[Federal Register Volume 80, Number 73 (Thursday, April 16, 2015)]
[Proposed Rules]
[Pages 21059-21146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05538]
Federal Register / Vol. 80 , No. 73 / Thursday, April 16, 2015 /
Proposed Rules
[[Page 21059]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 361, 363, and 397
RIN 1820-AB70
[Docket ID ED-2015-OSERS-OOO1]
State Vocational Rehabilitation Services Program; State Supported
Employment Services Program; Limitations on Use of Subminimum Wage
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing the
State Vocational Rehabilitation Services program and the State
Supported Employment Services program in order to implement changes to
the Rehabilitation Act of 1973, as amended by the Workforce Innovation
and Opportunity Act (WIOA) enacted on July 22, 2014. The Secretary also
proposes to update, clarify, and improve the current regulations.
Finally, the Secretary proposes to issue new regulations regarding
limitations on the use of subminimum wages that are added by WIOA and
under the purview of the Department.
DATES: We must receive your comments on or before June 15, 2015.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments submitted by fax or by email or those submitted after
the comment period. To ensure that we do not receive duplicate copies,
please submit your comments only once. In addition, please include the
Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``Are you new to the site?''
Postal Mail, Commercial Delivery, or Hand Delivery: If you
mail or deliver your comments about these proposed regulations, address
them to Janet LaBreck, U.S. Department of Education, 400 Maryland
Avenue SW., Room 5086, Potomac Center Plaza (PCP), Washington, DC
20202-2800.
Privacy Note: The Department's policy is to make all comments
received from members of the public available for public viewing in
their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to include
in their comments only information that they wish to make publicly
available.
FOR FURTHER INFORMATION CONTACT: Janet LaBreck, U.S. Department of
Education, 400 Maryland Avenue SW., Room 5086, PCP, Washington, DC
20202-2800. Telephone: (202) 245-7488 or by email:
[email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action: The Secretary proposes to amend
the regulations governing the State Vocational Rehabilitation Services
program (VR program) (34 CFR part 361) and State Supported Employment
Services program) (Supported Employment program) (34 CFR part 363),
administered by the Rehabilitation Services Administration (RSA), to
implement changes to the Act made by WIOA (P.L. 113-128), enacted on
July 22, 2014. In so doing, the Secretary also proposes to update and
clarify current regulations to improve program function. Finally, the
Secretary proposes to promulgate regulations in 34 CFR part 397 that
implement the limitations on the payment of subminimum wages to
individuals with disabilities in section 511 of the Act that fall under
the purview of the Secretary.
For a more detailed description of the purpose of these proposed
regulatory actions, see the Background section in this notice of
proposed rulemaking (NPRM).
Summary of the Major Provisions of This Regulatory Action: We
summarize here those proposed regulatory changes needed to implement
the amendments to the Act made by WIOA. Under the Proposed Changes
section of this NPRM, we provide a more complete summary of these
changes and a detailed description of the substantive proposed
regulations for each part in the order it appears in the Code of
Federal Regulations (CFR). We also describe in detail under the
Proposed Changes section the amendments to each part to update,
clarify, and improve the regulations.
The Secretary proposes to implement the following changes to the VR
program and Supported Employment program made by WIOA.
State Vocational Rehabilitation Services Program
People with disabilities represent a vital and integral part of our
society, and we are committed to ensuring that individuals with
disabilities have opportunities to compete for and enjoy high quality
employment in the 21st century global economy. Some individuals with
disabilities face particular barriers to high quality employment.
Giving workers with disabilities the supports and the opportunity to
acquire the skills that they need to pursue in-demand jobs and careers
is critical to growing our economy, ensuring that everyone who works
hard is rewarded, and building a strong middle class. To help achieve
this priority for individuals with disabilities, the Rehabilitation Act
of 1973, as amended by WIOA, seeks to empower individuals with
disabilities to maximize employment, economic self-sufficiency,
independence, and inclusion and integration into society.
The VR program is authorized by title I of the Act, as amended by
WIOA (29 U.S.C. 720 et seq.), to provide support to each State to
assist in operating a statewide comprehensive, coordinated, effective,
efficient, and accountable State program as an integral part of a
statewide workforce development system; and to assess, plan, and
provide vocational rehabilitation (VR) services to individuals with
disabilities so that those individuals may prepare for and engage in
competitive integrated employment consistent with their unique
strengths, priorities, concerns, abilities, capabilities, interests,
and informed choice. The Department last published regulations for this
program in part 361 on January 17, 2001 (66 FR 4382), to implement
amendments made by the Workforce Investment Act of 1998.
WIOA makes significant changes to title I of the Act that affect
the VR program. First, WIOA strengthens the alignment of the VR program
with other components of the workforce development system by imposing
unified strategic planning requirements, common performance
accountability measures, and requirements governing the one-stop
delivery system. This alignment brings together entities responsible
for administering separate workforce and employment, educational, and
other human resource programs and funding streams to collaborate in the
creation of a seamless custom-focused service delivery network that
integrates service delivery across programs, enhances access to the
program's services, and improves long-
[[Page 21060]]
term employment outcomes for individuals receiving assistance. In so
doing, WIOA places heightened emphasis on coordination and
collaboration at the Federal, State, and local levels to ensure a
streamlined and coordinated service delivery system for job-seekers,
including those with disabilities, and employers. Therefore, the
Departments of Education and Labor propose to issue a joint NPRM to
implement jointly administered activities under title I of WIOA (e.g.,
those related to Unified or Combined State Plans, performance
accountability, and the one-stop delivery system), applicable to the
workforce development system's core programs (Adult, Dislocated Worker
and Youth programs; Adult Education and Literacy programs; Wagner-
Peyser Employment Service program and the Vocational Rehabilitation
program). These joint proposed regulations are set forth in a separate
NPRM published elsewhere in this issue of the Federal Register.
WIOA also makes corresponding changes to title I of the Act.
Consequently, we propose to make conforming changes throughout part 361
and align the VR program-specific regulations with the joint proposed
regulations to ensure consistency among all core programs.
Second, WIOA places heightened emphasis throughout the Act on the
achievement of competitive integrated employment. The foundation of the
VR program is the principle that individuals with disabilities,
including those with the most significant disabilities, are capable of
achieving high quality, competitive integrated employment when provided
the necessary skills and supports. To increase the employment of
individuals with disabilities in the competitive labor market, the
workforce system must provide the opportunity for such individuals to
participate in job-driven training and pursue high-quality employment
outcomes. The amendments to the Act--from the stated purpose of the
Act, to the expansion of services designed to maximize the potential of
individuals with disabilities, including those with the most
significant disabilities, to achieve competitive integrated employment,
and, finally, to the inclusion of limitations on the payment of
subminimum wages to individuals with disabilities--reinforce the
congressional intent that individuals with disabilities, with
appropriate supports and services, are able to achieve the same kinds
of competitive integrated employment as non-disabled individuals.
As a result, we propose to amend part 361 throughout to emphasize
the key role that the VR program plays in employment outcomes and
preparing individuals with disabilities to achieve competitive
integrated employment in the community. We propose, among other things,
to amend the definition of ``employment outcome'' to include only those
outcomes in competitive integrated employment or supported employment,
thereby eliminating uncompensated employment from the scope of
employment outcomes for purposes of the VR program. We also propose to
amend numerous other provisions throughout part 361 to address the
expansion of available services, requirements related to the
development of the individualized plan for employment, and order of
selection for services, all of which are intended to maximize the
potential for individuals with disabilities to prepare for, obtain,
retain, and advance in the same high-quality jobs, and high demand
careers as persons without disabilities.
Third, WIOA places heightened emphasis on the provision of services
to students and youth with disabilities to ensure that they have
meaningful opportunities to receive the training and other services
they need to achieve employment outcomes in competitive integrated
employment. The Act, as amended by WIOA, expands not only the
population of students with disabilities who may receive services but
also the kinds of services that the VR agencies may provide to youth
and students with disabilities who are transitioning from school to
postsecondary education and employment.
Most notably, the Act, as amended by WIOA, requires States to
reserve 15 percent of their VR allotment to provide pre-employment
transition services to students with disabilities who are eligible or
potentially eligible for VR services. These pre-employment transition
services are designed to provide job exploration and other services,
such as counseling and self-advocacy training, in the early stages of
the transition process.
With the addition of these early pre-employment transition
services, the VR program can be characterized as providing a continuum
of VR services, especially for students and youth with disabilities. To
that end, we propose to amend numerous sections of part 361 to
implement new definitions for the terms ``student with a disability''
and ``youth with a disability'' and new requirements related to pre-
employment transition services and the provision of transition services
to students and youth with disabilities. All of the proposed changes
demonstrate the continuum of services available to students and youth
with disabilities under the VR program to maximize their potential to
transition from school to postsecondary education and employment.
Supported Employment Program
WIOA makes several significant changes to title VI of the Act,
which governs the Supported Employment program. All of the amendments
to title VI are consistent with those made throughout the Act, namely
to maximize the potential of individuals with disabilities, especially
those with the most significant disabilities, to achieve competitive
integrated employment and to expand services for youth with the most
significant disabilities.
First, WIOA amends the definition of ``supported employment'' to
make clear that supported employment outcomes must be in competitive
integrated employment or, if in an integrated setting that is not
competitive integrated employment, then in an integrated setting in
which the individual is working on a short-term basis toward
competitive integrated employment. By adding a timeframe to this
definition, Congress reinforces its intention that individuals with
disabilities should not be allowed to languish in subminimum wage jobs
under the Supported Employment program. Thus, the Secretary proposes to
amend part 363 to implement the revised definition of ``supported
employment.'' The Secretary proposes to define ``short-term basis'' in
this context to mean no longer than six months. We believe this
proposed change is consistent with the Act, as amended by WIOA, in its
entirety as well as the stated congressional intent.
