64476 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

DEPARTMENT OF EDUCATION

34 CFR Part 361

RIN 1820–AB12

The State Vocational Rehabilitation

Services Program

AGENCY: Department of Education.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Secretary proposes to

amend the regulations governing The

State Vocational Rehabilitation Services

Program. These amendments are needed

to implement changes to the

Rehabilitation Act of 1973 (Act) made

by the Rehabilitation Act Amendments

of 1992, enacted on October 29, 1992, as

amended by the 1993 technical

amendments (hereinafter collectively

referred to as the 1992 Amendments).

DATES: Comments must be received on

or before February 23, 1996.

ADDRESSES: All comments concerning

these proposed regulations should be

addressed to Fredric K. Schroeder, U.S.

Department of Education, 600

Independence Avenue SW., Room 3028,

Mary E. Switzer Building, Washington,

D.C. 20202–2531. Comments

transmitted by facsimile should be sent

to (202) 205–9772. Comments can be

transmitted in an electronic format

either through the electronic bulletin

board system (BBS) of the Rehabilitation

Services Administration (RSA) or

through internet. The internet address is

‘‘StatelVR@ed.gov’’. The access

number for the RSA BBS is (202) 205–

5574 for low speed (2400 BPS or lower)

modems and (202) 205–6174 for high

speed (9600 BPS and higher) modems.

Comments can also be transmitted to the

RSA BBS through Fedworld via internet

using the telnet command. Telnet to:

‘‘Fedworld.gov’’. All comments

transmitted in an electronic format

should be sent to the following RSA

BBS mailbox: ‘‘RSADPPES’’. To

facilitate the analysis of comments,

electronic transmission of comments is

preferred. Also, comments should be

specific and identified by proposed

regulatory citation. Comments received

by RSA after the due date for comments

will not be considered.

A copy of any comments that concern

information collection requirements

should also be sent to the Office of

Management and Budget at the address

listed in the Paperwork Reduction Act

section of this preamble.

FOR FURTHER INFORMATION CONTACT:

Beverlee Stafford, U.S. Department of

Education, 600 Independence Avenue

SW., Room 3014, Mary E. Switzer

Building, Washington, D.C. 20202–2531.

Telephone (202) 205–8831. Individuals

who use a telecommunications device

for the deaf (TDD) may call (202) 205–

5538.

SUPPLEMENTARY INFORMATION: The State

Vocational Rehabilitation Services

Program (program) is authorized by

Title I of the Act (29 U.S.C. 701–744).

This program provides support to each

State to assist it in operating a

comprehensive, coordinated, effective,

efficient, and accountable State program

to assess, plan, develop, and provide

vocational rehabilitation (VR) services

to individuals with disabilities so that

those individuals may prepare for and

engage in gainful employment,

consistent with their strengths,

resources, priorities, concerns, abilities,

capabilities, and informed choice. The

program supports the National

Education Goal that, by the year 2000,

every adult American, including

individuals with disabilities, will

possess the knowledge and skills

necessary to compete in a global

economy and exercise the rights and

responsibilities of citizenship.

Regulations for this program were last

published in their entirety on May 12,

1988 (53 FR 16978) to implement the

1986 amendments to the Act and are

codified in 34 CFR Part 361. In addition,

a notice of proposed rulemaking

(NPRM) for this program was published

on July 3, 1991 (56 FR 30620) (1991

NPRM), but it was never finalized.

In the 1991 NPRM, the Secretary

proposed amendments to the

regulations for this program that were

designed to reduce regulatory burden on

States and to place greater

administrative discretion at the State

level. More specifically, the 1991 NPRM

proposed to remove or reduce certain

State plan, paperwork, and reporting

requirements not mandated by statute,

to clarify the regulations through more

precise definitions, and generally to

simplify and condense the regulations.

At the request of the Congress, the

proposed regulations in the 1991 NPRM

were not finalized because the

Rehabilitation Act Amendments of 1992

were being developed at that time.

The 1992 Amendments made

extensive changes to Title I of the Act

that have far-reaching implications for

the program. One of the major themes of

the 1992 Amendments is the

empowerment of individuals with

disabilities in terms of influence on the

State plan and State vocational

rehabilitation policy through

membership on the State Rehabilitation

Advisory Council or an independent

commission and increased participation

in the development, implementation,

and evaluation of their individualized

written rehabilitation programs through

informed choice. The statute also

requires that designated State units

(DSUs) provide for the use of

appropriate modes of communication

and accessible formats to ensure equal

access for individuals with disabilities

who need this assistance.

A related theme is the integration of

individuals with disabilities into the

full spectrum of American life. The

1992 Amendments requires both that

vocational rehabilitation services be

provided in the most integrated settings

possible and that employment outcomes

be in the most integrated settings

possible.

Another key theme of the 1992

Amendments is to improve access to the

vocational rehabilitation system. The

amendments streamline the process for

making eligibility determinations by

requiring the use of existing information

to the extent possible, by adding a

presumption of benefit from services,

and by providing a 60-day time limit for

making eligibility determinations.

The 1992 Amendments also focuses

on expanding and improving the quality

of services by requiring States to

develop a strategic plan, by requiring

States to develop a comprehensive

system of personnel development to

ensure that DSU personnel are

adequately trained and meet the State’s

highest standards, and by requiring the

development of standards and

indicators to evaluate the performance

of State programs. The evaluation

standards and performance indicators

are being developed separately and are

not addressed in this NPRM.

Finally, the 1992 Amendments

focuses on expanding and improving

services to certain groups of individuals

with disabilities. The amendments

include new order of selection and

eligibility provisions that are designed

to increase and improve services for

individuals with severe disabilities,

particularly individuals with the most

severe disabilities. The amendments

also contain new outreach requirements

that are designed to increase services to

individuals with disabilities who are

members of groups that are currently

unserved and underserved, including

members of minority groups. In

addition, the amendments contain

provisions that are designed to increase

coordination between education

agencies and DSUs to better serve

individuals with disabilities who are

transitioning students.

This NPRM proposes changes to

implement the 1992 Amendments to

Title I Parts A, B, and C of the Act (with

the exception of the strengthened order
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64477

of selection requirements in sections

12(d) and 101(a)(5)(A) of the Act, the

evaluation standards and performance

indicator requirements in section 106 of

the Act, and the client assistance

program requirements in section 112 of

the Act, which are being implemented

in separate rulemaking documents) and

proposes to incorporate some of the

changes that were previously proposed

in the 1991 NPRM to reduce the

administrative burden on States. This

NPRM also proposes other changes that

the Secretary believes are important to

update, consolidate, clarify, and in other

ways improve the regulations for this

program.

Executive Order 12866 encourages

Federal agencies to facilitate meaningful

participation in the regulatory

development process. Accordingly,

prior to drafting this NPRM, RSA, on

March 31, 1994, made draft proposed

regulations (draft regulations) available

in accessible formats, including an

electronic format, to a broad spectrum of

parties for informal review and

comment. Over 600 letters of comments

on the draft regulations were analyzed.

RSA also gathered public input on the

draft regulations through public

meetings held in Washington, D.C. on

April 19, May 12, and May 17, 1994;

Chicago on April 26, 1994; and

Oakland, California on May 4 and May

5, 1994; and through public

teleconferences on April 20, May 13,

May 18, and June 8, 1994. In addition,

three separate focus groups were

convened in June 1994 to allow for

further discussion of three discrete

issues: eligibility under the program,

informed choice in the selection of

services and service providers, and the

standards related to the achievement

and maintenance of an employment

outcome.

The following is a section-by-section

summary of the regulations proposed in

this NPRM, including an explanation of

the major provisions, how they differ

from the existing and the draft

regulations, and the reasons the

Secretary is proposing them. In

addition, in order to clarify proposed

organizational changes, the summary

identifies the sections of the current

regulations, as well as the sections of

the statute, on which every section of

the proposed regulations is based.

Changes to the draft regulations that

appear in this NPRM were made in

response to public comments received

by RSA and input provided during the

public meetings, teleconferences, and

focus groups. Significant changes to the

draft regulations are discussed in the

section-by-section summary. However,

minor technical and structural changes

that do not significantly alter the

provisions of the draft regulations are

not discussed.

In response to public commenters

who viewed some of the paperwork

requirements in the draft regulations as

unduly burdensome, the Secretary has

proposed in the NPRM eliminating or

consolidating documentation

requirements wherever feasible. Those

requirements that would remain in the

proposed regulations are considered

essential to the proper administration of

the program. Paperwork requirements in

the following sections of the draft

regulations have been removed or

reduced: §§ 361.13(c), 361.19, 361.20(b),

361.21 (a) and (b), 361.22(a)(1), 361.29

(a)(2) and (a)(4), 361.33(b), 361.46,

361.47, 361.52, and 361.53(a)(3).

In addition, the draft regulations have

been reviewed and revised in

accordance with the Department’s

principles for regulating, which were

developed as part of the

Administration’s regulatory reinvention

initiative under the National

Performance Review II. The principles

are designed to ensure that the

Department regulates in the most

flexible, most equitable, and least

burdensome way possible. As a result of

that review, additional non-statutory

requirements in the draft regulations

have been eliminated or modified to

reduce paperwork or process

requirements on States and to increase

State flexibility in meeting statutory

requirements. These proposed changes

are identified in the section-by-section

summary.

The proposed regulations, like the

draft regulations, provide guidance

through examples in the following three

areas: permissible expenses under the

definition of ‘‘maintenance’’;

permissible expenses under the

definition of ‘‘transportation’’; and

meeting the final eligibility criterion (an

individual with a disability must

require VR services) under § 361.42.

Some public commenters on the draft

regulations opposed the use of examples

on the grounds that they would interfere

with individual counselor judgment,

whereas other commenters supported

their use as an effective means of

ensuring that counselors had ready

access to information typically found in

guidance materials. By including the

examples in the regulations, the

Secretary intends to make the

regulations more comprehensive and

useful. The Secretary emphasizes, both

here and throughout the section-bysection summary, that the examples are

provided solely for the purposes of

illustration, do not address all situations

that a rehabilitation counselor may face,

and are not intended to preclude

individual counselor judgment on a

case-by-case basis. The examples are

merely guidance material to which

rehabilitation professionals can quickly

refer.

References in the section-by-section

summary to the ‘‘proposed regulations,’’

as opposed to the ‘‘draft regulations,’’

refer to regulatory provisions included

in this NPRM.

Section-by-Section Summary

Section 361.1—Purpose

This proposed new section of the

regulations would incorporate the

language in section 100(a)(2) of the

statute, which emphasizes the goal of

gainful employment for individuals

with disabilities and the responsibility

of States to operate comprehensive,

coordinated, effective, efficient, and

accountable programs that are designed

to assess, plan, develop, and provide

vocational rehabilitation services. The

Secretary interprets the statutory term

‘‘gainful employment’’ to have the same

meaning as the term ‘‘employment

outcome,’’ as it is defined in the

proposed regulations.

Section 361.2—Eligibility for a Grant

This new section is proposed for

clarification. A similar section was

proposed in the 1991 NPRM.

Section 361.3—Authorized Activities

This new section is proposed to

clarify how the funds under this

program can be used. A similar section

was proposed in the 1991 NPRM. It also

incorporates the new statutory provision

in section 111(a)(1) of the Act that funds

may be used to develop and implement

the strategic plan.

Section 361.4—Applicable Regulations

This proposed section would revise

§ 361.1(b)(1) of the existing regulations

to clarify that the reference to 34 CFR

Part 74 (Administration of Grants to

Institutions of Higher Education,

Hospitals, and Nonprofit Organizations)

applies only to the award of subgrants

by vocational rehabilitation agencies to

entities that are not State or local

governments or Indian tribal

organizations and to remove the

reference to 34 CFR Part 78 (The

Education Appeal Board) because it has

been deleted from the Education

Department General Administrative

Regulations (EDGAR). In addition, the

proposed section would add references

to 34 CFR Parts 80, 81, 82, 85, and 86

because those parts have been added to

EDGAR since the regulations for this

program were last revised, and they are

applicable to this program.
64478 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

Section 361.5—Applicable Definitions

This proposed section is taken from

§ 361.1(c) of the existing regulations. It

has been revised to incorporate changes

in the definitions in section 7 of the Act

that were made by the 1992

Amendments. The definitions are

organized alphabetically and are

numbered for purposes of quick

identification.

The following definitions from the

current regulations are not included in

the proposed regulations since the terms

have been removed or replaced in the

Act: ‘‘employability,’’ ‘‘evaluation of

vocational rehabilitation potential,’’

‘‘initial expenditure,’’ ‘‘rehabilitation

facility,’’ and ‘‘time-limited services.’’ In

addition, the term ‘‘workshop’’ is not

used or defined in the proposed

regulations. Statutory definitions of the

following terms have been added to the

proposed regulations without

substantive change: ‘‘assistive

technology device,’’ ‘‘assistive

technology service,’’ ‘‘extended

services,’’ ‘‘impartial hearing officer,’’

‘‘ongoing support services,’’ ‘‘personal

assistance services,’’ ‘‘rehabilitation

technology,’’ ‘‘supported employment,’’

‘‘supported employment services,’’ and

‘‘transition services. In addition,

definitions of ‘‘American Indian’’ and

‘‘State’’ have been revised to reflect

statutory changes made by the 1992

Amendments.

Definitions of the terms ‘‘community

rehabilitation program’’ and

‘‘employment outcome,’’ which are

defined in the Act, have been revised to

clarify or elaborate on the statutory

definitions. The proposed definition of

‘‘community rehabilitation program’’

incorporates the definition in section

7(25) of the Act, but would add a

definition of the word ‘‘program’’ to

clarify that community rehabilitation

programs do not include individual

practitioners, such as physicians or

physical therapists, who provide VR

services but are not affiliated with an

agency, organization, or institution that

provides VR services as one of its major

functions. This clarification is based on

the Secretary’s view that Congress did

not intend for the assessment of the

capacity and effectiveness of

community rehabilitation programs and

related requirements to include every

individual person who provides VR

services. However, the Secretary

interprets the term community

rehabilitation program and the

associated requirements to apply to a

vocational rehabilitation services unit of

a hospital. In addition, in response to

public comment on the draft

regulations, the Secretary proposes to

broaden the meaning of the term

‘‘program’’ from an entity that provides

or facilitates the provision of VR

services as its primary function to an

entity that provides or facilitates the

provision of VR services as one of its

major functions. This change would

enable, for example, a local affiliate of

the United Cerebral Policy Foundation

that provides VR services, in addition to

disseminating information and

providing educational services, to be

considered a ‘‘community rehabilitation

program’’ under the definition.

The proposed definition of

‘‘employment outcome’’ elaborates on

the definition in section 7(5) of the Act

by incorporating into the definition the

concept in the Act that an employment

outcome must be consistent with an

individual’s strengths, resources,

priorities, concerns, abilities,

capabilities, interests, and informed

choice. The proposed definition would

replace the definition of

‘‘employability’’ in § 361.1 of the

existing regulations. In response to the

draft regulations, several commenters

expressed concern about the scope of

permissible employment outcomes

under the definition. Although the

proposed definition, unlike the current

regulatory definition of

‘‘employability,’’ does not identify a full

range of permissible employment

outcomes under the vocational

rehabilitation services program, the

Secretary does not intend the proposed

definition to exclude any employment

outcome that has been permitted in the

past. Thus, for example, homemaker,

extended employment, and selfemployment remain acceptable

employment outcomes. The proposed

definition does, however, recognize

competitive employment as the optimal

employment outcome under the

program, and language emphasizing this

has been added to the definition.

The Secretary proposes new

definitions or revisions to the

definitions in the existing regulations

for the following terms that are not

defined in the Act: ‘‘administrative

costs,’’ ‘‘applicant,’’ ‘‘appropriate modes

of communication,’’ ‘‘comparable

services and benefits,’’ ‘‘competitive

employment,’’ ‘‘construction of a facility

for a public or nonprofit community

rehabilitation program,’’ ‘‘establishment,

development, or improvement of a

public or nonprofit community

rehabilitation program,’’ ‘‘establishment

of a facility for a public or nonprofit

community rehabilitation program,’’

‘‘extended employment,’’ ‘‘family

member,’’ ‘‘individual’s representative,’’

‘‘integrated setting,’’ ‘‘maintenance,’’

‘‘post-employment services,’’

‘‘transitioning student,’’ and

‘‘transportation.’’

The proposed definition of

‘‘administrative costs’’ is based on

existing RSA subregulatory guidance

and definitions of the term that are used

in other RSA programs. The definition,

which is substantially the same as the

definition of ‘‘administrative costs’’ in

the draft regulations, lists, as examples,

certain types of expenses that would

constitute administrative costs. Several

commenters on the draft regulations

suggested adding other items to the

definition. In response, the Secretary

has amended the definition of

‘‘administrative costs’’ to clarify that the

types of expenses listed in the definition

are intended only as examples and that

other expenditures would be considered

administrative costs as long as those

expenditures relate to program

planning, development, monitoring, and

evaluation.

The Secretary proposes to define

‘‘applicant’’ for clarification by

referencing the requirements for

submitting an application in

§ 361.41(b)(2) of the proposed

regulations.

In response to public comment on the

draft regulations, the Secretary proposes

to change the term ‘‘special modes of

communication’’ to ‘‘appropriate modes

of communication’’ to ensure

consistency with the Americans with

Disabilities Act (ADA). In addition, the

Secretary proposes to eliminate

references in the definition to

individuals who are blind, deaf, or

hearing-impaired to clarify that the

proposed definition is not limited by

type of disability and that it includes all

appropriate modes of communication

necessary to enable any individual with

a disability to comprehend information

being communicated.

Finally, the Secretary has expanded

the list of examples of communication

services and materials in the proposed

definition. However, the Secretary does

not consider the list to be all-inclusive

and emphasizes that other appropriate

modes of communication not specified

in the proposed definition are also

available.

The proposed definition of

‘‘comparable services and benefits’’ is

based on a definition of that term that

was proposed in the 1991 NPRM. It is

intended to support the statutory

purpose of conserving rehabilitation

funds, while ensuring the provision of

appropriate and timely services in lieu

of those provided by the DSU. The

proposed definition revises the

definition proposed in the 1991 NPRM

to remove private agencies (i.e.,

community, philanthropic, and other
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64479

private entities that are not VR service

providers but do provide financial or

other assistance to individuals with

disabilities to help meet VR needs, such

as scholarship assistance from a local

Lions Club) as one of the sources of

comparable services and benefits

because the Secretary interprets the

reference in the statute to ‘‘other

programs’’ to mean other public

programs. In addition, the Secretary

believes it would be too burdensome to

require State agencies to determine the

availability of comparable services and

benefits from private agencies prior to

providing services and benefits under

this program. The Secretary would,

however, continue to encourage State

agencies to use services and benefits

that are available from private agencies

to the extent they are known. In

response to public comment on the draft

regulations, the Secretary has further

amended the term by clarifying that

comparable services and benefits must

be available ‘‘within a reasonable period

of time’’ and must be commensurate

with the services that the individual

would otherwise receive from the VR

agency.

In response to public comment on the

draft regulations, the Secretary has

consolidated the definitions of

‘‘competitive employment’’ and

‘‘competitive work’’ from the draft

regulations into a single proposed

definition of ‘‘competitive

employment.’’ The consolidated

definition recognizes that integration

(i.e., an employment outcome in an

integrated job setting) is an element of

competitive employment, rather than a

separate concept. It would establish a

general requirement that individuals

must receive compensation that is at or

above the minimum wage, but not less

than the prevailing community wage for

non-disabled individuals performing the

same or similar work.

The consolidated definition would

apply to supported employment as well

as to other kinds of competitive

employment outcomes. Under the

proposed definition, however, an

employment outcome in a supported

employment setting in which an

individual receives wages below the

minimum wage in accordance with

section 14(c) of the Fair Labor Standards

Act (FLSA) (i.e., wages based on

individual productivity) would no

longer be considered competitive

employment. Although this proposed

change would represent a significant

departure from longstanding RSA

regulatory policy, the Secretary agrees

with those public commenters who

suggested that competitive employment

outcomes should be limited to those in

which individuals are compensated at

or above the minimum wage. In

addition, this proposed change is

consistent with section 101(a)(16) of the

Act, which requires DSUs annually to

review and reevaluate the status of each

individual in an employment setting

under section 14(c) of the FLSA in order

to determine the individual’s readiness

for competitive employment. This

statutory requirement indicates that

supported employment settings in

which individuals are compensated

below minimum wage in accordance

with the FLSA do not constitute

competitive employment. The Secretary

also notes that the proposed change

would have the effect of requiring

individuals in supported employment to

earn at least the minimum wage in order

to receive services under Title VI, Part

C of the Act. Finally, so that the impact

of this proposed change can be

appropriately evaluated, the Secretary

requests public comment on the extent

to which individuals currently in

supported employment earn less than

the minimum wage.

The proposed definition of the term

‘‘construction of a facility for a public or

nonprofit community rehabilitation

program’’ is based on the definition of

the term ‘‘construction of a

rehabilitation facility’’ in § 361.1(c) of

the existing regulations and the

definition of the term ‘‘construction’’ in

section 7(1) of the Act. The proposed

regulations also incorporate the 1992

Amendments, which replaced the

concept of rehabilitation facilities with

‘‘community rehabilitation programs.’’

The word ‘‘facility’’ is used in the

proposed regulations only to refer to a

‘‘building’’ or ‘‘structure.’’ In addition,

the Secretary proposes to fold into this

definition all authorized construction

expenditures under this program, which

are currently contained in § 361.74(a) of

the existing regulations.

The Secretary proposes to define the

term ‘‘eligible individual’’ for

clarification throughout the regulations

by referencing the basic eligibility

criteria in proposed § 361.42(a).

The proposed definition of the term

‘‘establishment, development, or

improvement of a public or nonprofit

community rehabilitation program’’

elaborates on the statutory definition of

the term ‘‘establishment of a community

rehabilitation program’’ by

incorporating all of the types of

expenditures for which a State unit can

receive Federal financial participation.

These provisions are taken from

§ 361.73(a) of the existing regulations

and include the limitations on staffing

costs initially proposed in the 1991

NPRM.

The Secretary proposes to define

separately the term ‘‘establishment of a

facility for a public or nonprofit

community rehabilitation program’’ for

purposes of clarification. The proposed

definition covers only those authorized

activities contained in the definition of

‘‘establishment, development, or

improvement of a public or nonprofit

community rehabilitation program’’ that

involve facilities. In response to public

comment about these three terms, the

Secretary wishes to emphasize that

funds under this program cannot be

used to support community

rehabilitation programs that are

profitmaking organizations.

In response to public comment on the

draft regulations, the Secretary has

amended the proposed definition of the

term ‘‘extended employment’’ to clarify

that it means work in a non-integrated

or sheltered setting for a public or

private nonprofit agency or organization

that provides compensation in

accordance with the Fair Labor

Standards Act as well as any on-the-job

support services the individual might

require. In response to several

commenters who expressed concern

with language in the draft definition

that stated that some individuals in

extended employment ‘‘are not ready for

competitive employment,’’ the Secretary

has modified the proposed definition to

clarify that the purpose of extended

employment is to enable individuals to

continue to train or otherwise prepare

for competitive employment, unless the

individual makes an informed choice to

remain in extended employment.

In response to public comment, the

definition of the term ‘‘family member’’

has been revised to mean any individual

(1) who is a relative or guardian, or who

lives in the same household as an

applicant or eligible individual

regardless of their interpersonal

relationship; (2) who has a substantial

interest in the well-being of that

individual; and (3) who needs

vocational rehabilitation services to

enable the applicant or eligible

individual to achieve an employment

outcome.

In response to public comment on the

draft regulations, the Secretary proposes

to amend the definition of the term

‘‘impartial hearing officer’’ to clarify

that a member of the DSU’s

rehabilitation advisory council may not

serve as an impartial hearing officer for

that same DSU. Under the proposed

definition, however, a member of the

State Rehabilitation Advisory Council

could serve as an impartial hearing

officer in cases involving another DSU

within the same State. For example, a

member of the State Rehabilitation
64480 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

Advisory Council for a State unit

serving individuals who are blind

would not be precluded, solely on the

basis of that membership, from serving

as an impartial hearing officer in cases

involving the State unit that serves

individuals other than individuals with

visual disabilities.

The Secretary proposes to include the

term ‘‘individual with a most severe

disability’’ in the definitions to clarify

that States are required to define the

term as a subset of and consistent with

the definition of the statutory term

‘‘individual with a severe disability.’’

The Secretary proposes to define the

term ‘‘individual’s representative,’’

consistent with the list of potential

representatives in the Act, so that the

defined term, rather than the long list of

potential representatives, can be

referenced throughout the regulations.

In response to public comment on the

draft regulations, the Secretary proposes

to amend the definition to clarify that it

means any representative chosen by an

applicant or eligible individual,

including a parent, guardian, other

family member, or advocate, unless a

representative has been appointed by a

court to represent the interests of the

individual, in which case the courtappointed representative is the

individual’s representative.

The proposed definition of the term

‘‘integrated setting’’ is designed to

implement the intent of the statute that

individuals receive VR services and

achieve employment outcomes in the

most integrated settings possible,

consistent with the individual’s

informed choice. In the draft regulations

the term was defined broadly to mean

a setting in which the majority of

individuals with whom individuals

with disabilities interact meaningfully,

excluding service providers, are nondisabled individuals. In response to

public comment on the draft

regulations, the Secretary proposes to

amend the term by requiring that

applicants or eligible individuals need

only be given the opportunity to interact

with non-disabled individuals,

excluding service providers, on a

regular basis for a setting to be

considered integrated. This proposed

change would permit employment at a

center for independent living, for

example, to be considered integrated as

long as the employee has the

opportunity to regularly interact with

non-disabled persons, even though the

Act requires that a majority of a center’s

employees be disabled. The proposed

definition also applies to supported

employment placements. A separate

definition of ‘‘integration’’ for supported

employment placements is, therefore,

no longer needed and is not included in

the proposed regulations.

‘‘Maintenance’’ would be defined to

clarify that it includes living expenses

(e.g., food, shelter, and clothing) only to

the extent that they are in excess of an

individual’s normal expenses and that it

is available only for eligible individuals

and individuals receiving extended

evaluation services. The proposed

definition reflects statutory language in

section 103(a)(5) of the Act that limits

the provision of maintenance to

‘‘additional costs while participating in

rehabilitation.’’ The Secretary considers

an individual to be participating in

rehabilitation if the individual is

receiving services under an

individualized written rehabilitation

program (IWRP) or under a written plan

for providing extended evaluation

services. The provision of maintenance

must be tied to other needed services.

Maintenance, however, cannot be used

to pay the expenses of all applicants

receiving assessment services, as several

commenters urged. As discussed later in

the definitions section of the preamble,

the Secretary believes, however, that the

short-term costs of food and shelter of

applicants who are required to travel to

receive assessment services, and who

are not receiving extended evaluation

services, could be covered as a

transportation expense. In addition, the

Secretary proposes a note following the

proposed definition of maintenance that

provides examples of permissible

maintenance expenses. The last

example was added in response to

public comment and indicates that

maintenance can be used to cover the

costs of food, shelter, and clothing of

homeless or recently deinstitutionalized

individuals until other financial

assistance can be secured for those

costs. The Secretary emphasizes that the

examples are provided solely for the

purposes of illustration and do not

preclude designated State units from

providing maintenance in other

appropriate situations.

In response to public comment on the

draft regulations, the Secretary proposes

to amend the definition of the term

‘‘ongoing support services’’ by removing

the requirement that the assessment of

an individual’s employment stability

include one monthly contact with the

individual’s employer whenever the

IWRP of an individual in supported

employment provides for off-site

monitoring. The Secretary emphasizes,

however, that contacts with employers

are authorized as follow-up services

under paragraph (iii)(F) of the proposed

definition and could be provided as

often as necessary to reinforce a

supported employment placement.

In response to public comment on the

draft regulations, the Secretary proposes

to amend the definition of the term

‘‘physical and mental restoration

service’’ by deleting from the proposed

definition certain services that are not

specifically identified in the statute. For

example, ‘‘convalescent or nursing

home care’’ has been deleted since it is

not specified in section 103(a)(4) of the

Act and is viewed as a type of long-term

care rather than a restoration service.

In response to public comment on the

draft regulations, the Secretary proposes

to amend the definition of the term

‘‘physical or mental impairment’’ to

mean an injury, disease, or other

condition that materially limits, or if not

treated will result in materially limiting,

mental or physical functioning.

The Secretary proposes to define

‘‘post-employment services’’ based on

existing subregulatory guidance. In

response to public comment on the draft

regulations, the Secretary has amended

the proposed definition to clarify that

post-employment services are any

vocational rehabilitation services for

individuals that are provided

subsequent to the achievement of an

employment outcome and that are

necessary to enable the individual to

maintain, regain, or advance in

employment consistent with the

individual’s strengths, resources,

priorities, concerns, abilities,

capabilities, and interests. In addition,

the Secretary proposes to amend the

note following the proposed definition

in order to further explain the

circumstances under which postemployment services may be provided.

In response to public comment on the

draft regulations, the Secretary has

amended the definition of the term

‘‘substantial impediment to

employment,’’ as used in the criteria for

determining eligibility under

§ 361.42(a)(1), to mean a physical or

mental impairment that hinders (rather

than ‘‘prevents’’) an individual from

preparing for, entering into, engaging in,

or retaining employment consistent

with the individual’s abilities and

capabilities. The Secretary proposes to

delete the provision in the draft

regulations that the impairment hinder

the individual from employment that is

consistent with the individual’s

interests. The purpose of this change is

to clarify that an individual with an

impairment who is not interested in his

or her current employment does not,

based on that lack of interest alone, have

a substantial impediment to

employment.

In response to public comment on the

draft regulations and consistent with

section 103(a)(14) of the Act, the
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Secretary proposes to amend the

definition of the term ‘‘transition

services’’ to clarify that transition

services must promote or facilitate the

accomplishment of long-term

rehabilitation goals and intermediate

rehabilitation objectives identified in

the transitioning student’s IWRP.

In response to public commenters

who sought further clarification of the

term ‘‘transitioning student’’ in the draft

regulations, the Secretary proposes to

define the term to mean a student who

is eligible to receive vocational

rehabilitation services and is receiving

‘‘transition services’’ as defined in the

regulations.

The Secretary proposes to define the

term ‘‘transportation’’ on the basis of

existing subregulatory guidance. In

addition, the Secretary has included a

note following the proposed definition

that provides examples of permissible

transportation expenses. One of these

examples covers the short-term, travelrelated expenses (i.e., food and shelter)

of applicants receiving assessment

services. These expenses, as discussed

previously, cannot be provided under

the maintenance authority. The

Secretary also emphasizes that these

examples are provided solely for the

purposes of illustration and do not

preclude DSUs from providing

transportation costs in other appropriate

situations.

Finally, the following nomenclature

changes from the Act have been

incorporated into the definitions and

throughout the regulations: references to

all forms of the word ‘‘handicap’’ have

been changed to the corresponding form

of the word ‘‘disability;’’ certain

references to the word ‘‘disability’’ have

been replaced by the word

‘‘impairment’’ (e.g., physical or mental

impairment); and the word ‘‘client’’ has

been removed and replaced with other

appropriate terms, including

‘‘applicant,’’ ‘‘eligible individual,’’

‘‘individual,’’ or ‘‘individual with a

disability.’’

The Secretary also notes that

proposed changes to supported

employment definitions included in this

NPRM would also affect those

definitions in 34 CFR Parts 363, 376,

and 380.

Section 361.10—Submission, Approval,

and Disapproval of the State Plan

Proposed § 361.10 contains certain

requirements from §§ 361.2 and 361.3 of

the existing regulations relating to the

purpose, duration, development,

submission, and approval of the State

plan. Many of the other requirements in

§§ 361.2 and 361.3 of the existing

regulations have been relocated to other

sections of the proposed regulations

because they deal with the substance

and administration of the State plan.

Proposed § 361.10 also incorporates the

new statutory provision that authorizes

the Secretary to approve the submission

of a State plan for a period other than

three years if it corresponds to the

period required for another plan

required under Federal law. Proposed

paragraph (j) of this section provides the

procedures for disapproval of the State

plan. The procedural protections would

be the same as those that are currently

provided when the Secretary withholds

funds.

Paragraphs (e) and (f) of § 361.2 of the

existing regulations, which contain

provisions regarding the designation of

and transition to a new State agency or

State unit, would be removed from the

proposed regulations. The 1991 NPRM

proposed removal of these requirements

because of the paperwork burden, and

they have been omitted in this NPRM

for the same reason.

Section 361.11—Withholding of Funds

Proposed § 361.11 revises § 361.4 of

the existing regulations to make

withholding hearings under this

program subject to the jurisdiction of

and the procedural requirements

governing the Department’s Office of

Administrative Law Judges in EDGAR,

34 CFR Part 81, rather than program

specific hearing procedures in current

§§ 361.170 through 361.186, which

would be repealed. This is consistent

with the changes proposed in the 1991

NPRM.

Section 361.12—Methods of

Administration

This proposed section is taken from

§ 361.10 of the existing regulations. The

proposed regulations add a clause to

clarify that proper and efficient

administration of the State plan

includes procedures to ensure accurate

data collection and financial

accountability.

Section 361.13—State Agency for

Administration

This proposed section consolidates

information contained in §§ 361.5,

361.6, and 361.8 of the existing

regulations regarding the designation of

the State agency, the organizational

level and status of the State unit, and

the full-time director requirement.

In an effort to reduce the regulatory

burden and increase State flexibility in

accordance with the Department’s

principles for regulating, the Secretary

proposes to delete the requirement in

§ 361.13(a)(1)(i) of the draft regulations

and § 361.5(b)(1) of the current

regulations that a designated State

agency that has as its major function

vocational rehabilitation or vocational

and other rehabilitation of individuals

with disabilities also ‘‘have the

authority, subject to the supervision of

the Governor, if appropriate, to define

the scope of the program within the

provisions of State and Federal law and

to direct its administration without

external administrative controls.’’

Elimination of this non-statutory

requirement, which applies currently to

only one of the three sole State agency

options identified in the regulations, is

intended to increase State flexibility in

locating and administering its

vocational rehabilitation program.

Several commenters on the draft

regulations requested clarification of the

requirement in § 361.13(b)(1)(iii) that at

least 90 percent of the State unit staff

work full-time on the rehabilitation

work of the organizational unit, which

must be primarily concerned with

vocational rehabilitation or vocational

rehabilitation and other rehabilitation.

