out the activities of this part equals or exceeds 

$10,500,000, the eligible system serving the American 

Indian Consortium is eligible to apply for a grant award 

under this part.

(ii) For purposes of this part, an eligible system is 

defined at §381.5(c).

(iii) For purposes of this part, the American Indian 

Consortium means a consortium established as described in 

section 102 of the DD Act (42 U.S.C. 15002).
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(b) In any fiscal year in which the amount 

appropriated to carry out this part is less than 

$5,500,000, a protection and advocacy system from any State 

or from Guam, American Samoa, the United States Virgin 

Islands, or the Commonwealth of the Northern Mariana 

Islands, 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.

(c) In any fiscal year in which the amount 

appropriated to carry out this part 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.

(Authority: Section 509(b), (c), and (m) of the 

Rehabilitation Act of 1973, as amended; 29 U.S.C. 794e(b), 

(c), and (m))

§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.
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(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 or the American Indian 

Consortium.

(3) Providing information on and making referrals to 

programs and services addressing the needs of individuals 

with disabilities in the State or American Indian 

Consortium, including individuals with disabilities who are 

exiting from 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 longterm care ombudsman program) (42 U.S.C. 3001 et seq.);

(iii) Part C of the DD Act; and

(iv) The Protection and Advocacy for Individuals with 

Mental Illness Act of 2000 (PAIMI) (42 U.S.C. 10801-10807). 

(5) Developing a statement of objectives and 

priorities on an annual basis and a plan for achieving 

these objectives and priorities.
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(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(a)(6).

(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.

(Authority: Sections 12(c) and 509(f) of the 

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

and 794e(f)).

§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 75 (Direct Grant Programs) for 

purposes of an award made under §§381.20 or 381.22(a)(1).

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

the appropriation for the PAIR program is equal to or 
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greater than $5,500,000 and the eligible system is a State 

or local government agency, except for—

(i) Section 76.103;

(ii) Sections 76.125 through 76.137;

(iii) Sections 76.300 through 76.401;

(iv) Section 76.704;

(v) Section 76.734; and

(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 Act—

Enforcement).

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

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

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

CFR part 3485.

(c) 2 CFR part 200 (Uniform Administrative 

Requirements, Cost Principles, and Audit Requirements for 

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

(d) The regulations in this part 381.
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(Authority: Sections 12(c) and 509 of the 

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

and 794e)

§381.5 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 

government agencies (whether tribal, State, local, or 

Federal). Advocacy may be on behalf of—
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(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 DD Act; 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 DD Act and that 

meets the requirements of §381.10.

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 
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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, and the Commonwealth of the 

Northern Mariana Islands, except for purposes of sections

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, and the Commonwealth of the Northern 

Mariana Islands.

(Authority: Sections 7(34), 12(c), and 509 of the 

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

709(c) and 794e)

Subpart B—How Does One Apply for an Award?

§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 
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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 the 

authority to access records and program income, as in part 

C of title I of the DD Act;

(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 and the American Indian Consortium;

(4) Provide information on and make referrals to 

programs and services addressing the needs of individuals 

with disabilities in the State and the American Indian 

Consortium, including individuals with disabilities who are 

exiting from 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 
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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 the PAIR program 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 longterm care ombudsman program);

(C) Part C of the DD Act; 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 
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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 

tribal or State law, regulation, or policy.

(Approved by the Office of Management and Budget under 

control number 1820-0018)

(Authority: Sections 12(c) and 509(f) and (g)(1) of 

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

709(c) and 794e(f) and (g)(1))

Subpart C—How Does the Secretary Make an Award?

§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.

(Authority: Sections 12(c) and 509(b) and (f) of the 

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

and 794e(b) and (f))

§381.22 How does the Secretary allocate funds under this 

program?
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(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 a grant, contract, or cooperative 

agreement for training and technical assistance to eligible 

systems carrying out activities under this part.

(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)-(d) 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 the 

amount of the allotment to the State pursuant to section 

509 of the Act, unless the State provides otherwise.

(c) For any fiscal year in which the amount 

appropriated to carry out this program equals or exceeds 

$10,500,000, the Secretary shall reserve a portion, and use 

the portion to make a grant for the eligible system serving 

the American Indian Consortium. The Secretary shall make 
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the grant in an amount of not less than $50,000 for the 

fiscal year. 

(d) Reallotment. (1) For any fiscal year in which 

the amount appropriated to carry out this program equals or 

exceeds $5,500,000 and if the Secretary determines that any 

amount of an allotment to an eligible system within a State 

will not be expended by such system in carrying out the 

provisions of this part, the Secretary shall make such 

amount available to one or more of the eligible systems 

that the Secretary determines will be able to use 

additional amounts during such year for carrying out this 

part. 

(2) Any reallotment amount made available to an 

eligible system for any fiscal year shall, for the purposes 

of this section, be regarded as an increase in the eligible 

system’s allotment under this part for that fiscal year. 

(Authority: Sections 12(c) and 509(c)-(e) of the 

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

and 794e(c)-(e))

Subpart D—What Conditions Must Be Met After an Award?

§381.30 How are services to be administered?

(a) Each eligible system shall carry out the 

protection and advocacy program authorized under this part.
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(b) An eligible system may not award a grant or make 

a subaward 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 DD Act and the PAIMI, or any other protection and 

advocacy services.
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(Authority: Section 12(c) of the Rehabilitation Act

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

§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.
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(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 
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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.

(Authority: Sections 12(c) and 509(h) of the 

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

and 794e(h))

§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(a)(6).

(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, 
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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.

(Approved by the Office of Management and Budget under 

control number 1820-0018)

(Authority: Sections 12(c), 13, and 509(k) of the 

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

710, and 794e(k))

§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 
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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 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 eligible system within a State for 

obligation during the succeeding fiscal year in accordance 

with section 509(g) of the Act and 34 CFR 76.709.

(d) For determining when an eligible system makes an 

obligation for various kinds of property or services, 34 

CFR 75.707 and 76.707, as appropriate, apply to this 

program. If the appropriation for the PAIR program is less 

than $5,500,000, §75.707 applies. If the appropriation for 

the PAIR program is equal to or greater than $5,500,000, 

§76.707 applies. An eligible system is considered a State 

for purposes of §76.707.
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(e) Program income. (1) Program income means gross 

income earned by the designated agency that is directly 

generated by an activity supported under this part.

(2) Grantees are authorized to treat program income 

as—

(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).

(3) Any Federal funds, including reallotted funds, 

that are appropriated for a fiscal year to carry out a 

program under this part that are not obligated or expended 

prior to the beginning of the succeeding fiscal year, and 

any program income received during a fiscal year that is 

not obligated or expended prior to the beginning of the 

succeeding fiscal year in which the program income was 

received, remain available for obligation and expenditure 

by the grantee during that succeeding fiscal year.

(Authority: Sections 12(c), 19, and 509(f)(7), (g), 

and (i) of the Rehabilitation Act of 1973, as amended; 29 

U.S.C. 709(c), 716, and 794e(f)(7), (g), and (i); and 20 

U.S.C. 3474)