Second, WIOA requires States to reserve at least 50 percent of
their supported employment program allotment for the provision of
supported employment services to youth with the most significant
disabilities. With these reserved funds, States may provide extended
services, for a period up to four years, to youth with the most
significant disabilities. Prior to the enactment of WIOA, extended
services were not permitted under either the VR program or the
Supported Employment program. In addition, States must provide a non-
Federal share of 10 percent of the funds reserved for the provision of
supported employment services to youth with the most significant
disabilities. By requiring that States use half of their supported
employment program funds and provide a match for these reserved funds,
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Congress reinforces the heightened emphasis on the provision of
services to youth with disabilities. Congress makes clear that youth
with significant disabilities must be given every opportunity to
receive the services necessary to ensure the maximum potential to
achieve competitive integrated employment. Accordingly, the Secretary
proposes to amend part 363 to implement new requirements regarding the
reservation of funds, and the services to be provided with those funds,
to youth with the most significant disabilities.
Limitations on the Payment of Subminimum Wages
Section 511 of the Act, as added by WIOA, imposes requirements on
employers who hold special wage certificates under the Fair Labor
Standards Act (FLSA) that must be satisfied before the employers may
hire youth with disabilities at subminimum wage or continue to employ
individuals with disabilities of any age at the subminimum wage level.
Section 511 also establishes the roles and responsibilities of the
designated State units (DSU) for the VR program and State and local
educational agencies in assisting individuals with disabilities,
including youth with disabilities, to maximize opportunities to achieve
competitive integrated employment through services provided by VR and
the local educational agencies.
The addition of section 511 to the Act is consistent with all other
amendments to the Act made by WIOA. Throughout the Act, Congress makes
clear that individuals with disabilities, including those with the most
significant disabilities, can achieve competitive integrated employment
if provided the necessary supports and services. The limitations
imposed by section 511 reinforce this belief by requiring individuals
with disabilities, including youth with disabilities, to satisfy
certain service-related requirements in order to start or maintain, as
applicable, subminimum wage employment. To that end, the Secretary
proposes to develop new regulations at part 397 that would implement
requirements of section 511 that fall under the purview of the
Department.
Costs and Benefits: The potential costs associated with this
regulatory action are those resulting from statutory requirements and
those we have determined as necessary for administering the
Department's programs and activities. Further information related to
costs and benefits may be found in the Regulatory Impact Analysis
section later in this NPRM.
Invitation to Comment: We invite you to submit comments regarding
these proposed regulations. To ensure that your comments have maximum
effect in developing the final regulations, we urge you to identify
clearly the specific section or sections of the proposed regulations
that each of your comments addresses and to arrange your comments in
the same order as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Orders 12866 and 13563 and their overall
requirement of reducing regulatory burden that might result from these
proposed regulations. Please let us know of any further ways we could
reduce potential costs or increase potential benefits while preserving
the effective and efficient administration of the Department's programs
and activities.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments in person in room 5093, Potomac
Center Plaza, 550 12th Street SW., Washington, DC, between 8:30 a.m.
and 4:00 p.m., Washington, DC time, Monday through Friday of each week
except Federal holidays. Please contact the person listed under FOR
FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Background
The Workforce Innovation and Opportunity Act (WIOA) (Pub L. 113-
128), enacted July 22, 2014, made significant changes to the
Rehabilitation Act of 1973 (hereafter referred to as the Act). As a
result, the Secretary proposes to amend parts 361 and 363 of title 34
of the CFR. These parts, respectively, implement the:
State Vocational Rehabilitation (VR) Services program; and
State Supported Employment Services program.
In addition, WIOA added section 511 to title V of the Act. Section
511 limits the payment of subminimum wages to individuals with
disabilities by employers holding special wage certificates under the
FLSA. Although the Department of Labor administers the FLSA, some
requirements of section 511 fall under the purview of the Secretary.
Therefore, the Secretary proposes to add a new part 397 to title 34 of
the CFR to implement those particular provisions.
These proposed changes are further described under the Summary of
Proposed Changes and Significant Proposed Regulations sections of this
NPRM. WIOA also makes changes to other programs authorized under title
I of the Act, including the Client Assistance Program and the American
Indian Vocational Rehabilitation Services (AIVRS) program, as well as
discretionary grant programs authorized under title III, the Protection
and Advocacy of Individual Rights program under title V, and the
Independent Living Services for Older Individuals Who are Blind program
under title VII. The Secretary proposes regulatory changes to implement
the amendments to these programs and projects made by WIOA through a
separate, but related, NPRM published elsewhere in this issue of the
Federal Register.
Summary of Proposed Changes
The Secretary proposes to implement the following changes to the VR
program and Supported Employment program made by WIOA.
State Vocational Rehabilitation Services Program
The VR program is authorized by title I of the Act, as amended by
WIOA (29 U.S.C. 720 through 731, and 733), to provide support to each
State to assist in operating a statewide comprehensive, coordinated,
effective, efficient, and accountable State VR program as an integral
part of a statewide workforce development system; and to assess, plan,
and provide VR services to individuals with disabilities so that those
individuals may prepare for and engage in competitive integrated
employment consistent with their unique strengths, priorities,
concerns, abilities, capabilities, interests, and informed choice.
The Department last published regulations for this program in part
361 on January 17, 2001 (66 FR 4382), to implement amendments made by
the Workforce Investment Act of 1998 (WIA).
In implementing the amendments to the VR program made by WIOA, the
numerous proposed regulatory changes to part 361 improve employment
outcomes for individuals with disabilities by: (1) Strengthening the
alignment of the VR program with other components of the workforce
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development system through unified strategic planning requirements,
common performance accountability measures, and requirements governing
the one-stop delivery system; (2) emphasizing the achievement of
competitive integrated employment by individuals with disabilities,
including individuals with the most significant disabilities; and (3)
expanding services to support the transition of students and youth with
disabilities to postsecondary education and employment.
To implement jointly administered activities under title I of WIOA
(e.g., those related to Unified or Combined State Plans, performance
accountability and the one-stop delivery system), the U.S. Departments
of Labor and Education are proposing a set of joint regulations
applicable to the workforce development system's core programs,
including the VR program. Through these proposed joint regulations, we
lay the foundation for establishing a comprehensive, accessible, and
high quality workforce development system that serves all individuals
in need of employment services, including individuals with
disabilities, and employers in a manner that is customer-focused and
that supports an integrated service design and delivery model. These
joint proposed regulations are in a separate NPRM published elsewhere
in this issue of the Federal Register.
WIOA makes corresponding changes to title I of the Act regarding
the submission, approval, and disapproval of the VR services portion of
the Unified or Combined State Plan; the standards and indicators used
to assess VR program performance; and the involvement of the VR program
in the one-stop delivery system. Consequently, we propose to amend
current Sec. 361.10 to require that all assurance and descriptive
information previously submitted through the VR State plan and
supported employment supplement be submitted through the VR services
portion of the Unified or Combined State Plan under sections 102 and
103 of the Act, respectively, of WIOA. We also propose to implement
changes specific to the content of the VR services portion of the
Unified or Combined State Plan by amending current Sec. 361.29(a) to
require that the comprehensive statewide needs assessment include the
results of the needs of students and youth with disabilities for VR
services, including pre-employment transition services. Additionally,
we propose to clarify in current Sec. 361.29 that States will report
to the Secretary updates to the statewide needs assessment and goals
and priorities, estimates of the numbers of individuals with
disabilities served through the VR program and the costs of serving
them, and reports of progress on goals and priorities at such time and
in such manner determined by the Secretary, thereby resolving
inconsistencies in reporting requirements within section 101(a) of the
Act. Finally, we clarify in proposed Sec. 361.20 when designated State
agencies must conduct public hearings to obtain comment on substantive
changes to policies and procedures governing the VR program.
We propose to implement the changes to section 106 of the Act made
by WIOA through proposed Sec. 361.40, by replacing the current
standards and indicators used to assess the performance of the VR
program under current Sec. 361.80 through Sec. 361.89 with a cross-
reference to the joint regulations for the common performance
accountability measures for the core programs of the workforce
development system. Similarly, we propose to provide a cross-reference
in current Sec. 361.23, regarding the roles and responsibilities of
the VR program in the one-stop delivery system, to the joint
regulations implementing requirements for the one-stop delivery system.
WIOA makes extensive changes to title I of the Act to improve the
VR services provided to, and the employment outcomes achieved by,
individuals with disabilities, including those with the most
significant disabilities. Embedded throughout the provisions of WIOA
and the amendments to the Act is the principle that individuals with
disabilities, including those with the most significant disabilities,
are capable of achieving competitive integrated employment when
provided the necessary skills and supports. As a result, we propose to
adopt a definition of ``competitive integrated employment'' in Sec.
361.5(c)(9) that combines, clarifies, and enhances the two separate
definitions of ``competitive employment'' and ``integrated setting''
for the purpose of employment in current Sec. 361.5(b)(11) and
(b)(33)(ii).
We propose to incorporate this principle throughout part 361, from
the statement of program purpose in proposed Sec. 361.1, to a
requirement in proposed Sec. 361.46(a) that the individualized plan
for employment include a specific employment goal consistent with the
general goal of competitive integrated employment. This principle is
most evident in the definition of ``employment outcome'' in proposed
Sec. 361.5(c)(15), which specifically identifies customized employment
as an employment outcome under the VR program, and requires that all
employment outcomes achieved through the VR program be in competitive
integrated employment or supported employment, thereby eliminating
uncompensated outcomes, such as homemakers and unpaid family workers,
from the scope of the definition for purposes of the VR program. We
will provide guidance and technical assistance to VR agencies to assist
them in implementing this proposed change.