This requirement means that if the

organizational unit provides other

rehabilitation services, in addition to

vocational rehabilitation, the 90 percent

staffing requirement applies to all unit

staff providing rehabilitation services,

not to just the vocational rehabilitation

staff. ‘‘Other rehabilitation’’ includes,

but is not limited to, other programs that

provide medical, psychological,

educational, or social services to

individuals with disabilities. For

example, a State unit with 90 percent of

its staff working on independent living

services, programs for the

developmentally disabled, disabled

children’s services, services for

individuals who are deaf or hearingimpaired, services for individuals who

are blind or visually impaired, Social

Security disability determinations, or

some other type of program related to

individuals with disabilities, in addition

to vocational rehabilitation, would

satisfy the 90 percent requirement. The

Secretary also notes that Federal funds

under this program may be used only to

pay the salaries of the State unit staff

that are working full-time or part-time

on vocational rehabilitation.

In accordance with the Department’s

principles for regulating, the Secretary

also proposes to delete the requirement

in § 361.13(c) of the draft regulations

and § 361.6(a) of the current regulations

that the State plan describe the

organizational structure of the State

agency and its organizational units. The

Secretary instead would rely on an

assurance, required by statute, that a

State agency that is required to have a

vocational rehabilitation unit locate that
64482 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

unit at an organizational level

comparable to other organizational units

within the State agency. This proposed

change is intended to reduce paperwork

burdens on State agencies in developing

their State plans.

The Secretary is not proposing any

substantive changes in paragraph (d) of

this section to the requirements in

current § 361.5(e) with regard to the

responsibility of the designated State

unit for administration of the vocational

rehabilitation program, but is soliciting

public comment on the need for

changes.

The current regulations specify

certain program functions or activities

(determinations of eligibility,

development of IWRPs, and decisions

regarding the provision of services) that

must be the responsibility of the DSU

and that cannot be delegated to any

other agency or individual. This nondelegation provision has been

interpreted by RSA to mean that the

DSU must carry out these functions or

activities using its own staff. The draft

proposed regulations, consistent with

RSA subregulatory policy, specified

additional program functions that must

be carried out by the DSU:

determinations that service recipients

have achieved appropriate employment

outcomes, the formulation and

implementation of program policy, and

the allocation and expenditure of

program funds. The draft proposed

regulations also would have

strengthened the role of the State unit

by requiring that the unit have a

substantial role in all decisions affecting

the administration of the VR program

whenever management functions within

the State agency are centralized.

Public comment on these draft

proposed changes was neither extensive

nor consistent. Some State VR directors

supported a strengthening of the role

and authority of the DSU but thought

the draft proposed regulations were not

strong enough, while other commenters

thought the regulations were too

prescriptive and believed that the only

program function that must be carried

out directly by DSU staff is eligibility

determinations.

In light of the mixed public comment

received thus far and the

Administration’s regulatory reinvention

initiative, which is intended to increase

State flexibility in administering

Federally funded programs whenever

permitted by statute, the Department is

soliciting additional public comment on

the following questions: Should the

regulations expand or otherwise clarify

essential program functions for which

the DSU must be responsible in order to

meet the statutory requirement in

section 101(a)(2)(A) that it be

responsible for the VR program? Must

these essential program functions be

carried out by DSU staff or should the

regulations provide States as much

flexibility as possible to determine how

to carry out these functions as long as

the DSU retains administrative oversight

in these areas? Any changes made to

provide increased flexibility to States

would not require DSUs to change their

current administrative practices but

would provide States additional

flexibility to restructure, consolidate, or

contract out program operations as long

as the DSU retains ultimate

responsibility.

Section 361.14—Substitute State

Agency

This proposed section revises certain

requirements regarding the selection of

a substitute State agency (§ 361.7 of the

existing regulations) in order to simplify

the process and reduce the paperwork

burden. The existing regulations permit

applications from a potentially

unlimited number of substitute State

agency applicants, from which the

Secretary selects the substitute State

agency based on detailed criteria in the

existing regulations. The proposed

regulations place the authority and

responsibility for the selection of a

substitute State agency on the State so

that the Secretary would need only to

review and approve a State plan from

one substitute State agency prior to

providing funds.

Section 361.15—Local Administration

This proposed section simplifies

§ 361.9 of the current regulations by

removing the requirements related to a

written agreement between a sole local

agency and the State unit in order to

reduce the paperwork burden on States.

It proposes to replace the written

agreement requirements with assurances

from the State unit in the State plan

relating to the administration and

supervision of a sole local agency.

Section 361.16—Establishment of an

Independent Commission or a State

Rehabilitation Advisory Council

This proposed new section

implements the new requirements

related to the State Rehabilitation

Advisory Council (Council) in section

101(a)(36) of the Act. The proposed

section clarifies that a State does not

need to establish a Council or meet the

requirements related to a Council if the

State agency is a consumer-controlled

independent commission. The proposed

section also clarifies that if the State has

a separate State agency for individuals

who are blind, four options regarding

the possible combinations of the two

State agencies exist. Although only

three options are identified in the Act,

the section-by-section analysis of the

Act in the Conference Report clarifies

that the fourth option, a mirror image of

the third combination identified in the

Act, is also acceptable. This option is

contained in proposed paragraph (b)(4)

of this section.

Section 361.17—Requirements for a

State Rehabilitation Advisory Council

This proposed new section

incorporates the new statutory

requirements in section 105 of the Act

with the clarification that the director of

the DSU is a nonvoting member of the

State Rehabilitation Advisory Council.

Since the purpose of the Council is to

advise the State unit, and the statute is

clear that the director is an ex-officio

member of the Council, the Secretary

does not believe that Congress intended

that the director of the State unit

provide advice to herself or himself by

voting on Council decisions. Similarly,

the Secretary has clarified the

regulations to state that any employee of

the designated State agency may serve

only as a nonvoting member of the

Council.

Several commenters on the draft

regulation sought clarification with

respect to the appointment of Council

representatives from the Client

Assistance Program (CAP) and the

Statewide Independent Living Council

(SILC). In response, the Secretary

proposes to amend the regulations to

clarify that the role of the CAP and SILC

is to recommend to the Governor, or

other appropriate appointment authority

designated by State law, Council

representatives for their respective

organizations. Based on these

recommendations, the Governor or other

State-designated authority determines

who will be the Council appointees,

since the statute clearly vests

appointment authority in those entities.

The Secretary also notes that those

individuals recommended for Council

membership by the CAP or SILC need

not be CAP or SILC members.

In addition, in response to public

comment on the draft regulations, the

Secretary emphasizes that, although the

Council must be composed of at least 13

members (unless the State qualifies for

an exception under paragraph (b)(4) of

this section), a State is not precluded

from having more than 13 individuals

serve on its Council.

The Secretary also encourages States

to consider appointing Council

members from minority backgrounds

consistent with the 1992 Amendments

to the Act, which emphasizes outreach
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64483

to individuals from minority

backgrounds and the need for

rehabilitation programs to better reflect

the culturally diverse population of the

United States.

Finally, in response to public

comment on the draft regulations, the

Secretary proposes to amend the annual

reporting requirements of the Council

by requiring the Council to submit to

the Governor, or other appropriate State

entity, and to the Secretary an annual

report of the status of the State’s

vocational rehabilitation programs

within 90, rather than 60, days from the

end of the fiscal year and by requiring

that the report be available through

appropriate modes of communication.

Section 361.18—Comprehensive System

of Personnel Development

This proposed new section

incorporates the new statutory

requirements in sections 101(a)(7) and

101(a)(35) of the Act. The requirements

in section 101(a)(7) of the Act are

virtually identical to requirements for a

comprehensive system of personnel

development under the Individuals with

Disabilities Education Act (IDEA). For

this reason, this section of the proposed

regulations closely tracks the

regulations implementing the IDEA

requirements (34 CFR 300.380 through

300.383), with modifications to better

reflect the context of the State

Vocational Rehabilitation Services

Program.

Some commenters on the draft

regulations questioned the basis for

requiring the involvement of the State

Rehabilitation Advisory Council in the

development of personnel standards.

The Act requires that the Council

generally advise the State unit in

connection with the carrying out of its

programmatic responsibilities. In

addition, the State agency is required to

consult, and seek advice from, the

Council on issues affecting the

development of the State plan. Because

an effective system of personnel

development is an essential part of the

State plan and a critical element to the

success of the State Vocational

Rehabilitation Services Program, the

Secretary considers it necessary for the

Council to participate in the

development of State personnel

standards.

Paragraph (a) of this section requires

that the State plan include, on an

annual basis, a description of a system

for collecting and analyzing personnel

data. Several commenters on the draft

regulations expressed concern about the

amount of data that must be provided to

the Secretary under this provision. In

response, the Secretary emphasizes that,

although annual data collection and

analysis requirements are statutorily

imposed, the proposed regulations

require only that the State plan include

a description of the system used to

collect the data on personnel needs and

personnel development and do not

require the State to submit the actual

data to the Secretary.

In response to public comment on the

draft regulations, the Secretary proposes

to broaden the definition of the term

‘‘highest requirements in the State

applicable to that profession or

discipline,’’ as used in the development

and maintenance of personnel standards

by the State, to mean the highest entrylevel academic degree or equivalent

experience needed to meet any nationalor State-recognized certification,

licensing, registration, or other

comparable requirements that apply to a

profession or discipline. The purpose of

this change is to recognize that some

States base their personnel standards, in

part, on relevant work experience by

substituting equivalent work experience

for certain academic credentials. State

standards of this type would meet this

definition. This change, however, would

not allow work experience to substitute

for academic requirements if the

existing State standard is based only on

academic credentials.

The Secretary also believes that

permitting States to base highest

personnel standards in the State on

equivalent experience, as well as on

academic degrees, stresses the

significance of relevant work experience

and will diversify further the pool from

which qualified personnel can be

selected.

Several commenters on the draft

regulations suggested areas of training

in addition to rehabilitation technology

that should be required in the

regulations as part of the State’s

program of staff development. The

Secretary believes that the specific

training areas for staff development

adopted by a State unit must be based

on the particular needs of that State

unit. The Secretary recognizes, however,

that staff development may include, but

is not limited to, training with respect

to the requirements of the Americans

with Disabilities Act, IDEA, and Social

Security incentive programs, training to

facilitate informed choice under this

program, and training to improve the

provision of services to culturally

diverse populations. A provision to this

effect has been added to the proposed

regulations.

In response to public comment on the

draft regulations, the Secretary proposes

to change the reference in paragraph (e)

of this section from ‘‘special

communication needs personnel’’ to

‘‘personnel to address individual

communication needs’’ and has clarified

this provision by requiring the State

unit to describe in the State plan how

it includes among its personnel, or

obtains the services of, individuals able

to communicate in the native languages

of applicants and eligible individuals

who have limited English speaking

ability. That personnel may include

State agency staff, family members of an

applicant or eligible individual,

community volunteers, and other

individuals able to communicate in the

appropriate native language. The State

unit also must describe how it ensures

that appropriate modes of

communication are used for all

applicants and eligible individuals.

In response to public comment on the

draft regulations, the Secretary wishes

to stress the importance of requiring in

the State plan a description of the

State’s personnel performance

evaluation system that facilitates, and

does not impede, the purposes and

policies of the vocational rehabilitation

services program outlined in the Act.

More precisely, the proposed

regulations require that the evaluation

system further the statutory policy of

serving individuals with the most severe

disabilities. In support of this

requirement, the Senate Committee on

Labor and Human Resources states in its

report that it ‘‘is concerned that in some

States, procedures used for evaluating

performance of counselors may have the

unintended consequence of providing a

disincentive to serve individuals with

the most severe disabilities and those

clients requiring complex services.’’ The

performance evaluation system required

under the Act and included in the

proposed regulations is designed to

address these disincentives.

The Secretary proposes to modify

paragraph (g) of this section to track

section 101(a)(7)(A)(ii) of the Act, which

requires the State agency to describe the

activities it will undertake to coordinate

its comprehensive system of personnel

development with personnel

development under IDEA. This

proposed change is intended to increase

the flexibility of State agencies to

implement the most effective

procedures for coordinating the

development of personnel under both

statutes. An example of how a State may

address this coordination requirement

would be to establish a joint continuing

education program for both DSU

personnel and personnel under IDEA

that deals with the provision of VR

services, including transition services,

to transitioning students.
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Section 361.19—Affirmative Action for

Individuals With Disabilities

This proposed section, which is based

on section 101(a)(6)(A) of the Act and

§ 361.15 of the existing regulations,

requires the State agency to take

affirmative action to employ and

advance in employment qualified

individuals with disabilities. In

accordance with the Department’s

principles for regulating, the Secretary

proposes to delete the non-statutory

requirement in the draft regulations and

the current regulations that the State

unit develop an affirmative action plan

that provides for specific goals, action

steps, timetables, evaluation criteria for

measuring progress, and complaint and

enforcement procedures. By not

requiring a formal affirmative action

plan or specifying the minimum

requirements a State must incorporate

into that plan, the proposed provision

would give State agencies greater

flexibility to take those steps it

considers most appropriate for

increasing the number of qualified

individuals with disabilities that it

employs or advances in employment.

The proposed changes also would

reduce State paperwork burdens.

Section 361.20—State Plan

Development

This proposed section revises § 361.18

of the existing regulations to implement

new requirements in section 101(a)(23)

of the Act.

Consistent with section 101(a)(23) of

the Act, paragraph (a)(1) of this section

of the regulations would require the

State unit to conduct public meetings

throughout the State to provide all

segments of the public, including

interested groups, organizations, and

individuals, an opportunity to comment

on the State plan prior to its

development and to comment on any

revisions to the State plan. In

accordance with the Department’s

principles for regulating, the Secretary

believes that States should have the

latitude to develop their own

procedures for ensuring that interested

parties are afforded a meaningful

opportunity to comment on the State

plan before it is developed and when it

is revised. Additionally, in order to

satisfy the statutory requirement that the

State unit, prior to conducting public

meetings throughout the State, provide

appropriate and sufficient notice of the

public meetings, the proposed

regulations would require the State unit

to follow notice requirements

established under State law or, in the

absence of those requirements, to

consult with the State Rehabilitation

Advisory Council to develop notice

procedures. The proposed regulations

would not impose any specific

minimum Federal requirements for

what constitutes ‘‘appropriate and

sufficient notice.’’

In response to those commenters who

sought regulatory clarification of the

public participation and notice

requirements of this section, the

Secretary provides the following

examples as suggested ways a DSU

might meet these requirements. A State

unit could satisfy the public

participation requirement, for example,

by soliciting input from the public

before developing a preliminary draft

State plan and making the preliminary

draft plan available to the public 30

days prior to the public meetings. An

example of ‘‘appropriate and sufficient

notice’’ of public meetings would be

notice that is provided at least 30 days

prior to a public meeting through

various media available to the general

public, such as newspapers and public

service announcements, and through

specific contacts with appropriate

constituency groups and organizations

identified by the State unit, in

consultation with the State

Rehabilitation Advisory Council. An

example of how a State unit could meet

the statutory requirement that it

‘‘conduct public meetings throughout

the State,’’ would be to hold public

meetings in at least two different

geographic locations that are among the

State’s most densely populated areas

and at sites that are accessible to

individuals with disabilities.

Some commenters on the draft

regulations suggested that larger States

be required to hold a greater number of

public meetings than smaller States,

while other commenters suggested that

States make use of emerging

technologies that enable individuals to

participate in public meetings without

having to be in attendance. The

Secretary encourages each State to hold

as many public meetings as are

necessary to ensure meaningful

participation of all interested persons

and organizations in that State. The

Secretary also urges States to consider

using alternative or emerging

technologies that allow for wider public

participation. The proposed regulations

are intended to provide each State with

the flexibility to choose the manner in

which it conducts public meetings (e.g.,

in person, satellite broadcasts,

teleconferences, or a combination

thereof) as long as the meetings are truly

interactive and are designed to

maximize the opportunity for

meaningful participation.

The proposed section also would

implement the new statutory provision

in section 105(c)(2) of the Act that

requires the State Rehabilitation

Advisory Council to advise the State

unit on the preparation of the State plan

by requiring the State unit to consult

with the Council in the development of

the State plan. Finally, the proposed

section implements the new statutory

requirement in section 101 (a)(32) of the

Act that the State plan describe the

manner in which it will modify State

policy and procedures in response to

consumer satisfaction surveys.

Section 361.21—Consultations

Regarding the Administration of the

State Plan

This proposed section is also taken

from § 361.18 of the existing regulations.

It incorporates section 101(a)(18) of the

Act, including the new statutory

requirement regarding consultation with

the director of the CAP. It would also

require consultation with the State

Rehabilitation Advisory Council,

consistent with the Council functions in

new section 105(c) of the Act. It

proposes to remove provisions in the

existing regulations that list examples of

matters of general policy development

and implementation. Finally, this

proposed section, as well as the

previous section, would implement new

section 101(a)(32) of the Act, which

requires the State plan to describe the

manner in which the State will modify

State policy and procedures in response

to consumer satisfaction surveys.

Section 361.22—Cooperation With

Agencies Responsible for Transitioning

Students

This proposed new section combines

§ 361.19(b) of the existing regulations,

which requires the State plan to provide

for the coordination of services for

individuals who are eligible both for

vocational rehabilitation services and

for services under IDEA, with the new

statutory provisions in sections

101(a)(11) and (a)(24) of the Act. The

new statutory provisions require formal

interagency agreements to facilitate the

transfer of responsibilities for

transitioning students who are receiving

special education services from the

agency responsible for providing a free

appropriate public education to the

State unit responsible for providing

vocational rehabilitation services. In

addition, proposed paragraph (b) of this

section implements the new

requirement in section 101(a)(30) of the

Act regarding the availability of

vocational rehabilitation services to

students who are individuals with
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64485

disabilities and who are not in special

education programs.

Some commenters on the draft

regulations viewed the required content

of formal interagency agreements

between State units and State

educational agencies as unduly

burdensome. In response, the Secretary

proposes to amend the regulations to

require that formal interagency

agreements need only identify

provisions for determining State lead

agencies and qualified personnel

responsible for transition services, in

addition to identifying those policies

and practices that can be coordinated

between the agencies, including

eligibility standards, referral policies,

outreach procedures, and evaluation

procedures. The formal interagency

agreement may, as appropriate, identify

available resources, the financial

responsibilities of each agency, dispute

resolution procedures, and other

cooperative policies.

Other commenters expressed concern

that the draft regulations required State

agencies to shoulder more of the

responsibility for transitioning students

than is contemplated under the Act. In

response, the Secretary proposes to add

a note in the regulations to clarify the

roles of the rehabilitation and

educational agencies in facilitating the

transition of students who are eligible

for VR services. As stated by the Senate

Committee on Labor and Human

Resources, the role of the State agency

is primarily one of planning for the

student’s years after leaving school.

Section 361.23—Cooperation With

Other Public Agencies

This proposed section is taken from

paragraphs (a), (c), and (d) of § 361.19 of

the existing regulations and has been

revised to incorporate the new

requirements in section 101(a)(11) of the

Act regarding the content of formal

interagency cooperative agreements.

The proposed section is also

reorganized to clarify that the long list

of programs under existing § 361.19(a)

refers to Federal, State, and local public

programs and agencies providing

services related to the rehabilitation of

individuals with disabilities.

Section 361.24—Coordination With the

Statewide Independent Living Council

This proposed new section

incorporates the new requirement in

section 101(a)(33) of the Act that the

State unit coordinate and establish

working relationships with the

Statewide Independent Living Council

and independent living centers within

the State.

Section 361.25—Statewideness

This proposed new section contains

the requirement in § 361.2(a) of the

existing regulations that the State plan

be in effect in all political subdivisions

of the State.

Section 361.26—Waiver of

Statewideness

This proposed section revises § 361.12

of the existing regulations to clarify that

a waiver of statewideness is necessary if

the State unit wants to provide through

local financing increased services or an

expanded scope of services that is

different from the services available

statewide. The procedural requirements

relating to a request for a waiver would

remain substantially the same.

Section 361.27—Shared Funding and

Administration of Joint Programs

This proposed section revises § 361.11

of the existing regulations to clarify that

these programs involve shared funding

and administrative responsibility, that a

request for the Secretary’s approval

must be included in the State plan, and

that a request for waiver of

statewideness also must be included in

the State plan, if necessary. The

proposed regulations would also remove

the specific requirements relating to a

written agreement that are in the

existing regulations. The 1991 NPRM

proposed to remove the written

agreement requirements as part of the

effort to reduce paperwork burden, and

the requirements are omitted in this

NPRM for the same reason.

Section 361.28—Third-Party

Cooperative Arrangements Involving

Funds From Other Agencies

This proposed section revises § 361.13

of the existing regulations to reduce the

requirements related to third-party

cooperative arrangements, including the

requirements for a written agreement, an

annual program budget, and an annual

review of program operations. The

proposed regulations would also clarify

that applicants, as well as eligible

individuals, can receive services under

these cooperative arrangements. This

section would be placed

organizationally in the regulations next

to the proposed section on shared

funding and administration to

emphasize the differences between joint

programs and third-party cooperative

arrangements.

Some commenters on the draft

regulations suggested that third-party

cooperative arrangements be jointly

administered by the State unit and the

cooperating agency, i.e., administered in

the same way as joint programs under

proposed § 361.27. In response, the

Secretary notes that section 101(a)(2) of

the Act requires the designated State

unit to be responsible for the vocational

rehabilitation program. Third-party

cooperative arrangements provide a

framework for cooperating agencies to

provide vocational rehabilitation

services and contribute to the State’s

non-Federal financial share under the

program. Thus, third-party

arrangements are considered part of the

vocational rehabilitation program for

which the State unit must retain

administrative responsibility. In

contrast, State units that are parties to

joint programs share funding and

administrative responsibility with other

agencies.

In response to public comment on the

draft regulations, the Secretary has

clarified that services provided by the

cooperating agency under a cooperative

arrangement must either be new

services that have a vocational

rehabilitation focus or existing services

that have been modified, adapted,

expanded, or reconfigured to have a VR

focus. These requirements are consistent

with longstanding RSA subregulatory

guidance.

Section 361.29—Statewide Studies and

Evaluations

This proposed section revises and

expands § 361.17 of the existing

regulations to identify and clarify the

timelines for all of the study and

evaluation requirements, some of which

are currently contained in other

sections. It also expands the

requirement in § 361.2(a)(2)(i) of

existing regulations that the State plan

describe changes in policy resulting

from the statewide studies and the

annual evaluation to also require a

description of activities undertaken and

changes in the State plan, the strategic

plan, and plan amendments that result

from the studies and evaluations.

Proposed paragraph (d) of this section

incorporates the new requirement in

section 105(c)(2) of the Act regarding

the role of the State Rehabilitation

Advisory Council in the preparation of

the statewide studies and evaluation.

Section 361.30—Services to Special

Groups of Individuals With Disabilities

This proposed section combines

§§ 361.37 and 361.38 of the existing

regulations regarding special services

for civil employees of the United States

and for American Indians, along with

paragraph (c) of § 361.36 of the existing

regulations, which provides for special

consideration for public safety officers.

In addition, the Secretary proposes to

clarify in this section that special

consideration means that a public safety
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officer would receive priority for

services over other individuals in the

same priority category of an order of

selection. The proposed section would

also incorporate the statutory

definitions of ‘‘criminal act’’ and

‘‘public safety officer’’ from section 7 of

the Act.

Section 361.31—Utilization of

Community Resources

This proposed section is substantially

the same as § 361.56 of the existing

regulations. It has been relocated to

group it with other utilization sections

in the part of the regulations that

contains general administration

requirements, rather than in the part of

the regulations that addresses provision

of services requirements.

Section 361.32—Utilization of

Profitmaking Organizations for On-TheJob Training in Connection With

Selected Projects

This proposed section revises § 361.57

of the existing regulations to increase

State unit flexibility by authorizing,

rather than requiring, a State unit to use

profitmaking organizations if it

determines that those organizations are

better qualified to provide needed

services than nonprofit agencies,

organizations, or facilities in the State.

Section 361.33—Utilization of

Community Rehabilitation Programs

This proposed section revises

§§ 361.21 and 361.22 of the existing

regulations and replaces the term

‘‘rehabilitation facilities’’ with the term

‘‘community rehabilitation programs,’’

consistent with the 1992 Amendments.

It also incorporates changes in the State

plan requirements in sections 101(a)(5)

and 101(a)(15) of the Act and new

requirements in sections 101(a)(27) and

101(a)(28) of the Act.

In accordance with the Department’s

principles for regulating, the Secretary

proposes to eliminate current nonstatutory requirements for a

rehabilitation facilities plan and for an

inventory of community rehabilitation

programs and requirements in the draft

regulations for a justification in the

State plan for using funds for the

support of community rehabilitation

programs, including the construction of

facilities, and for a prioritized list in the

State plan of proposed activities. The

removal of these provisions would

substantially reduce paperwork burdens

on designated State units.

Section 361.34—Supported

Employment Plan

This proposed new section

incorporates sections 101(a)(25) and

635(a) of the Act, which require a State

to assure that it has an acceptable plan

for providing supported employment

services and to submit that plan as a

State plan supplement.

Section 361.35—Strategic Plan

This proposed new section would

require that the strategic plan to expand

and improve vocational rehabilitation

services be provided as a supplement to

the State plan. Section 101(a)(34)(A) of

the Act requires the State plan to

include an assurance that the State has

a strategic plan to expand vocational

rehabilitation services in accordance

with Part C of Title I. In addition,

section 120 of the Act requires States to

submit their strategic plans to the

Secretary prior to receiving funding

under Part B of the Act, which includes

the allotment for this program. The

Secretary believes that requiring the

strategic plan as a supplement to the

State plan is the simplest and least

burdensome approach.

Section 361.36—Reserved

This section is reserved for the order

of selection regulations, which are being

implemented in a separate rulemaking

document.

Section 361.37—Establishment and

Maintenance of Information and

Referral Resources

The provision proposed in the draft

regulations was substantially the same

as § 361.20 of the existing regulations.

However, commenters on both the draft

regulations and the July 16, 1993 NPRM

on order of selection have requested that

State units operating under an order of

selection be permitted to provide nonpurchased services (e.g., information

and referral) to eligible individuals who

do not qualify for services under the

State unit’s priority categories. An order

of selection is required under section

101(a)(5)(A) of the Act if a State unit

determines that it is unable to provide

services to all eligible individuals who

apply for services. In response to public

comment, the Secretary proposes to

address this concern by amending the

regulations to authorize any State unit

that has implemented an order of

selection to establish an expanded

information and referral program that

includes the provision of job referral

services to eligible individuals who are

not being served under a State unit’s

order of selection, provided that certain

State plan requirements are met. These

requirements include a description in

the State plan of the level of

commitment of staff and other resources

for this purpose and an assurance that

in carrying out this program, the State

unit will not use case services funds

that are needed to provide VR services

to eligible individuals who are able to

be served under the State unit’s order of

selection.

Section 361.38—Protection, Use, and

Release of Personal Information

This proposed section is substantially

the same as § 361.49 of the existing

regulations with the clarification in

proposed paragraph (e)(3) that a State

unit is required to release personal

information if required by Federal

regulations or Federal law.

In addition, some commenters on the

draft regulations expressed concern that

the State unit could release harmful

personal information to a representative

not chosen by the applicant or eligible

individual. In response, the Secretary

has clarified that the State unit may

release information that it determines to

be harmful to the individual only to a

third party chosen by the individual,

which may include, among others, an

advocate, a family member, or a

qualified medical or mental health

professional.

In response to public comment on the

draft regulations, the Secretary also

proposes to amend the regulations by

clarifying that State units shall release

personal information in response to an

‘‘order issued by a judicial officer.’’ The

Secretary believes that the use of the

term ‘‘judicial order’’ in both the current

and draft regulations is confusing and

that the clarification is necessary to

ensure that a judge, magistrate, or other

authorized judicial officer appropriately

weighs the factors necessitating release

of personal information against the

individual’s rights to privacy and

protection from unauthorized use before

ordering a State unit to release the

information.

In addition, the proposed section has

been relocated to group it with other

sections of the regulations that contain

the administrative requirements since it

does not relate to the provision and

scope of services.

While the confidentiality of personal

information from applicants and eligible

individuals under this program is

considered essential to protect

individual privacy, the Secretary

specifically requests public comment on

whether the provisions of this section

are unduly burdensome or inconsistent

with State laws governing the

protection, use, or release of personal

information.

Section 361.39—State-Imposed

Requirements

This proposed section is taken from

§ 361.25 of the existing regulations. The
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draft regulations would have required

State units to identify State-imposed

requirements at the public meetings to

develop and revise the State plan. In

response to public comment, the

Secretary proposes to clarify this section

of the regulations by requiring State

units to identify upon request those

regulations and policies relating to the

administration or operation of the

vocational rehabilitation program that

are State-imposed. In making these

changes the Secretary recognizes that

the scope of State-imposed requirements

is broader than those included in the

State plan and that the Act requires the

application of any State rule or policy

relating to the administration or

operation of the vocational

rehabilitation program to be identified

as a State-imposed requirement. The

proposed section would require State

units to identify those requirements

upon request, including, but not limited

to, requests made at public meetings.

Section 361.40—Reports

This proposed section is substantially

the same as § 361.23 of the current

regulations, except that it would add

cross-references to sections 13, 14, and

101(a)(10) of the Act to distinguish the

reporting requirements under this

section from the reporting requirements

related to statewide studies and

evaluations under proposed § 361.29.

Section 361.41—Processing Referrals

and Applications

This section expands § 361.30 of the

current regulations to incorporate the

new statutory requirement in section

102(a)(5)(A) of the Act that an eligibility

determination be made within 60 days

of the date on which an application is

submitted, with limited exceptions. The

Secretary proposes to require the State

unit to establish timelines for making

good faith efforts to contact individuals

who have been referred for services to

minimize delay at the pre-application

stage.

Under the draft regulations, an

individual was considered to have

‘‘submitted an application’’ if the

individual, or the individual’s

representative, as appropriate, had

submitted a completed agency

application or a signed written request

for services. In an effort to ensure that

agencies are provided with all

information necessary to make

eligibility determinations, some

commenters on the draft regulations

stated that completion of an agency

application should be the sole method

for requesting services. In contrast, other

commenters supported the use of

alternative methods for requesting

services as a means of avoiding

unnecessary delays if a particular

application form was not used. In

response, the Secretary proposes to

clarify the regulations by interpreting

the term ‘‘submitted an application’’ to

include any request for services as long

as the individual has provided

information necessary for the DSU to

initiate an assessment to determine

eligibility and priority for services. Once

an individual or the individual’s

representative, as appropriate, requests

services, it is expected that State units

will make good faith efforts to obtain

this information as quickly as possible.

For example, if a potential applicant has

requested services in writing, the State

unit may need to telephone the

individual in order to obtain the

necessary information in a timely

manner. In addition, the proposed

regulations require State units to make

application forms readily available

throughout the State.

Section 361.42—Assessment for

Determining Eligibility and Priority for

Services

This section combines §§ 361.31 and

361.32 of the existing regulations, which

are the sections on eligibility and

preliminary diagnostic study. The 1992

Amendments combined in the statute

all of the evaluation steps that are

currently required by those sections and

by §§ 361.33 and 361.40 of the existing

regulations into one assessment for

determining eligibility and vocational

rehabilitation needs, which is defined in

section 7(22) of the Act. The Secretary

proposes to divide that assessment into

two steps in the regulations—an

assessment for determining eligibility

and priority for services, addressed in

this section, and an assessment for

determining vocational rehabilitation

needs through the development of the

IWRP, addressed by proposed § 361.45.

In response to public comment on the

draft regulations, the Secretary proposes

to amend this section by requiring that

the assessment for determining

eligibility and priority for services be

conducted in the most integrated setting

possible, consistent with the

individual’s needs and informed choice.

Proposed paragraph (a) of this section

incorporates the changes in the

eligibility criteria that were made by the

1992 Amendments, including the

presumption that an individual with an

impairment that constitutes a

substantial impediment to employment

can benefit from vocational

rehabilitation services, the presumption

that Social Security beneficiaries meet

the first two eligibility criteria, and the

new requirement that an individual

with a disability require vocational

rehabilitation services in order to

achieve an employment outcome

consistent with the individual’s

strengths, resources, priorities,

concerns, abilities, capabilities, and

informed choice.

Some commenters questioned the

absence of a regulatory provision

identifying who is qualified to

determine the existence of a physical or

mental impairment. Section 361.32 of

the existing regulations requires that the

preliminary diagnostic study, for

purposes of determining an individual’s

eligibility for services, must include

medical information and, in the case of

individuals with mental and emotional

disorders, an examination by a

physician or by a licensed or certified

psychologist. Proposed paragraph

(a)(1)(i) of this section is based on

amendments to section 103(a) of the

Act, which substituted the standard that

‘‘qualified personnel in accordance with

State licensure laws’’ make these

determinations in lieu of particular

medical professionals. The proposed

regulatory provision broadens this

concept to also encompass individuals

who are certified under State law and

individuals licensed or certified under

State regulations. The Secretary believes

that this broader interpretation is

necessary to ensure that existing data

and determinations made by other

agencies, particularly education

agencies, are used by DSUs in

determining whether an individual is an

individual with a disability under

section 7(8)(A) of the Act or an

individual with a severe disability

under section 7(15)(A) of the Act. Under

the proposed regulations, the

determination of who is qualified to

determine the existence of an

impairment will vary from State to State

depending on State licensure and

certification requirements. Although the

proposed regulations do not require a

medical diagnosis for a DSU to

determine that an impairment exists, the

Secretary anticipates that in most

instances those determinations will be

supported by medical documentation.

Paragraph (a)(2) of § 361.42 in the

draft regulations required a DSU to

presume that an applicant can benefit in

terms of an employment outcome unless

it determines, based on clear and

convincing evidence, that the applicant

is incapable of benefitting from VR

services as a result of the severity of his

or her disability. In response to public

comment, the Secretary proposes to

delete the phrase ‘‘as a result of the

severity of his or her disability’’ from

the NPRM in order to clarify that

individuals may be found incapable of
64488 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

benefitting from VR services for reasons

other than severity of disability. This

change is consistent with section

102(a)(4)(A) of the Act. Nevertheless,

the Secretary expects that the

overwhelming majority of

determinations under this requirement

will be based on the severity of the

individual’s disability and specifically

requests public commenters to identify

reasons other than severity of disability

that would support a determination that

an individual is incapable of benefitting

from VR services. If a determination that

an individual cannot benefit from VR

services is based on the severity of the

individual’s disability, section

102(a)(4)(B) of the Act and proposed

paragraph (d)(1) of this section would

also require the DSU to conduct an

extended evaluation before reaching this

conclusion. Finally, the Secretary

proposes to further amend paragraph

(a)(2) of this section to clarify that the

presumption of benefit applies only to

those applicants who meet the first two

eligibility criteria.