We propose additional regulatory changes to ensure that individuals
with disabilities are provided a full opportunity through the VR
program to participate in job-driven training and pursue high-quality
employment outcomes. Proposed Sec. 361.42(a)(1)(iii) would clarify
that an applicant meeting all other eligibility criteria may be
determined eligible if he or she requires services to advance in
employment, not just obtain or maintain employment. We also propose to
clarify in proposed Sec. Sec. 361.48(b)(6)and 361.49, that VR services
are available to assist individuals with disabilities to obtain
graduate level education needed for this purpose. We clarify in
proposed Sec. 361.42(c)(1) the prohibition against a duration of
residency requirement and in Sec. 361.42(c)(2) those factors that
cannot be considered when determining the eligibility of VR program
applicants. We propose removing the option to use extended evaluations,
as a limited exception to trial work experiences, to explore an
individual's abilities, capabilities, and capacity to perform in work
situations by deleting paragraph (f) from current Sec. 361.42. To
enable individuals with disabilities, including students and youth with
disabilities, to receive VR services in a timely manner, proposed Sec.
361.45(e) would require the individualized plan for employment of each
individual to be developed within 90 days following the determination
of eligibility. Finally, if a State VR agency is operating under an
order of selection for services, it would have the option under
proposed Sec. 361.36 to indicate in its portion of the Unified or
Combined State Plan that it will serve eligible individuals with
disabilities outside that order who have an immediate need for
equipment or services to maintain employment.
WIOA enhances the VR agency's focus on coordination and
collaboration with other entities by emphasizing coordination with
employers, non-educational agencies working with youth, AIVRS programs,
and other agencies and programs providing services to individuals with
disabilities to support the achievement of competitive integrated
employment.
[[Page 21063]]
Proposed Sec. 361.24 reflects the enhancements. The collaboration with
employers is essential to the success of VR program participants and
proposed Sec. 361.32 would describe the training and technical
assistance services that can be provided to employers hiring, or
interested in hiring, individuals with disabilities.
We propose to implement the emphasis on serving students and youth
with disabilities contained in the amendments to the Act made by WIOA
in many regulatory changes to part 361. We propose new definitions of
``student with a disability'' and ``youth with a disability'' in Sec.
361.5(c)(51) and (c)(59), respectively. These definitions would assist
VR agencies to determine the appropriate transition and other services
that may be provided to each group. We propose in Sec. 361.48(a) to
implement the requirements of new sections 110(d) and 113 of the Act
requiring VR agencies to reserve at least 15 percent of the Federal
allotment, to provide and arrange, in coordination with local
educational agencies, for the provision of pre-employment transition
services to students with disabilities. We propose in Sec. 361.49 to
clarify the technical assistance VR agencies can provide to educational
agencies and to permit the provision of transition services for the
benefit of groups of students and youth with disabilities. To enable VR
agencies and local educational agencies to better determine their
respective responsibilities for the provision of transition services,
including pre-employment transition services, through greater
interagency collaboration, we propose in Sec. 361.22(c) to clarify
that nothing in this part is to be construed as reducing the
responsibility of the local educational agencies or any other agencies
under the Individuals with Disabilities Education Act to provide or pay
for transition services that are also considered to be special
education or related services necessary for the provision of a free
appropriate public education to students with disabilities.
So that VR agencies can recruit the qualified personnel needed to
provide the services and engage in the activities summarized here, we
propose in Sec. 361.18 changes to the requirements for a comprehensive
system of personnel development. The proposed regulations would
establish minimum educational requirements and experience and eliminate
the requirement to retrain staff not meeting the VR agency's personnel
standard for qualified staff.
Finally, we propose changes to part 361 to improve the fiscal
administration of the VR program. Proposed Sec. 361.5(b) would make
applicable to the VR program the definitions contained in 2 CFR part
200, Uniform Administrative Requirements, Cost Principles, and Audit
Requirements. We also propose to make numerous conforming changes to
align with 2 CFR 200 to ensure consistency.
We propose three changes to current Sec. 361.65 regarding the
allotment of VR program funds. First, we propose adding a new paragraph
(a)(3) to Sec. 361.65 that would require the State to reserve not less
than 15 percent of its allotment for the provision of pre-employment
transition services described in proposed Sec. 361.48(a). Second, we
propose to amend current Sec. 361.65(b)(2) to clarify that reallotment
occurs in the fiscal year the funds were appropriated; however, the
funds may be obligated or expended during the period of performance,
provided that matching requirements are met. Finally, we propose to add
a new paragraph (b)(3) to Sec. 361.65 that would describe the
Secretary's authority to determine the criteria to be used to reallot
funds when the amount requested exceeds the amount of funds
relinquished. We provide a full discussion of these and other changes
to part 361 in the Significant Proposed Regulations section of this
notice.
State Supported Employment Services Program
Under the Supported Employment program authorized under title VI of
the Act (29 U.S.C. 795g et seq.), the Secretary provides grants to
assist States in developing and implementing collaborative programs
with appropriate entities to provide supported employment services for
individuals with the most significant disabilities, including youth
with the most significant disabilities, to enable them to achieve
supported employment outcomes in competitive integrated employment.
Grants made under the Supported Employment program supplement grants
issued to States under the VR program (34 CFR part 361).
The regulations in 34 CFR part 363, governing the Supported
Employment program, were last updated February 18, 1993 (59 FR 8331).
Therefore, the changes proposed in part 363 would incorporate statutory
changes made by WIOA, as well as update the regulations to improve the
program and ensure consistency with changes proposed for part 361
governing the VR program.
The changes made to the Supported Employment program by WIOA are
intended to ensure that individuals with the most significant
disabilities, especially youth with the most significant disabilities,
are afforded a full opportunity to prepare for, obtain, maintain,
advance in, or re-enter competitive integrated employment, including
supported or customized employment. Proposed Sec. 363.1 would require
that supported employment be in competitive integrated employment or,
if not, in an integrated setting in which the individual is working
toward competitive integrated employment on a short-term basis not to
exceed six months. Proposed Sec. 363.50(b)(1) would extend the time
from 18 months to 24 months for the provision of supported employment
services. Proposed Sec. 363.22 would require a reservation of 50
percent of a State's allotment under this part for the provision of
supported employment services, including extended services, to youth
with the most significant disabilities. Proposed Sec. 363.23 would
require not less than a 10 percent match for the amount of funds
reserved to serve youth with the most significant disabilities.
Proposed Sec. 363.51 would reduce the amount of funds that may be
spent on administrative costs.
Limitation on Use of Subminimum Wages
The Secretary proposes to promulgate new regulations in part 397 to
implement new requirements for designated State units (DSUs) and
educational agencies under the purview of the Department that are
imposed by section 511 of the Act, which was added by WIOA. Section 511
imposes limitations on employers who hold special wage certificates,
commonly known as 14(c) certificates, under the FLSA (29 U.S.C. 214(c))
that must be satisfied before the employers may hire youth with
disabilities at subminimum wage or continue to employ individuals with
disabilities of any age at the subminimum wage level. The proposed
regulations in part 397 focus exclusively on the related roles and
responsibilities of educational agencies and DSUs for the VR program.
The proposed regulations in part 397 are consistent with the changes
proposed for parts 361 and 363, which govern the VR program and
Supported Employment program, respectively.
Through amendments to the Act, WIOA prioritizes, and places
heightened emphasis upon, the provision of services that maximize
opportunities for competitive integrated employment for individuals
with disabilities, including those with the most significant
disabilities, consistent with their unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
[[Page 21064]]
choice. WIOA also places heightened emphasis on the provision of
services necessary to assist youth with disabilities to achieve
competitive integrated employment in the community, including supported
or customized employment. To that end, amendments to the Act require
DSUs to reserve specified percentages of their VR or supported
employment allotments for the provision of services to students or
youth with disabilities, as applicable. These amendments, along with
the addition of section 511, demonstrate the intent that individuals
with disabilities, especially youth with disabilities, must be afforded
a full opportunity to prepare for, obtain, maintain, advance in, or re-
enter competitive integrated employment.
Section 511 places limitations on the payment of subminimum wages
by entities (e.g., employers) holding special wage certificates under
the FLSA. In particular, such employers are prohibited from hiring
youth with disabilities at a subminimum wage level unless the youth are
afforded meaningful opportunities to access services, including
transition services under the Act or IDEA, so they may achieve
competitive integrated employment in the community. For the purposes of
these requirements, a ``youth with a disability'' is anyone who is 24
years or younger. This age range is consistent with the definition of a
``youth with a disability'' in section 7(42) of the Act. Additionally,
employers are prohibited from continuing to employ individuals with
disabilities, regardless of age, at the subminimum wage level unless
other requirements are satisfied. Specifically, the individual with a
disability, or the individual's parent or guardian if applicable, must
receive certain information and career counseling-related services from
the DSU every six months during the first year of such employment and
annually thereafter for as long as the individual receives compensation
at the subminimum wage level.
In addition to the requirements imposed on employers holding
special wage certificates, section 511 of the Act requires DSUs to
provide certain career counseling services. Further, educational
agencies and the DSUs must develop a process, or use an existing
process, for the timely provision of documentation necessary to
demonstrate completion of required activities, as appropriate, to youth
seeking employment, at a subminimum wage level. Finally, DSUs must
provide documentation of the provision of career counseling and
information and referral services to individuals with disabilities,
regardless of age, who are currently employed at a subminimum wage
level.
The proposed regulations in this part focus exclusively on those
requirements under the purview of the Department of Education. To that
end, we propose in part 397: (1) Documentation requirements that local
educational agencies and DSUs would be required to satisfy; and (2)
information and career counseling-related services DSUs would be
required to provide. Requirements imposed on employers are under the
purview of the Department of Labor, which administers the FLSA.
Significant Proposed Regulations
The Secretary proposes to amend the implementing regulations for
the VR program (part 361) and the Supported Employment program (part
363). The Secretary also proposes to issue new regulations in part 397
to implement limitations on the payment of subminimum wages to
individuals with disabilities. We discuss substantive issues within
each subpart, by section or subject.
Generally, we do not address proposed changes that are technical or
otherwise minor in effect, such as changes to the authority cited in
the Act.
Part 361--State Vocational Rehabilitation Services Program
Organizational Changes
Although the proposed regulations maintain the current structure of
subparts A, B, and C, we propose organizational changes to other
subparts within this part. First, we propose to reserve subparts within
part 361 where we plan to incorporate the three subparts we are
proposing in a separate, but related, NPRM (the joint regulations
proposed by the Departments of Education and Labor implementing changes
to title I of WIOA) published elsewhere in this issue of the Federal
Register. Please see that NPRM for more information about how these
subparts will be incorporated into part 361. Second, we propose to
remove Sec. Sec. 361.80 through 361.89, since the VR-specific
standards and indicators are no longer applicable given amendments made
by WIOA. Finally, we propose to eliminate Appendix A to current part
361--Questions and Responses. We will consider issuing guidance after
the publication of the final regulations.
Purpose (Sec. 361.1)
Statute: Section 100(a)(1)(C) of the Act, as amended by WIOA (29
U.S.C. 720(a)(1)(C)), highlights competitive integrated employment as
the type of employment that individuals with disabilities, including
individuals with the most significant disabilities, are capable of
achieving if appropriate supports and services are provided. This
section, as revised, also incorporates economic self-sufficiency as a
criterion to consider when providing VR services to an individual. The
focus on competitive integrated employment is also reflected in changes
made to section 100(a)(3)(B) of the Act.
Current Regulations: Current Sec. 361.1(b) refers only to gainful
employment, not competitive integrated employment. It also does not
include economic self-sufficiency as a criterion to consider when
providing VR services.
Proposed Regulations: We propose to amend current Sec. 361.1(b)
by: (1) Replacing the term ``gainful employment'' with ``competitive
integrated employment''; and (2) incorporating ``economic self-
sufficiency'' as a new criterion that must be considered to ensure that
the VR services provided are consistent with the individual's unique
circumstances.
Reasons: The regulatory changes are necessary to implement
statutory amendments to section 100 of the Act that emphasize the
ability of individuals with disabilities, including individuals with
the most significant disabilities, to achieve competitive integrated
employment, not ``gainful employment,'' the term previously used under
the Act, as amended by WIA. We believe this change is significant given
that section 7(5) of the Act, as amended by WIOA, includes a new term,
``competitive integrated employment,'' that includes mandatory criteria
related to, among other things, compensation, advancement, and the
integrated nature of the workplace. We also believe it is significant
that Congress added economic self-sufficiency to the list of areas that
must be considered when providing VR services to an individual because
it reinforces a key element of ``competitive integrated employment,''
namely requirements related to compensation and benefits.
See the discussion of the term ``competitive integrated
employment'' in this Significant Proposed Regulations section of the
notice for a full explanation of this term for purposes of the VR
program.
Applicable Definitions (Sec. 361.5)
Definitions in 34 CFR 77.1
Statute: None.
[[Page 21065]]
Current Regulations: Current regulations highlight only a few terms
contained in 34 CFR 77.1.
Proposed Regulations: In paragraph (a) of Sec. 361.5, we propose
to incorporate by reference all definitions contained in 34 CFR 77.1.
Reasons: This change is necessary to clarify that all definitions
in 34 CFR 77.1 are applicable to part 361.
Adoption of 2 CFR Part 200
Statute: None.
Current Regulations: Current Sec. 361.5, which contains
definitions relevant to the VR program and was last updated in 2001,
does not include definitions from 2 CFR part 200 since those
regulations were promulgated in 2014.
Proposed Regulations: We propose redesignating current paragraph
(b) as paragraph (c) and adding a new paragraph (b) that incorporates
by reference all definitions in 2 CFR part 200, subpart A (Uniform
Administrative Requirements, Cost Principles, and Audit Requirements).
Proposed substantive changes to paragraph (c) will be discussed
throughout this NPRM in conjunction with the relevant topical
discussion.
Reasons: OMB issued the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards on January 1,
2014. The new regulations supersede and streamline requirements from
OMB Circulars A-21, A-87, A-89, A-102, A-110, A-122, and A-133, as well
as the guidance in Circular A-50 on Single Audit Act follow-up. These
regulations, codified in 2 CFR part 200, have been adopted by the
Secretary in 2 CFR part 3474, which took effect on December 26, 2014.
Consequently, terms and definitions that previously were not used in
the VR program, such as ``subaward'' (2 CFR 200.92), will be applicable
given the Department's adoption of 2 CFR part 200.
Administrative Cost
Statute: Section 7(1) of the Act, which defines ``administrative
costs,'' remains unchanged by WIOA.
Current Regulations: The current definition in Sec. 361.5(b)(2)
mirrors the statute and defines ``administrative costs'' as including,
among other things, the costs of operating and maintaining DSU
facilities, equipment, and grounds.
Proposed Regulations: We propose to amend Sec. 361.5(c)(2)(viii),
as redesignated by other changes made in this part, by clarifying that
operating and maintenance expenses, for purposes of the definition of
``administrative costs'' for the VR program, do not include capital
expenditures, as defined in 2 CFR 200.13.
Reasons: The proposed change is necessary to clarify the scope of
administrative costs, with regard to operating and maintenance
expenditures, thereby ensuring consistency with 2 CFR part 200. There
has been confusion among VR grantees as to whether operating or
maintenance expenses, in the context of administrative costs, include
capital expenditures. Operating or maintenance expenses in the context
of administrative costs under the VR program are those costs incurred
to maintain facilities, equipment, and grounds in good working order;
whereas, capital expenditures, as defined in 2 CFR 200.13, are those
expenditures that ``materially increase their value or useful life.''
We want to make clear that capital expenditures are permitted under the
VR program in accordance with 2 CFR 200.439, but not as an
administrative cost.
Assessment for Determining Eligibility and Vocational Rehabilitation
Needs
Statute: Section 7(2)(B)(v) of the Act, as amended by WIOA (29
U.S.C. 705(2)), adds a new requirement that VR agencies must, to the
maximum extent possible, rely on information from the individual's
experiences obtained in an integrated employment setting in the
community or in other integrated community settings when using existing
information or conducting a comprehensive assessment for determining
eligibility and the need for VR services for an individual with a
disability.
Current Regulations: Current Sec. 361.5(b)(6) defines ``assessment
for determining eligibility and vocational rehabilitation needs,'' but
does not include the requirement related to reliance on information
about the individual's experiences in integrated settings because this
is a new statutory requirement.
Proposed Regulations: We propose to amend the current regulations
to conform to the statute in section 7(2)(B) of the Act by adding
language to the definition of ``assessment for determining eligibility
and vocational rehabilitation needs'' in proposed Sec.
361.5(c)(5)(ii)(E) that would make clear that a comprehensive
assessment, to the maximum extent possible, relies on information
obtained from the eligible individual's experiences in integrated
employment settings in the community and other integrated settings in
the community.
Reasons: WIOA places a heightened emphasis on the achievement of
competitive integrated employment by individuals with disabilities. To
that end, amendments made by WIOA require that assessments for
determining eligibility and VR needs of individuals with disabilities
must rely on information about the individual's experiences in
integrated employment and in other integrated community settings. The
Act clearly places an emphasis on integrated settings by requiring that
VR agencies rely on information learned from the individual's
experiences in these settings, to the maximum extent possible, when
conducting an assessment. Nonetheless a DSU is not precluded from
determining an individual's eligibility for VR services based on other
information obtained through the assessment process when the individual
cannot participate in integrated community-based work experiences.
Assistive Technology Terms
Statute: Section 7(3) of the Act, as amended by WIOA (29 U.S.C.
705(3)), adds a new definition of ``assistive technology'' and combines
the previous definitions of ``assistive technology device'' and
``assistive technology service'' under the heading ``assistive
technology terms.''
Current Regulations: Current Sec. 361.5(b)(7) defines ``assistive
technology device'' and current Sec. 361.5(b)(8) defines ``assistive
technology service.'' There is no definition for ``assistive
technology'' since this is a new statutory term.
Proposed Regulations: We propose to add the heading ``assistive
technology terms'' in proposed Sec. 361.5(c)(6), under which we would
incorporate definitions for the new term ``assistive technology'' and
for the existing terms ``assistive technology device'' and ``assistive
technology service.'' We also propose to delete current Sec.
361.5(b)(7) and (b)(8), as these separate definitions would no longer
be necessary.
Reasons: The proposed changes are necessary to implement the new
statutory definition in section 7(3) of the Act, as amended by WIOA.
The proposed definition streamlines the definitions of the various
terms by referencing the Assistive Technology Act of 1998.