In response to public comment on

paragraph (b)(1) of this section of the

draft regulations, the Secretary proposes

to amend the regulations to prohibit

States from imposing any duration of

residence requirement for the receipt of

services on any applicant who is

present, rather than resides, in the State.

The amended provision closely tracks

the statutory language of section

101(a)(14) of the Act.

Paragraph (c) of this section

incorporates the new statutory

provisions that require the State unit to

use existing data, to the extent possible,

to determine eligibility and vocational

rehabilitation needs.

Some public commenters on the draft

regulations inquired as to the scope of

vocational rehabilitation services that

DSUs must provide during an extended

evaluation. In response, the Secretary

proposes to amend the regulations to

require the State unit to develop a

written plan during the extended

evaluation period for determining

eligibility and for determining the

nature and scope of services required to

achieve an employment outcome. The

provision of services under the plan

must be limited to those services needed

to make these two determinations. It

should be noted that this change

represents a departure from the current

regulations, which required DSUs to

develop an IWRP for individuals in

extended evaluation. The Act, however,

requires only that IWRPs be developed

for eligible individuals. The written

plan requirements of this section are,

therefore, intended to lessen the burden

on State units of developing IWRPS for

individuals in an extended evaluation,

while ensuring that the specific services

to be provided during an extended

evaluation are clearly identified.

The proposed regulations also contain

a note on clear and convincing evidence

that is based on legislative history from

the Senate Committee Report. In

response to public comment, the

Secretary proposes to amend the note to

clarify that determinations under the

‘‘clear and convincing evidence’’

standard must be made on a case-bycase basis.

Finally, the Secretary views the new

eligibility criterion that an individual

must require vocational rehabilitation

services in order to achieve or retain an

employment outcome as a limiting

factor that is intended to screen out

individuals who can prepare for, enter

into, engage in, or retain gainful

employment consistent with their

strengths, resources, priorities,

concerns, abilities, and capabilities

without assistance from the vocational

rehabilitation program. The proposed

regulations contain a second note that

provides several examples for guidance

to State agencies regarding situations in

which an individual may or may not

require vocational rehabilitation

services. The Secretary emphasizes that

the examples are provided solely for the

purposes of illustration, do not address

all situations under which an individual

may be eligible or ineligible for services,

and are not intended to substitute for

individual counselor judgment on a

case-by-case basis.

Section 361.43—Procedures for

Ineligibility Determination

The Secretary proposes this new

section to consolidate overlapping

provisions relating to procedures for

ineligibility determinations that are

currently contained in several different

sections of the regulations. Specifically,

it would consolidate paragraph (e) of

current § 361.34, which contains

termination provisions for an extended

evaluation to determine rehabilitation

potential, paragraph (c) of current

§ 361.35, which contains the

requirements for a certification of

ineligibility, and paragraph (d) of

current § 361.40, which contains the

requirements regarding review of

ineligibility determinations.

The Secretary proposes to require

DSUs to review all ineligibility

determinations once within 12 months

unless exceptions apply. In response to

public comment on the draft

regulations, the Secretary also proposes

to amend paragraph (d) of this section

to clarify that each year after the initial

review, DSUs must, upon request,

review any ineligibility determination

that is based on the inability of the

individual to achieve an employment

outcome.

Section 361.44—Closure Without

Eligibility Determination

The Secretary proposes to create this

new section from the provisions

contained in paragraph (e) of § 361.35 of

the current regulations, which is the

section that contains the certification

requirements. Although the certification

requirements have been removed from

the proposed regulations because they

overlap with the documentation

requirements in the case record (referred

to as record of services in proposed

§ 361.47), the substantive requirements

related to closure without an eligibility

determination are substantially the same

as they are in existing § 361.35(e).

In response to public comment on the

draft regulations, the Secretary has

clarified the regulations to authorize the

State unit to close an applicant’s case if

the applicant declines to participate in,

or is unavailable to complete, an

assessment for determining eligibility

and priority for services. In either

situation, the State unit is required to

make a reasonable number of attempts

to contact the individual or, if

appropriate, the individual’s

representative prior to closing the

applicant’s case.

§ 361.45—Development of the

Individualized Written Rehabilitation

Program

In response to public comment, this

section, entitled ‘‘Assessment for

determining vocational rehabilitation

needs’’ in the draft regulations, has been

renamed for purposes of clarification.

The Secretary believes this proposed

retitling better reflects the full scope of

requirements under the IWRP

development process, of which the

assessment represents an essential part.

The Secretary also proposes to clarify

the purpose clause under paragraph (a)

of this section for the same reason.

This proposed section would combine

the provisions in §§ 361.33 and 361.40

of the current regulations regarding

thorough diagnostic study and IWRP

procedures. It incorporates new

statutory requirements created by the

1992 Amendments, including

requirements regarding informed

choice, integrated settings, and the use

of existing data.

Some public commenters suggested

that the term ‘‘counseling and

guidance’’ be defined in the proposed

regulations. The Secretary declines to

define the term, but proposes to revise

paragraph (b)(1) of this section to
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emphasize the development of a

counseling and guidance relationship

between the vocational rehabilitation

counselor and the individual during

assessment. That relationship is

intended as a means of fostering

collaboration between the counselor and

the individual in identifying, preparing

for, and achieving meaningful

vocational outcomes for the individual.

The Secretary envisions that the

counselor, based on his or her expertise,

will provide the individual with

comprehensive information relevant to

the individual needs of the individual

and that the counselor and individual

will jointly discuss the values, needs,

desires, and realities facing both

individuals. It also should be noted that,

in response to public comment, the

Secretary has deleted the requirement in

the draft regulations that counseling and

guidance be provided throughout the

development and implementation of the

IWRP. As discussed in the following

paragraph, IWRPs are developed on an

individual basis, and while some

individuals may request or require

counseling and guidance services

throughout the development and

implementation of their IWRPs, others

may not. By making this change, the

Secretary emphasizes that the provision

of counseling and guidance during the

development and implementation of the

IWRP is dependent on the particular

circumstances affecting each individual.

Several commenters on the draft

regulations were concerned that this

section required State units to impose

strict timelines for developing IWRPs

without considering the particular

needs of the individual. In response, the

Secretary proposes to amend the

regulations to require State units to

establish and implement standards for

the prompt development of IWRPs,

including timelines that take individual

needs into consideration. The Secretary

agrees that the development of the IWRP

is a highly individualized process and

must be conducted in a manner

consistent with the individual’s

strengths, priorities, concerns, abilities,

capabilities, and career interests.

Nevertheless, the Secretary believes that

these timelines, which are not absolute

and operate as guidelines, are consistent

with the legislative intent that

individuals with disabilities receive

services as quickly as possible and,

therefore, are necessary to guard against

delays in the development of the IWRP

once an individual is determined

eligible for VR services.

Section 361.46—Content of the IWRP

This proposed section contains the

IWRP content requirements, which are

in § 361.41 of the existing regulations.

Several commenters on the draft

regulations viewed certain requirements

under this section and § 361.47 (Record

of services) as duplicative of one

another and, therefore, unduly

burdensome. In response, the Secretary

proposes to reduce the paperwork

requirements in each section of the

regulations by eliminating certain

requirements that are non-statutory or

redundant. The Secretary emphasizes,

however, that the elimination of certain

documentation requirements in these

sections is intended solely as a means

of reducing paperwork burdens on the

State unit and does not diminish the

responsibility of the State unit to fully

develop the IWRP and to be able to

document or otherwise support its

determinations affecting each individual

should those determinations be

questioned within the context of a

compliance review or audit. Each IWRP

content or record of services

requirement eliminated from the draft

regulations is, the Secretary believes,

sufficiently addressed elsewhere in the

regulations.

For example, the Secretary proposes

to delete the requirement that the IWRP

include statements supporting the basis

on which individuals are determined

eligible or ineligible for services. The

Secretary agrees that those statements

are burdensome given comparable case

record requirements in proposed

§ 361.47 (a) and (b) that the State unit

maintain documentation supporting

determinations of eligibility and

ineligibility.

In paragraph (c) of this section, the

Secretary proposes to clarify the

regulations by consolidating the IWRP

content requirements that relate to postemployment services.

Some public commenters on the draft

regulations suggested that the State unit

attach the Individualized Education

Plan (IEP) to the IWRP, rather than

summarize the IEP, when coordinating

with education agencies to serve

transitioning students. In response, the

Secretary emphasizes that the Secretary

does not consider coordination between

the IWRP and IEP to represent a

documentation requirement. Rather, the

requirement in the draft regulations that

the IWRP include a summary of the

transitioning student’s IEP was intended

to ensure that the State unit review the

vocational goals, rehabilitation

objectives, and nature and scope of

services identified in the transitioning

student’s IEP during the course of

developing the IWRP. Requiring that

review is consistent with the legislative

intent that State units coordinate with

education agencies to serve

transitioning students in the most

effective and efficient manner possible.

In an effort to clarify the regulations,

however, the Secretary proposes to

amend this section to require the State

unit to ensure that the transitioning

student’s IWRP is consistent with the

student’s IEP in terms of goals,

objectives, and services. Although the

IWRP need not include a summary or an

attached copy of the IEP, it is expected

that, for transitioning students, State

units will closely review the IEP in the

course of IWRP development. In

addition, the Secretary proposes to

amend § 361.47(f) to require the State

unit to maintain documentation from

the needs assessment to support the

goals, objectives, and services identified

in the IWRP and in the IEP of

transitioning students.

Finally, in response to public

comment, the Secretary proposes to add

paragraph (e) to this section to require

State units to ensure that a

determination that an individual is

ineligible for services after an IWRP has

been developed is made in accordance

with the procedures in proposed

§ 361.43 and is included as an

amendment to the IWRP.

Section 361.47—Record of Services

This proposed section revises § 361.39

of the existing regulations. References to

the ‘‘case record’’ would be replaced

with the term ‘‘record of services’’ to

discourage characterizing individuals

with disabilities as ‘‘cases.’’ The

proposed section would incorporate the

choice and integration requirements in

the 1992 Amendments.

As previously discussed, the

Secretary has significantly revised this

section to reduce paperwork

requirements in response to commenters

on the draft regulations who viewed

many of the record of services

requirements as unduly burdensome or

duplicative of other requirements in the

regulations.

In response to public comment, the

Secretary proposes to simplify

paragraphs (a) and (b) of this section to

require State units to maintain

documentation to support

determinations of eligibility or noneligibility made in accordance with

proposed § 361.42 or § 361.43. The

Secretary also proposes to require State

units to include, as part of an

individual’s record, documentation

supporting the determination that an

individual has a severe or most severe

disability. This requirement is
64490 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

particularly important to support an

individual’s receipt of services from a

State unit operating under an order of

selection or to support the individual’s

placement in a supported employment

setting. In addition, this requirement is

consistent with the intent of the Act to

expand and improve services to

individuals with the most severe

disabilities.

In paragraph (d) of this section, the

Secretary proposes to simplify the

requirements relating to extended

evaluations by requiring State units to

maintain documentation to support the

need for an extended evaluation and to

support the periodic assessments

conducted during the extended

evaluation. Documentation maintained

under this paragraph would also

include the written plan developed

during the extended evaluation in

accordance with § 361.42(d)(3).

In an effort to better coordinate

rehabilitation services for transitioning

students, the Secretary also proposes to

amend paragraph (f) of this section to

specify that the State unit must

document the development of the

individual’s long-term vocational goal,

intermediate rehabilitation objectives,

and nature and scope of services, as

identified in the transitioning student’s

IWRP and IEP.

Finally, the Secretary proposes to

delete a number of requirements from

the draft regulations on the basis that

the requirements are unduly

burdensome or unnecessarily

duplicative of other provisions in the

regulations. For example, because the

IWRP is included as part of the

individual’s record of services that must

be maintained under this section,

requirements that are duplicative of

IWRP content requirements in proposed

§ 361.46 have been deleted from the

record of services. For each record of

services requirement that the Secretary

considers duplicative of other

requirements in the regulations, specific

references to those other requirements

are provided.

Accordingly, the Secretary proposes

to delete the following documentation

requirements from this section of the

draft regulations: (1) Documentation of

the manner in which the individual was

provided information necessary to make

informed choices as to vocational goals,

rehabilitation services, and service

providers (addressed by § 361.46(a)(6)

and § 361.52). (2) Documentation of the

manner in which the individual was

provided information regarding the

level of integration of service provision

and job placement options (addressed

by § 361.46(a)(7)(iii) and § 361.52). (3)

Documentation supporting the

determination that the clinical status of

the individual is stable or slowly

progressive if physical and mental

restoration services are provided

(addressed by § 361.46(a)(3)). (4)

Documentation to support any decision

to provide services to family members

(addressed by § 361.46(a)(3)). (5)

Documentation relating to the

individual’s participation in the cost of

any vocational rehabilitation services,

the eligibility of the individual for any

comparable services and benefits, and

the availability and use of those

comparable service and benefits

(addressed by § 361.46(a)(7)). (6)

Documentation that the individual has

been advised of the confidentiality of all

information pertaining to the individual

and that any information about the

individual has been released with the

individual’s informed written consent

(addressed by § 361.46(a)(7) and

§ 361.38). (7) Documentation of any

plans to provide post-employment

services after the employment outcome

has been achieved (addressed by

§ 361.46(c)). (8) Documentation of any

review of the determination that an

individual is no longer capable of

achieving an employment outcome after

services under an IWRP have already

been provided (addressed by

§ 361.43(d)).

The Secretary is particularly

interested in public comment on

whether the proposed provisions cover

all key decision points in the

rehabilitation process for which

documentation is needed.

Section 361.48—Scope of Vocational

Rehabilitation Services for Individuals

With Disabilities

This proposed section revises § 361.42

of the existing regulations.

The phrase ‘‘counseling and

guidance’’ in the current regulations has

been changed in proposed § 361.48(a)(3)

to ‘‘vocational counseling and

guidance’’ in order to clarify that

counseling and guidance services that

are provided as discrete vocational

rehabilitation services are vocational in

nature and specifically designed to

assist the individual in reaching an

employment outcome. Vocational

counseling and guidance is, therefore,

distinguishable from the more

generalized counseling and guidance

that an individual may need at any

point during the rehabilitation process

in connection with the provision of

services.

A number of paragraphs from the

current regulatory section have been

revised to remove definitional text, and

definitions for those services have been

added to proposed § 361.5. For example,

proposed § 361.48(a)(5), providing for

physical and mental restoration

services, has been revised to remove all

definitional material, which is now in

proposed § 361.5(b)(35). Proposed

paragraph (a)(7) of this section,

providing for maintenance, has been

modified to remove the current

regulatory provisions that describe

maintenance in terms of subsistence or

basic living expenses, and a proposed

definition of maintenance has been

included in proposed § 361.5(b)(31) to

clarify that maintenance costs are those

expenses that are in excess of normal

living expenses and that are

necessitated by participation in a

vocational rehabilitation program.

Similarly, proposed paragraph (a)(8) of

this section provides for transportation

in connection with the rendering of any

vocational rehabilitation service, and a

definition of transportation has been

added to proposed § 361.5(b)(49), which

clarifies that transportation must be

necessary to enable an applicant or

eligible individual to participate in a

program of vocational rehabilitation

services. This change was proposed in

the 1991 NPRM.

Proposed paragraph (a)(9) of this

section clarifies that the services

available to family members are

vocational rehabilitation services

necessary to enable the applicant or

eligible individual to achieve an

employment outcome.

Some commenters on the draft

regulations requested that the provision

of ‘‘note-taking services’’ not be limited

to individuals who are deaf or blind. In

response, the Secretary agrees that notetaking services should be available to

any eligible individual in need of those

services to achieve an employment

outcome. Therefore, the Secretary

proposes to delete ‘‘note-taking’’ from

proposed paragraphs (a)(10) and (a)(11)

of this section and emphasizes that

these services are available under

proposed paragraph (a)(20) of this

section as ‘‘other services’’ whenever

necessary for an eligible individual to

achieve an employment outcome.

Proposed paragraph (a)(13) of this

section, which provides for job search,

placement assistance, and job retention

services, clarifies the scope of services

currently available under existing

paragraph (a)(12) of § 361.42, which

provides for placement in suitable

employment. Proposed paragraphs

(a)(14) and (a)(15) of this section

incorporate new requirements in the

statute for supported employment and

personal assistance services. Proposed

paragraph (a)(16) of this section revises

the paragraph in the existing regulations

on post-employment services by
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referring to the proposed definition of

post-employment services in

§ 361.5(b)(37). That definition

incorporates the language in the 1992

Amendments regarding advancement in

employment and individual choice.

Finally, proposed paragraph (a)(18) of

this section revises the paragraph in the

existing regulations on rehabilitation

engineering services, consistent with the

1992 Amendments, to provide for

rehabilitation technology services.

Section 361.49—Scope of Vocational

Rehabilitation Services for Groups of

Individuals With Disabilities

This proposed section would

consolidate provisions from several

sections of the existing regulations,

including the definition of vocational

rehabilitation services for the benefit of

groups of individuals in § 361.1(c) of the

existing regulations and §§ 361.50,

361.51, 361.52, and 361.53 of the

existing regulations. In addition, it

would incorporate new requirements

imposed by the 1992 Amendments,

such as replacing the concept of the

‘‘establishment of a rehabilitation

facility’’ with the concept of the

‘‘establishment, development, or

improvement of a public or other

nonprofit community rehabilitation

program,’’ restricting the construction of

a rehabilitation facility to special

circumstances, and adding the newly

authorized service of technical

assistance and support services for

businesses that are not subject to the

Americans with Disabilities Act and are

seeking to employ individuals with

disabilities.

In response to public comment on the

draft regulations, the Secretary proposes

to amend paragraph (a)(5) of this section

to clarify that the establishment of small

business enterprises operated by

individuals with the most severe

disabilities under the State unit’s

supervision includes vending facilities

established under the RandolphSheppard program. In addition, the

Secretary proposes to amend this

paragraph to clarify that management

services and supervision in support of a

small business enterprise may be

provided by the State unit beyond the

initial establishment period of six

months. The Secretary also proposes to

clarify the draft regulations to state that

initial stock and supplies and

operational costs for small business

enterprises may be provided only

during the initial six-month

establishment period. These changes are

consistent with section 103(b)(1) of the

Act, as well as with the RandolphSheppard Act and its implementing

regulations in 34 CFR Part 395.

Section 361.50—Written Policies

Governing the Provision of Services

This section contains material from

paragraph (b) of § 361.42 of the existing

regulations, which requires written

State policies on the scope of vocational

rehabilitation services for individuals,

and § 361.44 of the existing regulations,

which is the section on authorization of

services. The Secretary proposes to

require that a State unit have policies

regarding the provision of services for

groups of individuals with disabilities,

as well as the availability of services for

individuals with disabilities.

In the draft regulations, this proposed

section incorporated new provisions,

based on existing policy and

subregulatory guidance, to clarify that

no absolute caps or limits, in terms of

location, cost, or duration, could be

placed on the availability of services

that would effectively deny an

individual a necessary service.

Although these provisions are

maintained in the proposed regulations,

some public commenters were

concerned that insufficient emphasis

was placed on the requirement that

policies governing the provision of

services must be designed to meet the

rehabilitation needs of each individual

served by the State unit. In response, the

Secretary proposes to amend the

regulations to specify that the policies

required to be developed under this

section must ensure that the provision

of services is based on the individual’s

rehabilitation needs as identified in the

IWRP. As in the draft regulations, the

proposed section would also prohibit

State units from arbitrarily limiting the

nature or scope of vocational

rehabilitation services needed by any

eligible individual to achieve an

employment outcome.

Some commenters on the draft

regulations opposed the ability of State

units to establish preferences for inState services on the basis that those

preferences are inconsistent with

principles of individual choice. In

response, the Secretary proposes to

amend the regulations to permit

individuals to choose out-of-State

services over in-State services. However,

if an individual selects an out-of-State

service at a higher cost than an in-State

service, if either service would meet the

individual’s rehabilitation needs, the

designated State unit would be required

to pay only an amount equal to the cost

of the in-State service.

The draft regulations would have

required State units to provide written

authorization of services either before or

at the same time as the purchase of

services, except in emergency situations

when oral authorization, followed by

prompt written confirmation, was

permitted. In response to those

commenters on the draft regulations

who believed that the State unit should

have greater flexibility in developing

policies governing the authorization of

services to individuals, the Secretary

proposes to simplify the regulations to

require State units to establish policies

related to the timely authorization of

services, including conditions under

which verbal authorization can be

given.

Section 361.51—Written Standards for

Facilities and Providers of Services

This proposed section would

incorporate § 361.45 of the existing

regulations, would expand the

requirement for standards to ensure

accessibility of facilities, and would

require new standards regarding

qualified personnel and fraud, waste,

and abuse, consistent with the 1992

Amendments.

In response to public comment on the

draft regulations, the Secretary

interprets the accessibility of facilities

requirement broadly so as not to prevent

any individual with a disability,

including the multi-chemically

disabled, from receiving services at a

facility. In response to public comment,

the Secretary also proposes to amend

the qualified personnel requirements in

paragraph (b)(1) of this section to reflect

the personnel standards included in the

State agency’s comprehensive system of

personnel development under section

361.18(c).

Section 361.52—Opportunity To Make

Informed Choices Regarding the

Selection of Services and Providers

This proposed new section would

implement section 12(e)(1) of the Act,

which was added by the 1992

Amendments and requires the Secretary

to promulgate regulations establishing

criteria pertaining to the selection of

vocational rehabilitation services and

providers by an individual with a

disability.

In response to public comment on the

draft regulations, the Secretary proposes

to amend this section of the regulations

to clarify that the concept of informed

choice applies to all aspects of the

vocational rehabilitation process,

including the selection of vocational

goals, intermediate objectives, VR

services, and service providers. This

provision is closely related to the

requirement in proposed § 361.46(a)(6)

that the IWRP include a statement from

the individual describing the manner in

which the individual exercised

informed choice in selecting among
64492 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

alternative goals, objectives, services,

providers, and methods used to procure

or provide services. The proposed

regulations also would require that the

State unit consult with its State

Rehabilitation Advisory Council, if it

has one, when developing its policies

for facilitating informed choice.

Several commenters opposed the

requirement in the draft regulations that

State units develop indicators regarding

the quality of service providers on the

basis that such a requirement is overly

burdensome and likely to lead to

disputes, and potentially litigation,

between State units and providers of VR

services. In response, the Secretary

proposes to amend the regulations to

require State units to provide

individuals, or assist individuals in

acquiring, information necessary to

make an informed choice about the

specific services, including the

providers of those services, that are

needed to achieve the individual’s

vocational goal. Thus, it is expected that

State units will provide, or facilitate

access to, information concerning cost

and accessibility of services, level of

consumer satisfaction with services,

qualifications of service providers, and

other information necessary to enable

the individual to make an informed

choice among alternative services and

providers.

It should also be noted that in

response to public comment and in the

interest of reducing the burden on State

units, the proposed regulations would

not require DSUs to provide a list of

available services and the potential

providers of those services to each

individual. Lists of this type, as well as

resource materials such as consumer

satisfaction surveys, are, however,

included in the regulations as examples

of possible sources of information that

may be used by DSUs to satisfy the

information requirements of this

section.

Section 361.53—Availability of

Comparable Services and Benefits

This proposed section revises

§ 361.47(b) of the existing regulations.

As provided for in the draft

regulations, the availability of

comparable services and benefits is

based on whether services and benefits

exist under another program for the

individual and whether the individual

is eligible for those services or benefits.

However, the use of comparable services

and benefits under the draft regulations

was dependent upon whether the

comparable services and benefits were

‘‘currently available’’ to the individual.

In response to public commenters who

expressed confusion as to the meaning

of this phrase, the Secretary proposes to

delete the word ‘‘currently’’ from this

section and to amend the regulations to

require DSUs to use comparable services

and benefits if available to the eligible

individual within a reasonable period of

time that is appropriate for the

achievement of the intermediate

rehabilitation objectives identified in

the individual’s IWRP. What constitutes

a reasonable period of time would vary

according to the services identified in

each individual’s IWRP. By making this

change, the Secretary emphasizes that

the use of comparable services and

benefits should not unreasonably delay

the individual in meeting his or her

rehabilitation objectives.

In the event comparable services and

benefits exist but are not available to the

individual within a reasonable period of

time, the proposed regulations would

require the State unit to provide VR

services during the interim period until

they become available. In an effort to

respond to public comment and reduce

the burden on DSUs, the Secretary

proposes to delete the requirement in

the draft regulations that State units

obtain reimbursement for any overlap in

benefits once the comparable services

and benefits become available.

In response to public comment on the

draft regulations, the Secretary also

proposes to revise the regulations to

clarify that a determination as to the

availability of comparable services and

benefits is not required in connection

with the provision of those services

listed under paragraph (b) of this

section. Although DSUs are free to

provide these services without pursuing

the availability of comparable services

and benefits, the Secretary encourages

State units to use known comparable

services and benefits whenever possible

in order to maximize the use of funds

provided under this program.

In response to public comment on the

draft regulations, the Secretary also

proposes to amend paragraph (b) of this

section by including taped texts and

computer accessible formats (sometimes

referred to as E-text) among those

services for which comparable services

and benefits do not need to be sought.

This addition is consistent with the

Act’s legislative history, specifically

Conference Report No. 102–973.

Section 361.54—Participation of

Individuals in Cost of Services Based on

Financial Need

This proposed section is taken from

§ 361.47(a) of the existing regulations. It

would clarify the requirements that a

State unit must meet if it chooses to

consider the financial need of

individuals to determine the extent of

their participation in the cost of

vocational rehabilitation services. The

Secretary proposes to clarify the draft

regulations to require State units to

ensure that its policies governing

financial need be applied uniformly to

all individuals in similar circumstances.

The Secretary interprets this provision,

which is modeled after existing

regulations, to require a State unit to

apply its financial needs test to each

individual in need of a service covered

by the test without regard to the type of

the individual’s disability. The

proposed regulations would also clarify

that this uniform application

requirement does not prohibit setting

different levels of need for different

geographic regions in the State, but

requires uniform application of the

standard to all individuals within each

geographic region or to all individuals

within the State if the State unit does

not establish geographical differentials.

Finally, the proposed regulations would

clarify that the level of an individual’s

financial participation in the cost of VR

services must be reasonable, based on

the individual’s financial need and

ability to pay, and must not be so high

as to effectively deny the individual a

necessary service.

Section 361.55—Review of Extended

Employment in Community

Rehabilitation Programs or Other

Employment Under Section 14(c) of the

Fair Labor Standards Act

This proposed section is taken, in

part, from § 361.58 of the existing

regulations. In addition to the review of

extended employment outcomes, the

1992 Amendments require the review of

employment outcomes in which the

individual is compensated in

accordance with section 14(c) of the Fair

Labor Standards Act to determine the

individual’s needs and interests related

to competitive employment. This

section would also incorporate the

emphasis in the 1992 Amendments on

employment and training in integrated

settings and would elaborate on the

meaning of the ‘‘maximum effort’’

required of State units in the existing

regulations to clarify that State units are

required to provide services to promote

movement from extended employment

to integrated employment.

Section 361.56—Individuals Determined

To Have Achieved an Employment

Outcome

This proposed section, which has

been renamed to conform to the changes

discussed in the following paragraphs,

is taken from § 361.43 of the existing

regulations. It has been revised to make

the requirements in the current
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regulations more outcome-oriented,

rather than process-oriented, and to

incorporate the new statutory emphases

on choice and integrated settings.

In an effort to better reflect whether

an individual has successfully achieved

an employment outcome, the draft

regulations would have extended the

period for which an employment

outcome must be maintained from 60 to

180 days. Several commenters, however,

opposed the 180-day standard as unduly

burdensome and inconsistent with

individual choice. Some commenters

believed that the standard for closing an

individual’s case should be based on the

particular circumstances of the

individual’s employment situation,

while others indicated that the

determination as to whether the

individual is successfully employed

should be made jointly by the

individual, the rehabilitation counselor

or coordinator, and, in some cases, the

employer. In response to these

comments and to the views expressed

by members of the focus group that

discussed this issue, the Secretary

proposes to delete the draft requirement

that an employment outcome must be

maintained for 180 days. In its place,

the Secretary proposes a standard under

which the individual must maintain the

employment outcome for the duration of

any probationary period that the

employer has established for its

employees, or, if the employer does not

have an established probationary

period, for a period of at least 90 days.

In addition, the individual and the

rehabilitation counselor or coordinator

must agree that the employment

outcome is satisfactory and that the

individual is performing well on the job.

Like the draft regulations, this section

would also require the State unit to

assure that the employment outcome is

in the most integrated setting possible

and is consistent with the individual’s

abilities, capabilities, interests, and

informed choice. Finally, in response to

public comment, the Secretary proposes

to amend this section to require that the

provision of services under the

individual’s IWRP contribute to, rather

than result in, the achievement of the

employment outcome.

The proposed standard, like that in

the draft regulations, is intended to

strengthen the current minimum 60-day

standard for maintaining a job

placement in an effort to better reflect

whether an individual has, in fact,

successfully achieved an employment

outcome. The Secretary agrees with

those commenters who suggested that

achievement of an employment outcome

should be based, in part, on the stability

of the individual’s employment. In

addition, the proposed changes from the

current regulations are also intended to

condition the achievement of an

employment outcome on the satisfaction

of the individual, the counselor, and the

employer. The Secretary believes that

the best measure of an employer’s

satisfaction with an individual’s job

performance is whether the individual

has met the employer’s probationary

period. For those individuals whose

employers have not established a

customary probationary period, the

Secretary views the 90-day minimum as

an adequate safeguard to ensure that the

individual is performing well and is

likely to maintain the employment

outcome. Consistent with the Act’s

emphasis on informed choice, the

proposed regulations would also base

the decision that an individual has

achieved an employment outcome on

the individual’s, as well as the

counselor’s or coordinator’s, satisfaction

with the employment outcome. The

Secretary emphasizes that a satisfactory

employment outcome, at a minimum,

must meet the provisions of this section,

and the Secretary is particularly

interested in public comment

concerning whether further standards

for defining ‘‘satisfactory’’ should be

developed at the Federal level.

The Secretary is continuing to

consider issues concerning outcome

measures for the vocational

rehabilitation program, including the

proposed time standard in these

regulations for maintaining a job

placement in order to achieve an

employment outcome (the duration of

the employer’s probationary period or,

in the absence of an employer policy in

this area, at least 90 days). The Secretary

believes that the high level of Federal

funding for this program—over 78

percent—warrants close attention to

accountability measures to ensure that

employment outcomes are maintained

over time. The Secretary is particularly

interested in receiving comments on

whether the proposed job retention

standard is strong enough to achieve

this result.

The Secretary is also interested in

receiving comments about the

relationship between closure

requirements for the vocational

rehabilitation program and other

programs, including those under the Job

Training Partnership Act (13 weeks), the

Social Security beneficiary

rehabilitation program (9 months of

substantial gainful activity), and other

State manpower development and job

training programs. Finally, the Secretary

is interested in comments on the impact

of the proposed new employment

outcome standard and whether, in

comparison to the current standard, it

would likely increase or decrease the

number of individuals with disabilities

achieving long-term employment

outcomes.

Section 361.57—Review of

Rehabilitation Counselor and

Coordinator Determinations

This proposed section is taken from

§ 361.48 of the existing regulations.

In accordance with the Department’s

principles for regulating, the Secretary

proposes to delete all non-statutory

timelines from this section of the draft

regulations. In place of specific time

limits, the proposed regulations would

require each DSU, in consultation with

its State Rehabilitation Advisory

Council, if it has one, to develop

reasonable timelines for key stages of

the appeal process to ensure that

appeals are handled promptly.

Specifically, DSU’s would be required

to develop timelines to ensure that

hearings are held within a reasonable

time after an individual’s request for

review, that the initial decision of the

impartial hearing officer is rendered

within a reasonable time after the

hearing is completed, and that the final

decision of the DSU director is rendered

within a reasonable time after notifying

the individual of the director’s intent to

review the initial decision. These

changes are intended to provide DSU’s

with increased flexibility to develop

appropriate timelines, while protecting

individuals against unreasonable delays

in the review process. Like the current

regulations, this proposed provision

also would permit a DSU to establish an

informal process to resolve a request for

review without conducting a formal

hearing, but would require the DSU to

conduct a hearing within the relevant

State-developed timeline if informal

resolution is unsuccessful. The

Secretary particularly requests public

comment on whether a specific overall

time limit for completing the entire

formal review process (e.g., 125 days)

should be required under the

regulations.

This section would incorporate the

requirement in the 1992 Amendments

that prohibits the State unit from

instituting a suspension, reduction, or

termination of services pending a final

State hearing determination unless the

agency has evidence that the services

were obtained through fraud,

misrepresentation, collusion, or

criminal conduct on the part of the

individual, or the individual so

requests. The Secretary interprets this

provision to mean that services may be

suspended, reduced, or terminated
64494 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

pending a final determination if there is

‘‘substantial evidence’’ of that conduct.

This proposed section also

incorporates the requirement in the

1992 Amendments that the director not

overturn or modify the decision of an

impartial hearing officer unless the

director concludes, based on clear and

convincing evidence, that the decision

of the impartial hearing officer is clearly

erroneous because it is ‘‘contrary to

Federal or State law, including policy.’’

The Secretary interprets this statutory

language to include a decision that is

contrary to the approved State plan, the

Act, or Federal or State vocational

rehabilitation regulations or policy.

It should be noted that the Secretary

has changed the term ‘‘calendar day’’

from the draft regulations to ‘‘day’’ in

the proposed regulations in response to

public commenters who inquired as to

the difference in meaning between the

two terms. Procedural time limits in this

section and throughout the regulations

are, therefore, measured in terms of

‘‘days,’’ which the Secretary intends to

mean ‘‘calendar days’’ rather than

‘‘working days.’’

Finally, in response to public

comment on the draft regulations, the

Secretary proposes to add to paragraph

(f) of this section a requirement that the

DSU inform applicants and eligible

individuals of the manner in which it

selects impartial hearing officers.