Competitive Integrated Employment
Statute: WIOA adds a new term, ``competitive integrated
employment,'' in section 7(5) of the Act (29 U.S.C. 705(5)). Although
this is a new statutory term, the term and its definition generally
represent a consolidation of two separate definitions and their terms
[[Page 21066]]
in current regulations--``competitive employment'' and ``integrated
setting.'' In addition, the new statutory definition incorporates a
criterion related to advancement in employment that is not included in
either of the two current regulatory definitions.
Current Regulations: Current Sec. 361.5(b)(11) defines
``competitive employment'' and current Sec. 361.5(b)(33) defines
``integrated setting.'' Current regulations do not define ``competitive
integrated employment'' since this is a new statutory term.
Proposed Regulations: We propose to replace the term ``competitive
employment'' in current Sec. 361.5(b)(11) with the new term
``competitive integrated employment'' in proposed Sec. 361.5(c)(9).
The proposed definition of ``competitive integrated employment'' would
mirror the statutory definition in section 7(5) of the Act, as amended
by WIOA, as well as provide two clarifications with respect to the
criteria for integrated work locations.
First, proposed Sec. 361.5(c)(9)(ii)(A) would clarify that the
employment location must be in ``a setting typically found in the
community.'' Second, proposed Sec. 361.5(c)(9)(ii)(B) would clarify
that the employee with a disability's interaction with other employees
and others, as appropriate (e.g., customers and vendors), who are not
persons with disabilities (other than supervisors and service
providers) must be to the same extent that employees without
disabilities in similar positions interact with these same persons.
This interaction must occur as part of the individual's performance of
work duties and must occur both in the particular work unit and the
entire work site, as applicable. We further propose to amend the
definition of ``integrated setting'' in proposed Sec. 361.5(c)(32)(ii)
to conform to the clarifications provided in the proposed definition of
``competitive integrated employment'' in proposed Sec. 361.5(c)(9)(ii)
to ensure consistency between the two terms.
Finally, we propose to replace the terms ``competitive employment''
and ``employment in an integrated setting,'' as appropriate, with
``competitive integrated employment'' throughout this part.
Reasons: These proposed changes are necessary to implement and to
clarify statutory amendments made by WIOA. Because the proposed
definition of ``competitive integrated employment'' reflects, for the
most part, a consolidation of two existing regulatory definitions, the
substance of this proposed definition is familiar to DSUs and does not
represent a divergence from current regulations, long-standing
Department policy, practice, and the heightened emphasis on competitive
integrated employment throughout the Act, as amended by WIOA.
In implementing these proposed regulations and determining whether
an individual with a disability has achieved an employment outcome in
``competitive integrated employment,'' a DSU must consider, on a case-
by case-basis, each of the criteria described in the proposed
definition of ``competitive integrated employment.'' While most of the
criteria are familiar and self-explanatory, we believe additional
guidance is warranted here to explain those few new criteria contained
in the statutory and proposed regulatory definitions, especially with
regard to the criteria for an integrated employment setting. As a
result, we further explain these criteria, highlighting those aspects
that historically have raised the most questions from DSUs.
Competitive Earnings: The compensation criteria of the proposed
definition of ``competitive integrated employment,'' which mirror the
statutory definition, are consistent with those found in the current
regulatory definition of ``competitive employment'' in Sec.
361.5(b)(11). Proposed Sec. 361.5(c)(9)(i)(A) would continue to
require that, to be considered ``competitive integrated employment,''
the individual must perform full- or part-time work in which he or she
earns at least the higher of the minimum wage rate established by
Federal or applicable State law. Because several jurisdictions have
established minimum wage rates substantially higher than those provided
for under Federal or State law, the statutory definition and proposed
Sec. 361.5(c)(9)(i)(A) would require that the individual's earnings be
at least equal to the legally established local minimum wage rate if
that rate is higher than both the Federal and State rates. Also, as has
been the case under the current definition of ``competitive
employment,'' section 7(5) of the Act requires and proposed Sec.
361.5(c)(9)(i)(D) would require that the individual with the disability
must be eligible for the same level of benefits provided to employees
without disabilities in similar positions. In implementing the statute,
the proposed definition would establish additional criteria with
respect to competitive earnings. First, proposed Sec.
361.5(c)(9)(i)(B) would require that the DSU take into account the
training, experience, and level of skills possessed by the employees
without disabilities in similar positions. Second, the proposed
definition recognizes that individuals, with or without disabilities,
in self-employment may not receive an income from the business equal to
or exceeding applicable minimum wage rates, particularly in the early
stages of operation. Hence, proposed Sec. 361.5(c)(9)(i)(C) would
clarify that self-employed individuals with disabilities can be
considered to be receiving competitive compensation if their income is
comparable to that of individuals without disabilities in similar
occupations or performing similar tasks who possess the same level of
training, experience, and skills. Finally, to ensure consistency with
the American Indian Vocational Rehabilitation Services program under
part 371, we interpret subsistence employment as a form of self-
employment common to cultures of many American Indian tribes.
Integrated Location: While the integrated setting criteria of the
proposed definition of ``competitive integrated employment'' are
consistent with the statutory definition in section 7(5)(B) of the Act,
as amended by WIOA, and the current definition of ``integrated
setting'' in Sec. 361.5(b)(33)(ii), the proposed definition would
provide important clarifications that are necessary to ensure
consistency with expressed congressional intent and current
Departmental guidance.
First, we propose to require that the work location be in ``a
setting typically found in the community'' as required by current Sec.
361.5(b)(33)(ii), meaning that an integrated setting must be one that
is typically found in the competitive labor market. This particular
criterion is included in the current definition of ``integrated
setting'' and, thus, its incorporation in the proposed definition of
``competitive integrated employment'' would ensure consistency between
the two terms. Furthermore, this long-standing Department
interpretation is consistent with the expressed congressional intent
throughout the Act, as well as with past legislative history.
Specifically, integrated setting ``. . . is intended to mean a work
setting in a typical labor market site where people with disabilities
engage in typical daily work patterns with co-workers who do not have
disabilities; and where workers with disabilities are not congregated .
. .'' (Senate Report 105-166, page 10, March 2, 1998). Therefore, we
continue to maintain the long-standing Department policy that settings
established by community rehabilitation programs specifically for the
purpose of employing individuals with disabilities (e.g., sheltered
workshops) do not constitute integrated settings because these settings
are not typically found in the competitive labor market. We believe
this criterion of the integrated
[[Page 21067]]
setting component of the proposed definition of competitive integrated
employment is the first of two thresholds that must be satisfied.
Second, once the first threshold is met, we believe it is
essential, consistent with the current definition of ``integrated
setting,'' that individuals with disabilities have the opportunity to
interact with non-disabled co-workers during the course of performing
their work duties to the same extent that their non-disabled co-workers
have to interact with each other when performing the same work. To that
end, proposed Sec. 361.5(c)(9)(ii)(B) would clarify that ``other
persons'' as used in the statutory definition means other employees
without disabilities with whom the employee with the disability works
within the specific work unit and from across the entire work site. We
want to make clear that this proposed clarification is contained, more
generally, in the current definition of ``integrated setting.''
Furthermore, we believe this clarification is consistent with
congressional intent, past legislative history, current Departmental
guidance, and current regulations.
Historically, this element regarding integrated settings has raised
many questions; therefore, we provide specific clarity with regard to
certain job settings in which employees primarily interact with persons
from outside the work unit, such as vendors and customers, rather than
each other, while performing their job duties. We believe the focus of
whether the setting is integrated should be on the interaction between
employees with and without disabilities, and not solely on the
interaction of employees with disabilities with people outside of the
work unit. For example, the interaction of individuals with
disabilities employed in a customer service center with other persons
over the telephone, regardless of whether these persons have
disabilities, would be insufficient by itself to satisfy the
definition. Instead, the interaction of primary consideration should be
that between the employee with the disability and his or her colleagues
without disabilities in similar positions.
Nonetheless, we recognize that individuals who are self-employed or
who telecommute may interact more frequently with persons such as
vendors and customers than with other employees. Since these persons
often work alone from their own homes rather than together in a single
location, and may have little contact with fellow employees, we have
long maintained that self-employment and telecommuting are considered
to meet the criteria for an integrated location, so long as the
employee with the disability interacts with employees in similar
positions and other persons without disabilities to the same extent
that these persons without disabilities interact with others, though
this interaction need not be face-to-face.
The proposed definition of ``competitive integrated employment''
would further clarify, consistent with the general principles contained
in the current definition of ``integrated setting,'' that the DSU is to
consider the interaction between employees with disabilities and those
without disabilities that is specific to the performance of the
employee's job duties, and not the casual, conversational, and social
interaction that takes place in the workplace. As a result, it would
not be pertinent to its determination of an integrated setting for a
DSU to consider interactions in the lunchrooms and other common areas
of the work site in which employees with disabilities and those without
disabilities are not engaged in performing work responsibilities. This
determination, particularly with regard to the level of interaction,
would be applicable regardless of whether the individual with a
disability is an employee of the work site or a community
rehabilitation program hires the individual with a disability under a
service contract for that work site. Specifically, individuals with
disabilities hired by community rehabilitation programs to perform work
under service contracts, either alone or in groups (e.g., landscaping
or janitorial crews), whose interaction with persons without
disabilities (other than their supervisors and service providers) is
with persons working in or visiting the work locations (and not with
employees of the community rehabilitation programs without disabilities
in similar positions) would not be performing work in an integrated
setting. In summary, the DSU must determine, on a case-by-case basis,
that a work location is in an integrated setting if it both is
typically found in the community, and is one in which the employee with
the disability interacts with employees and other persons, as
appropriate to the position, who do not have disabilities to the same
extent that employees without disabilities interact with these persons.
Finally, the DSU is to consider the interaction between the employee
with the disabilities and these other persons that takes place for the
purpose of performing his or her job duties, not mere casual and social
interaction.
Opportunities for Advancement: To ensure that the employment of
persons with disabilities is equivalent in all respects to that of
persons without disabilities, section 7(5) of the Act, as amended by
WIOA, establishes a new criterion not contained in current regulations.
Proposed Sec. 361.5(c)(9)(iii) mirrors the language in section 7(5) of
the Act and would require that the employee with the disability have
the same opportunities for advancement as employees without
disabilities in similar positions. We believe this new criterion is
consistent with current definitions of ``competitive employment'' and
``integrated settings'' and should pose no hardship on DSUs to
implement.
As explained here, the definition of ``competitive integrated
employment'' in section 7(5) of the Act, as amended by WIOA, and as
proposed in Sec. 361.5(c)(9) establishes three essential criteria of
employment--income (earnings and benefits), integration, and
advancement--thereby ensuring that individuals with disabilities are
provided through the VR program the full opportunity to participate in
the same jobs available to persons without disabilities in the public.
Again, we want to make clear that two of the criteria--those
related to compensation and the integrated nature of the worksite--are
similar, if not identical, to criteria contained in the current
definitions of ``competitive employment'' and ``integrated setting.''
Thus, the substance of this definition is familiar to the DSUs and
should pose no hardship to implement.
Customized Employment
Statute: Section 7(7) of the Act, as amended by WIOA (29 U.S.C. 705
(7)), adds and defines the term ``customized employment,'' which means,
in general, competitive integrated employment designed to meet both the
specific abilities of the individual with a significant disability and
the business needs of an employer.
Current Regulations: None.
Proposed Regulations: We propose to add Sec. 361.5(c)(11), to
define ``customized employment'' to mirror the statute.
Reasons: The proposed regulation is necessary to implement the new
statutory term and definition because the Act, as amended by WIOA, uses
the term in a variety of contexts, including incorporating it into
definitions of employment outcome and supported employment, and
incorporating it into the list of individualized services permissible
under the VR program. Customized employment provides
[[Page 21068]]
flexibility in developing individualized and customized strategies that
are specific to an individual with a significant disability's unique
needs, interests, and capabilities, through the use of flexible
strategies that meet the needs of both the individual and the employer.
Employment Outcome
Statute: Section 7(11) of the Act, as amended by WIOA, revises the
definition of ``employment outcome'' to include customized employment
within its scope.
Current Regulations: Current Sec. 361.5(b)(16) defines
``employment outcome,'' but does not include customized employment
since this is a new statutory requirement.
Proposed Regulations: We propose to amend the definition of
``employment outcome'' in Sec. 361.5(c)(15), as redesignated by other
changes made in this part, to specifically identify customized
employment as an employment outcome under the VR program. We also
propose to amend the definition to require that all employment outcomes
achieved through the VR program be in competitive integrated employment
or supported employment, thereby eliminating uncompensated outcomes
from the scope of the definition for purposes of the VR program.
Furthermore, we propose to amend current Sec. 361.37(b) to expand
the scope of those circumstances when the DSU must provide referrals to
other programs and service providers for individuals who choose not to
pursue an employment outcome under the VR program. Similarly, we
propose to amend current Sec. 361.43(d) to expand the requirement for
the referral of individuals found ineligible for VR services or
determined ineligible subsequent to the receipt of services to also
include appropriate State, Federal, and local programs, and community
service providers better suited to meet their needs.
Reasons: The proposed changes are necessary, in part, to implement
statutory changes to the definition of ``employment outcome'' that
include reference to ``customized employment.'' See the discussion of
``customized employment'' earlier in this preamble for further
information regarding this type of employment outcome.
The proposed change that would limit the scope of employment
outcomes under the VR program to competitive integrated employment or
supported employment is necessary to implement the heightened emphasis
of the Act on the achievement of competitive integrated employment. The
Act, as amended by WIOA, makes clear--from the stated purpose of the
Act, the addition of new requirements governing the development of
individualized plans for employment and the transition of students and
youth from school to post-school activities, and new limitations on the
payment of subminimum wages--that individuals with disabilities,
particularly those with significant disabilities, are able to achieve
the same high-quality jobs in the competitive integrated labor market
as persons without disabilities if they are provided appropriate
services and supports. The amendments made by WIOA are consistent with
and further other changes made over the past four decades, with each
reauthorization, that have placed increasing emphasis on the
achievement of competitive employment in an integrated setting through
the VR program. See the discussion regarding ``competitive integrated
employment'' earlier in this preamble.
It is in this context that we propose to amend the definition of
``employment outcome,'' for purposes of the VR program, to include only
those outcomes that meet the requirements of competitive integrated
employment (including customized employment, self-employment,
telecommuting or business ownership), or supported employment, thereby
eliminating from the scope of the definition, under the VR program,
uncompensated outcomes, such as homemakers and unpaid family workers.
We believe this proposed change is consistent with the statutory
definition of ``employment outcome'' in section 7(11) of the Act, as
well as the pervasive emphasis in the Act on the achievement of
competitive integrated employment by individuals with disabilities,
including those with the most significant disabilities. Given this
emphasis, we believe the proposed change, not to include, within the
scope of employment outcomes, uncompensated outcomes, such as
homemakers and unpaid family workers, is consistent with the provisions
of the Act.
We believe the proposed changes to the definition, while essential
to fulfilling the expectation in the Act that individuals with
disabilities, particularly individuals with significant disabilities,
are capable of pursuing competitive integrated employment, should not
cause significant difficulty for most State VR units in their
administration of the VR program. Nationally, only a relatively small
number of individuals currently exit the VR program as homemakers or
unpaid family workers. Over the past 35 years the percentage of such
outcomes has steadily and significantly decreased. For example, in FY
1980 homemaker outcomes as a percentage of all employment outcomes
reported nationally to the Department by VR agencies through the VR
program Case Service Report for the years FY 1980 through FY 2013
approximated 15 percent. This percentage dropped to 5.2 percent in FY
1999, and to 3.4 percent in FY 2004. By FY 2013, the most recent year
for which data is available, this percentage had declined to 1.9
percent. There has been a similar decline in reported unpaid family
workers. According to data reported by VR agencies through the VR
program Case Service Report, in FY 2000, 642 individuals were reported
in the category of unpaid family worker. By FY 2013, the most recent
year for which we have data, only 135 individuals were reported to have
obtained an unpaid family worker outcome. National data indicates that
approximately 0.2 percent or less of all the outcomes reported annually
by DSUs are unpaid family worker outcomes.
While we recognize that some VR agencies have a greater percentage
of homemaker and unpaid family worker outcomes than others,
particularly those agencies serving individuals who are blind and
visually impaired, it is also evident that the majority of DSUs have
been placing increased importance and emphasis on competitive
employment outcomes, in their policies and procedures, as the optimal
employment outcome and deemphasizing uncompensated outcomes. This shift
in practice has been the product of the DSUs responding to the intent
of the Act and translating that intent into their administration of the
VR program. Nevertheless, we recognize that this proposed change could
represent a significant shift in practice for a few VR agencies,
particularly those with high percentages of individuals achieving
employment outcomes as homemakers or unpaid family workers. These
agencies may be providing services to assist individuals to obtain
homemaker and unpaid family worker outcomes at the time the final
regulations become effective. To allow these agencies to complete the
VR process for these individuals, we are considering a transition
period of six months following the effective date of the final
regulations for the implementation of this proposed change. We are
interested in receiving comments about providing such a transition
period.
Since FY 2004, through monitoring of the VR program, we have
reviewed the
[[Page 21069]]
attainment of homemaker outcomes and have found that VR agencies
sometimes assist individuals to exit the program as homemakers to
provide an alternate resource for the provision of independent living
services that are otherwise available from the State Independent Living
Services, Centers for Independent Living, and Independent Living
Services for Older Individuals Who Are Blind programs. To ensure that
individuals who choose to pursue homemaker and unpaid family worker
outcomes, or who are determined ineligible for VR services either at
the time of application or following the provision of services, are
able to access independent living and other rehabilitation services, we
propose to expand the scope of Sec. Sec. 361.37(b) and 361.43(d) so
that these circumstances would be among those when DSUs must refer
these individuals to public and private agencies better suited to meet
their needs. These current regulatory provisions are limited to those
individuals who choose to pursue extended employment, which does not
constitute an employment outcome under the VR program. As proposed,
Sec. Sec. 361.37(b) and 361.43(d) would be more broad, thus
encompassing those individuals who choose to pursue uncompensated
employment, such as homemakers and unpaid family workers, as well as
those who choose to pursue extended employment.
The resources available through the independent living programs
have expanded exponentially since FY 1992. Specifically, the number of
Part C-funded centers for independent living has tripled since FY 1993,
from 120 to 356 presently, including 20 new centers for independent
living established in FY 2010 through funding under the American
Recovery and Reinvestment Act of 2009. In addition, funding for the
Independent Living Services for Older Individuals Who Are Blind program
has increased since FY 1992, from $6,500,000 to approximately
$33,000,000 in FY 2014. While we recognize that this proposed change
would place the responsibility for making these referrals on DSUs, we
believe that any burden associated with these requirements is
outweighed by the benefit that individuals with disabilities would gain
by having access to programs and services that can more appropriately
meet their individualized needs.
Extended Services
Statute: Section 604(b) of the Act, as amended by WIOA, permits the
expenditure of supported employment funds authorized under title VI,
and the VR funds authorized under title I, on the provision of extended
services to youth with the most significant disabilities for a period
not to exceed four years.