Section 361.60—Matching Requirements

This proposed new section would

clarify the matching requirements by

consolidating all of the Federal and nonFederal share provisions. Proposed

paragraph (a) of this section contains the

general Federal share provision, which

is in § 361.86(a) of the existing

regulations and was revised by the 1992

Amendments to be 78.7 percent.

Proposed paragraph (a) of this section

also contains the 50 percent Federal

share provision for construction

projects, which is in § 361.74(b) of the

existing regulations, and the 90 percent

Federal share provision for innovation

and expansion grant activities, which is

addressed in § 361.153 of the existing

regulations.

In accordance with the Department’s

principles for regulating, the Secretary

proposes to simplify the requirements

relating to the non-Federal share in the

draft regulations by removing from the

regulations a list of permissible sources

of expenditures to meet the non-Federal

share and instead cross-referencing the

applicability of the matching or cost

sharing requirements in 34 CFR 80.24 of

EDGAR with certain exceptions. The

proposed regulations would specify that

third party in-kind contributions, which

are a permissible source of matching

funds under EDGAR, may not be used

as part of the non-Federal share under

the VR program. In addition, the

proposed regulations would continue,

but clarify, existing regulatory

requirements that prohibit earmarked

donations that benefit the donor from

being used to meet the non-Federal

share. The Secretary wishes to

emphasize that the changes proposed

with regard to meeting the non-Federal

share would not prohibit the use of any

funding sources that are currently

allowable.

Section 361.61—Limitation on Use of

Funds for Construction Expenditures

This proposed new section sets out in

a separate section the requirement in

paragraph (d) of § 361.85 of the existing

regulations that no more than 10 percent

of a State’s allotment may be used for

construction.

Section 361.62—Maintenance of Effort

Requirements

This proposed section is taken from

§ 361.86 of the existing regulations. It

incorporates provisions in the 1992

Amendments, which changed the

standard on which the maintenance of

effort level is based from the average of

the three prior fiscal years to the second

prior fiscal year. It also folds into the

same section a separate maintenance of

effort requirement relating to the

construction of facilities that is

contained in both § 361.52(e) and

§ 361.85(d) of the existing regulations.

This proposed section clarifies the

procedures the Secretary follows for

determining whether maintenance of

effort requirements have been met and

for reducing the amount payable in the

case of a maintenance of effort deficit if

there is a separate State agency for

vocational rehabilitation services for

individuals who are blind.

Section 361.63—Program Income

This proposed new section

consolidates in one place all of the

provisions related to program income.

Proposed paragraph (a) of this section

incorporates the definition of program

income from EDGAR (34 CFR 80.25(b)).

Proposed paragraph (b) of this section

incorporates existing subregulatory

guidance regarding the sources of

program income. Proposed paragraph

(c)(1) of this section incorporates the

general EDGAR requirement that

program income must be used in the

program in which it is earned, but

makes an exception for Social Security

reimbursements as provided in section

108 of the Act. Proposed paragraph

(c)(1) of this section would clarify that

program income is considered earned

when it is received.

In response to public comment on the

draft regulations, the Secretary proposes

to delete from proposed paragraph

(c)(3)(ii) of this section the requirement

that the State notify the Secretary prior

to using the deduction method for

accounting for program income. By

removing this condition, the Secretary

emphasizes that the State is free either

to use program income to expand its

vocational rehabilitation program or to

deduct it from its total allowable costs,

without seeking prior Federal approval.

Proposed paragraph (c)(4) of this

section would clarify that program

income may not be used to meet the

non-Federal share requirement.

Section 361.64—Obligation of Federal

Funds and Program Income

This proposed new section

incorporates the amendment to section

19 of the Act, which clarifies that both

Federal funds, including reallotted

funds, and program income from all

sources may be carried over for

obligation from the year in which the

funds are received until the end of the

following year.

In response to public comments on

the draft regulations, the Secretary

proposes to amend paragraph (b) of this

section to clarify that the State unit may

carry over any portion of unobligated

Federal funds that it has matched by

obligating non-Federal funds during the

fiscal year for which the Federal funds

were appropriated. This clarification is

consistent with section 19 of the Act,

which allows for carryover of Federal

funds ‘‘to the extent’’ that recipients

comply with Federal share

requirements.

Section 361.65—Allotment and

Payment of Federal Funds for

Vocational Rehabilitation Services

This proposed section is taken from

§§ 361.85 and 361.87 of the existing

regulations.

Section 361.70—Purpose of the Strategic

Plan

This proposed section implements

new section 120 of the Act, which

makes grants under Part B of the Act, as

well as innovation and expansion grants

under Part C of the Act, contingent on

the preparation and submission of a

statewide strategic plan.

Section 361.71—Procedures for

Developing the Strategic Plan

This proposed new section

implements new section 122 of the Act,

which requires the State to hold public

forums and meet with members of the
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64495

State Rehabilitation Advisory Council

and the Statewide Independent Living

Council prior to developing the strategic

plan. The Secretary interprets the public

forum requirement in the statute to

require the same procedures for public

input on the strategic plan that are

required for the development of the

State plan under § 361.20 of the

proposed regulations.

Section 361.72—Content of the Strategic

Plan

This proposed new section

incorporates the new requirements in

section 121 of the Act with no

substantive changes.

Section 361.73—Use of Funds

This proposed new section

incorporates the requirements in new

sections 101(a)(34)(B) and 123 of the

Act. The Secretary interprets

101(a)(34)(B) to require that at least 1.5

percent of the funds received under Part

B of the Act be used for the activities

identified in section 123. The Secretary

has clarified that all funds received

under Part C of the Act must be used for

activities identified in a State’s strategic

plan, which may include, but are not

limited to, the activities identified in

section 123 of the Act.

Section 361.74—Allotment of Federal

Funds

This proposed new section

incorporates by reference the

requirements of new section 124 of the

Act without substantive change.

Executive Order 12866

1. Assessment of Costs and Benefits

These proposed regulations have been

reviewed in accordance with Executive

Order 12866. Under the terms of the

order the Secretary has assessed the

potential costs and benefits of this

regulatory action.

The potential costs associated with

the proposed regulations are those

resulting from statutory requirements

and those determined by the Secretary

to be necessary for administering this

program effectively and efficiently.

Burdens specifically associated with

information collection requirements, if

any, are identified and explained

elsewhere in this preamble under the

heading Paperwork Reduction Act of

1995.

In assessing the potential costs and

benefits—both quantitative and

qualitative—of these proposed

regulations, the Secretary has

determined that the benefits of the

proposed regulations justify the costs. A

further discussion of the potential costs

and benefits of these proposed

regulations is contained in the summary

at the end of this section of the

preamble.

The Secretary has also determined

that this regulatory action does not

unduly interfere with State, local, and

tribal governments in the exercise of

their governmental functions.

To assist the Department in

complying with the specific

requirements of Executive Order 12866,

the Secretary invites comment on

whether there may be further

opportunities to reduce any potential

costs or increase potential benefits

resulting from these proposed

regulations without impeding the

effective and efficient administration of

the program.

Summary of potential benefits relative

to potential costs of the regulatory

provisions discussed previously in this

preamble:

The Secretary believes that the NPRM

would substantially improve The State

VR Services Program and would yield

substantial benefits in terms of program

management, efficiency, and

effectiveness. The Secretary also

believes that the proposed regulations

represent the least burdensome way to

implement the 1992 Amendments to

Title I of the Act and fulfill important

policy objectives that the Secretary

considers essential to the success of the

program. As stated previously in this

preamble, the NPRM has been revised

consistent with the Department’s

principles for regulating, which were

developed during the Administration’s

regulatory reinvention initiative, to

further reduce paperwork or process

requirements and to enhance the

flexibility of DSUs to meet non-statutory

requirements. Increased flexibility of

DSUs and other benefits resulting from

the proposed regulations are discussed

in the following paragraphs of this

section and throughout the section-bysection summary of the preamble.

Improved Organization of Regulations

The NPRM would substantially

reorganize and clarify the current

program regulations in order to make

the regulations easier to understand and

more useful. In response to requests

from members of the vocational

rehabilitation community, the proposed

regulations also would include

definitions of a number of previously

undefined terms, including

‘‘comparable services and benefits,’’

‘‘maintenance,’’ and ‘‘post-employment

services.’’

Notes and Examples

The Secretary has provided additional

clarifying information in the proposed

regulations through the use of notes and

examples. Many commenters to the

draft regulations stated that they find

this information more accessible and

more useful when it is included in the

regulations rather than issued separately

by RSA as subregulatory guidance. As

stated previously throughout this

preamble, the Secretary emphasizes that

the limited notes and examples in the

proposed regulations are purely

illustrative and are not intended to

restrict State flexibility.

Reduction of Grantee Burden

Non-statutory paperwork

requirements have been eliminated or

consolidated throughout the NPRM in

an effort to reduce the regulatory burden

on States. For example, previously

duplicative requirements under § 361.46

(Content of the IWRP) and § 361.47

(Record of services) have been

consolidated to reduce the paperwork

burden on States and to ensure efficient

administration of the program. A list of

other sections in which paperwork

burden on grantees has been removed or

reduced in response to public comment

on the draft regulations precedes the

section-by-section summary in this

preamble. Also, additional burdenreducing steps taken by the Secretary in

accordance with the Department’s

principles for regulating are explained

throughout the section-by-section

summary in the preamble. For example,

the proposed deletion of the

requirement that the State plan describe

the organizational structure of the State

agency and its organizational units is

discussed under § 361.13 (State agency

for administration) in the section-bysection summary. Those paperwork

requirements that would remain in the

proposed regulations are considered

essential to the proper administration of

the program.

Enhanced Protections for Individuals

With Disabilities

The proposed regulations include

provisions intended to ensure that

individuals with disabilities are not

improperly denied necessary VR

services. In particular, § 361.50 (Written

policies governing the provision of

services) would require DSUs to ensure

that the provision of VR services for an

eligible individual is based on the

individual’s particular rehabilitation

needs and would prevent DSUs from

arbitrarily limiting the nature or scope

of vocational rehabilitation services

needed by any eligible individual to

achieve an employment outcome. In

addition, § 361.54 (Participation of

individuals in cost of services based on

financial need) would require DSUs to
64496 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

apply a State financial needs test to each

individual in need of a service covered

by the test without regard to type of

disability. This section would also

require DSUs to ensure that the level of

an individual’s financial participation

in the cost of VR services is reasonable,

based on the individual’s ability to pay,

and not so high as to effectively deny

the individual a necessary service.

Increased Flexibility of Grantees to

Satisfy Statutory Requirements

A number of provisions in the

proposed regulations have been revised

in an effort to enhance the flexibility of

States in meeting specific statutory

requirements. For example, proposed

§ 361.20 (State plan development)

would allow States to determine what

constitutes appropriate and sufficient

notice under the Act for purposes of

providing notice of public meetings on

State plan development. Although the

proposed regulations would not impose

any specific minimum Federal

requirements for what constitutes

‘‘appropriate and sufficient notice,’’ the

section-by-section summary of this

proposed section identifies suggested

ways a DSU might meet these

requirements. Similarly, § 361.52

(Opportunity to make informed choices

regarding the selection of services and

providers) of the proposed regulations

identifies possible methods a DSU may

follow or sources of information a DSU

may maintain to ensure that each

eligible individual is afforded an

opportunity, as required under the Act,

to make an informed choice in selecting

vocational rehabilitation services and

providers. Finally, proposed § 361.57

(Review of rehabilitation counselor and

coordinator determinations) would

allow States to establish their own

timelines for key stages of the

statutorily-mandated fair hearing

process.

Additional Benefits

The proposed regulations reflect the

policy in the 1992 Amendments of

ensuring that individuals are provided

necessary information through

appropriate modes of communication to

enable them to participate in a

rehabilitation program or to influence

DSU rehabilitation policy development.

For example, proposed § 361.20(d)

requires a DSU, in developing its State

plan, to provide, through appropriate

modes of communication, the notices of

the public meetings, any materials

furnished prior to or during the public

meetings, and the approved State plan.

2. Clarity of the Regulations

Executive Order 12866 requires each

agency to write regulations that are easy

to understand.

The Secretary invites comments on

how to make these proposed regulations

easier to understand, including answers

to questions such as the following: (1)

Are the requirements in the proposed

regulations clearly stated? (2) Do the

regulations contain technical terms or

other wording that interferes with their

clarity? (3) Does the format of the

regulations (grouping and order of

sections, use of headings, paragraphing,

etc.) aid or reduce their clarity? Would

the regulations be easier to understand

if they were divided into more (but

shorter) sections? (A ‘‘section’’ is

preceded by the symbol ‘‘§ ’’ and a

numbered heading; for example, § 361.5

Applicable definitions.) (4) Is the

description of the regulations in the

‘‘Supplementary Information’’ section of

this preamble helpful in understanding

the regulations? How could this

description be more helpful in making

the regulations easier to understand? (5)

What else could the Department do to

make the regulations easier to

understand?

A copy of any comments that concern

how the Department could make these

proposed regulations easier to

understand should be sent to Stanley M.

Cohen, Regulations Quality Officer, U.S.

Department of Education, 600

Independence Avenue, S.W. (Room

5100, FB–10B), Washington, D.C.

20202–2241.

Regulatory Flexibility Act Certification

The Secretary certifies that these

proposed regulations would not have a

significant economic impact on a

substantial number of small entities.

Because these proposed regulations

would affect only States and State

agencies, the regulations would not

have an impact on small entities. States

and State agencies are not defined as

‘‘small entities’’ in the Regulatory

Flexibility Act.

Paperwork Reduction Act of 1995

Sections 361.10, 361.13, 361.14,

361.15, 361.16, 361.17, 361.18, 361.19,

361.20, 361.21, 361.22, 361.26, 361.27,

361.29, 361.33, 361.34, 361.35, 361.37,

361.40, 361.46, 361.48, 361.49, 361.50,

361.51, 361.52, 361.54, 361.57, 361.71,

and 361.72 contain information

collection requirements. As required by

the Paperwork Reduction Act of 1995

(44 U.S.C. 3507(d)), the Department of

Education has submitted a copy of these

sections to the Office of Management

and Budget (OMB) for its review.

Collection of Information: The State

Vocational Rehabilitation Services

Program

States are eligible to apply for grants

under these regulations. The

information to be collected includes

State plan assurances and descriptions

to meet statutory requirements. The

Department needs and uses the

information to review State plans to

determine whether they can be

approved. Approval of a State plan is

necessary to receive a grant under this

program.

All information is to be collected and

reported once every three years, with

the exception of the following

information, which is required

annually: advice provided by the State

Rehabilitation Advisory Council under

§ 361.16; collection and analysis of data

on qualified personnel needs and

personnel development under § 361.18;

analysis of characteristics of individuals

determined to be ineligible for services

and reasons for their ineligibility,

evaluation of the effectiveness of the

State’s vocational rehabilitation

program, any changes adopted in State

policy or in the State plan as a result of

statewide studies and the annual

program evaluation, and the methods

used to expand and improve vocational

rehabilitation services to individuals

with the most severe disabilities under

§ 361.29; revisions to the supported

employment plan under § 361.34; a

description of the manner in which

rehabilitation technology services will

be provided throughout the

rehabilitation process, the personnel

training that will be provided to

facilitate the provision of rehabilitation

technology services, and the manner in

which personal assistance services will

be provided to individuals with

disabilities under § 361.48. Annual

reporting and recordkeeping burden for

this collection of information is

estimated to average 221.2 hours per

response for 82 respondents, including

the time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Thus, the

total annual reporting and

recordkeeping burden for this collection

is estimated to be 18,138.4 hours.

Organizations and individuals

desiring to submit comments on the

information collection requirements

should direct them to the Office of

Information and Regulatory Affairs,

OMB, Room 10235, New Executive

Office Building, Washington, D.C.

20503; Attention: Laura Oliven.
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64497

The Department considers comments

by the public on these proposed

collections of information in—

• Evaluating whether the proposed

collections of information are necessary

for the proper performance of the

functions of the Department, including

whether the information will have

practical utility;

• Evaluating the accuracy of the

Department’s estimate of the burden of

the proposed collections of information,

including the validity of the

methodology and assumptions used;

• Enhancing the quality, usefulness,

and clarity of the information to be

collected; and

• Minimizing the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology;

e.g., permitting electronic submission of

responses.

OMB is required to make a decision

concerning the collections of

information contained in these

proposed regulations between 30 and 60

days after publication of this document

in the Federal Register. Therefore, a

comment to OMB is best assured of

having its full effect if OMB receives it

within 30 days of publication. This does

not affect the deadline for the public to

comment to the Department on the

proposed regulations.

Intergovernmental Review

This program is subject to the

requirements of Executive Order 12372

and the regulations in 34 CFR part 79.

The objective of the Executive order is

to foster an intergovernmental

partnership and a strengthened

federalism by relying on processes

developed by State and local

governments for coordination and

review of proposed Federal financial

assistance.

In accordance with the order, this

document is intended to provide early

notification of the Department’s specific

plans and actions for this program.

Invitation to Comment: Interested

persons are invited to submit comments

and recommendations regarding these

proposed regulations.

All comments submitted in response

to these proposed regulations will be

available for public inspection, during

and after the comment period, in Room

3214, 330 C Street SW., Washington,

D.C., between the hours of 8:30 a.m. and

4:00 p.m., Monday through Friday of

each week except Federal holidays.

Assessment of Educational Impact

The Secretary particularly requests

comments on whether the proposed

regulations in this document would

require transmission of information that

is being gathered by or is available from

any other agency or authority of the

United States.

List of Subjects in 34 CFR Part 361

Reporting and recordkeeping

requirements, State-administered grant

program—education, Vocational

rehabilitation.

Dated: August 28, 1995.

Richard W. Riley,

Secretary of Education.

(Catalog of Federal Domestic Assistance

Number 84.126—The State Vocational

Rehabilitation Services Program)

The Secretary proposes to amend

Title 34 of the Code of Federal

Regulations by revising Part 361 to read

as follows:

PART 361—THE STATE VOCATIONAL

REHABILITATION SERVICES

PROGRAM

Subpart A—General

Sec.

361.1 Purpose.

361.2 Eligibility for a grant.

361.3 Authorized activities.

361.4 Applicable regulations.

361.5 Applicable definitions.

Subpart B—State Plan for Vocational

Rehabilitation Services

361.10 Submission, approval, and

disapproval of the State plan.

361.11 Withholding of funds.

State Plan Content: Administration

361.12 Methods of administration.

361.13 State agency for administration.

361.14 Substitute State agency.

361.15 Local administration.

361.16 Establishment of an independent

commission or a State Rehabilitation

Advisory Council.

361.17 Requirements for a State

Rehabilitation Advisory Council.

361.18 Comprehensive system of personnel

development.

361.19 Affirmative action for individuals

with disabilities.

361.20 State plan development.

361.21 Consultations regarding the

administration of the State plan.

361.22 Cooperation with agencies

responsible for transitioning students.

361.23 Cooperation with other public

agencies.

361.24 Coordination with the Statewide

Independent Living Council.

361.25 Statewideness.

361.26 Waiver of statewideness.

361.27 Shared funding and administration

of joint programs.

361.28 Third-party cooperative

arrangements involving funds from other

public agencies.

361.29 Statewide studies and evaluations.

361.30 Services to special groups of

individuals with disabilities.

361.31 Utilization of community resources.

361.32 Utilization of profitmaking

organizations for on-the-job training in

connection with selected projects.

361.33 Utilization of community

rehabilitation programs.

361.34 Supported employment plan.

361.35 Strategic plan.

361.36 [Reserved].

361.37 Establishment and maintenance of

information and referral resources.

361.38 Protection, use, and release of

personal information.

361.39 State-imposed requirements.

361.40 Reports.

State Plan Content: Provision and Scope of

Services

361.41 Processing referrals and

applications.

361.42 Assessment for determining

eligibility and priority for services.

361.43 Procedures for ineligibility

determination.

361.44 Closure without eligibility

determination.

361.45 Development of the individualized

written rehabilitation program.

361.46 Content of the individualized

written rehabilitation program.

361.47 Record of services.

361.48 Scope of vocational rehabilitation

services for individuals with disabilities.

361.49 Scope of vocational rehabilitation

services for groups of individuals with

disabilities.

361.50 Written policies governing the

provision of services.

361.51 Written standards for facilities and

providers of services.

361.52 Opportunity to make informed

choices regarding the selection of

services and providers.

361.53 Availability of comparable services

and benefits.

361.54 Participation of individuals in cost

of services based on financial need.

361.55 Review of extended employment in

community rehabilitation programs or

other employment under section 14(c) of

the Fair Labor Standards Act.

361.56 Individuals determined to have

achieved an employment outcome.

361.57 Review of rehabilitation counselor

or coordinator determinations.

Subpart C—Financing of State Vocational

Rehabilitation Programs

361.60 Matching requirements.

361.61 Limitation on use of funds for

construction expenditures.

361.62 Maintenance of effort requirements.

361.63 Program income.

361.64 Obligation of Federal funds and

program income.

361.65 Allotment and payment of Federal

funds for vocational rehabilitation

services.
64498 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

Subpart D—Strategic Plan for Innovation

and Expansion of Vocational Rehabilitation

Services

361.70 Purpose of the strategic plan.

361.71 Procedures for developing the

strategic plan.

361.72 Content of the strategic plan.

361.73 Use of funds.

361.74 Allotment of Federal funds.

Authority: 29 U.S.C. 711(c), unless

otherwise noted.

Subpart A—General

§ 361.1 Purpose.

Under the State Vocational

Rehabilitation Services Program

(program), the Secretary provides grants

to assist States in operating a

comprehensive, coordinated, effective,

efficient, and accountable program that

is designed to assess, plan, develop, and

provide vocational rehabilitation

services for individuals with

disabilities, consistent with their

strengths, resources, priorities,

concerns, abilities, capabilities, and

informed choice, so that they may

prepare for and engage in gainful

employment.

(Authority: Sections 12(c) and 100(a)(2) of

the Act; 29 U.S.C. 711(c) and 720(a)(2))

§ 361.2 Eligibility for a grant.

Any State that submits to the

Secretary a State plan that meets the

requirements of section 101(a) of the Act

and this part is eligible for a grant under

this program.

(Authority: Section 101(a) of the Act; 29

U.S.C. 721(a))

§ 361.3 Authorized activities.

The Secretary makes payments to a

State to assist in—

(a) The costs of providing vocational

rehabilitation services under the State

plan;

(b) Administrative costs under the

State plan; and

(c) The costs of developing and

implementing the strategic plan.

(Authority: Section 111(a)(1) of the Act; 29

U.S.C. 731(a)(1))

§ 361.4 Applicable regulations.

The following regulations apply to

this 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), with respect to

subgrants to entities that are not State or

local governments or Indian tribal

organizations.

(2) 34 CFR Part 76 (StateAdministered Programs).

(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 80 (Uniform

Administrative Requirements for Grants

and Cooperative Agreements to State

and Local Governments), except for

§ 80.24(a)(2).

(6) 34 CFR Part 81 (General Education

Provisions Act-Enforcement).

(7) 34 CFR Part 82 (New Restrictions

on Lobbying).

(8) 34 CFR Part 85 (Governmentwide

Debarment and Suspension

(Nonprocurement) and

Governmentwide Requirements for

Drug-Free Workplace (Grants)).

(9) 34 CFR Part 86 (Drug-Free Schools

and Campuses).

(b) The regulations in this part 361.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

§ 361.5 Applicable definitions.

(a) Definitions in EDGAR. The

following terms used in this part are

defined in 34 CFR 77.1:

Department

EDGAR

Fiscal year

Nonprofit

Private

Public

Secretary

(b) Other definitions. The following

definitions also apply to this part:

(1) Act means the Rehabilitation Act

of 1973 (29 U.S.C. 701 et seq.), as

amended.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(2) Administrative costs under the

State plan means expenses related to

program planning, development,

monitoring, and evaluation, including,

but not limited to, quality assurance;

budgeting, accounting, financial

management, statistical systems, and

related data processing; providing

information about the program to the

public; technical assistance to other

State agencies, private nonprofit

organizations, and businesses and

industries; the State Rehabilitation

Advisory Council and other advisory

committees; professional organization

membership dues for State unit

employees; the removal of architectural

barriers in State agency offices and

facilities; operating and maintaining

State unit facilities, equipment, and

grounds; supplies; administration of the

comprehensive system of personnel

development, including personnel

administration, administration of

affirmative action plans, and training

and staff development; administrative

salaries, including clerical and other

support staff salaries, in support of these

functions; travel costs related to

carrying out the program, other than

travel costs related to the provision of

services; and legal expenses required in

the administration of the program.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(3) American Indian means an

individual who is a member of an

Indian tribe.

(Authority: Section 7(20) of the Act; 29

U.S.C. 706(20))

(4) Applicant means an individual

who submits an application for

vocational rehabilitation services in

accordance with § 361.41(b)(2).

(Authority: Section 12(c) of the Act; 29

U.S.C.711 (c))

(5) Appropriate modes of

communication means specialized

media systems and devices for

individuals with disabilities that enable

an individual to comprehend and

respond to information that is being

communicated. Appropriate modes of

communication include, but are not

limited to, the use of interpreters, open

and closed captioned videos,

specialized telecommunications

services and audio recordings, Brailled

and large print materials, materials in

electronic formats, and augmentative

communication devices.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(6) Assistive technology device means

any item, piece of equipment, or

product system, whether acquired

commercially off the shelf, modified, or

customized, that is used to increase,

maintain, or improve the functional

capabilities of an individual with a

disability.

(Authority: Section 7(23) of the Act; 29

U.S.C. 706(23))

(7) Assistive technology service means

any service that directly assists an

individual with a disability in the

selection, acquisition, or use of an

assistive technology device, including—

(i) The evaluation of the needs of an

individual with a disability, including a

functional evaluation of the individual

in his or her customary environment;

(ii) Purchasing, leasing, or otherwise

providing for the acquisition by an

individual with a disability of an

assistive technology device;

(iii) Selecting, designing, fitting,

customizing, adapting, applying,

maintaining, repairing, or replacing

assistive technology devices;
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(iv) Coordinating and using other

therapies, interventions, or services

with assistive technology devices, such

as those associated with existing

education and rehabilitation plans and

programs;

(v) Training or technical assistance for

an individual with a disability or, if

appropriate, the family members,

guardians, advocates, or authorized

representatives of the individual; and

(vi) Training or technical assistance

for professionals (including individuals

providing education and rehabilitation

services), employers, or others who

provide services to, employ, or are

otherwise substantially involved in the

major life functions of individuals with

disabilities, to the extent that training or

technical assistance is necessary to the

achievement of an employment outcome

by an individual with a disability.

(Authority: Sections 7(24) and 12(c) of the

Act; 29 U.S.C. 706(24) and 711(c))

(8) Community rehabilitation

program.

(i) Community rehabilitation program

means a program that provides directly

or facilitates the provision of one or

more of the following vocational

rehabilitation services to individuals

with disabilities to enable those

individuals to maximize their

opportunities for employment,

including career advancement:

(A) Medical, psychiatric,

psychological, social, and vocational

services that are provided under one

management.

(B) Testing, fitting, or training in the

use of prosthetic and orthotic devices.

(C) Recreational therapy.

(D) Physical and occupational

therapy.

(E) Speech, language, and hearing

therapy.

(F) Psychiatric, psychological, and

social services, including positive

behavior management.

(G) Assessment for determining

eligibility and vocational rehabilitation

needs.

(H) Rehabilitation technology.

(I) Job development, placement, and

retention services.

(J) Evaluation or control of specific

disabilities.

(K) Orientation and mobility services

for individuals who are blind.

(L) Extended employment.

(M) Psychosocial rehabilitation

services.

(N) Supported employment services

and extended services.

(O) Services to family members if

necessary to enable the applicant or

eligible individual to achieve an

employment outcome.

(P) Personal assistance services.

(Q) Services similar to the services

described in paragraphs (A) through (P)

of this definition.

(ii) For the purposes of this definition,

the word program means an agency,

organization, or institution, or unit of an

agency, organization, or institution, that

provides directly or facilitates the

provision of vocational rehabilitation

services as one of its major functions.

(Authority: Sections 7(25) and 12(c) of the

Act; 29 U.S.C. 706(25) and 711(c))

(9) Comparable services and benefits

means services and benefits that are—

(i) Provided or paid for, in whole or

in part, by other Federal, State, or local

public agencies, by health insurance, or

by employee benefits;

(ii) Available to the individual within

a reasonable period of time in

accordance with § 361.53; and

(iii) Commensurate to the services

that the individual would otherwise

receive from the vocational

rehabilitation agency.

(Authority: Sections 12(c) and 101(a)(8) of

the Act; 29 U.S.C. 711(c) and 721(a)(8))

(10) Competitive employment means

work—

(i) In the competitive labor market

that is performed on a full-time or parttime basis in an integrated setting; and

(ii) For which an individual is

compensated at or above the minimum

wage, but not less than the prevailing

wage for the same or similar work in the

local community performed by

individuals who are not disabled.

(Authority: Sections 7(5), 7(18), and 12(c) of

the Act; 29 U.S.C. 706(5), 706(18), and

711(c))

(11) Construction of a facility for a

public or nonprofit community

rehabilitation program means—

(i) The acquisition of land in

connection with the construction of a

new building for a community

rehabilitation program;

(ii) The acquisition of existing

buildings;

(iii) The remodeling, alteration, or

renovation of existing buildings;

(iv) The construction of new buildings

and expansion of existing buildings;

(v) Architect’s fees, site surveys, and

soil investigation, if necessary, in

connection with the construction

project;

(vi) The acquisition of initial fixed or

movable equipment of any new, newly

acquired, newly expanded, newly

remodeled, newly altered, or newly

renovated buildings that are to be used

for community rehabilitation program

purposes; and

(vii) Other direct expenditures

appropriate to the construction project,

except costs of off-site improvements.

(Authority: Sections 7(1) and 12(c) of the Act;

29 U.S.C. 706(1) and 711(c))

(12) Designated State agency or State

agency means the sole State agency,

designated in accordance with

§ 361.13(a), to administer, or supervise

local administration of, the State plan

for vocational rehabilitation services.

The term includes the State agency for

individuals who are blind, if designated

as the sole State agency with respect to

that part of the plan relating to the

vocational rehabilitation of individuals

who are blind.

(Authority: Sections 7(3)(A) and 101(a)(1)(A)

of the Act; 29 U.S.C. 706(3)(A) and

721(a)(1)(A))

(13) Designated State unit or State

unit means either—

(i) The State agency vocational

rehabilitation bureau, division, or other

organizational unit that is primarily

concerned with vocational

rehabilitation or vocational and other

rehabilitation of individuals with

disabilities and that is responsible for

the administration of the vocational

rehabilitation program of the State

agency, as required under § 361.13(b); or

(ii) The independent State

commission, board, or other agency that

has vocational rehabilitation, or

vocational and other rehabilitation, as

its primary function.

(Authority: Sections 7(3)(B) and 101(a)(2)(A)

of the Act; 29 U.S.C. 706(3)(B) and

721(a)(2)(A))

(14) Eligible individual means an

applicant for vocational rehabilitation

services who meets the eligibility

requirements of § 361.42(a).

(Authority: Sections 7(8)(a) and 102(a)(1) of

the Act; 29 U.S.C. 706(8) and 722(a)(1))

(15) Employment outcome means,

with respect to an individual, entering

or retaining full-time or, if appropriate,

part-time competitive employment in

the integrated labor market to the

greatest extent practicable; supported

employment; or any other type of

employment that is consistent with an

individual’s strengths, resources,

priorities, concerns, abilities,

capabilities, interests, and informed

choice.

(Authority: Sections 7(5) and 12(c) of the Act;

29 U.S.C. 706(5) and 711(c))

(16) Establishment, development, or

improvement of a public or nonprofit

community rehabilitation program

means—

(i) The establishment of a facility for

a public or nonprofit community
64500 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

rehabilitation program as defined in

paragraph (b)(17) of this section;

(ii) Staffing, if necessary to establish,

develop, or improve a community

rehabilitation program for a maximum

period of four years, with Federal

financial participation available at the

applicable matching rate for the

following levels of staffing costs:

(A) 100 percent of staffing costs for

the first year.

(B) 75 percent of staffing costs for the

second year.

(C) 60 percent of staffing costs for the

third year.

(D) 45 percent of staffing costs for the

fourth year; and

(iii) Other expenditures related to the

establishment, development, or

improvement of a community

rehabilitation program that are

necessary to make the program

functional or increase its effectiveness,

but are not ongoing operating expenses

of the program.

(Authority: Sections 7(6) and 12(c) of the Act;

29 U.S.C. 706(6) and 711(c))

(17) Establishment of a facility for a

public or nonprofit community

rehabilitation program means—

(i) The acquisition of an existing

building, and if necessary the land in

connection with the acquisition, if the

building has been completed in all

respects for at least one year prior to the

date of acquisition and the Federal share

of the cost of the acquisition is not more

than $300,000;

(ii) The remodeling or alteration of an

existing building, provided the

estimated cost of remodeling or

alteration does not exceed the appraised

value of the existing building;

(iii) The expansion of an existing

building, provided that—

(A) The existing building is complete

in all respects;

(B) The total size in square footage of

the expanded building, notwithstanding

the number of expansions, is not greater

than twice the size of the existing

building;

(C) The expansion is joined

structurally to the existing building and

does not constitute a separate building;

and

(D) The costs of the expansion do not

exceed the appraised value of the

existing building;

(iv) Architect’s fees, site survey, and

soil investigation, if necessary in

connection with the acquisition,

remodeling, alteration, or expansion of

an existing building; and

(v) The acquisition of fixed or

movable equipment, including the costs

of installation of the equipment, if

necessary to establish, develop, or

improve a community rehabilitation

program.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(18) Extended employment means

work in a non-integrated or sheltered

setting for a public or private nonprofit

agency or organization that provides

compensation in accordance with the

Fair Labor Standards Act and any

needed support services to an

individual with a disability to enable

the individual to continue to train or

otherwise prepare for competitive

employment, unless the individual

through informed choice chooses to

remain in extended employment.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(19) Extended services, as used in the

definition of ‘‘Supported employment,’’

means ongoing support services and

other appropriate services that are

needed to support and maintain an

individual with a most severe disability

in supported employment and that are

provided by a State agency, a private

nonprofit organization, employer, or any

other appropriate resource, from funds

other than funds received under this

part, 34 CFR part 363, 34 CFR part 376,

or 34 CFR part 380, after an individual

with a most severe disability has made

the transition from support provided by

the designated State unit.

(Authority: Section 7(27) of the Act; 29

U.S.C. 706(27))

(20) Extreme medical risk means a

probability of substantially increasing

functional impairment or death if

medical services, including mental

health services, are not provided

expeditiously.

(Authority: Sections 12(c) and 101(a)(8) of

the Act; 29 U.S.C. 711(c) and 721(a)(8))

(21) Family member, for purposes of

receiving vocational rehabilitation

services in accordance with

§ 361.48(a)(9), means an individual—

(i) Who either—

(A) Is a relative or guardian of an

applicant or eligible individual; or

(B) Lives in the same household as an

applicant or eligible individual;

(ii) Who has a substantial interest in

the well-being of that individual; and

(iii) Whose receipt of vocational

rehabilitation services is necessary to

enable the applicant or eligible

individual to achieve an employment

outcome.

(Authority: Sections 12(c) and 103(a)(3) of

the Act; 29 U.S.C. 711(c) and 723(a)(3))

(22) Impartial hearing officer.

(i) Impartial hearing officer means an

individual who—

(A) Is not an employee of a public

agency (other than an administrative

law judge, hearing examiner, or

employee of an institution of higher

education);

(B) Is not a member of the State

Rehabilitation Advisory Council for the

designated State unit;

(C) Has not been involved in previous

decisions regarding the vocational

rehabilitation of the applicant or eligible

individual;

(D) Has knowledge of the delivery of

vocational rehabilitation services, the

State plan, and the Federal and State

regulations governing the provision of

services;

(E) Has received training with respect

to the performance of official duties;

and

(F) Has no personal, professional, or

financial interest that would be in

conflict with the objectivity of the

individual.

(ii) An individual shall not be

considered to be an employee of a

public agency for the purposes of this

definition solely because the individual

is paid by the agency to serve as a

hearing officer.

(Authority: Section 7(28) of the Act; 29

U.S.C. 706(28))

(23) Indian tribe means any Federal or

State Indian tribe, band, rancheria,

pueblo, colony, or community,

including any Alaskan native village or

regional village corporation (as defined

in or established pursuant to the Alaska

Native Claims Settlement Act).

(Authority: Section 7(21) of the Act; 29

U.S.C. 706(21))

(24) Individual who is blind means a

person who is blind within the meaning

of the applicable State law.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(25) Individual with a disability,

except in §§ 361.17(a), (b), (c), and (j),

361.19, 361.20, and 361.51(b)(2), means

an individual—

(i) Who has a physical or mental

impairment;

(ii) Whose impairment constitutes or

results in a substantial impediment to

employment; and

(iii) Who can benefit in terms of an

employment outcome from the

provision of vocational rehabilitation

services.

(Authority: Section 7(8)(A) of the Act; 29

U.S.C. 706(8)(A))

(26) Individual with a disability, for

purposes of §§ 361.17 (a), (b), (c), and (j),

361.19, 361.20, and 361.51(b)(2), means

an individual—
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64501

(i) Who has a physical or mental

impairment that substantially limits one

or more major life activities;

(ii) Who has a record of such an

impairment; or

(iii) Who is regarded as having such

an impairment.

(Authority: Section 7(8)(B) of the Act; 29

U.S.C. 706(8)(B))

(27) Individual with a most severe

disability means an individual with a

severe disability who meets the

designated State unit’s criteria for an

individual with a most severe disability.

This criteria must be consistent with the

requirements in § 361.36(c)(3).

(Authority: Section 101(a)(5) of the Act; 29

U.S.C. 721(a)(5))

(28) Individual with a severe disability

means an individual with a disability—

(i) Who has a severe physical or

mental impairment that seriously limits

one or more functional capacities (such

as mobility, communication, self-care,

self-direction, interpersonal skills, work

tolerance, or work skills) in terms of an

employment outcome;

(ii) Whose vocational rehabilitation

can be expected to require multiple

vocational rehabilitation services over

an extended period of time; and

(iii) Who has one or more physical or

mental disabilities resulting from

amputation, arthritis, autism, blindness,

burn injury, cancer, cerebral palsy,

cystic fibrosis, deafness, head injury,

heart disease, hemiplegia, hemophilia,

respiratory or pulmonary dysfunction,

mental retardation, mental illness,

multiple sclerosis, muscular dystrophy,

musculo-skeletal disorders, neurological

disorders (including stroke and

epilepsy), spinal cord conditions

(including paraplegia and quadriplegia),

sickle cell anemia, specific learning

disability, end-stage renal disease, or

another disability or combination of

disabilities determined on the basis of

an assessment for determining eligibility

and vocational rehabilitation needs to

cause comparable substantial functional

limitation.

(Authority: Section 7(15)(A) of the Act; 29

U.S.C. 708(15)(A))

(29) Individual’s representative means

any representative chosen by an

applicant or eligible individual,

including a parent, guardian, other

family member, or advocate, unless a

representative has been appointed by a

court to represent the individual, in

which case the court-appointed

representative is the individual’s

representative.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(30) Integrated setting, with respect to

the provision of services or an

employment outcome, means a setting

typically found in the community in

which applicants or eligible individuals

have the opportunity to interact on a

regular basis with non-disabled

individuals other than non-disabled

individuals who are providing services

to those applicants or eligible

individuals.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(31) Maintenance means monetary

support provided to an eligible

individual or an individual receiving

extended evaluation services for those

living expenses, such as food, shelter,

and clothing, that are in excess of the

normal living expenses of the individual

and that are necessitated by the

individual’s participation in a program

of vocational rehabilitation services.

(Authority: Sections 12(c) and 103(a)(5) of

the Act; 29 U.S.C. 711(c) and 723(a)(5))

Note: The following are examples of

expenses that would meet the definition of

maintenance.

Example: The cost of a uniform or other

suitable clothing that is required for an

individual’s job placement or job seeking

activities.

Example: The cost of short-term shelter

that is required in order for an individual to

participate in vocational training at a site that

is not within commuting distance of an

individual’s home.

Example: The initial one-time costs, such

as a security deposit or charges for the

initiation of utilities, that are required in

order for an individual to relocate for a job

placement.

Example: The costs of food, clothing, and

shelter for homeless or recently

deinstitutionalized individuals until other

financial assistance is secured for those costs.

(32) Nonprofit, with respect to a

community rehabilitation program,

means a community rehabilitation

program carried out by a corporation or

association, no part of the net earnings

of which inures, or may lawfully inure,

to the benefit of any private shareholder

or individual and the income of which

is exempt from taxation under section

501(c)(3) of the Internal Revenue Code

of 1954.

(Authority: Section 7(10) of the Act; 29

U.S.C. 706(10))

(33) Ongoing support services, as used

in the definition of ‘‘Supported

employment’’—

(i) Means services that are—

(A) Needed to support and maintain

an individual with a most severe

disability in supported employment;

(B) Identified based on a

determination by the designated State

unit of the individual’s needs as

specified in an individualized written

rehabilitation program; and

(C) Furnished by the designated State

unit from the time of job placement

until transition to extended services,

unless post-employment services are

provided following transition, and

thereafter by one or more extended

services providers throughout the

individual’s term of employment in a

particular job placement or multiple

placements if those placements are

being provided under a program of

transitional employment;

(ii) Must include an assessment of

employment stability and provision of

specific services or the coordination of

services at or away from the worksite

that are needed to maintain stability

based on—

(A) At a minimum, twice-monthly

monitoring at the worksite of each

individual in supported employment; or

(B) If under special circumstances,

especially at the request of the

individual, the individualized written

rehabilitation program provides for offsite monitoring, twice-monthly meetings

with the individual;

(iii) Consist of—

(A) Any particularized assessment

supplementary to the comprehensive

assessment of rehabilitation needs

described in this part;

(B) The provision of skilled job

trainers who accompany the individual

for intensive job skill training at the

work site;

(C) Job development and placement;

(D) Social skills training;

(E) Regular observation or supervision

of the individual;

(F) Follow-up services including

regular contact with the employers, the

individuals, the parents, family

members, guardians, advocates or

authorized representatives of the

individuals, and other suitable

professional and informed advisors, in

order to reinforce and stabilize the job

placement;

(G) Facilitation of natural supports at

the worksite;

(H) Any other service identified in the

scope of vocational rehabilitation

services for individuals, described in

§ 361.48; or

(I) Any service similar to the foregoing

services.

(Authority: Sections 7(33) and 12(c) of the

Act; 29 U.S.C. 706(33) and 711(c))

(34) Personal assistance services

means a range of services provided by

one or more persons designed to assist

an individual with a disability to

perform daily living activities on or off

the job that the individual would

typically perform without assistance if
64502 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

the individual did not have a disability.

The services must be necessary to the

achievement of an employment outcome

and may be provided only while the

individual is receiving other vocational

rehabilitation services. The services may

include training in managing,

supervising, and directing personal

assistance services.

(Authority: Sections 7(11) and 103(a)(15) of

the Act; 29 U.S.C. 706(11) and 29 U.S.C. 723)

(35) Physical and mental restoration

services means—

(i) Corrective surgery or therapeutic

treatment that is likely, within a

reasonable period of time, to correct or

modify substantially a stable or slowly

progressive physical or mental

impairment that constitutes a

substantial impediment to employment;

(ii) Diagnosis of and treatment for

mental or emotional disorders by

qualified personnel in accordance with

State licensure laws;

(iii) Dentistry;

(iv) Nursing services;

(v) Necessary hospitalization (either

inpatient or outpatient care) in

connection with surgery or treatment

and clinic services;

(vi) Drugs and supplies;

(vii) Prosthetic, orthotic, or other

assistive devices, including hearing

aids;

(viii) Eyeglasses and visual services,

including visual training, and the

examination and services necessary for

the prescription and provision of

eyeglasses, contact lenses, microscopic

lenses, telescopic lenses, and other

special visual aids prescribed by

personnel that are qualified in

accordance with State licensure laws;

(ix) Podiatry;

(x) Physical therapy;

(xi) Occupational therapy;

(xii) Speech or hearing therapy;

(xiii) Mental health services;

(xiv) Treatment of either acute or

chronic medical complications and

emergencies that are associated with or

arise out of the provision of physical

and mental restoration services, or that

are inherent in the condition under

treatment;

(xv) Special services for the treatment

of individuals with end-stage renal

disease, including transplantation,

dialysis, artificial kidneys, and supplies;

and

(xvi) Other medical or medically

related rehabilitation services.

(Authority: Sections 12(c) and 103(a)(4) of

the Act; 29 U.S.C. 711(c) and 723(a)(4))

(36) Physical or mental impairment

means an injury, disease, or other

condition that materially limits, or if not

treated will probably result in materially

limiting, mental or physical functioning.

(Authority: Sections 7(8)(A) and 12(c) of the

Act; 29 U.S.C. 706(8)(A) and 711(c))

(37) Post-employment services means

one or more of the services identified in

§ 361.48 that are provided subsequent to

the achievement of an employment

outcome and that are necessary for an

individual to maintain, regain, or

advance in employment, consistent with

the individual’s strengths, resources,

priorities, concerns, abilities,

capabilities, and interests.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

Note: Post-employment services are

intended to ensure that the employment

outcome remains consistent with the

individual’s strengths, resources, priorities,

concerns, abilities, capabilities, and interests.

These services are available to meet

rehabilitation needs that do not require a

complex and comprehensive provision of

services and, thus, should be limited in scope

and duration. If more comprehensive services

are required, then a new rehabilitation effort

should be considered. Post-employment

services are to be provided under an

amended individualized written

rehabilitation program; thus, a redetermination of eligibility is not required.

The provision of post-employment services is

subject to the same requirements in this part

as the provision of any other vocational

rehabilitation service. Post-employment

services are available to assist an individual

to maintain employment, e.g., the

individual’s employment is jeopardized

because of conflicts with supervisors or coworkers and the individual needs mental

health services and counseling to maintain

the employment; to regain employment, e.g.,

the individual’s job is eliminated through

reorganization and new placement services

are needed; and to advance in employment,

e.g., the employment is no longer consistent

with the individual’s strengths, resources,

priorities, concerns, abilities, capabilities,

and interests.

(38) Rehabilitation engineering means

the systematic application of

engineering sciences to design, develop,

adapt, test, evaluate, apply, and

distribute technological solutions to

problems confronted by individuals

with disabilities in functional areas,

such as mobility, communications,

hearing, vision, and cognition, and in

activities associated with employment,

independent living, education, and

integration into the community.

(Authority: Sections 7(13) and 12(c) of the

Act; 29 U.S.C. 706(13) and 711(c))

(39) Rehabilitation technology means

the systematic application of

technologies, engineering

methodologies, or scientific principles

to meet the needs of, and address the

barriers confronted by, individuals with

disabilities in areas that include

education, rehabilitation, employment,

transportation, independent living, and

recreation. The term includes

rehabilitation engineering, assistive

technology devices, and assistive

technology services.

(Authority: Section 7(13) of the Act; 29

U.S.C. 706(13))

(40) Reservation means a Federal or

State Indian reservation, public domain

Indian allotment, former Indian

reservation in Oklahoma, and land held

by incorporated Native groups, regional

corporations, and village corporations

under the provisions of the Alaska

Native Claims Settlement Act.

(Authority: Section 130(c) of the Act; 29

U.S.C. 750(c))

(41) Sole local agency means a unit or

combination of units of general local

government or one or more Indian tribes

that has the sole responsibility under an

agreement with, and the supervision of,

the State agency to conduct a local or

tribal vocational rehabilitation program,

in accordance with the State plan.

(Authority: Section 7(9) of the Act; 29 U.S.C.

706(9))

(42) State means any of the 50 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.

(Authority: Section 7(16) of the Act; 29

U.S.C. 706(16))

(43) State plan means the State plan

for vocational rehabilitation services or

the vocational rehabilitation services

part of a consolidated rehabilitation

plan under § 361.10(c).

(Authority: Sections 12(c) and 101 of the Act;

29 U.S.C. 711(c) and 721)

(44) Substantial impediment to

employment means that a physical or

mental impairment (in light of attendant

medical, psychological, vocational,

educational, and other related factors)

hinders an individual from preparing

for, entering into, engaging in, or

retaining employment consistent with

the individual’s abilities and

capabilities.

(Authority: Sections 7(8)(A) and 12(c) of the

Act; 29 U.S.C. 706(8)(A) and 711(c))

(45) Supported employment means—

(i) Competitive employment in an

integrated setting with ongoing support

services for individuals with the most

severe disabilities—

(A) For whom competitive

employment has not traditionally

occurred or for whom competitive
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employment has been interrupted or

intermittent as a result of a severe

disability; and

(B) Who, because of the nature and

severity of their disabilities, need

intensive supported employment

services from the designated State unit

and extended services after transition in

order to perform this work; or

(ii) Transitional employment for

individuals with the most severe

disabilities due to mental illness.

(Authority: Section 7(18) of the Act; 29

U.S.C. 706(18)(A))

(46) Supported employment services

means ongoing support services and

other appropriate services needed to

support and maintain an individual

with a most severe disability in

supported employment that are

provided by the designated State unit—

(i) For a period of time not to exceed

18 months, unless under special

circumstances the eligible individual

and the rehabilitation counselor or

coordinator jointly agree to extend the

time in order to achieve the

rehabilitation objectives identified in

the individualized written rehabilitation

program; and

(ii) Following transition, as postemployment services that are

unavailable from an extended services

provider and that are necessary to

maintain or regain the job placement or

advance in employment.

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

Act; 29 U.S.C. 706(34) and 711(c))

(47) Transition services means a

coordinated set of activities for a

student designed within an outcomeoriented process that promotes

movement from school to post-school

activities, including postsecondary

education, vocational training,

integrated employment (including

supported employment), continuing and

adult education, adult services,

independent living, or community

participation. The coordinated set of

activities must be based upon the

individual student’s needs, taking into

account the student’s preferences and

interests, and must include instruction,

community experiences, the

development of employment and other

post-school adult living objectives, and,

if appropriate, acquisition of daily living

skills and functional vocational

evaluation. Transition services must

promote or facilitate the

accomplishment of long-term

rehabilitation goals and intermediate

rehabilitation objectives identified in

the student’s individualized written

rehabilitation program (IWRP).

(Authority: Section 7(35) and 103(a)(14) of

the Act; 29 U.S.C. 706(35) and 723(a)(14))

(48) Transitional employment, as used

in the definition of ‘‘Supported

employment,’’ means a series of

temporary job placements in

competitive work in integrated settings

with ongoing support services for

individuals with the most severe

disabilities due to mental illness. In

transitional employment, the provision

of ongoing support services must

include continuing sequential job

placements until job permanency is

achieved.

(Authority: Sections 7(18) and 12(c) of the

Act; 29 U.S.C. 706(18) and 711(c))

(49) Transitioning student means a

student who is an eligible individual in

accordance with the requirements of

§ 361.42(a)(1) and who is receiving

transition services as defined in

paragraph (b)(47) of this section.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

(50) Transportation means travel and

related expenses that are necessary to

enable an applicant or eligible

individual to participate in any

vocational rehabilitation service.

(Authority: Sections 12(c) and 103(a)(10) of

the Act; 29 U.S.C. 711(c) and 723(a)(10))

Note: The following are examples of

expenses that would meet the definition of

transportation.

Example: Travel and related expenses for

a personal care attendant or aide if the

services of that person are necessary to

enable the applicant or eligible individual to

travel to participate in any vocational

rehabilitation service.

Example: Short-term travel-related

expenses, such as food and shelter, incurred

by an applicant participating in evaluation or

assessment services that necessitates travel.

Example: Relocation expenses incurred by

an eligible individual in connection with a

job placement that is a significant distance

from the eligible individual’s current

residence.

Example: The purchase and repair of

vehicles, including vans, but not the

modification of these vehicles, as

modification would be considered a

rehabilitation technology service.

(51) Vocational rehabilitation

services—

(i) If provided to an individual, means

those services listed in § 361.48; and

(ii) If provided for the benefit of

groups of individuals, also means those

services listed in § 361.49.

(Authority: Sections 103(a) and (b) of the Act;

29 U.S.C. 723(a) and (b))

Subpart B—State Plan for Vocational

Rehabilitation Services

§ 361.10 Submission, approval, and

disapproval of the State plan.

(a) Purpose. In order for a State to

receive a grant under this part, the

designated State agency shall submit to

the Secretary, and obtain approval of, a

State plan that contains a description of

the State’s vocational rehabilitation

services program, the plans and policies

to be followed in carrying out the

program, and other information

requested by the Secretary, in

accordance with the requirements of

this part.

(b) Separate part relating to

rehabilitation of individuals who are

blind. If a separate State agency

administers or supervises the

administration of a separate part of the

State plan relating to the rehabilitation

of individuals who are blind, that part

of the State plan must separately

conform to all requirements under this

part that are applicable to a State plan.

(c) Consolidated rehabilitation plan.

The State may choose to submit a

consolidated rehabilitation plan that

includes the State plan for vocational

rehabilitation services and the State’s

plan for its program for persons with

developmental disabilities. The State

planning and advisory council for

developmental disabilities and the

agency administering the State’s

program for persons with

developmental disabilities must concur

in the submission of a consolidated

rehabilitation plan. A consolidated

rehabilitation plan must comply with,

and be administered in accordance

with, the Act and the Developmental

Disabilities Assistance and Bill of Rights

Act, as amended.

(d) Public participation. The State

shall develop the State plan with input

from the public, through public

meetings, in accordance with the

requirements of § 361.20.

(e) Duration. The State plan must

cover a three-year period or, with the

prior approval of the Secretary, some

other period that corresponds to the

period for which the State submits a

plan under another Federal law, such as

Part B of the Individuals with

Disabilities Education Act (IDEA).

(f) Submission of the State plan. The

State shall submit the State plan to the

Secretary for approval—

(1) No later than July 1 of the year

preceding the first fiscal year for which

the State plan is submitted; or

(2) With the prior approval of the

Secretary, no later than the date on

which the State is required to submit a

State plan under another Federal law.
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(g) Revisions to the State plan. The

State shall submit to the Secretary for

approval revisions to the State plan in

accordance with the requirements of

this part and 34 CFR 76.140.

(h) Interim State plan. The Secretary

may require a State to submit an interim

State plan for a period of less than three

years following a reauthorization of the

Act and prior to the publication of final

regulations.

(i) Approval. The Secretary approves

a State plan and revisions to the State

plan that conform to the requirements of

this part and section 101(a) of the Act.

(j) Disapproval. The Secretary

disapproves a State plan that does not

conform to the requirements of this part

and section 101(a) of the Act, in

accordance with the following

procedures:

(1) Informal resolution. Prior to

disapproving a State plan, the Secretary

attempts to resolve disputes informally

with State officials.

(2) Notice. If, after reasonable effort

has been made to resolve the dispute, no

resolution has been reached, the

Secretary provides notice to the State

agency of the intention to disapprove

the State plan and of the opportunity for

a hearing.

(3) State plan hearing. If the State

agency requests a hearing, the Secretary

designates one or more individuals,

either from the Department or

elsewhere, not responsible for or

connected with the administration of

this program, to conduct a hearing in

accordance with the provisions of 34

CFR Part 81, Subpart A.

(4) Initial decision. The hearing officer

issues an initial decision in accordance

with 34 CFR 81.41.

(5) Petition for review of an initial

decision. The State agency may seek the

Secretary’s review of the initial decision

in accordance with 34 CFR 81.42.

(6) Review by the Secretary. The

Secretary reviews the initial decision in

accordance with 34 CFR 81.43.

(7) Final decision of the Department.

The final decision of the Department is

made in accordance with 34 CFR 81.44.

(8) Judicial review. A State may

appeal the Secretary’s decision to

disapprove the State plan by filing a

petition for review with the United

States Court of Appeals for the circuit in

which the State is located, in

accordance with section 107(d) of the

Act.

(Authority: Sections 6, 101(a) and (b), and

107(d) of the Act; 29 U.S.C. 705, 721(a) and

(b), and 727(d))

§ 361.11 Withholding of funds.

(a) Basis for withholding. The

Secretary may withhold or limit

payments under sections 111, 124, or

632(a) of the Act, as provided by section

107(c) and (d) of the Act, if the Secretary

determines that—

(1) The State plan, including the

supported employment supplement and

the strategic plan supplement, has been

so changed that it no longer conforms

with the requirements of this part or 34

CFR part 363; or

(2) In the administration of the State

plan, there has been a failure to comply

substantially with any provision of that

plan or a program improvement plan

established in accordance with section

106 of the Act.

(b) Informal resolution. Prior to

withholding or limiting payments in

accordance with this section, the

Secretary attempts to resolve disputed

issues informally with State officials.

(c) Notice. If, after reasonable effort

has been made to resolve the dispute, no

resolution has been reached, the

Secretary provides notice to the State

agency of the intention to withhold or

limit payments and of the opportunity

for a hearing.

(d) Withholding hearing. If the State

agency requests a hearing, the Secretary

designates one or more individuals,

either from the Department or

elsewhere, not responsible for or

connected with the administration of

this program, to conduct a hearing in

accordance with the provisions of 34

CFR part 81, subpart A.

(e) Initial decision. The hearing officer

issues an initial decision in accordance

with 34 CFR 81.41.

(f) Petition for review of an initial

decision. The State agency may seek the

Secretary’s review of the initial decision

in accordance with 34 CFR 81.42.

(g) Review by the Secretary. The

Secretary reviews the initial decision in

accordance with 34 CFR 81.43.

(h) Final decision of the Department.

The final decision of the Department is

made in accordance with 34 CFR 81.44.

(i) Judicial review. A State may appeal

the Secretary’s decision to withhold or

limit payments by filing a petition for

review with the U.S. Court of Appeals

for the circuit in which the State is

located, in accordance with section

107(d) of the Act.

(Authority: Sections 101(b), 107(c), and

107(d) of the Act; 29 U.S.C. 721(b), 727(c)(1)

and (2), and 727(d))

State Plan Content: Administration

§ 361.12 Methods of administration.

The State plan must assure that the

State agency, and the designated State

unit if applicable, employs methods of

administration found necessary by the

Secretary for the proper and efficient

administration of the plan and for

carrying out all functions for which the

State is responsible under the plan and

this part. These methods must include

procedures to ensure accurate data

collection and financial accountability.

(Authority: Section 101(a)(6) of the Act; 29

U.S.C. 721(a)(6))

§ 361.13 State agency for administration.

(a) Designation of State agency. The

State plan must designate a State agency

as the sole State agency to administer

the State plan, or to supervise its

administration in a political subdivision

of the State by a sole local agency, in

accordance with the following

requirements:

(1) General. Except as provided in

paragraphs (a)(2) and (3) of this section,

the State plan must provide that the

designated State agency is one of the

following types of agencies:

(i) A State agency that is an

independent State commission, board,

or other agency that has as its major

function vocational rehabilitation or

vocational and other rehabilitation of

individuals with disabilities.

(ii) The State agency administering or

supervising the administration of

education or vocational education in the

State, provided that it includes a

vocational rehabilitation unit as

provided in paragraph (b) of this

section.

(iii) A State agency that includes a

vocational rehabilitation unit, as

provided in paragraph (b) of this

section, and at least two other major

organizational units, each of which

administers one or more of the State’s

major programs of public education,

public health, public welfare, or labor.

(2) American Samoa. In the case of

American Samoa, the State plan must

designate the Governor.

(3) Designated State agency for

individuals who are blind. If a State

commission or other agency that

provides assistance or services to

individuals who are blind is authorized

under State law to provide vocational

rehabilitation services to individuals

who are blind, and this commission or

agency is primarily concerned with

vocational rehabilitation or includes a

vocational rehabilitation unit as

provided in paragraph (b) of this

section, the State plan may designate

that agency as the sole State agency to

administer the part of the plan under

which vocational rehabilitation services

are provided for individuals who are

blind or to supervise its administration

in a political subdivision of the State by

a sole local agency.

(b) Designation of State unit. (1) If the

designated State agency is of the type
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specified in paragraph (a)(1)(ii) or

(a)(1)(iii) of this section, or if the

designated State agency specified in

paragraph (a)(3) of this section does not

have as its major function vocational

rehabilitation or vocational and other

rehabilitation of individuals with

disabilities, the State plan must assure

that the agency (or each agency if two

agencies are designated) includes a

vocational rehabilitation bureau,

division, or unit that—

(i) Is primarily concerned with

vocational rehabilitation or vocational

and other rehabilitation of individuals

with disabilities and is responsible for

the administration of the State agency’s

vocational rehabilitation program under

the State plan, including those

responsibilities specified in paragraph

(d) of this section;

(ii) Has a full-time director;

(iii) Has a staff, at least 90 percent of

whom are employed full time on the

rehabilitation work of the organizational

unit; and

(iv) Is located at an organizational

level and has an organizational status

within the State agency comparable to

that of other major organizational units

of the agency or, in the case of an

agency described in paragraph (a)(1)(ii)

of this section, is so located and has that

status or has a director who is the

executive officer of the State agency.

(2) In the case of a State that has not

designated a separate State agency for

individuals who are blind, as provided

for in paragraph (a)(3) of this section,

the State may assign responsibility for

the part of the plan under which

vocational rehabilitation services are

provided to individuals who are blind

to one organizational unit of the

designated State agency and may assign

responsibility for the rest of the plan to

another organizational unit of the

designated State agency, with the

provisions of paragraph (b)(1) of this

section applying separately to each of

these units.

(c) Responsibility for administration.

The State plan must assure that all

decisions affecting eligibility for

vocational rehabilitation services, the

nature and scope of available services,

and the provision of these services are

made by the designated State unit or the

sole local agency under the supervision

of the State unit. This responsibility

may not be delegated to any other

agency or individual.

(Authority: Sections 101(a)(1) and 101(a)(2)

of the Act; 29 U.S.C. 721(a)(1) and 721(a)(2))

§ 361.14 Substitute State agency.

(a) General provisions.

(1) If the Secretary has withheld all

funding from a State under § 361.11, the

State may designate another agency to

substitute for the designated State

agency in carrying out the State’s

program of vocational rehabilitation

services.

(2) Any public or nonprofit private

organization or agency within the State

or any political subdivision of the State

is eligible to be a substitute agency.

(3) The substitute agency shall submit

a State plan that meets the requirements

of this part.

(4) The Secretary makes no grant to a

substitute agency until the Secretary

approves its plan.

(b) Substitute agency matching share.

The Secretary does not make any

payment to a substitute agency unless it

has provided assurances that it will

contribute the same matching share as

the State would have been required to

contribute if the State agency were

carrying out the vocational

rehabilitation program.

(Authority: Section 107(c)(3) of the Act; 29

U.S.C. 727(c)(3))

§ 361.15 Local administration.

(a) If the State plan provides for local

administration, it must—

(1) Identify each local agency;

(2) Assure that each local agency is

under the supervision of the designated

State unit and is the sole local agency

responsible for the administration of the

program within the political subdivision

that it serves; and

(3) Describe the methods each local

agency will use to administer the

vocational rehabilitation program, in

accordance with the State plan.

(b) A separate local agency serving

individuals who are blind may

administer that part of the plan relating

to vocational rehabilitation of

individuals who are blind, under the

supervision of the designated State unit

for individuals who are blind.

(Authority: Section 101(a)(1)(A) of the Act;

29 U.S.C. 721(a)(1)(A))

§ 361.16 Establishment of an independent

commission or a State Rehabilitation

Advisory Council.

(a) General requirement. Except as

provided in paragraph (b) of this

section, the State plan must contain one

of the following two assurances:

(1) An assurance that the State agency

is an independent State commission

that—

(i) Is primarily concerned with

vocational rehabilitation or vocational

and other rehabilitation services, in

accordance with § 361.13(a)(1)(i);

(ii) Is consumer-controlled by persons

who—

(A) Are individuals with physical or

mental impairments that substantially

limit major life activities; and

(B) Represent individuals with a

broad range of disabilities;

(iii) Includes individuals representing

family members, advocates, and

authorized representatives of

individuals with mental impairments;

and

(iv) Conducts a review and analysis of

the effectiveness of and consumer

satisfaction with vocational

rehabilitation services and providers in

the State, in accordance with the

provisions in § 361.17(h)(3).

(2) An assurance that—

(i) The State has established a State

Rehabilitation Advisory Council

(Council) that meets the requirements of

§ 361.17;

(ii) The designated State unit seeks

and seriously considers, on a regular

and ongoing basis, advice from the

Council regarding the development,

implementation, and amendment of the

State plan, the strategic plan, and other

policies and procedures of general

applicability pertaining to the provision

of vocational rehabilitation services in

the State;

(iii) The designated State unit

transmits to the Council—

(A) All plans, reports, and other

information required under the Act to

be submitted to the Secretary;

(B) Copies of all written policies,

practices, and procedures of general

applicability provided to or used by

rehabilitation personnel; and

(C) Copies of due process hearing

decisions in a manner that preserves the

confidentiality of the participants in the

hearings; and

(iv) The State plan summarizes

annually the advice provided by the

Council, including recommendations

from the annual report of the Council,

the survey of consumer satisfaction, and

other reports prepared by the Council,

and the State agency’s response to the

advice and recommendations, including

the manner in which the State will

modify its policies and procedures

based on the survey of consumer

satisfaction and explanations of reasons

for rejecting any advice or

recommendations of the Council.

(b) Exception for separate State

agency for individuals who are blind. In

the case of a State that designates a

separate State agency, under

§ 361.13(a)(3), to administer the part of

the State plan under which vocational

rehabilitation services are provided to

individuals who are blind, the State

plan must contain one of the following

four assurances:

(1) An assurance that an independent

commission in accordance with

paragraph (a)(1) of this section is

responsible under State law for
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operating or overseeing the operation of

the vocational rehabilitation program of

both the State agency that administers

the part of the State plan under which

vocational rehabilitation services are

provided to individuals who are blind

and the State agency that administers

the remainder of the State plan.

(2) An assurance that—

(i) An independent commission that

is consumer-controlled by, and

represents the interests of, individuals

who are blind and conducts a review

and analysis of the effectiveness of and

consumer satisfaction with vocational

rehabilitation services and providers, in

accordance with the provisions of

§ 361.17(h)(3), is responsible under

State law for operating, or overseeing

the operation of, the vocational

rehabilitation program in the State for

individuals who are blind; and

(ii) An independent commission that

is consumer-controlled in accordance

with paragraph (a)(1)(i) of this section

and conducts a review and analysis of

the effectiveness of and consumer

satisfaction with vocational

rehabilitation services and providers, in

accordance with § 361.17(h)(3), is

responsible under State law for

operating, or overseeing the operation

of, the vocational rehabilitation program

in the State for all individuals with

disabilities, except individuals who are

blind.

(3) An assurance that—

(i) An independent commission that

is consumer-controlled by, and

represents the interests of, individuals

who are blind and that conducts a

review and analysis of the effectiveness

of and consumer satisfaction with

vocational rehabilitation services and

providers, in accordance with

§ 361.17(h)(3), is responsible under

State law for operating, or overseeing

the operation of, the vocational

rehabilitation program in the State for

individuals who are blind; and

(ii) The State has established a State

Rehabilitation Advisory Council that

meets the criteria in § 361.17 and carries

out the duties of a Council with respect

to functions for, and services provided

to, individuals with disabilities, except

for individuals who are blind.

(4) An assurance that—

(i) An independent commission that

is consumer-controlled in accordance

with paragraph (a)(1)(i) of this section

and conducts a review and analysis of

the effectiveness of and consumer

satisfaction with vocational

rehabilitation services and providers, in

accordance with the provisions of

§ 361.17(h)(3), is responsible under

State law for operating or overseeing the

operation of the vocational

rehabilitation services for all

individuals in the State, except

individuals who are blind; and

(ii) The State has established a State

Rehabilitation Advisory Council that

meets the criteria in § 361.17 and carries

out the duties of a Council with respect

to functions for, and services provided

to, individuals who are blind.

(Authority: Sections 101(a)(32) and

101(a)(36) of the Act; 29 U.S.C. 721(a)(32)

and 721(a)(36))

§ 361.17 Requirements for a State

Rehabilitation Advisory Council.

If the State plan contains an assurance

that the State has established a Council

under § 361.16(a)(2), (b)(3)(ii), or

(b)(4)(ii), the State plan must also

contain an assurance that the Council

meets the following requirements:

(a) Appointment. (1) The members of

the Council shall be—

(i) Appointed by the Governor; or

(ii) If State law vests appointment

authority in an entity other than, or in

conjunction with, the Governor (such as

one or more houses of the State

legislature or an independent board that

has general appointment authority),

appointed by that entity or entities.