Current Regulation: Current Sec. 361.5(b)(20) defines ``extended
services,'' but does not mention that these services may be provided to
youth with the most significant disabilities since this is a new
statutory requirement.
Proposed Regulations: We propose to amend the definition in Sec.
361.5(c)(19), as redesignated by other changes made in this part, to
make clear that extended services may be provided to youth with the
most significant disabilities for a period not to exceed four years.
The changes proposed herein are consistent with those proposed for the
Supported Employment program in part 363.
Reasons: The revisions are necessary to implement statutory changes
to the Supported Employment program made by WIOA that also relate to
the VR program since VR funds may be used to pay for allowable
supported employment services. These proposed changes are consistent
with those proposed in part 363 and discussed in more detail later in
this NPRM.
Indian; American Indian; Indian American and Indian Tribe
Statute: Section 7(19) of the Act, as amended by WIOA, revises the
definition of ``Indian,'' ``American Indian,'' ``Indian American,'' and
``Indian tribe'' to further clarify those terms.
Current Regulations: Current Sec. 361.5(b)(3) defines ``American
Indian'' to mean an individual who is a member of an Indian tribe.
Current Sec. 361.5(b)(26) defines ``Indian tribe'' to mean 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).
Proposed Regulations: We propose to combine the definitions of
``American Indian'' and ``Indian tribe'' currently in Sec. 361.5(b)(3)
and (b)(26), respectively, to be consistent with the definition in
section 7(19) of the Act, as amended by WIOA. To that end, the proposed
definition in Sec. 361.5(c)(25) would make clear that the term
``American Indian'' includes a Native and a descendant of a Native, as
defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1602),
and expands the term ``Indian tribe'' to include a tribal organization,
as defined in the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450(b)(1)).
Reasons: These changes are necessary to implement the revised
statutory definition in section 7(19) of the Act. These changes also
are necessary to ensure consistency with changes proposed to part 371,
implementing the American Indian Vocational Rehabilitation Services
program, contained in a separate, but related, NPRM published elsewhere
in this issue of the Federal Register.
Local Workforce Development Board and Other Workforce Development Terms
Statute: Sections 7(25), 7(35), and 7(36) of the Act, as amended by
WIOA, define the terms ``Local workforce development board,'' ``State
workforce development board,'' and ``Statewide workforce development
system,'' respectively.
Current Regulations: Current Sec. Sec. 361.5(b)(34), (b)(49), and
(b)(50) define ``Local workforce investment board,'' ``State workforce
investment board,'' and ``Statewide workforce investment system,''
respectively.
Proposed Regulations: We propose to amend part 361 throughout,
including the definitions for ``Local workforce development board'' in
Sec. 361.5(c)(33), ``State workforce development board'' in Sec.
361.5(c)(49), and ``Statewide workforce development system'' in Sec.
361.5(c)(50), to substitute the word ``development'' for ``investment''
wherever those terms appear.
Reasons: These changes are necessary to implement revised terms
used throughout WIOA. The amendments are technical in nature and do not
represent a substantive change to the definitions themselves.
Supported Employment
Statute: Section 7(38) of the Act, as amended by WIOA, revises the
definition of supported employment to, among other things, reference
competitive integrated employment and customized employment, and
requires that an individual who is employed in an integrated setting,
but not in competitive integrated employment, must be working toward
such an outcome on a short-term basis for such work to qualify as
supported employment.
Current Regulation: Current Sec. 361.5(b)(53) defines ``supported
employment'' as the term was defined prior to the enactment of WIOA.
There is no reference to ``competitive integrated employment'' or
``customized employment'' since these are new statutory requirements.
Proposed Regulation: We propose to amend the definition in Sec.
361.5(c)(53),
[[Page 21070]]
as redesignated by other changes made in this part, to require that
supported employment means competitive integrated employment, including
customized employment, or employment in an integrated setting in which
the individual is working on a short-term basis toward competitive
integrated employment. We also propose, in this context, that an
individual be considered to be working on a ``short-term basis'' toward
competitive integrated employment if the individual reasonably expects
achieving a competitive integrated employment outcome within six months
of achieving an employment outcome of supported employment. These
proposed changes are consistent with those proposed in part 363 for the
Supported Employment program, discussed later in this NPRM.
Reasons: The revisions are necessary to implement the new statutory
definition in section 7(38) of the Act, as amended by WIOA, which
reflects the heightened emphasis on the achievement of competitive
integrated employment.
We also propose to include a definition of ``short-term basis,'' in
the context of supported employment, to give meaning to the phrase and
ensure congressional intent. By limiting the timeframe, we ensure that
individuals do not remain in subminimum wage employment for the purpose
of achieving supported employment outcomes. The proposed changes also
ensure consistency with the amendments proposed in part 363,
implementing the Supported Employment program, discussed later in this
NPRM.
Supported Employment Services
Statute: Section 7(39) of the Act, as amended by WIOA, revises the
definition of ``supported employment services'' to extend the allowable
timeframe for the provision of these services from 18 months to 24
months. The statute also makes other technical changes to the
definition.
Current Regulation: Current Sec. 361.5(b)(54) defines ``supported
employment services'' to include a timeframe of 18 months.
Proposed Regulations: We propose to revise the definition in Sec.
361.5(c)(54), as redesignated due to other changes made in this part,
to extend the allowable timeframe for the delivery of these services
from 18 months to 24 months. We also propose to make changes that
clarify the individualized and customized nature of supported
employment services.
Reasons: The revisions are necessary to implement the new
definition of ``supported employment services'' in section 7(39) of the
Act, as amended by WIOA. Most importantly, the proposed definition
extends the allowable timeframe for the provision of supported
employment services from 18 to 24 months. The proposed changes also
ensure consistency with revisions proposed in part 363, implementing
the Supported Employment program, discussed later in this NPRM.
Submission, Approval, and Disapproval of the State Plan (Sec. 361.10)
Statute: Section 101(a)(1) of the Act, as amended by WIOA, requires
that, a ``vocational rehabilitation services portion'' be included in a
State's Unified State Plan in accordance with section 102, or a
Combined State Plan in accordance with section 103, of WIOA. The
``vocational rehabilitation services portion'' must contain all State
plan requirements under section 101(a) of the Act.
Section 101(b) of the Act, as amended by WIOA, makes conforming
changes with regard to the submission, approval, and modification
process for the VR services portion of the Unified or Combined State
Plan.
Current Regulations: Current Sec. 361.10 includes requirements for
the submission and approval process for the VR State plan. Although
current Sec. 361.10(c) permits States to submit the VR State plan as
part of the Unified State Plan, there is no requirement to do so.
Proposed Regulations: First, we propose to amend current Sec.
361.10(a) to require the State to submit a VR services portion of a
Unified or Combined State Plan in accordance with sections 102 or 103,
respectively, of WIOA to be eligible to receive its VR allotment.
Second, we propose to clarify that the VR services portion of the
Unified or Combined State Plan includes all information required under
section 101(a) of the Act.
Third, we propose to amend Sec. 361.10(d) by providing a cross-
reference to subpart D of part 361, which is reserved for the joint
regulations implementing requirements for the Unified and Combined
State Plan proposed jointly by the Departments of Education and Labor.
The proposed joint regulations that would implement jointly-
administered activities under title I of WIOA are published elsewhere
in this issue of the Federal Register. We also propose to remove
current paragraph (e) and redesignate current paragraph (f)(3) as
paragraph (e), and we propose to remove the remainder of current
paragraph (f) and current paragraph (g). We propose to redesignate
current paragraph (h) as paragraph (f) and rename it ``Due Process.''
Finally, we propose to make other conforming changes throughout
Sec. 361.10.
Reasons: The proposed revisions to Sec. 361.10 are necessary to:
(1) Implement the VR-specific amendments to sections 101(a)(1) and (b)
of the Act made by WIOA; and (2) align VR-specific requirements with
those contained in the joint regulations, developed by the Departments
of Education and Labor, regarding the submission, approval, and
modification of Unified or Combined State Plans. Taken together, these
statutory amendments and proposed regulatory changes recognize that the
VR services portion of the Unified or Combined State Plan is to be an
integral part of the Unified or Combined State Plan, and provide the
foundation for the seamless, effective, and efficient delivery of
services through the collaboration and combined funding, to the extent
allowable under relevant program requirements, of the workforce
development system that will enable individuals with disabilities to
obtain the skills necessary to participate in the high-demand jobs of
today's economy. To further the integrated nature of the VR services
portion of the Unified or Combined State Plan, we request that comments
to proposed revisions to Sec. 361.10 be limited to VR-specific
requirements and that more general comments about the Unified or
Combined State Plan be submitted in response to the proposed joint
regulations published elsewhere in this issue of this Federal Register.
Requirements for a State Rehabilitation Council (Sec. 361.17)
Statute: Section 105(b)(1) of the Act, as amended by WIOA, makes a
technical amendment to the composition requirement of the State
Rehabilitation Council (SRC) related to section 121 projects. WIOA also
amends section 105(b)(6) by requiring the SRC to include programs
authorized under the Assistive Technology Act of 1998 among those
agencies and organizations with which it must coordinate.
Current Regulations: Current Sec. 361.17(b)(1)(ix) requires that,
in a State with projects carried out under section 121 of the Act, a
representative of the directors of these projects must serve on the
SRC, but it does not use the new statutory term ``funded'' in place of
``carried out.'' Current Sec. 361.17(h)(6) requires the SRC to
collaborate with various other entities, but does not
[[Page 21071]]
include programs authorized under the Assistive Technology Act of 1998
since this is a new statutory requirement. Current Sec. 361.17(h)(3)
also requires the SRC to partner with the VR agency in establishing
State goals and priorities and to assist in the preparation of the
State plan.