(2) The appointing authority shall

select members of the Council after

soliciting recommendations from

representatives of organizations

representing a broad range of

individuals with disabilities and

organizations interested in individuals

with disabilities.

(b) Composition. (1) General. Except

as provided in paragraph (b)(3) of this

section, the Council shall be composed

of at least 13 members, including—

(i) At least one representative of the

Statewide Independent Living Council,

who must be the chairperson of, or other

individual recommended by, the

Statewide Independent Living Council;

(ii) At least one representative of a

parent training and information center

established pursuant to section 631(e)(1)

of IDEA;

(iii) At least one representative of the

Client Assistance Program (CAP),

established under 34 CFR part 370, who

must be the director of, or other

individual recommended by, the CAP;

(iv) At least one vocational

rehabilitation counselor with knowledge

of and experience with vocational

rehabilitation programs who serves as

an ex officio, nonvoting member if

employed by the designated State

agency;

(v) At least one representative of

community rehabilitation program

service providers;

(vi) Four representatives of business,

industry, and labor;

(vii) Representatives of disability

groups that include a cross section of—

(A) Individuals with physical,

cognitive, sensory, and mental

disabilities; and

(B) Parents, family members,

guardians, advocates, or authorized

representatives of individuals with

disabilities who have difficulty

representing themselves due to their

disabilities;

(viii) Current or former applicants for,

or recipients of, vocational

rehabilitation services; and

(ix) The director of the designated

State unit as an ex officio, nonvoting

member.

(2) Employees of the designated State

agency. Employees of the designated

State agency may serve only as

nonvoting members of the Council.

(3) Composition of a separate Council

for a separate State agency for

individuals who are blind. Except as

provided in paragraph (b)(4) of this

section, if the State establishes a

separate Council for a separate State

agency for individuals who are blind,

that Council must—

(i) Conform with all of the

composition requirements for a Council

under paragraph (b)(1) of this section,

except the requirements in paragraph

(b)(1)(vii), unless the exception in

paragraph (b)(4) of this section applies;

and

(ii) Include—

(A) At least one representative of a

disability advocacy group representing

individuals who are blind; and

(B) At least one parent, family

member, guardian, advocate, or

authorized representative of an

individual who is blind, has multiple

disabilities, and has difficulty

representing himself or herself due to

disabilities.

(4) Exception. If State law in effect on

October 29, 1992 requires a separate

Council under paragraph (b)(3) of this

section to have fewer than 13 members,

the separate Council is deemed to be in

compliance with the composition

requirements in paragraphs (b)(1)(vi)

and (b)(1)(viii) of this section if it

includes at least one representative who

meets the requirements for each of those

paragraphs.

(c) Majority. A majority of the Council

members shall be individuals with

disabilities who are not employed by

the designated State unit.

(d) Chairperson. The chairperson

shall be—

(1) Selected by the members of the

Council from among the voting

members of the Council, subject to the

veto power of the Governor; or
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(2) If the Governor does not have veto

power pursuant to State law, selected by

the Governor, or by the Council if

required by the Governor, from among

the voting members of the Council.

(e) Terms of appointment. (1) Each

member of the Council shall be

appointed for a term of no more than

three years and may serve for no more

than two consecutive full terms.

(2) A member appointed to fill a

vacancy occurring prior to the end of

the term for which the predecessor was

appointed shall be appointed for the

remainder of the predecessor’s term.

(3) The terms of service of the

members initially appointed must be for

varied numbers of years to ensure that

terms expire on a staggered basis.

(f) Vacancies. (1) A vacancy in the

membership of the Council must be

filled in the same manner as the original

appointment.

(2) No vacancy affects the power of

the remaining members to execute the

duties of the Council.

(g) Conflict of interest. No member of

the Council shall cast a vote on any

matter that would provide direct

financial benefit to the member or the

member’s organization or otherwise give

the appearance of a conflict of interest

under State law.

(h) Functions. The Council shall—

(1) Review, analyze, and advise the

designated State unit regarding the

performance of the State unit’s

responsibilities under this part,

particularly responsibilities related to—

(i) Eligibility, including order of

selection;

(ii) The extent, scope, and

effectiveness of services provided; and

(iii) Functions performed by State

agencies that affect or potentially affect

the ability of individuals with

disabilities to achieve rehabilitation

goals and objectives under this part;

(2) Advise and, at the discretion of the

State agency, assist the State unit in the

preparation of applications, the State

plan, the strategic plan, and

amendments to the plans, reports, needs

assessments, and evaluations required

by this part;

(3) To the extent feasible, conduct a

review and analysis of the effectiveness

of, and consumer satisfaction with—

(i) The functions performed by State

agencies and other public and private

entities responsible for serving

individuals with disabilities; and

(ii) The vocational rehabilitation

services provided by State agencies and

other public and private entities

responsible for providing vocational

rehabilitation services to individuals

with disabilities from funds made

available under the Act or through other

public or private sources;

(4) Prepare and submit to the

Governor, or appropriate State entity,

and to the Secretary no later than 90

days after the end of the Federal fiscal

year an annual report on the status of

vocational rehabilitation programs

operated within the State and make the

report available to the public through

appropriate modes of communication;

(5) Coordinate with other councils

within the State, including the

Statewide Independent Living Council

established under 34 CFR part 364, the

advisory panel established under

section 613(a)(12) of IDEA, the State

Planning Council described in section

124 of the Developmental Disabilities

Assistance and Bill of Rights Act, and

the State mental health planning

council established under section

1916(e) of the Public Health Service Act;

(6) Advise the designated State agency

and provide for coordination and the

establishment of working relationships

between the designated State agency

and the Statewide Independent Living

Council and centers for independent

living within the State; and

(7) Perform other comparable

functions, consistent with the purpose

of this part, that the Council determines

to be appropriate.

(i) Resources.

(1) The Council, in conjunction with

the designated State unit, shall prepare

a plan for the provision of resources,

including staff and other personnel, that

may be necessary for the Council to

carry out its functions under this part.

(2) In implementing the resources

plan, the Council must rely on existing

resources to the maximum extent

possible.

(3) Any disagreements between the

designated State unit and the Council

regarding the amount of resources

necessary must be resolved by the

Governor or other appointing entity,

consistent with paragraphs (i)(1) and (2)

of this section.

(4) The Council shall, consistent with

State law, supervise and evaluate the

staff and personnel that are necessary to

carry out its functions.

(5) Those staff and personnel that are

assisting the Council in carrying out its

functions may not be assigned duties by

the designated State unit or any other

agency or office of the State that would

create a conflict of interest.

(j) Meetings. The Council shall—

(1) Convene at least four meetings a

year to conduct Council business that

are publicly announced, open and

accessible to the public, including

individuals with disabilities, unless

there is a valid reason for an executive

session; and

(2) Conduct forums or hearings, as

appropriate, that are publicly

announced, open and accessible to the

public, including individuals with

disabilities.

(k) Compensation. Funds

appropriated under Title I of the Act,

except funds to carry out sections 112

and 130 of the Act, may be used to

compensate and reimburse the expenses

of Council members in accordance with

section 105(g) of the Act.

(Authority: Section 105 of the Act; 29 U.S.C.

725)

§ 361.18 Comprehensive system of

personnel development.

The State plan must describe the

procedures and activities the State

agency will undertake to establish and

maintain a comprehensive system of

personnel development designed to

ensure an adequate supply of qualified

rehabilitation personnel, including

professionals and paraprofessionals, for

the designated State unit. If the State

agency has a State Rehabilitation

Advisory Council, this description

must, at a minimum, provide for the

involvement of the Council in the

development of personnel standards in

accordance with paragraph (c) of this

section. This description must also

conform with the following

requirements:

(a) Data system on personnel and

personnel development. The State plan

must describe the development and

maintenance of a system by the State

agency for collecting and analyzing on

an annual basis data on qualified

personnel needs and personnel

development, in accordance with the

following requirements:

(1) Data on qualified personnel needs

must include—

(i) The number of personnel who are

employed by the State agency in the

provision of vocational rehabilitation

services in relation to the number of

individuals served, broken down by

personnel category;

(ii) The number of personnel

currently needed by the State agency to

provide vocational rehabilitation

services, broken down by personnel

category; and

(iii) Projections of the number of

personnel, broken down by personnel

category, who will be needed by the

State agency to provide vocational

rehabilitation services in the State in

five years based on projections of the

number of individuals to be served,

including individuals with severe

disabilities, the number of personnel
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expected to retire or leave the field, and

other relevant factors.

(2) Data on personnel development

must include—

(i) A list of the institutions of higher

education in the State that are preparing

vocational rehabilitation professionals,

by type of program;

(ii) The number of students enrolled

at each of those institutions, broken

down by type of program; and

(iii) The number of students who

graduated during the prior year from

each of those institutions with

certification or licensure, or with the

credentials for certification or licensure,

broken down by the personnel category

for which they have received, or have

the credentials to receive, certification

or licensure.

(b) Plan for recruitment, preparation,

and retention of qualified personnel.

The State plan must describe the

development, updating, and

implementation of a plan to address the

current and projected needs for

personnel who are qualified in

accordance with paragraph (c) of this

section. The plan must identify the

personnel needs based on the data

collection and analysis system

described in paragraph (a) of this

section and must provide for the

coordination and facilitation of efforts

between the designated State unit and

institutions of higher education and

professional associations to recruit,

prepare, and retain personnel who are

qualified in accordance with paragraph

(c) of this section, including personnel

from minority backgrounds and

personnel who are individuals with

disabilities.

(c) Personnel standards. (1) The State

plan must include the State agency’s

policies and describe the procedures the

State agency will undertake to establish

and maintain standards to ensure that

professional and paraprofessional

personnel needed within the State unit

to carry out this part are appropriately

and adequately prepared and trained,

including—

(i) Standards that are consistent with

any national or State-approved or

recognized certification, licensing,

registration, or other comparable

requirements (including State personnel

requirements) that apply to the

profession or discipline in which that

category of personnel is providing

vocational rehabilitation services; and

(ii) To the extent those standards are

not based on the highest requirements

in the State applicable to that profession

or discipline, the steps the State is

currently taking and the steps the State

plans to take to retrain or hire personnel

to meet standards that are based on the

highest requirements in the State,

including measures to notify State unit

personnel, the institutions of higher

education identified under paragraph

(a)(2)(i) of this section, and other public

agencies of these steps and the timelines

for taking each step.

(2) As used in this section—

(i) ‘‘Highest requirements in the State

applicable to that profession or

discipline’’ means the highest entrylevel academic degree or equivalent

experience needed for any national or

State-approved or recognized

certification, licensing, registration, or

other comparable requirements that

apply to that profession or discipline.

The current requirements of all State

statutes and regulations of other

agencies in the State applicable to that

profession or discipline must be

considered and must be kept on file by

the designated State unit and available

to the public.

(ii) ‘‘Profession or discipline’’ means

a specific occupational category,

including any paraprofessional

occupational category, that—

(A) Provides rehabilitation services to

individuals with disabilities;

(B) Has been established or designated

by the State; and

(C) Has a specified scope of

responsibility.

(d) Staff development. (1) The State

plan must include the State agency’s

policies and describe the procedures

and activities the State agency will

undertake to ensure that all personnel

employed by the State unit receive

appropriate and adequate training,

including a description of—

(i) A system of staff development for

rehabilitation professionals and

paraprofessionals within the State unit,

particularly with respect to

rehabilitation technology; and

(ii) Procedures for acquiring and

disseminating to rehabilitation

professionals and paraprofessionals

within the designated State unit

significant knowledge from research and

other sources, including procedures for

providing training regarding the

amendments to the Rehabilitation Act of

1973 made by the Rehabilitation Act

Amendments of 1992.

(2) The specific training areas for staff

development must be based on the

needs of each State unit and may

include, but are not limited to, training

with respect to the requirements of the

Americans with Disabilities Act, IDEA,

and Social Security work incentive

programs, training to facilitate informed

choice under this program, and training

to improve the provision of services to

culturally diverse populations.

(e) Personnel to address individual

communication needs. The State plan

must describe how the State unit—

(1) Includes among its personnel, or

obtains the services of, individuals able

to communicate in the native languages

of applicants and eligible individuals

who have limited English speaking

ability; and

(2) Includes among its personnel, or

obtains the services of, individuals able

to communicate with applicants and

eligible individuals in appropriate

modes of communication.

(f) Performance evaluation system.

The State plan must describe how the

system for evaluating the performance

of rehabilitation counselors,

coordinators, and other personnel used

in the State unit facilitates, and in no

way impedes, the accomplishment of

the purpose and policy of the program

as described in sections 100(a)(2) and

100(a)(3) of the Act, including the

policy of serving, among others,

individuals with the most severe

disabilities.

(g) Coordination with personnel

development under IDEA. The State

plan must describe the procedures and

activities the State agency will

undertake to coordinate its

comprehensive system of personnel

development under the Act with

personnel development under IDEA.

(Authority: Sections 101 (a)(7) and (a)(35) of

the Act; 29 U.S.C. 721 (a)(7) and (35))

Note: Under the Act and the regulations in

this part, the State agency is required to

collect and analyze data regarding personnel

needs by type or category of personnel. The

personnel data must be collected and

analyzed according to personnel category

breakdowns that are based on the major

categories of staff in the State unit. Similarly,

the data from institutions of higher education

must be broken down by type of program to

correspond as closely as possible with the

personnel categories of the State unit.

§ 361.19 Affirmative action for individuals

with disabilities.

The State plan must assure that the

State agency takes affirmative action to

employ and advance in employment

qualified individuals with disabilities.

(Authority: Section 101(a)(6)(A) of the Act;

29 U.S.C. 721(a)(6)(A))

§ 361.20 State plan development.

(a) Public participation requirements.

(1) Plan development and revisions. The

State plan must assure that the State

unit conducts public meetings

throughout the State to provide all

segments of the public, including

interested groups, organizations, and

individuals, an opportunity to comment

on the State plan prior to its
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development and to comment on any

revisions to the State plan.

(2) Notice requirements. The State

plan must assure that the State unit,

prior to conducting public meetings,

provides appropriate and sufficient

notice throughout the State of the

meetings in accordance with—

(i) State law governing public

meetings; or

(ii) In the absence of State law

governing public meetings, procedures

developed by the State unit in

consultation with the State

Rehabilitation Advisory Council.

(3) Plan revisions based on consumer

satisfaction surveys. The State plan

must describe the manner in which the

State plan will be revised based on the

results of consumer satisfaction surveys

conducted by the State Rehabilitation

Advisory Council under § 361.17(h)(3)

or by the State agency if it is an

independent commission in accordance

with the requirements of § 361.16.

(b) Special consultation requirements.

The State plan must assure that, as

appropriate, the State unit actively

consults in the development and

revision of the State plan with the CAP

director, the State Rehabilitation

Advisory Council, and, as appropriate,

those Indian tribes, tribal organizations,

and native Hawaiian organizations that

represent significant numbers of

individuals with disabilities within the

State.

(c) Summary of public comments. The

State plan must include a summary of

the public comments on the State plan,

including comments on revisions to the

State plan and the State unit’s response

to those comments.

(d) Appropriate modes of

communication. The State unit shall

provide, through appropriate modes of

communication, the notices of the

public meetings, any materials

furnished prior to or during the public

meetings, and the approved State plan.

(Authority: Sections 101(a)(20), 101(a)(23),

101(a)(32), and 105(c)(2) of the Act; 29 U.S.C.

721(a)(20), (23), and (32) and 725(c)(2))

§ 361.21 Consultations regarding the

administration of the State plan.

(a) The State plan must assure that, in

connection with matters of general

policy development and

implementation arising in the

administration of the State plan, the

State unit seeks and takes into account

the views of—

(1) Individuals who receive vocational

rehabilitation services or, as

appropriate, the individuals’

representatives;

(2) Personnel working in the field of

vocational rehabilitation;

(3) Providers of vocational

rehabilitation services;

(4) The CAP director; and

(5) The State Rehabilitation Advisory

Council, if the State has a Council.

(b) The State plan must specifically

describe the manner in which the State

unit will take into account the views

regarding State policy and

administration of the State plan that are

expressed in the consumer satisfaction

surveys conducted by the State

Rehabilitation Advisory Council under

§ 361.17(h)(3) or by the State agency if

it is an independent commission in

accordance with the requirements of

§ 361.16(a)(1).

(Authority: Sections 101(a)(18), 101(a)(32),

and 105(c)(2) of the Act; 29 U.S.C. 721(a)(18),

721(a)(32), and 725(c)(2))

§ 361.22 Cooperation with agencies

responsible for transitioning students.

(a) Transitioning students who are

receiving special education services. (1)

General. The State plan must contain

plans, policies, and procedures that are

designed to facilitate the transition of

students who are receiving special

education services from the provision of

a free appropriate public education

under the responsibility of an

educational agency to the provision of

vocational rehabilitation services under

the responsibility of the designated

State unit. These plans, policies, and

procedures must be designed to

facilitate the development and

accomplishment of long-term

rehabilitation goals, intermediate

rehabilitation objectives, and goals and

objectives related to enabling a

transitioning student to live

independently before leaving a school

setting, to the extent the goals and

objectives are included in an

individualized education program of the

transitioning student.

(2) Formal interagency agreement.

The State plan must assure that the

State unit enters into formal interagency

agreements with the State education

agency and, as appropriate, with local

education agencies, that are responsible

for the free appropriate public education

of transitioning students who are

receiving special education services.

(i) Formal interagency agreements

must, at a minimum, identify—

(A) Policies, practices, and procedures

that can be coordinated between the

agencies, including definitions,

standards for eligibility, policies and

procedures for making referrals,

procedures for outreach to and

identification of youth who are

receiving special education services and

are in need of transition services, and

procedures and timeframes for

evaluation and follow-up of those

transitioning students; and

(B) The roles of each agency,

including provisions for determining

State lead agencies and qualified

personnel responsible for transition

services.

(ii) Formal interagency agreements

may, as appropriate, identify—

(A) Available resources, including

sources of funds for the development

and expansion of services;

(B) The financial responsibility of

each agency in providing services to

transitioning students who are receiving

special education services, consistent

with State law;

(C) Procedures for resolving disputes

between the agencies that are parties to

the agreement; and

(D) All other components necessary to

ensure meaningful cooperation among

agencies, including procedures to

facilitate the development of local teams

to coordinate the provision of services

to individuals, sharing data, and

coordinating joint training of staff in the

provision of transition services.

Note: The following excerpt from page 33

of Senate Report No. 102–357 further clarifies

the provision of transition services by the

State vocational rehabilitation agency:

The committee intends that students with

disabilities who are eligible for, and who

need, vocational rehabilitation services will

receive those services as soon as possible,

consistent with Federal and State law. These

provisions are not intended in any way to

shift the responsibility of service delivery

from education to rehabilitation during the

transition years. School officials will

continue to be responsible for providing a

free and appropriate public education as

defined by the IEP. The role of the

rehabilitation system is primarily one of

planning for the student’s years after leaving

school. (S. Rep. No. 357, 102d Cong., 2d.

Sess. 33 (1992))

(b) Transitioning students who are not

receiving special education services.

The State plan must contain plans,

policies, and procedures, including

cooperation with appropriate agencies,

designed to ensure that transitioning

students who are not receiving special

education services have access to and

can receive vocational rehabilitation

services, if appropriate, and to ensure

outreach to and identification of those

individuals.

(Authority: Sections 101(a)(11)(C), 101(a)(24)

and 101(a)(30) of the Act; 29 U.S.C. 721

(a)(11), (a)(24), and (a)(30))

§ 361.23 Cooperation with other public

agencies.

(a) Coordination of services with

vocational education and Javits-WagnerO’Day programs. The State plan must

assure that specific arrangements or
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agreements are made for the

coordination of services for any

individual who is eligible for vocational

rehabilitation services and is also

eligible for services under the Carl D.

Perkins Vocational and Applied

Technology Education Act or the JavitsWagner-O’Day Act.

(b) Cooperation with other Federal,

State, and local public agencies

providing services related to the

rehabilitation of individuals with

disabilities. (1) The State plan must

assure that the State unit cooperates

with other Federal, State, and local

public agencies providing services

related to the rehabilitation of

individuals with disabilities, including,

as appropriate, establishing interagency

working groups or entering into other

interagency cooperative agreements

with, and using the services and

facilities of—

(i) Federal agencies providing services

related to the rehabilitation of

individuals with disabilities, including

the Social Security Administration, the

Office of Workers’ Compensation

Programs of the Department of Labor,

and the Department of Veterans Affairs;

and

(ii) State and local public agencies

providing services related to the

rehabilitation of individuals with

disabilities, including State and local

public agencies administering the

State’s social services and financial

assistance programs and other State

programs for individuals with

disabilities, such as the State’s

developmental disabilities program,

veterans programs, health and mental

health programs, education programs

(including adult education, higher

education, and vocational education

programs), workers’ compensation

programs, job training and placement

programs, and public employment

offices.

(2) Interagency cooperation under

paragraph (b)(1) of this section, to the

extent practicable, must provide for

training for staff of the agencies as to the

availability, benefits of, and eligibility

standards for vocational rehabilitation

services.

(3) Interagency cooperation under

paragraph (b)(1) of this section also

must identify policies, practices, and

procedures that can be coordinated

among the agencies (particularly

definitions, standards for eligibility, the

joint sharing and use of evaluations and

assessments, and procedures for making

referrals); identify available resources

and define the financial responsibility

of each agency for paying for necessary

services (consistent with State law) and

procedures for resolving disputes

between agencies; and include all

additional components necessary to

ensure meaningful cooperation and

coordination.

(c) Reciprocal referral services with a

separate agency for individuals who are

blind. If there is a separate State unit for

individuals who are blind, the State

plan must assure that the two State

units establish reciprocal referral

services, use each other’s services and

facilities to the extent feasible, jointly

plan activities to improve services in the

State for individuals with multiple

impairments, including visual

impairments, and otherwise cooperate

to provide more effective services,

including, if appropriate, entering into a

written cooperative agreement.

(Authority: Sections 101(a)(11) and

101(a)(22) of the Act; 29 U.S.C. 721(a)(11)

and 721(a)(22))

§ 361.24 Coordination with the Statewide

Independent Living Council.

The State plan must assure that the

State unit will coordinate and establish

working relationships with the

Statewide Independent Living Council

established under 34 CFR part 364 and

with independent living centers within

the State.

(Authority: Section 101(a)(33) of the Act; 29

U.S.C. 721(a)(33))

§ 361.25 Statewideness.

The State plan must assure that

services provided under the State plan

will be available in all political

subdivisions of the State, unless a

waiver of statewideness is requested

and approved in accordance with

§ 361.26.

(Authority: Section 101(a)(4) of the Act; 29

U.S.C. 721(a)(4))

§ 361.26 Waiver of statewideness.

(a) Availability. The State unit may

provide services in one or more political

subdivisions of the State that increase

services or expand the scope of services

that are available statewide under the

State plan if—

(1) The non-Federal share of the cost

of these services is met from funds

provided by a local public agency,

including funds contributed to a local

public agency by a private agency,

organization, or individual;

(2) The services are likely to promote

the vocational rehabilitation of

substantially larger numbers of

individuals with disabilities or of

individuals with disabilities with

particular types of impairments; and

(3) The State includes in its State

plan, and the Secretary approves, a

request for a waiver of the statewideness

requirement, in accordance with the

requirements of paragraph (b) of this

section.

(b) Request for waiver. The request for

a waiver of statewideness must—

(1) Identify the types of services to be

provided;

(2) Contain a written assurance from

the local public agency that it will make

available to the State unit the nonFederal share of funds;

(3) Contain a written assurance that

State unit approval will be obtained for

each proposed service before it is put

into effect; and

(4) Contain a written assurance that

all other State plan requirements,

including a State’s order of selection

requirements, will apply to all services

approved under the waiver.

(Authority: Section 101(a)(4) of the Act; 29

U.S.C. 721(a)(4))

§ 361.27 Shared funding and

administration of joint programs.

(a) In order to carry out a joint

program involving shared funding and

administrative responsibility with

another State agency or a local public

agency to provide services to

individuals with disabilities, the

designated State unit must request

approval from the Secretary in the State

plan.

(b) If a proposed joint program does

not comply with the statewideness

requirement in § 361.25, the State unit

shall obtain a waiver of statewideness,

in accordance with § 361.26.

(Authority: Section 101(a)(1)(A) of the Act;

29 U.S.C. 721(a)(1)(A))

§ 361.28 Third-party cooperative

arrangements involving funds from other

public agencies.

(a) If the designated State unit enters

into a third-party cooperative

arrangement for providing or

administering vocational rehabilitation

services with another State agency or a

local public agency that is furnishing

part or all of the non-Federal share, the

State plan must assure that—

(1) The services provided by the

cooperating agency are not the

customary or typical services provided

by that agency but are new services that

have a vocational rehabilitation focus or

existing services that have been

modified, adapted, expanded, or

reconfigured to have a vocational

rehabilitation focus;

(2) The services provided by the

cooperating agency are only available to

applicants for, or recipients of, services

from the designated State unit;

(3) Program expenditures and staff

providing services under the

cooperative arrangement are under the

administrative supervision of the

designated State unit; and
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64511

(4) All State plan requirements,

including a State’s order of selection,

will apply to all services provided

under the cooperative program.

(b) If a third party cooperative

agreement does not comply with the

statewideness requirement in § 361.25,

the State unit shall obtain a waiver of

statewideness, in accordance with

§ 361.26.

(Authority: Section 101(a)(1)(A) of the Act;

29 U.S.C. 721(a)(1)(A))

§ 361.29 Statewide studies and

evaluations.

(a) Statewide studies. The State plan

must assure that the State unit conducts

continuing statewide studies to

determine the current needs of

individuals with disabilities within the

State and the best methods to meet

those needs. The continuing statewide

studies, at a minimum, must include—

(1) A triennial comprehensive

assessment, as part of the development

of the State plan, of the rehabilitation

needs of individuals with severe

disabilities who reside in the State;

(2) A review of the effectiveness of

outreach procedures used to identify

and serve individuals with disabilities

who are minorities and individuals with

disabilities who are unserved and

underserved by the vocational

rehabilitation system;

(3) An annual analysis of the

characteristics of individuals

determined to be ineligible for services

and the reasons for the ineligibility

determinations; and

(4) A review of a broad variety of

methods to provide, expand, and

improve vocational rehabilitation

services to individuals with the most

severe disabilities, including

individuals receiving supported

employment services under 34 CFR Part

363.

(b) Annual evaluation. The State plan

must assure that the State unit conducts

an annual evaluation of the

effectiveness of the State’s vocational

rehabilitation program in providing

vocational rehabilitation and supported

employment services, especially to

individuals with the most severe

disabilities. The annual evaluation must

analyze the extent to which—

(1) The State has achieved the goals

and priorities established in the State

plan and annual amendments to the

plan;

(2) The State has achieved the

objectives of the strategic plan and

revisions to the plan developed under

Subpart D of this part;

(3) The State is in compliance with

the evaluation standards and

performance indicators established by

the Secretary, pursuant to section 106 of

the Act; and

(4) The State unit has adopted and is

implementing procedures and activities

to improve staff effectiveness and has

made reasonable progress toward

meeting the personnel standards

established in accordance with

§ 361.18(c).

(c) Reporting requirements. (1) The

State plan must describe annually those

changes that have been adopted in

policy, in the State plan and its

amendments, and in the strategic plan

and its amendments as a result of the

statewide studies and the annual

program evaluation.

(2) The State plan must contain an

annual description of the methods used

to expand and improve vocational

rehabilitation services to individuals

with the most severe disabilities,

including the State unit’s criteria for

determining which individuals are

individuals with the most severe

disabilities.

(3) The State unit shall submit

summaries or copies of the statewide

studies and the annual evaluations as

attachments to the State plan.

(d) Role of the State Rehabilitation

Advisory Council. The State plan must

assure that the State unit seeks the

advice of the State Rehabilitation

Advisory Council, if the State has a

Council, regarding the continuing

statewide studies and the annual

evaluation and, at the discretion of the

State agency, seeks assistance from the

Council in the preparation and analysis

of the studies and evaluation.

(Authority: Sections 101(a)(5) (A) and (B),

101(a)(9)(D), 101(a)(15) (B) and (D),

101(a)(19), and 105(c)(2) of the Act; 29 U.S.C.

721(a) (5), (9), (15), and (19) and 725(c)(2))

§ 361.30 Services to special groups of

individuals with disabilities.

(a) Civil employees of the United

States. The State plan must assure that

vocational rehabilitation services are

available to civil employees of the U.S.

Government who are disabled in the

line of duty, under the same terms and

conditions applied to other individuals

with disabilities.

(b) Public safety officers. (1) The State

plan must assure that special

consideration will be given to those

individuals with disabilities whose

disability arose from an impairment

sustained in the line of duty while

performing as a public safety officer and

the immediate cause of that impairment

was a criminal act, apparent criminal

act, or a hazardous condition resulting

directly from the officer’s performance

of duties in direct connection with the

enforcement, execution, and

administration of law or fire prevention,

firefighting, or related public safety

activities.

(2) For the purposes of paragraph (b)

of this section, ‘‘special consideration’’

for States under an order of selection

means that those public safety officers

who meet the requirements of paragraph

(b)(1) of this section must receive

priority for services over other eligible

individuals in the same priority

category of the order of selection.

(3) For the purposes of paragraph (b)

of this section, ‘‘criminal act’’ means

any crime, including an act, omission,

or possession under the laws of the

United States, a State, or a unit of

general local government that poses a

substantial threat of personal injury,

notwithstanding that by reason of age,

insanity, intoxication, or otherwise, the

person engaging in the act, omission, or

possession was legally incapable of

committing a crime.

(4) For the purposes of paragraph (b)

of this section, ‘‘public safety officer’’

means a person serving the United

States or a State or unit of local

government, with or without

compensation, in any activity pertaining

to—

(i) The enforcement of the criminal

laws, including highway patrol, or the

maintenance of civil peace by the

National Guard or the Armed Forces;

(ii) A correctional program, facility, or

institution if the activity is potentially

dangerous because of contact with

criminal suspects, defendants,

prisoners, probationers, or parolees;

(iii) A court having criminal or

juvenile delinquent jurisdiction if the

activity is potentially dangerous because

of contact with criminal suspects,

defendants, prisoners, probationers, or

parolees; or

(iv) Firefighting, fire prevention, or

emergency rescue missions.

(c) American Indians. (1) The State

plan must assure that vocational

rehabilitation services are provided to

American Indians with disabilities

residing in the State to the same extent

that these services are provided to other

significant groups of individuals with

disabilities residing in the State.

(2) The State plan also must assure

that the designated State unit continues

to provide vocational rehabilitation

services, including, as appropriate,

services traditionally used by Indian

tribes, to American Indians with

disabilities who reside on reservations

and are eligible for services by a special

tribal program under 34 CFR part 371.

(Authority: Sections 7, 101(a)(13), 101(a)(20),

and 130(b)(3) of the Act; 29 U.S.C. 706,

721(a)(13), 721(a)(20), and 750(b)(3))
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§ 361.31 Utilization of community

resources.

The State plan must assure that, in

providing vocational rehabilitation

services, public or other vocational or

technical training programs or other

appropriate community resources are

used to the maximum extent feasible.

(Authority: Section 101(a)(12)(A) of the Act;

29 U.S.C. 721(a)(12)(A))

§ 361.32 Utilization of profitmaking

organizations for on-the-job training in

connection with selected projects.

The State plan must assure that the

State unit has the authority to enter into

contracts with profitmaking

organizations for the purpose of

providing on-the-job training and

related programs for individuals with

disabilities under the Projects With

Industry program, 34 CFR part 379, if it

has been determined that they are better

qualified to provide needed services

than nonprofit agencies, organizations,

or programs in the State.

(Authority: Section 101(a)(21) of the Act; 29

U.S.C. 721(a)(21))

§ 361.33 Utilization of community

rehabilitation programs.

(a) The State plan must assure that the

designated State unit uses community

rehabilitation programs to the maximum

extent feasible to provide vocational

rehabilitation services in the most

integrated settings possible, consistent

with the informed choices of the

individuals.

(b) The State plan must contain a

description of—

(1) The capacity and effectiveness of

community rehabilitation programs,

including programs under the JavitsWagner-O’Day Act, based on the

utilization patterns of those programs;

and

(2) The methods used to ensure the

appropriate use of community

rehabilitation programs, including

methods for entering into agreements

with the operators of those programs

and for entering into cooperative

agreements with private nonprofit

vocational rehabilitation service

providers.

(Authority: Sections 101(a)(5)(A),

101(a)(12)(B), 101(a)(15)(B), 101(a)(27), and

101(a)(28) of the Act; 29 U.S.C. 721(a) (5),

(12), (15), (27), and (28))

§ 361.34 Supported employment plan.

(a) The State plan must assure that the

State has an acceptable plan under 34

CFR part 363 that provides for the use

of funds under that part to supplement

funds under this part for the cost of

services leading to supported

employment.

(b) The supported employment plan,

including annual revisions, must be

submitted as a supplement to the State

plan.

(Authority: Sections 101(a)(25) and 635(a) of

the Act; 29 U.S.C. 721(a)(25))

§ 361.35 Strategic plan.

(a) The State plan must assure that the

State—

(1) Has developed and implemented a

strategic plan for expanding and

improving vocational rehabilitation

services for individuals with disabilities

on a statewide basis in accordance with

subpart D of this part; and

(2) Will use at least 1.5 percent of its

allotment under this program for

expansion and improvement activities

in accordance with § 361.73(b).

(b) The strategic plan must be

submitted as a supplement to the State

plan.

(Authority: Sections 101(a)(34) and 120 of the

Act; 29 U.S.C. 721(a)(34) and 740)

§ 361.36 [Reserved]

§ 361.37 Establishment and maintenance

of information and referral resources.

(a) General provisions. The State plan

must assure that—

(1) The designated State unit will

establish and maintain information and

referral programs adequate to ensure

that individuals with disabilities within

the State are given accurate information

about State vocational rehabilitation

services, independent living services,

vocational rehabilitation services

available from other agencies,

organizations, and community

rehabilitation programs, and, to the

extent possible, other Federal and State

services and programs that assist

individuals with disabilities, including

client assistance and other protection

and advocacy programs;

(2) The State unit will refer

individuals with disabilities to other

appropriate Federal and State programs

that might be of benefit to them; and

(3) The State unit will use existing

information and referral systems in the

State to the greatest extent possible.

(b) Appropriate modes of

communication. The State plan further

must assure that information and

referral programs use appropriate modes

of communication.

(c) Special Circumstances. If the State

unit is operating under an order of

selection for services, the State unit may

elect to establish an expanded

information and referral program that

includes referral for job placements for

those eligible individuals who are not in

the priority category or categories to

receive vocational rehabilitation

services under the State’s order of

selection. If a State unit elects to

establish this kind of program, the State

plan must include—

(1) A description of how the

expanded information and referral

program will be established and how it

will function, including the level of

commitment of State unit staff and

resources;

(2) An assurance that, in carrying out

this program, the State unit will not use

case services funds that are needed to

provide vocational rehabilitation

services under individualized written

rehabilitation programs for eligible

individuals in the priority category or

categories receiving services under the

State unit’s order of selection; and

(3) A description of the method to be

used by the State unit to track the

results of the expanded information and

referral program, including the State

unit’s procedures for identifying those

eligible individuals who achieve an

employment outcome through

participation in the expanded

information and referral program.

(Authority: Section 101(a)(22) of the Act; 29

U.S.C. 721(a)(22))

§ 361.38 Protection, use, and release of

personal information.

(a) General provisions.

(1) The State plan must assure that the

State agency and the State unit will

adopt and implement policies and

procedures to safeguard the

confidentiality of all personal

information, including photographs and

lists of names. These policies and

procedures must assure that—

(i) Specific safeguards protect current

and stored personal information;

(ii) All applicants and eligible

individuals and, as appropriate, those

individuals’ representatives, service

providers, cooperating agencies, and

interested persons are informed through

appropriate modes of communication of

the confidentiality of personal

information and the conditions for

accessing and releasing this

information;

(iii) All applicants or their

representatives are informed about the

State unit need to collect personal

information and the policies governing

its use, including—

(A) Identification of the authority

under which information is collected;

(B) Explanation of the principal

purposes for which the State unit

intends to use or release the

information;

(C) Explanation of whether providing

requested information to the State unit

is mandatory or voluntary and the
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64513

effects of not providing requested

information;

(D) Identification of those situations

in which the State unit requires or does

not require informed written consent of

the individual before information may

be released; and

(E) Identification of other agencies to

which information is routinely released;

(iv) An explanation of State policies

and procedures affecting personal

information will be provided to each

individual in that individual’s native

language or through the appropriate

mode of communication; and

(v) These policies and procedures

provide no fewer protections for

individuals than State laws and

regulations.

(2) The State unit may establish

reasonable fees to cover extraordinary

costs of duplicating records or making

extensive searches and shall establish

policies and procedures governing

access to records.

(b) State program use. All personal

information in the possession of the

State agency or the designated State unit

must be used only for the purposes

directly connected with the

administration of the vocational

rehabilitation program. Information

containing identifiable personal

information may not be shared with

advisory or other bodies that do not

have official responsibility for

administration of the program. In the

administration of the program, the State

unit may obtain personal information

from service providers and cooperating

agencies under assurances that the

information may not be further

divulged, except as provided under

paragraphs (c), (d), and (e) of this

section.

(c) Release to applicants and eligible

individuals. (1) Except as provided in

paragraphs (c)(2) and (c)(3) of this

section, if requested in writing by an

applicant or eligible individual, the

State unit shall release all requested

information in that individual’s record

of services to the individual or the

individual’s representative in a timely

manner.

(2) Medical, psychological, or other

information that the State unit

determines may be harmful to the

individual may not be released directly

to the individual, but must be provided

through a third party chosen by the

individual, which may include, among

others, an advocate, a family member, or

a qualified medical or mental health

professional.

(3) If personal information has been

obtained from another agency or

organization, it may be released only by,

or under the conditions established by,

the other agency or organization.

(d) Release for audit, evaluation, and

research. Personal information may be

released to an organization, agency, or

individual engaged in audit, evaluation,

or research only for purposes directly

connected with the administration of

the vocational rehabilitation program, or

for purposes that would significantly

improve the quality of life for applicants

and eligible individuals and only if the

organization, agency, or individual

assures that—

(1) The information will be used only

for the purposes for which it is being

provided;

(2) The information will be released

only to persons officially connected

with the audit, evaluation, or research;

(3) The information will not be

released to the involved individual;

(4) The information will be managed

in a manner to safeguard confidentiality;

and

(5) The final product will not reveal

any personal identifying information

without the informed written consent of

the involved individual or the

individual’s representative.

(e) Release to other programs or

authorities. (1) Upon receiving the

informed written consent of the

individual or, if appropriate, the

individual’s representative, the State

unit may release personal information to

another agency or organization for its

program purposes only to the extent that

the information may be released to the

involved individual or the individual’s

representative and only to the extent

that the other agency or organization

demonstrates that the information

requested is necessary for its program.

(2) Medical or psychological

information that the State unit

determines may be harmful to the

individual may be released if the other

agency or organization assures the State

unit that the information will be used

only for the purpose for which it is

being provided and will not be further

released to the individual.

(3) The State unit shall release

personal information if required by

Federal law or regulations.

(4) The State unit shall release

personal information in response to

investigations in connection with law

enforcement, fraud, or abuse, unless

expressly prohibited by Federal or State

laws or regulations, and in response to

an order issued by a judicial officer.

(5) The State unit also may release

personal information in order to protect

the individual or others if the individual

poses a threat to his or her safety or to

the safety of others.

(Authority: Sections 12(c) and 101(a)(6)(A) of

the Act; 29 U.S.C. 711(c) and 721(a)(6)(A))

§ 361.39 State-imposed requirements.

The State plan must assure that the

designated State unit identifies upon

request those regulations and policies

relating to the administration or

operation of its vocational rehabilitation

program that are State-imposed,

including any regulations or policy

based on State interpretation of any

Federal law, regulations, or guideline.

(Authority: Section 17 of the Act; 29 U.S.C.

716)

§ 361.40 Reports.

The State plan must assure that the

State unit—

(a) Will submit reports in the form

and detail and at the time required by

the Secretary, including reports required

under sections 13, 14, and 101(a)(10) of

the Act; and

(b) Will comply with any

requirements necessary to ensure the

correctness and verification of those

reports.

(Authority: Section 101(a)(10) of the Act; 29

U.S.C. 721(a)(10))

State Plan Content: Provision and

Scope of Services

§ 361.41 Processing referrals and

applications.

(a) Referrals. The State plan must

assure that the designated State unit has

established and implemented standards

for the prompt and equitable handling

of referrals of individuals for vocational

rehabilitation services. The standards

must include timelines for making good

faith efforts to inform these individuals

of application requirements and to

gather information necessary to initiate

an assessment for determining eligibility

and priority for services.

(b) Applications. (1) The State plan

must assure that once an individual has

submitted an application for vocational

rehabilitation services, an eligibility

determination will be made within 60

days, unless—

(i) Exceptional and unforeseen

circumstances beyond the control of the

agency preclude a determination within

60 days and the individual is so notified

and agrees that an extension of time is

warranted; or

(ii) An extended evaluation is

necessary, in accordance with

§ 361.42(d).

(2) An individual is considered to

have submitted an application when the

individual or the individual’s

representative, as appropriate, has

completed and signed an agency

application form or has otherwise

requested services and has provided
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information necessary to initiate an

assessment to determine eligibility and

priority for services.

(3) The designated State unit shall

ensure that its application forms are

widely available throughout the State.

(Authority: Sections 101(a)(6)(A) and

102(a)(5)(A) of the Act; 29 U.S.C. 721(a)(6)(A)

and 722(a)(5)(A))

§ 361.42 Assessment for determining

eligibility and priority for services.

The State plan must assure that, in

order to determine whether an

individual is eligible for vocational

rehabilitation services and the

individual’s priority under an order of

selection for services (if the State is

operating under an order of selection),

the designated State unit will conduct

an assessment for determining eligibility

and priority for services. The

assessment must be conducted in the

most integrated setting possible,

consistent with the individual’s needs

and informed choice, and in accordance

with the following provisions:

(a) Eligibility requirements. (1) Basic

requirements. The State plan must

assure that the State unit’s

determination of an applicant’s

eligibility for vocational rehabilitation

services is based only on the following

requirements:

(i) A determination that the applicant

has a physical or mental impairment, as

determined by qualified personnel

licensed or certified in accordance with

State law or regulation.

(ii) A determination that the

applicant’s physical or mental

impairment constitutes or results in a

substantial impediment to employment

for the applicant.

(iii) A determination, in accordance

with paragraph (a)(2) of this section,

that the applicant can benefit in terms

of an employment outcome from the

provision of vocational rehabilitation

services.

(iv) A determination that the

applicant requires vocational

rehabilitation services to prepare for,

enter into, engage in, or retain gainful

employment consistent with the

applicant’s strengths, resources,

priorities, concerns, abilities,

capabilities, and informed choice.

(2) Presumption of benefit. The State

plan must assure that the designated

State unit will presume that an

applicant who meets the eligibility

requirements in paragraphs (a)(1) (i) and

(ii) of this section can benefit in terms

of an employment outcome unless it

determines, based on clear and

convincing evidence, that the applicant

is incapable of benefitting in terms of an

employment outcome from vocational

rehabilitation services.

(3) Limited presumption for Social

Security beneficiaries. The State plan

must assure that, if an applicant has

appropriate evidence, such as an award

letter, that establishes the applicant’s

eligibility for Social Security benefits

under Title II or Title XVI of the Social

Security Act, the designated State unit

will presume that the applicant—

(i) Meets the eligibility requirements

in paragraphs (a)(1) (i) and (ii) of this

section; and

(ii) Has a severe physical or mental

impairment that seriously limits one or

more functional capacities in terms of

an employment outcome.

(b) Prohibited factors. The State plan

must assure that—

(1) No duration of residence

requirement is imposed that excludes

from services any applicant who is

present in the State;

(2) No applicant or group of

applicants is excluded or found

ineligible solely on the basis of the type

of disability;

(3) The eligibility requirements are

applied without regard to the age,

gender, race, color, creed, or national

origin of the applicant; and

(4) The eligibility requirements are

applied without regard to the particular

service needs or anticipated cost of

services required by an applicant or the

income level of an applicant or

applicant’s family.

(c) Review and assessment of data for

eligibility determination. Except as

provided in paragraph (d) of this

section, the designated State unit shall

base its determination of each of the

basic eligibility requirements in

paragraph (a) of this section on—

(1) A review and assessment of

existing data, including counselor

observations, education records,

information provided by the individual

or the individual’s family, information

used by the Social Security

Administration, and determinations

made by officials of other agencies; and

(2) To the extent existing data do not

describe the current functioning of the

individual or are unavailable,

insufficient, or inappropriate to make an

eligibility determination, an assessment

of additional data resulting from the

provision of vocational rehabilitation

services, including assistive technology

devices and services and worksite

assessments, that are necessary to

determine whether an individual is

eligible.

(d) Extended evaluation for

individuals with severe disabilities. (1)

Prior to any determination that an

individual with a severe disability is

incapable of benefitting from vocational

rehabilitation services in terms of an

employment outcome because of the

severity of that individual’s disability,

the State unit shall conduct an extended

evaluation to determine whether or not

there is clear and convincing evidence

to support such a determination.

(2) During the extended evaluation

period, which may not exceed 18

months, vocational rehabilitation

services must be provided in the most

integrated setting possible, consistent

with the informed choice of the

individual.

(3) During the extended evaluation

period, the State unit shall develop a

written plan for determining eligibility

and for determining the nature and

scope of services required to achieve an

employment outcome. The State unit

may provide during this period only

those services that are necessary to

make these two determinations.

(4) The State unit shall assess the

individual’s progress as frequently as

necessary, but at least once every 90

days, during the extended evaluation

period.

(5) The State unit shall terminate

extended evaluation services at any

point during the 18-month extended

evaluation period if the State unit

determines that—

(i) There is sufficient evidence to

conclude that the individual can benefit

from the provision of vocational

rehabilitation services in terms of an

employment outcome; or

(ii) There is clear and convincing

evidence that the individual is

incapable of benefitting from vocational

rehabilitation services in terms of an

employment outcome.

(e) Data for determination of priority

for services under an order of selection.

If the State unit is operating under an

order of selection for services, as

provided in § 361.36, the State unit shall

base its priority assignments on—

(1) A review of the data that was

developed under paragraphs (c) and (d)

of this section to make the eligibility

determination; and

(2) An assessment of additional data,

to the extent necessary.

(Authority: Sections 7(22)(A)(ii), 7(22)(C)(iii),

101(a)(9)(A), 101(a)(14), 101(a)(31), 102(a)(1),

102(a)(2), 102(a)(3), and 102(a)(4) of the Act;

29 U.S.C. 706(22)(A)(ii), 706(22)(C)(iii),

721(a)(9)(a), 721(a)(14), 721(a)(31), 722(a)(1),

722(a)(2), 722(a)(3), and 722(a)(4))

Note: ‘‘Clear and convincing evidence’’

means that the designated State unit must

have a high degree of certainty before it can

conclude that an individual is incapable of

benefitting from services in terms of an

employment outcome. The ‘‘clear and

convincing’’ standard constitutes the highest

standard used in our civil system of law and
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64515

is to be individually applied on a case-bycase basis. The term ‘‘clear’’ means

unequivocal. Given these requirements, a

review of existing information generally

would not provide clear and convincing

evidence. For example, the use of an

intelligence test result alone would not

constitute clear and convincing evidence.

Clear and convincing evidence might include

a description of assessments, including

situational assessments and supported

employment assessments, from service

providers who have concluded that they

would be unable to meet the individual’s

needs due to the severity of the individual’s

disability. The demonstration of ‘‘clear and

convincing evidence’’ must include, if

appropriate, a functional assessment of skill

development activities, with any necessary

supports (including assistive technology), in

real life settings.

Note: Under the statute and paragraph

(a)(1)(iv) of § 361.42, an individual with a

disability is not eligible for vocational

rehabilitation services if the individual does

not require the services to prepare for, enter,

engage in, or retain gainful employment. The

following examples illustrate how an

individual with a disability may or may not

meet this final eligibility criterion. The

examples are purely illustrative, do not

address all possible circumstances, and are

not intended to substitute for individual

counselor judgment. State units shall

determine eligibility for vocational

rehabilitation services on a case-by-case

basis, taking into account those individual

circumstances relating to an individual’s

strengths, resources, priorities, concerns,

abilities, and capabilities.

Example: An individual with a disability

who is not currently employed and is unable

to obtain employment consistent with the

individual’s abilities and capabilities would

likely meet this eligibility criterion.

Example: An individual with a disability

who is already employed in a setting

consistent with the individual’s abilities and

capabilities, but who desires to change jobs

for reasons unrelated to the individual’s

disability, would likely not meet this

eligibility criterion.

Example: An individual with a disability

who is already employed, but not in a setting

consistent with the individual’s abilities and

capabilities, and who desires to obtain new

employment that is consistent with his or her

abilities and capabilities, would meet this

eligibility criterion.

Example: An individual with a disability

who is currently employed, but is in jeopardy

of losing that employment due to disabilityrelated factors (e.g., the individual’s

disability is progressive and results in

additional functional limitations), would

meet this eligibility criterion.

Example: An individual with a disability

who was previously employed in a setting

consistent with the individual’s abilities and

capabilities, who lost that employment for

reasons unrelated to the disability, and

whose job skills are transferable would likely

not meet this eligibility criterion.

Example: An individual with a disability

whose disability is of a temporary nature

(e.g., an allowed Social Security beneficiary

who has been assigned a diaried date (date

of a follow-up review to determine whether

the individual has recovered medically)

because his or her disability is expected to

improve within 12 months) might not meet

this eligibility criterion.

§ 361.43 Procedures for ineligibility

determination.

The State plan must assure that if the

State unit determines that an applicant

is ineligible for vocational rehabilitation

services or determines that an

individual receiving services under an

individualized written rehabilitation

program is no longer eligible for

services, the State unit shall—

(a) Make the determination only after

providing an opportunity for full

consultation with the individual or, as

appropriate, with the individual’s

representative;

(b) Inform the individual in writing,

or by appropriate modes of

communication, of the ineligibility

determination, including the reasons for

that determination, the requirements

under this section, and the means by

which the individual may express and

seek remedy for any dissatisfaction,

including the procedures for review of

a determination by the rehabilitation

counselor or coordinator in accordance

with § 361.57;

(c) Provide the individual with a

description of services available from a

client assistance program established

under 34 CFR part 370 and information

on how to contact that program; and

(d) Review the ineligibility

determination—

(1) Within 12 months, unless the

individual has refused the review, is no

longer present in the State, or the

individual’s whereabouts are unknown;

or

(2) In the case of an ineligibility

determination based on a determination

that the individual is incapable of

achieving an employment outcome,

within 12 months in accordance with

paragraph (d)(1) of this section and

annually thereafter if requested by the

individual or, if appropriate, by the

individual’s representative.

(Authority: Sections 101(a)(9)(D), 102(a)(6),

and 102(c) of the Act; 29 U.S.C. 721(a)(9),

722(a)(6), and 722(c))

§ 361.44 Closure without eligibility

determination.

The State plan must assure that the

State unit may not close an applicant’s

case prior to making an eligibility

determination unless the applicant

declines to participate in, or is

unavailable to complete an assessment

for determining eligibility and priority

for services, and the State unit has made

a reasonable number of attempts to

contact the applicant or, if appropriate,

the applicant’s representative to

encourage the applicant’s participation.

(Authority: Sections 12(c) and 101(a)(6)(A) of

the Act; 29 U.S.C. 711(c) and 721(a)(6))

§ 361.45 Development of the individualized

written rehabilitation program.

(a) Purpose. The State plan must

assure that the State unit conducts an

assessment for determining vocational

rehabilitation needs for each eligible

individual or, if the State is operating

under an order of selection, for each

eligible individual to whom the State is

able to provide services. The purpose of

this assessment is to determine the longterm vocational goal, intermediate

rehabilitation objectives, and the nature

and scope of vocational rehabilitation

services to be included in the IWRP,

which must be designed to achieve an

employment outcome that is consistent

with the individual’s unique strengths,

priorities, concerns, abilities,

capabilities, and career interests.

(b) Procedural requirements. The

State plan must assure that—

(1) The IWRP is developed jointly,

agreed to, and signed by the vocational

rehabilitation counselor or coordinator

and the individual or, as appropriate,

the individual’s representative within

the framework of a counseling and

guidance relationship;

(2) The State unit has established and

implemented standards for the prompt

development of IWRPs for the

individuals identified under paragraph

(a) of this section, including timelines

that take into consideration the needs of

the individual;

(3) The State unit advises each

individual or, as appropriate, the

individual’s representative of all State

unit procedures and requirements

affecting the development and review of

an IWRP, including the availability of

appropriate modes of communication;

(4) In developing an IWRP for a

transitioning student, the State unit

considers the student’s individualized

education program;

(5) The State unit reviews the IWRP

with the individual or, as appropriate,

the individual’s representative as often

as necessary, but at least once each year

to assess the individual’s progress in

meeting the objectives identified in the

IWRP;

(6) The State unit incorporates into

the IWRP any revisions that are

necessary to reflect changes in the

individual’s vocational goal,

intermediate objectives, or vocational

rehabilitation needs, after obtaining the

agreement and signature of the

individual or, as appropriate, the
64516 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

agreement and signature of the

individual’s representative; and

(7) The State unit promptly provides

each individual or, as appropriate, the

individual’s representative, a copy of

the IWRP and its amendments in the

native language, or appropriate mode of

communication, of the individual or, as

appropriate, of the individual’s

representative.

(c) Data for preparing the IWRP.

(1) Preparation without

comprehensive assessment. To the

extent possible, the vocational goal,

intermediate objectives, and the nature

and scope of rehabilitation services to

be included in the individual’s IWRP

must be determined based on the data

used for the assessment of eligibility

and priority for services under § 361.42.

(2) Preparation based on

comprehensive assessment.

(i) If additional data are necessary to

prepare the IWRP, the designated State

unit shall conduct a comprehensive

assessment of the unique strengths,

resources, priorities, interests, and

needs, including the need for supported

employment services of an eligible

individual, in the most integrated

setting possible, consistent with the

informed choice of the individual.

(ii) The comprehensive assessment

must be limited to information that is

necessary to identify the rehabilitation

needs of the individual and develop the

IWRP and may, to the extent needed,

include—

(A) An analysis of pertinent medical,

psychiatric, psychological,

neuropsychological, and other pertinent

vocational, educational, cultural, social,

recreational, and environmental factors,

and related functional limitations, that

affect the employment and

rehabilitation needs of the individual;

(B) An analysis of the individual’s

personality, career interests,

interpersonal skills, intelligence and

related functional capacities,

educational achievements, work

experience, vocational aptitudes,

personal and social adjustments, and

employment opportunities;

(C) An appraisal of the individual’s

patterns of work behavior and services

needed to acquire occupational skills

and to develop work attitudes, work

habits, work tolerance, and social and

behavior patterns suitable for successful

job performance; and

(D) An assessment, through provision

of rehabilitation technology services, of

the individual’s capacities to perform in

a work environment, including in an

integrated setting, to the maximum

extent feasible and consistent with the

individual’s informed choice.

(iii) In preparing a comprehensive

assessment, the State unit shall use, to

the maximum extent possible and

appropriate and in accordance with

confidentiality requirements, existing

information, including information that

is provided by the individual, the family

of the individual, and education

agencies.

(Authority: Sections 7(22)(B), 102(b)(1)(A),

and 102(b)(2); 29 U.S.C. 706(5), 721(a)(9),

722, and 723(a)(1))

§ 361.46 Content of the individualized

written rehabilitation program.

(a) General requirements. The State

plan must assure that each IWRP

includes, as appropriate, statements

concerning—

(1) The specific long-term vocational

goal, which must be based on the

assessment for determining vocational

rehabilitation needs, including the

individual’s career interests, and must

be, to the extent appropriate and

consistent with the informed choice of

the individual, in an integrated setting;

(2) The specific and measurable

intermediate rehabilitation objectives

related to the attainment of the longterm vocational goal, based on the

assessment for determining vocational

rehabilitation needs and consistent with

the informed choice of the individual;

(3) The specific rehabilitation services

under § 361.48 to be provided to achieve

the established intermediate

rehabilitation objectives, including, if

appropriate, rehabilitation technology

services and on-the-job and related

personal assistance services;

(4) The projected dates for the

initiation of each vocational

rehabilitation service, the anticipated

duration of each service, and the

projected date for the achievement of

the individual’s vocational goal;

(5) A procedure and schedule for

periodic review and evaluation of

progress toward achieving intermediate

rehabilitation objectives based upon

objective criteria and a record of these

reviews and evaluations;

(6) How, in the words of the

individual or, as appropriate, in the

words of the individual’s representative,

the individual was—

(i) Informed about and involved in

choosing among alternative goals,

objectives, services, providers, and

methods used to procure or provide

services; and

(ii) Provided information regarding

the availability and qualifications of

alternative providers of services;

(7) The terms and conditions for the

provision of vocational rehabilitation

services, including—

(i) The responsibilities of the

individual in implementing the IWRP;

(ii) The extent of the individual’s

participation in the cost of services;

(iii) The extent to which goods and

services will be provided in the most

integrated settings possible, consistent

with the informed choices of the

individual;

(iv) The extent to which comparable

services and benefits are available to the

individual under any other program;

and

(v) The entity or entities that will

provide the services and the process

used to provide or procure the services;

(8) The rights of the individual under

this part and the means by which the

individual may express and seek

remedy for any dissatisfaction,

including the opportunity for a review

of rehabilitation counselor or

coordinator determinations under

§ 361.57;

(9) The availability of a client

assistance program established under 34

CFR part 370; and

(10) The basis on which the

individual has been determined to have

achieved an employment outcome.

(b) Supported employment

placements. The State plan must assure

that the IWRP for individuals with the

most severe disabilities for whom a

vocational goal in a supported

employment setting has been

determined to be appropriate will also

contain—

(1) A description of the supported

employment services to be provided by

the State unit; and

(2) A description of the extended

services needed and identification of the

source of extended services or, in the

event that identification of the source is

not possible at the time the IWRP is

developed, a statement explaining the

basis for concluding that there is a

reasonable expectation that services will

become available.

(c) Post-employment services. The

State plan must assure that the IWRP for

each individual contains statements

concerning—

(1) The expected need for postemployment services, based on an

assessment during the development of

the IWRP;

(2) A reassessment of the need for

post-employment services prior to the

determination that the individual has

achieved an employment outcome;

(3) A description of the terms and

conditions for the provision of any postemployment services, including the

anticipated duration of those services,

subsequent to the achievement of an

employment outcome by the individual;

and
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64517

(4) If appropriate, a statement of how

post-employment services will be

provided or arranged through

cooperative agreements with other

service providers.

(d) Coordination of services for

transitioning students. The State plan

must assure that the IWRP for a

transitioning student is coordinated

with the individualized education

program (IEP) for that individual in

terms of the goals, objectives, and

services identified in the IEP.

(e) Ineligibility. The State plan must

assure that the decision that an

individual is not capable of achieving

an employment outcome and is no

longer eligible to receive services under

an IWRP is made in accordance with the

requirements in § 361.43. The decision,

and the reasons on which the decision

was based, must be included as an

amendment to the IWRP.

(Authority: Sections 101(a)(9), 102(b)(1),

102(c), and 635(b)(6) of the Act; 29 U.S.C.

721(a)(9), 722, and 795n)

§ 361.47 Record of services.

The State plan must assure that the

designated State unit maintains for each

applicant or eligible individual a record

of services that includes, to the extent

pertinent, the following documentation:

(a) If an applicant has been

determined to be an eligible individual,

documentation supporting that

determination in accordance with the

requirements in § 361.42.

(b) If an applicant has been

determined to be ineligible,

documentation supporting that

determination in accordance with the

requirements of § 361.43.

(c) Documentation supporting the

determination that an individual has a

severe disability or a most severe

disability.

(d) If an individual with a severe

disability requires an extended

evaluation in order to determine

whether the individual is an eligible

individual, documentation supporting

the need for an extended evaluation,

documentation supporting the periodic

assessments conducted during the

extended evaluation, and the written

plan developed during the extended

evaluation, in accordance with the

requirements in § 361.42(d).

(e) The IWRP, and any amendments to

the IWRP, containing the information

required under § 361.46.

(f) In accordance with § 361.45(a),

documentation supporting the

development of the long-term vocational

goal, intermediate rehabilitation

objectives, and nature and scope of

services included in the individual’s

IWRP and, for individuals who are

transitioning students, in the

individual’s IEP.

(g) In the event that an individual’s

IWRP provides for services or a job

placement in a non-integrated setting, a

justification for that non-integrated

setting.

(h) Documentation of the reason for

terminating services to an individual

and, if an individual has achieved an

employment outcome, the basis on

which the requirements of § 361.56 were

determined to be met.

(i) Documentation concerning any

action and decision resulting from a

request by an individual for review of a

rehabilitation counselor or coordinator

determination under § 361.57.

(Authority: Sections 101(a)(6) and 101(a)(9)

of the Act; 29 U.S.C. 721(a)(6) and 721(a)(9))

§ 361.48 Scope of vocational rehabilitation

services for individuals with disabilities.

(a) The State plan must assure that, as

appropriate to the vocational

rehabilitation needs of each individual

and consistent with each individual’s

informed choice, the following

vocational rehabilitation services are

available:

(1) Assessment for determining

eligibility and priority for services in

accordance with § 361.42.

(2) Assessment for determining

vocational rehabilitation needs in

accordance with § 361.45.

(3) Vocational counseling and

guidance.

(4) Referral and other services

necessary to help applicants and eligible

individuals secure needed services from

other agencies and to advise those

individuals about client assistance

programs established under 34 CFR part

370.

(5) Physical and mental restoration

services in accordance with the

definition of that term in § 361.5(b)(35).

(6) Vocational and other training

services, including personal and

vocational adjustment training, books,

tools, and other training materials,

except that no training or training

services in an institution of higher

education (universities, colleges,

community or junior colleges,

vocational schools, technical institutes,

or hospital schools of nursing) may be

paid for with funds under this part

unless maximum efforts have been

made by the State unit to secure grant

assistance in whole or in part from other

sources to pay for that training.

(7) Maintenance, in accordance with

the definition of that term in

§ 361.5(b)(31).

(8) Transportation in connection with

the rendering of any vocational

rehabilitation service and in accordance

with the definition of that term in

§ 361.5(b)(50).

(9) Vocational rehabilitation services

to family members of an applicant or

eligible individual if necessary to enable

the applicant or eligible individual to

achieve an employment outcome.

(10) Interpreter services for

individuals who are deaf and tactile

interpreting services for individuals

who are deaf-blind.

(11) Reader services, rehabilitation

teaching services, and orientation and

mobility services for individuals who

are blind.

(12) Recruitment and training services

to provide new employment

opportunities in the fields of

rehabilitation, health, welfare, public

safety, law enforcement, and other

appropriate public service employment.

(13) Job search and placement

assistance and job retention services.

(14) Supported employment services

in accordance with the definition of that

term in § 361.5(b)(46).

(15) Personal assistance services in

accordance with the definition of that

term in § 361.5(b)(34).

(16) Post-employment services in

accordance with the definition of that

term in § 361.5(b)(37).

(17) Occupational licenses, tools,

equipment, initial stocks, and supplies.

(18) Rehabilitation technology in

accordance with the definition of that

term in § 361.5(b)(39), including

vehicular modification,

telecommunications, sensory, and other

technological aids and devices.

(19) Transition services in accordance

with the definition of that term in

§ 361.5(b)(47).

(20) Other goods and services

determined necessary for the individual

with a disability to achieve an

employment outcome.

(b) The State plan also must describe

annually—

(1) The manner in which a broad

range of rehabilitation technology

services will be provided at each stage

of the rehabilitation process and on a

statewide basis;

(2) The training that will be provided

to vocational rehabilitation counselors,

client assistance personnel, and other

related services personnel on the

provision of rehabilitation technology

services; and

(3) The manner in which on-the-job

and other related personal assistance

services will be provided to assist

individuals while they are receiving

vocational rehabilitation services,

including a description of strategies for

developing statewide capacity to

provide those services to an increasing

number of individuals to improve their

employment potential.
64518 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

(Authority: Sections 101(a)(5)(C), 101(a)(26),

and 103(a) of the Act; 29 U.S.C. 721(a)(5)(C),

721(a)(26), and 723(a))

§ 361.49 Scope of vocational rehabilitation

services for groups of individuals with

disabilities.

(a) The State plan may also provide

for the following vocational

rehabilitation services for the benefit of

groups of individuals with disabilities:

(1) The establishment, development,

or improvement of a public or other

nonprofit community rehabilitation

program that is used to provide services

that promote integration and

competitive employment, including

under special circumstances, the

construction of a facility for a public or

nonprofit community rehabilitation

program. Examples of ‘‘special

circumstances’’ include the destruction

by natural disaster of the only available

center serving an area or a State

determination that construction is

necessary in a rural area because no

other public agencies or private

nonprofit organizations are currently

able to provide services to individuals.

(2) Telecommunications systems that

have the potential for substantially

improving vocational rehabilitation

service delivery methods and

developing appropriate programming to

meet the particular needs of individuals

with disabilities, including telephone,

television, satellite, tactile-vibratory

devices, and similar systems, as

appropriate.

(3) Special services to provide

recorded material for individuals who

are blind, captioned television, films or

video cassettes for individuals who are

deaf, tactile materials for individuals

who are deaf-blind, and other special

services that provide information

through tactile, vibratory, auditory, and

visual media.

(4) Technical assistance and support

services, such as job site modification

and other reasonable accommodations,

to businesses that are not subject to Title

I of the Americans with Disabilities Act

of 1990 and that are seeking to employ

individuals with disabilities.

(5) In the case of small business

enterprises operated by individuals with

the most severe disabilities under the

supervision of the State unit, including

enterprises established under the

Randolph-Sheppard program,

management services and supervision,

initial stocks and supplies, and initial

operating expenses, in accordance with

the following requirements:

(i) ‘‘Management services and

supervision’’ includes inspection,

quality control, consultation,

accounting, regulating, in-service

training, and related services provided

on a systematic basis to support and

improve small business enterprises

operated by individuals with the most

severe disabilities. ‘‘Management

services and supervision’’ may be

provided throughout the operation of

the small business enterprise.

(ii) ‘‘Initial stocks and supplies’’

includes those items necessary to the

establishment of a new business

enterprise during the initial

establishment period, which shall not

exceed six months.

(iii) Costs of establishing a small

business enterprise may include

operational costs during the initial

establishment period, which shall not

exceed six months.

(iv) If the State plan provides for these

services, it must contain an assurance

that only individuals with the most

severe disabilities will be selected to

participate in this supervised program.

(v) If the State plan provides for these

services and the State unit chooses to

set aside funds from the proceeds of the

operation of the small business

enterprises, the State plan also must

assure that the State unit maintains a

description of the methods used in

setting aside funds and the purposes for

which funds are set aside. Funds may be

used only for small business enterprises

purposes, and benefits that are provided

to operators from set-aside funds must

be provided on an equitable basis.

(6) Other services that promise to

contribute substantially to the

rehabilitation of a group of individuals

but that are not related directly to the

IWRP of any one individual. Examples

of those other services might include the

purchase or lease of a bus to provide

transportation to a group of applicants

or eligible individuals or the purchase

of equipment or instructional materials

that would benefit a group of applicants

or eligible individuals.

(b) If the State plan provides for

vocational rehabilitation services for

groups of individuals, the State plan

must assure that the designated State

unit maintains information to ensure the

proper and efficient administration of

those services in the form and detail and

at the time required by the Secretary,

including the types of services

provided, the costs of those services,

and, to the extent feasible, estimates of

the numbers of individuals benefitting

from those services.

(Authority: Section 103(b) of the Act; 29

U.S.C. 711(c), 723(b), 721(a)(6))

§ 361.50 Written policies governing the

provision of services.

The State plan must assure that the

State unit develops and maintains

written policies covering the nature and

scope of each of the vocational

rehabilitation services specified in

§ 361.48 and § 361.49 and the criteria

under which each service is provided.

The policies must ensure that the

provision of services is based on the

rehabilitation needs of each individual

as identified in that individual’s IWRP.

The written policies may not establish

any arbitrary limits on the nature and

scope of vocational rehabilitation

services to be provided to the individual

to achieve an employment outcome. The

policies must be developed in

accordance with the following

provisions:

(a) Out-of-State services. (1) The State

unit may establish a preference for inState services, provided that the

preference does not effectively deny an

individual a necessary service. If the

individual chooses an out-of-State

service at a higher cost than an in-State

service, if either service would meet the

individual’s rehabilitation needs, the

designated State unit is not responsible

for those costs in excess of the cost of

the in-State service.

(2) The State unit may not establish

an absolute prohibition on the provision

of out-of-State services.

(b) Payment for services. (1) The State

unit shall establish and maintain

written policies to govern the rates of

payment for all purchased vocational

rehabilitation services.

(2) The State unit may establish a

reasonable fee schedule designed to

ensure the lowest reasonable cost to the

program for each service, provided that

the schedule is—

(i) Not so low as to effectively deny

an individual a necessary service; and

(ii) Not absolute and permits

exceptions so that individual needs can

be addressed.

(3) The State unit may not place

absolute dollar limits on specific service

categories or on the total services

provided to an individual.

(c) Duration of services. (1) The State

unit may establish reasonable time

periods for the provision of services

provided that the time periods are—

(i) Not so short as to effectively deny

an individual a necessary service; and

(ii) Not absolute and permit

exceptions so that individual needs can

be addressed.

(2) The State unit may not establish

absolute time limits on the provision of

specific services or on the provision of

services to an individual. The duration

of each service needed by an individual

must be determined on an individual

basis and reflected in that individual’s

IWRP.
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64519

(d) Authorization of services. The

State unit shall establish policies related

to the timely authorization of services,

including conditions under which

verbal authorization can be given.

(Authority: Sections 12(c), 12(e)(2)(A), and

101(a)(6) of the Act and 29 U.S.C. 711(c),

711(e)(2)(A), and 721(a)(6))

§ 361.51 Written standards for facilities

and providers of services.

The State plan must assure that the

designated State unit establishes,

maintains, makes available to the

public, and implements written

minimum standards for the various

types of facilities and providers of

services used by the State unit in

providing vocational rehabilitation

services, in accordance with the

following requirements:

(a) Accessibility of facilities. Any

facility in which vocational

rehabilitation services are provided

must be accessible to individuals

receiving services and must comply

with the requirements of the

Architectural Barriers Act of 1968, the

Uniform Accessibility Standards and

their implementing regulations in 41

CFR part 101, subpart 101–19.6, the

American National Standards Institute,

No. A117.1–1986, the Americans with

Disabilities Act of 1990, and section 504

of the Act.

(b) Personnel standards. (1) Qualified

personnel. Providers of vocational

rehabilitation services shall use

qualified personnel, in accordance with

any applicable national or Stateapproved or recognized certification,

licensing, registration or other

comparable requirements (including

State personnel requirements) that

apply to the profession or discipline in

which that category of personnel is

providing vocational rehabilitation

services.

(2) Affirmative action. Providers of

vocational rehabilitation services shall

take affirmative action to employ and

advance in employment qualified

individuals with disabilities.

(3) Special communication needs

personnel. Providers of vocational

rehabilitation services shall—

(i) Include among their personnel, or

obtain the services of, individuals able

to communicate in the native languages

of applicants and eligible individuals

who have limited English speaking

ability; and

(ii) Ensure that appropriate modes of

communication for all applicants and

eligible individuals are used.

(c) Fraud, waste, and abuse. Providers

of vocational rehabilitation services

shall have adequate and appropriate

policies and procedures to prevent

fraud, waste, and abuse.

(Authority: Sections 12(e)(2) (B), (D), and (E)

and 101(a)(6)(B) of the Act; 29 U.S.C. 711(e)

and 721(a)(6)(B))

§ 361.52 Opportunity to make informed

choices regarding the selection of services

and providers.

The State plan must describe the

manner in which the State unit will

provide each applicant, including

individuals who are receiving services

during an extended evaluation, and

each eligible individual the opportunity

to make informed choices throughout

the vocational rehabilitation process in

accordance with the following

requirements:

(a) Each State unit, in consultation

with its State Rehabilitation Advisory

Council, if it has one, shall develop and

implement policies and procedures that

enable each individual to make an

informed choice with regard to the

selection of a long-term vocational goal,

intermediate rehabilitation objectives,

vocational rehabilitation services,

including assessment services, and

service providers.

(b) In developing an individual’s

IWRP, the State unit shall provide the

individual, or assist the individual in

acquiring, information necessary to

make an informed choice about the

specific services, including the

providers of those services, that are

needed to achieve the individual’s

vocational goal. This information must

include, at a minimum, information

relating to the cost, accessibility, and

duration of potential services, the level

of consumer satisfaction with those

services, the qualifications of potential

service providers, the types of services

offered by those providers, and the

degree to which services are provided in

integrated settings.

(c) In providing, or assisting the

individual in acquiring, the information

required under paragraph (b) of this

section, the State unit may use, but is

not limited to, the following methods or

sources of information:

(1) State or regional lists of services

and service providers.

(2) Periodic consumer satisfaction

surveys and reports.

(3) Referrals to other consumers, local

consumer groups, or disability advisory

councils qualified to discuss the

services or service providers.

(4) Relevant accreditation,

certification, or other information

relating to the qualifications of service

providers.

(Authority: Sections 12(e)(1) and 12(e)(2)(C)

of the Act; 29 U.S.C. 711(e))

§ 361.53 Availability of comparable

services and benefits.

(a) The State plan must assure that—

(1) Prior to providing any vocational

rehabilitation services to an eligible

individual, or to members of the

individual’s family, except those

services listed in paragraph (b) of this

section, the State unit shall determine

whether comparable services and

benefits exist under any other program

and whether those services and benefits

are available to the individual;

(2) If comparable services or benefits

exist under any other program and are

available to the eligible individual

within a reasonable period of time so

that the intermediate rehabilitation

objectives of the individual’s IWRP can

be met, the State unit shall use those

comparable services or benefits to meet,

in whole or in part, the cost of

vocational rehabilitation services; and

(3) If comparable services or benefits

exist under any other program, but are

not available to the individual within a

reasonable period of time, the State unit

shall provide vocational rehabilitation

services until those comparable services

and benefits become available.

(b) A prior determination of the

availability of comparable services and

benefits is not required in connection

with the provision of any of the

following services:

(1) Assessment for determining

eligibility and priority for services.

(2) Assessment for determining

vocational rehabilitation needs.

(3) Vocational counseling, guidance,

and referral services.

(4) Vocational and other training

services, such as personal and

vocational adjustment training, books

(including alternative format books

accessible by computer and taped

books), tools, and other training

materials in accordance with

§ 361.48(a)(6).

(5) Placement services.

(6) Rehabilitation technology.

(7) Post-employment services

consisting of the services listed under

paragraphs (b) (1) through (6) of this

section.

(c) The requirements of paragraph (a)

of this section also do not apply if—

(1) The determination of the

availability of comparable services and

benefits under any other program would

delay the provision of vocational

rehabilitation services to any individual

who is determined to be at extreme

medical risk, based on medical evidence

provided by an appropriate qualified

medical professional; or

(2) An immediate job placement

would be lost due to a delay in the
64520 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

provision of comparable services and

benefits.

(Authority: Section 101(a)(8) of the Act; 29

U.S.C. 721(a)(8))

§ 361.54 Participation of individuals in

cost of services based on financial need.

(a) No Federal requirement. There is

no Federal requirement that the

financial need of individuals be

considered in the provision of

vocational rehabilitation services.

(b) State unit requirements. (1) The

State unit may choose to consider the

financial need of eligible individuals or

individuals who are receiving services

during an extended evaluation for

purposes of determining the extent of

their participation in the costs of

vocational rehabilitation services, other

than those services identified in

paragraph (b)(3) of this section.

(2) If the State unit chooses to

consider financial need—

(i) It shall maintain written policies

covering the determination of financial

need;

(ii) The State plan must specify the

types of vocational rehabilitation

services for which the unit has

established a financial needs test;

(iii) The policies must be applied

uniformly to all individuals in similar

circumstances;

(iv) The policies may require different

levels of need for different geographic

regions in the State, but must be applied

uniformly to all individuals within each

geographic region; and

(v) The policies must ensure that the

level of an individual’s participation in

the cost of vocational rehabilitation

services is—

(A) Reasonable;

(B) Based on the individual’s financial

need; and

(C) Not so high as to effectively deny

the individual a necessary service.

(3) The State plan must assure that no

financial needs test is applied and no

financial participation is required as a

condition for furnishing the following

vocational rehabilitation services:

(i) Assessment for determining

eligibility and priority for services,

except those non-assessment services

that are provided during an extended

evaluation for an individual with a

severe disability under § 361.42(d).

(ii) Assessment for determining

vocational rehabilitation needs.

(iii) Vocational counseling, guidance,

and referral services.

(iv) Placement services.

(Authority: Section 12(c) of the Act; 29 U.S.C.

711(c))

§ 361.55 Review of extended employment

in community rehabilitation programs or

other employment under section 14(c) of

the Fair Labor Standards Act.

The State plan must assure that the

State unit—

(a) Reviews and re-evaluates at least

annually the status of each individual

determined by the State unit to have

achieved an employment outcome in an

extended employment setting in a

community rehabilitation program or

other employment setting in which the

individual is compensated in

accordance with section 14(c) of the Fair

Labor Standards Act. This review or reevaluation must include input from the

individual or, in an appropriate case,

the individual’s representative to

determine the interests, priorities, and

needs of the individual for employment

in, or training for, competitive

employment in an integrated setting in

the labor market;

(b) Makes maximum effort, including

the identification of vocational

rehabilitation services, reasonable

accommodations, and other support

services, to enable the eligible

individual to benefit from training in, or

to be placed in employment in, an

integrated setting; and

(c) Provides services designed to

promote movement from extended

employment to integrated employment,

including supported employment,

independent living, and community

participation.

(Authority: Section 101(a)(16) of the Act; 29

U.S.C. 721(a)(16))

§ 361.56 Individuals determined to have

achieved an employment outcome.

The State plan must assure that an

individual is determined to have

achieved an employment outcome only

if the following requirements are met:

(a) The provision of services under

the individual’s IWRP has contributed

to the achievement of the employment

outcome.

(b) The employment outcome is

consistent with the individual’s

abilities, capabilities, interests, and

informed choice.

(c) The employment outcome is in the

most integrated setting possible,

consistent with the individual’s

informed choice.

(d) The individual has maintained the

employment outcome for the duration of

the probationary period established by

the employer for its employees or, if the

employer does not have an established

probationary period, for a period of at

least 90 days.

(e) The individual and the

rehabilitation counselor or coordinator

consider the employment outcome to be

satisfactory and agree that the

individual is performing well on the job.

(Authority: Sections 12(c), 101(a)(6), and

106(a)(2) of the Act; 29 U.S.C. 711(c),

721(a)(6), and 726(a)(2))

§ 361.57 Review of rehabilitation

counselor or coordinator determinations.

The State plan must contain

procedures established by the director

of the designated State unit to ensure

that any applicant or eligible individual

who is dissatisfied with any

determinations made by a rehabilitation

counselor or coordinator concerning the

furnishing or denial of services may

request timely review of those

determinations. The procedures

established by the director of the State

unit must be in accordance with the

following provisions:

(a) Informal resolution. The State unit

may establish an informal process to

resolve a request for review without

conducting a formal hearing. However,

a State’s informal process must be

conducted and concluded within the

time period established under paragraph

(c)(1) of this section for holding a formal

hearing. If informal resolution is not

successful, a formal hearing must be

conducted by the end of this same

period, unless the parties jointly agree

to a delay.

(b) Formal hearing procedures. Except

as provided in paragraph (e) of this

section, the State unit shall establish

formal review procedures that provide

that—

(1) A hearing by an impartial hearing

officer, selected in accordance with

paragraph (d) of this section, must be

held within the time period established

under paragraph (c)(1) of this section,

unless informal resolution was achieved

prior to the expiration of the time period

or the parties jointly agreed to a delay;

(2) The State unit may not institute a

suspension, reduction, or termination of

services being provided under an IWRP

pending a final determination of the

formal hearing under this paragraph or

informal resolution under paragraph (a)

of this section, unless the individual or,

in an appropriate case, the individual’s

representative so requests or the agency

has evidence that the services have been

obtained through misrepresentation,

fraud, collusion, or criminal conduct on

the part of the individual;

(3) The individual or, if appropriate,

the individual’s representative shall be

afforded an opportunity to present

additional evidence, information, and

witnesses to the impartial hearing

officer, to be represented by counsel or

other appropriate advocate, and to

examine all witnesses and other
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relevant sources of information and

evidence;

(4) The impartial hearing officer shall

make a decision based on the provisions

of the approved State plan, the Act, and

Federal and State vocational

rehabilitation regulations and policies

and shall provide to the individual or,

if appropriate, the individual’s

representative and to the director of the

designated State unit a full written

report of the findings and grounds for

the decision within the time period

established under paragraph (c)(2) of

this section;

(5) If the director of the designated

State unit decides to review the decision

of the impartial hearing officer, the

director shall notify in writing the

individual or, if appropriate, the

individual’s representative of that intent

within 20 days of the mailing of the

impartial hearing officer’s decision;

(6) If the director of the designated

State unit fails to provide the notice

required by paragraph (b)(5) of this

section, the impartial hearing officer’s

decision becomes a final decision;

(7) The decision of the director of the

designated State unit to review any

impartial hearing officer’s decision must

be based on standards of review

contained in written State unit policy;

(8) If the director of the designated

State unit decides to review the decision

of the impartial hearing officer, the

director shall provide the individual or,

if appropriate, the individual’s

representative an opportunity to submit

additional evidence and information

relevant to the final decision;

(9) The director may not overturn or

modify a decision, or part of a decision,

of an impartial hearing officer that

supports the position of the individual

unless the director concludes, based on

clear and convincing evidence, that the

decision of the impartial hearing officer

is clearly erroneous because it is

contrary to the approved State plan, the

Act, or Federal or State vocational

rehabilitation regulations or policy;

(10) The director of the designated

State unit shall make a final decision

and provide a full report in writing of

the decision, and of the findings and

grounds for the decision, to the

individual or, if appropriate, the

individual’s representative within the

time period established under paragraph

(c)(3) of this section;

(11) The director of the designated

State unit may not delegate

responsibility to make any final

decision to any other officer or

employee of the designated State unit;

and

(12) Except for the time limitations

established in paragraphs (b)(5) and

(c)(1) of this section, each State’s review

procedures may provide for reasonable

time extensions for good cause shown at

the request of a party or at the request

of both parties.

(c) Timelines. Each State unit, in

consultation with its State

Rehabilitation Advisory Council, if it

has one, shall develop and implement

reasonable timelines for the prompt

handling of appeals, including, at a

minimum, timelines for—

(1) Holding a formal hearing after an

individual’s request for review;

(2) Rendering the decision of the

impartial hearing officer after

completion of the formal hearing; and

(3) Rendering the final decision of the

director of the designated State unit

after providing notice of intent to review

the decision of the impartial hearing

officer in accordance with paragraph

(b)(5) of this section.

(d) Selection of impartial hearing

officers. Except as provided in

paragraph (e) of this section, the

impartial hearing officer for a particular

case must be selected—

(1) From among the pool of persons

qualified to be an impartial hearing

officer, as defined in § 361.5(b)(22), who

are identified by the State unit, if the

State unit is an independent

commission, or jointly by the designated

State unit and the State Rehabilitation

Advisory Council, if the State has a

Council; and

(2)(i) On a random basis; or

(ii) By agreement between the director

of the designated State unit and the

individual or, if appropriate, the

individual’s representative.

(e) State fair hearing board. The

provisions of paragraphs (b), (c), and (d)

of this section are not applicable if the

State has a fair hearing board that was

established before January 1, 1985, that

is authorized under State law to review

rehabilitation counselor or coordinator

determinations and to carry out the

responsibilities of the director of the

designated State unit under this section.

(f) Informing affected individuals. The

State unit shall inform, through

appropriate modes of communication,

all applicants and eligible individuals

of—

(1) Their right to review under this

section, including the names and

addresses of individuals with whom

appeals may be filed; and

(2) The manner in which an impartial

hearing officer will be selected

consistent with the requirements of

paragraph (d) of this section.

(g) Data collection. The director of the

designated State unit shall collect and

submit, at a minimum, the following

data to the Secretary for inclusion each

year in the annual report to Congress

under section 13 of the Act:

(1) The number of appeals to

impartial hearing officers and the State

director, including the type of

complaints and the issues involved.

(2) The number of decisions by the

State director reversing in whole or in

part a decision of the impartial hearing

officer.

(3) The number of decisions affirming

the position of the dissatisfied

individual assisted through the client

assistance program, when that

assistance is known to the State unit.

(Authority: Sections 102(b) and 102(d) of the

Act; 29 U.S.C. 722(b) and 722(d))

Subpart C—Financing of State

Vocational Rehabilitation Programs

§ 361.60 Matching requirements.

(a) Federal share. (1) General. Except

as provided in paragraphs (a)(2) and

(a)(3) of this section, the Federal share

for expenditures made by the State unit

under the State plan, including

expenditures for the provision of

vocational rehabilitation services,

administration of the State plan, and the

development and implementation of the

strategic plan, is 78.7 percent.

(2) Construction projects. The Federal

share for expenditures made for the

construction of a facility for community

rehabilitation program purposes may

not be more than 50 percent of the total

cost of the project.

(3) Innovation and expansion grant

activities. The Federal share for the cost

of innovation and expansion grant

activities funded by appropriations

under Part C of Title I of the Act is 90

percent.

(b) Non-Federal share. (1) General.

Except as provided in paragraphs (b)(2)

and (b)(3) of this section, expenditures

made under the State plan to meet the

non-Federal share under this section

must be consistent with the provisions

of 34 CFR 80.24.

(2) Third party in-kind contributions.

Third party in-kind contributions

specified in 34 CFR 80.24(a)(2) may not

be used to meet the non-Federal share

under this section.

(3) Contributions by private entities.

Expenditures made from contributions

by private organizations, agencies, or

individuals that are deposited in the

account of the State agency or sole local

agency in accordance with State law

and that are earmarked, under a

condition imposed by the contributor,

may be used as part of the non-Federal

share under this section if the following

requirements are met:

(i) The funds are earmarked for

meeting in whole or in part the State’s
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share for establishing a community

rehabilitation program or constructing a

particular facility for community

rehabilitation program purposes.

(ii) If the funds are earmarked for any

other purpose under the State plan, the

expenditures do not benefit in any way

the donor, an individual to whom the

donor is related by blood or marriage or

with whom the donor has a close

personal relationship, or an individual,

entity, or organization with whom the

donor shares a financial interest. The

Secretary does not consider a donor’s

receipt from the State unit of a grant,

subgrant, or contract with funds allotted

under this part to be a benefit for the

purposes of this paragraph if the grant,

subgrant, or contract is awarded under

the State’s regular competitive

procedures.

(Authority: Sections 7(7), 101(a)(3), and 104

of the Act; 29 U.S.C. 706(7), 721(a)(3) and

724)

Note: The Secretary notes that

contributions may be earmarked in

accordance with paragraph (b)(3)(ii) of this

section for providing particular services (e.g.,

rehabilitation technology services); serving

individuals with certain types of disabilities

(e.g., individuals who are blind), consistent

with the State’s order of selection, if

applicable; providing services to special

groups that State or Federal law permits to

be targeted for services (e.g., transitioning

students), consistent with the State’s order of

selection, if applicable; or carrying out

particular types of administrative activities

permissible under State law. Contributions

also may be restricted to particular

geographic areas to increase services or

expand the scope of services that are

available statewide under the State plan.

However, if a contribution is earmarked for

a restricted geographic area, expenditures

from that contribution may be used to meet

the non-Federal share requirement only if the

State unit requests and the Secretary

approves a waiver of statewideness, in

accordance with § 361.26.

§ 361.61 Limitation on use of funds for

construction expenditures.

No more than 10 percent of a State’s

allotment for any fiscal year under

section 110 of the Act may be spent on

the construction of facilities for

community rehabilitation program

purposes.

(Authority: Section 101(a)(17)(A) of the Act;

29 U.S.C. 721(a)(17)(A))

§ 361.62 Maintenance of effort

requirements.

(a) General requirements. (1) The

Secretary reduces the amount otherwise

payable to a State for a fiscal year by the

amount by which the total expenditures

from non-Federal sources under the

State plan for the previous fiscal year

were less than the total of those

expenditures for the fiscal year two

years prior to the previous fiscal year.

For example, for fiscal year 1996, a

State’s maintenance of effort level is

based on the amount of its expenditures

from non-Federal sources for fiscal year

1994. Thus, if the State’s non-Federal

expenditures in 1996 are less than they

were in 1994, the State has a

maintenance of effort deficit, and the

Secretary reduces the State’s allotment

in 1997 by the amount of that deficit.

(2) If, at the time the Secretary makes

a determination that a State has failed

to meet its maintenance of effort

requirements, it is too late for the

Secretary to make a reduction in

accordance with paragraph (a)(1) of this

section, then the Secretary recovers the

amount of the maintenance of effort

deficit through audit disallowance.

(b) Specific requirements for

construction of facilities. If the State

plan provides for the construction of a

facility for community rehabilitation

program purposes, the amount of the

State’s share of expenditures for

vocational rehabilitation services under

the plan, other than for the construction

of a facility for community

rehabilitation program purposes or the

establishment of a facility for

community rehabilitation purposes,

must be at least equal to the

expenditures for those services for the

second prior fiscal year. If a State fails

to meet the requirements of this

paragraph, the Secretary recovers the

amount of the maintenance of effort

deficit through audit disallowance.

(c) Separate State agency for

vocational rehabilitation services for

individuals who are blind. If there is a

separate part of the State plan

administered by a separate State agency

to provide vocational rehabilitation

services for individuals who are blind—

(1) Satisfaction of the maintenance of

effort requirements under paragraphs (a)

and (b) of this section are determined

based on the total amount of a State’s

non-Federal expenditures under both

parts of the State plan; and

(2) If a State fails to meet any

maintenance of effort requirement, the

Secretary reduces the amount otherwise

payable to the State for that fiscal year

under each part of the plan in direct

relation to the amount by which

expenditures from non-Federal sources

under each part of the plan in the

previous fiscal year were less than they

were for that part of the plan for the

fiscal year two years prior to the

previous fiscal year.

(d) Waiver or modification. (1) The

Secretary may waive or modify the

maintenance of effort requirement in

paragraph (a)(1) of this section if the

Secretary determines that a waiver or

modification is necessary to permit the

State to respond to exceptional or

uncontrollable circumstances, such as a

major natural disaster or a serious

economic downturn, that—

(i) Cause significant unanticipated

expenditures or reductions in revenue;

and

(ii) Result in—

(A) A general reduction of programs

within the State; or

(B) The State making substantial

expenditures in the vocational

rehabilitation program for long-term

purposes due to the one-time costs

associated with the construction of a

facility for community rehabilitation

program purposes, the establishment of

a facility for community rehabilitation

program purposes, or the acquisition of

equipment.

(2) The Secretary may waive or

modify the maintenance of effort

requirement in paragraph (b) of this

section or the 10 percent allotment

limitation in § 361.61 if the Secretary

determines that a waiver or

modification is necessary to permit the

State to respond to exceptional or

uncontrollable circumstances, such as a

major natural disaster, that result in

significant destruction of existing

facilities and require the State to make

substantial expenditures for the

construction of a facility for community

rehabilitation program purposes or the

establishment of a facility for

community rehabilitation program

purposes in order to provide vocational

rehabilitation services.

(3) A written request for waiver or

modification, including supporting

justification, must be submitted to the

Secretary as soon as the State

determines that an exceptional or

uncontrollable circumstance will

prevent it from making its required

expenditures from non-Federal sources.

(Authority: Sections 101(a)(17) and 111(a)(2)

of the Act; 29 U.S.C. 721(a)(17) and 731(a)(2))

§ 361.63 Program income.

(a) Definition. Program income means

gross income received by the State that

is directly generated by an activity

supported under this part.

(b) Sources. Sources of program

income include, but are not limited to,

payments from the Social Security

Administration for rehabilitating Social

Security beneficiaries, payments

received from workers’ compensation

funds, fees for services to defray part or

all of the costs of services provided to

particular individuals, and income

generated by a State-operated

community rehabilitation program.
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(c) Use of program income. (1) Except

as provided in paragraph (c)(2) of this

section, program income, whenever

earned, must be used for the provision

of vocational rehabilitation services, the

administration of the State plan, and

developing and implementing the

strategic plan. Program income is

considered earned when it is received.

(2) Payments provided to a State from

the Social Security Administration for

rehabilitating Social Security

beneficiaries may also be used to carry

out programs under Part B of Title I of

the Act (client assistance), Part C of

Title I of the Act (innovation and

expansion), Part C of Title VI of the Act

(supported employment) and Title VII of

the Act (independent living).

(3) The State is authorized to treat

program income as—

(i) An addition to the grant funds to

be used for additional allowable

program expenditures, in accordance

with 34 CFR 80.25(g)(2); or

(ii) A deduction from total allowable

costs, in accordance with 34 CFR

80.25(g)(1).

(4) Program income may not be used

to meet the non-Federal share

requirement under § 361.60.

(Authority: Section 108 of the Act; 29 U.S.C.

728; 34 CFR 80.25)

§ 361.64 Obligation of Federal funds and

program income.

(a) Except as provided in paragraph

(b) of this section, 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 by the State unit by the

beginning of the succeeding fiscal year

and any program income received

during a fiscal year that is not obligated

by the State unit by the beginning of the

succeeding fiscal year must remain

available for obligation by the State unit

during that succeeding fiscal year.

(b) Federal funds appropriated for a

fiscal year remain available for

obligation in the succeeding fiscal year

only to the extent that the State unit met

the matching requirement for those

Federal funds by obligating, in

accordance with 34 CFR 76.707, the

non-Federal share in the fiscal year for

which the funds were appropriated.

(Authority: Section 19 of the Act; 29 U.S.C.

718)

§ 361.65 Allotment and payment of Federal

funds for vocational rehabilitation services.

(a) Allotment. (1) The allotment of

Federal funds for vocational

rehabilitation services for each State is

computed in accordance with the

requirements of section 110 of the Act,

and payments are made to the State on

a quarterly basis, unless some other

period is established by the Secretary.

(2) If the State plan designates one

State agency to administer, or supervise

the administration of, the part of the

plan under which vocational

rehabilitation services are provided for

individuals who are blind and another

State agency to administer the rest of the

plan, the division of the State’s

allotment is a matter for State

determination.

(b) Reallotment. (1) The Secretary

determines not later than 45 days before

the end of a fiscal year which States, if

any, will not use their full allotment.

(2) As soon as possible, but not later

than the end of the fiscal year, the

Secretary reallots these funds to other

States that can use those additional

funds during the current or subsequent

fiscal year, provided the State can meet

the matching requirement by obligating

the non-Federal share of any reallotted

funds in the fiscal year for which the

funds were appropriated.

(3) Funds reallotted to another State

are considered to be an increase in the

recipient State’s allotment for the fiscal

year for which the funds were

appropriated.

(Authority: Sections 110 and 111 of the Act;

29 U.S.C. 730 and 731)

Subpart D—Strategic Plan for

Innovation and Expansion of

Vocational Rehabilitation Services

§ 361.70 Purpose of the strategic plan.

The State shall prepare a statewide

strategic plan, in accordance with

§ 361.71, to develop and use innovative

approaches for achieving long-term

success in expanding and improving

vocational rehabilitation services,

including supported employment

services, provided under the State plan,

including the supported employment

supplement to the State plan required

under 34 CFR part 363.

(Authority: Section 120 of the Act; 29 U.S.C.

740)

§ 361.71 Procedures for developing the

strategic plan.

(a) Public input. (1) The State unit

shall meet with and receive

recommendations from members of the

State Rehabilitation Advisory Council, if

the State has a Council, and the

Statewide Independent Living Council

prior to developing the strategic plan.

(2) The State unit shall solicit public

input on the strategic plan prior to or at

the public meetings on the State plan,

in accordance with the requirements of

§ 361.20.

(3) The State unit shall consider the

recommendations received under

paragraphs (a)(1) and (a)(2) of this

section and, if the State rejects any

recommendations, shall include a

written explanation of the reasons for

those rejections in the strategic plan.

(4) The State unit shall develop a

procedure to ensure ongoing comment

from the Council or Councils, if

applicable, as the plan is being

implemented.

(b) Duration. The strategic plan must

cover a three-year period.

(c) Revisions. The State unit shall

revise the strategic plan on an annual

basis to reflect the unit’s actual

experience over the previous year and

input from the State Rehabilitation

Advisory Council, if the State has a

Council, individuals with disabilities,

and other interested parties.

(d) Dissemination. The State unit

shall disseminate widely the strategic

plan to individuals with disabilities,

disability organizations, rehabilitation

professionals, and other interested

persons and shall make the strategic

plan available in accessible formats and

appropriate modes of communication.

(Authority: Section 122 of the Act; 29 U.S.C.

742)

§ 361.72 Content of the strategic plan.

The strategic plan must include—

(a) A statement of the mission,

philosophy, values, and principles of

the vocational rehabilitation program in

the State;

(b) Specific goals and objectives for

expanding and improving the system for

providing vocational rehabilitation

services;

(c) Specific multi-faceted and

systemic approaches for accomplishing

the objectives, including interagency

coordination and cooperation, that build

upon state-of-the-art practices and

research findings and that implement

the State plan and the supplement to the

State plan submitted under 34 CFR part

363;

(d) A description of the specific

programs, projects, and activities

funded under this subpart, including

how the programs, projects, and

activities accomplish the objectives of

the subpart, and the resource allocation

and budget for the programs, projects,

and activities; and

(e) Specific criteria for determining

whether the objectives have been

achieved, including an assurance that

the State will conduct an annual

evaluation to determine the extent to

which the objectives have been

achieved and, if specific objectives have

not been achieved, the reasons that the

objectives have not been achieved and

a description of alternative approaches

that will be taken.
64524 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

(Authority: Section 121 of the Act; 29 U.S.C.

741)

§ 361.73 Use of funds.

(a) A State unit shall use all grant

funds received under Title I, Part C of

the Act to carry out programs and

activities that are identified under the

State’s strategic plan, including but not

limited to those programs and activities

that are identified in paragraph (b) of

this section.

(b) A State unit shall use at least 1.5

percent of the funds received under

section 111 of the Act to carry out one

or more of the following types of

programs and activities that are

identified in the State’s strategic plan:

(1) Programs to initiate or expand

employment opportunities for

individuals with severe disabilities in

integrated settings that allow for the use

of on-the-job training to promote the

objectives of Title I of the Americans

with Disabilities Act of 1990.

(2) Programs or activities to improve

or expand the provision of employment

services in integrated settings to

individuals with sensory, cognitive,

physical, and mental impairments who

traditionally have not been served by

the State vocational rehabilitation

agency.

(3) Programs or activities to maximize

the ability of individuals with

disabilities to use rehabilitation

technology in employment settings.

(4) Programs or activities that assist

employers in accommodating,

evaluating, training, or placing

individuals with disabilities in the

workplace of the employer consistent

with the provisions of the Act and Title

I of the Americans with Disabilities Act

of 1990. These programs or activities

may include short-term technical

assistance or other effective strategies.

(5) Programs or activities that expand

and improve the extent and type of an

individual’s involvement in the review

and selection of his or her training and

employment goals.

(6) Programs or activities that expand

and improve opportunities for career

advancement for individuals with

severe disabilities.

(7) Programs, projects, or activities

designed to initiate, expand, or improve

working relationships between

vocational rehabilitation services

provided under Title I of the Act and

independent living services provided

under Title VII of the Act.

(8) Programs, projects, or activities

designed to improve functioning of the

system for delivering vocational

rehabilitation services and to improve

coordination and working relationships

with other State agencies and local

public agencies, business, industry,

labor, community rehabilitation

programs, and centers for independent

living, including projects designed to—

(i) Increase the ease of access to,

timeliness of, and quality of vocational

rehabilitation services through the

development and implementation of

policies, procedures, systems, and

interagency mechanisms for providing

vocational rehabilitation services;

(ii) Improve the working relationships

between State vocational rehabilitation

agencies and other State agencies,

centers for independent living,

community rehabilitation programs,

educational agencies involved in higher

education, adult basic education, and

continuing education, and businesses,

industry, and labor organizations, in

order to create and facilitate cooperation

in—

(A) Planning and implementing

services; and

(B) Developing an integrated system

of community-based vocational

rehabilitation services that includes

appropriate transitions between service

systems; and

(iii) Improve the ability of

professionals, advocates, business,

industry, labor, and individuals with

disabilities to work in cooperative

partnerships to improve the quality of

vocational rehabilitation services and

job and career opportunities for

individuals with disabilities.

(9) Projects or activities that ensure

that the annual evaluation of the

effectiveness of the program in meeting

the goals and objectives in the State

plan, including the system for

evaluating the performance of

rehabilitation counselors, coordinators,

and other personnel used in the State,

facilitates and does not impede the

accomplishment of the purpose of this

part, including serving individuals with

the most severe disabilities.

(10) Projects or activities to support

the initiation, expansion, and

improvement of a comprehensive

system of personnel development.

(11) Programs, projects, or activities to

support the provision of training and

technical assistance to individuals with

disabilities, business, industry, labor,

community rehabilitation programs, and

others regarding the implementation of

the Rehabilitation Act Amendments of

1992, of Title V of the Act, and of the

Americans with Disabilities Act of 1990.

(12) Projects or activities to support

the funding of the State Rehabilitation

Advisory Council and the Statewide

Independent Living Council.

(Authority: Sections 101(a)(34)(B) and 123 of

the Act; 29 U.S.C. 721(a)(34)(B) and 743)

§ 361.74 Allotment of Federal funds.

(a) The allotment and any reallotment

of Federal funds under Title I, Part C of

the Act are computed in accordance

with the requirements of section 124 of

the Act.

(b) If at any time the Secretary

determines that any amount will not be

expended by a State in carrying out the

purpose of this subpart, the Secretary

makes that amount available to one or

more other States that the Secretary

determines will be able to use

additional amounts during the fiscal

year. Any amount made available to any

State under this paragraph of this

section is regarded as an increase in the

State’s allotment for that fiscal year.

(Authority: Section 124 of the Act; 29 U.S.C.

744)

[FR Doc. 95–30344 Filed 12–14–95; 8:45 am]

BILLING CODE 4000–01–P