Proposed Regulations: We propose to amend current Sec.
361.17(b)(1)(ix) to substitute ``funded'' for ``carried out'' in the
State to mirror the statute. Additionally, we propose to amend current
Sec. 361.17(h)(6) to include programs established under the Assistive
Technology Act of 1998 in the list of entities with which the SRC must
coordinate its activities. Finally, we propose to clarify in Sec.
361.17(h)(3) that the SRC is only required to assist in the preparation
of the VR services portion of the Unified or Combined State Plan, not
the entire Unified or Combined State Plan.
Reasons: The proposed changes are necessary to implement statutory
amendments to section 105 of the Act made by WIOA. We believe the
proposed change in Sec. 361.17(b)(1)(ix) is more technical than
substantive in the context of the American Indian Vocational
Rehabilitation Services program. Unlike most programs in which funds
are awarded to a State or an entity in a State, the Department awards
section 121 grant funds to tribes, whose reservations may cross State
lines. In that context, the distinctions between ``funded,'' as used in
WIOA, and ``carried out,'' as had been used previously, provides no
substantive differences in practical meaning. For that reason, we
believe this proposed change is primarily technical in nature.
The proposed inclusion in Sec. 361.17(h)(6) of the programs
authorized under the Assistive Technology Act of 1998 among the
entities with which the SRC must coordinate its activities would
underscore the integral role that assistive technology plays in the
ability of individuals with disabilities to obtain and maintain
employment. Through the coordination of SRC and assistive technology
program activities, SRC members would be better informed of the
resources and services available in the State for the provision of
assistive technology devices and training, enabling the members to more
effectively advise the DSU in the State.
Finally, as discussed in proposed Sec. 361.10, title I of WIOA
requires the VR program in each State to participate in a Unified or
Combined State Plan with the other core programs or partner programs
within the workforce development system. By replacing the term ``State
plan'' with the ``vocational rehabilitation services portion of the
Unified or Combined State Plan,'' we believe that members of the SRC
would be responsible only for participating in the development of the
goals and strategies contained in, and providing input on, the VR
services portion of the Unified or Combined State Plan in accordance
with the mandated activities of the SRC as set forth in proposed Sec.
361.17(h).
Comprehensive System of Personnel Development (Sec. 361.18)
Statute: Section 101(a)(7) of the Act, as amended by WIOA, makes
several changes to the comprehensive system of personnel development
(CSPD) that each DSU must establish to ensure its personnel are
adequately trained. In particular, the amendments add specific
educational and experiential criteria that must be met by VR personnel.
The statute also makes other technical changes throughout this section.
Current Regulations: Current Sec. 361.18 requires a DSU to
establish a CSPD that is based on either a national or State licensing
or certification standard. Current regulations do not specify specific
educational or experiential criteria since these are new statutory
requirements.
Proposed Regulations: We propose to revise Sec. 361.18(c)(1)(ii)
to mirror the statute with regard to education and experience
requirements for VR personnel. Accordingly, we would ensure that
personnel have a 21st-century understanding of the evolving labor force
and needs of individuals with disabilities. In addition, we propose to
add a new Sec. 361.18(c)(2)(ii) in which we would describe what we
mean by personnel having a 21st-century understanding of the evolving
labor force and needs of individuals with disabilities. We would
provide examples of the skills that would demonstrate that personnel
hired are appropriately qualified.
Further, we propose to amend Sec. 361.18(d)(1)(i) to require that
the CSPD include training implemented in coordination with entities
carrying out State programs under section 4 of the Assistive Technology
Act of 1998. Finally, we propose to delete those provisions that are no
longer applicable given statutory changes, such as those related to
steps the State will take when personnel do not meet the highest
standard in a State.
Reasons: The proposed changes are necessary to implement statutory
changes made by WIOA. The changes we propose in Sec. 361.18(c)(1)(ii)
would ensure that DSU staff are well-qualified to assist individuals
with disabilities to achieve competitive integrated employment in
today's demanding labor market. The proposed regulations would describe
education and experience, as applicable, requirements at the
bachelor's, master's, and doctoral level, in fields related to
rehabilitation that prepare the individual to work with individuals
with disabilities and employers. For individuals hired at the
bachelor's level, there also would be a requirement for at least one
year of paid or unpaid experience. These proposed CSPD requirements
would further the heightened emphasis throughout the Act on employer
engagement and affording individuals with disabilities every
opportunity to achieve competitive integrated employment.
In order to further clarify what types of skills we intend for
personnel to demonstrate, we propose some illustrative examples in
Sec. 361.18(c)(2)(ii), which are by no means all-inclusive but which
are typically required of rehabilitation professionals hired by the
DSU. Finally, in proposing to amend current Sec. 361.18(d)(1)(i) to
require that the CSPD include training implemented in coordination with
entities carrying out State programs under section 4 of the Assistive
Technology Act of 1998, we are reflecting a new statutory requirement
that is consistent with the emphasis on coordination throughout the
Act.
Public Participation Requirements (Sec. 361.20)
Statute: Section 101(a)(16)(A) of the Act requires that the State
plan provide that the designated State agency, prior to the adoption or
amendment of any policies or procedures governing the provision of VR
services under the State plan, must conduct public meetings throughout
the State to provide the public, including individuals with
disabilities, an opportunity to comment on the policies or procedures,
and actively consult with agencies and organizations involved in the
vocational rehabilitation of individuals with disabilities. This
requirement remains unchanged by WIOA.
Current Regulations: Current Sec. 361.20 implements section
101(a)(16)(A) of the Act.
Proposed Regulations: We propose to clarify that the public
participation requirements under current Sec. 361.20 pertain to the VR
services portion of the Unified or Combined State Plan. We also propose
to add paragraphs (a)(1) and (a)(2) to clarify through descriptive
examples the distinction between substantive changes that would require
the designated State agency to conduct
[[Page 21072]]
a public hearing, and administrative changes for which a public hearing
need not be conducted. All other requirements for public participation
as described in current Sec. 361.20(b) through (e), to the extent they
are consistent with public participation requirements proposed in the
joint regulations, remain unchanged in the proposed regulations, except
for technical modifications to the language required by WIOA. Public
participation requirements related to Unified or Combined State Plans
generally are addressed through the NPRM jointly published by the
Departments of Labor and Education elsewhere in this issue of the
Federal Register.
Reasons: These proposed changes to current Sec. 361.20 are
necessary to reflect statutory changes that require what previously was
a stand-alone VR State plan to be submitted as a VR services portion of
the Unified or Combined State Plan under WIOA. Additionally, by
clarifying what is meant by a substantive change--that is, a change
that would have a direct impact on the nature and scope of the VR
services provided to individuals with disabilities or the manner in
which these individuals interact with the State VR program, as opposed
to a change that is purely administrative or technical in nature--State
VR agencies would better understand when they must conduct a public
hearing, specific to the VR program. The ability to provide comments
and input at public hearings is an important mechanism for
strengthening the voice of community stakeholders and ensuring that any
changes to the implementation of the VR services portion of the Unified
or Combined State Plan reflect concerns and interests of those whom the
program serves.
Requirements Related to the Statewide Workforce Development System
(Sec. 361.23)
Statute: Section 121(b)(1)(B)(iv) of WIOA includes the VR program
as a core partner of the workforce development system.
Current Regulations: Current Sec. 361.23 outlines a VR program's
roles and responsibilities in the workforce investment system, as
required under WIA.
Proposed Regulations: We propose to amend current Sec. 361.23(a)
by cross-referencing to subpart F of part 361. We also propose to
remove the remainder of this section because the substance of these
requirements is contained in joint regulations developed by the
Departments of Education and Labor.
Reasons: The changes are necessary to implement amendments to title
I of WIOA and ensure consistency with joint regulations proposed by the
Departments of Education and Labor, which are published elsewhere in
this issue of the Federal Register. We ask that you submit any comments
regarding the VR program's role in the one-stop delivery system in
conjunction with related provisions contained in the joint proposed
regulations, rather than in connection with this particular section of
the proposed VR program-specific regulations.
Cooperation and Coordination With Other Entities (Sec. 361.24)
Statute: WIOA amends section 101(a)(11) of the Act by expanding the
scope of entities with which the DSU must collaborate and coordinate
its activities under the VR program. The new entities include, among
others, employers, non-educational agencies serving out-of-school
youth, programs authorized under the Assistive Technology Act of 1998,
the State agency administering the State Medicaid plan, the agency
responsible for serving individuals with intellectual and/or
developmental disabilities, agencies responsible for providing mental
health services, and other agencies serving as employment networks
under the Ticket to Work and Self-Sufficiency program.
Current Regulations: Current Sec. 361.24 requires that the State
plan include assurances and descriptions, as applicable, of the DSU's
interagency cooperation with various entities, but does not include the
new entities required by the WIOA amendments since these are new
statutory requirements.
Proposed Regulations: We propose to amend Sec. 361.24 to include
the additional agencies and entities with which the DSU must coordinate
its activities under the VR program, as required by section 101(a)(11)
of the Act, as amended by WIOA.
Reasons: The proposed changes are necessary to implement new
statutory requirements regarding the DSU's coordination with other
entities. The changes are designed to ensure DSU collaboration and
coordination with employers and State and Federal agencies to increase
access by individuals with disabilities, especially youth and
individuals with the most significant disabilities, to services and
supports to assist them in achieving competitive integrated employment.
Third-Party Cooperative Arrangement Requirements (Sec. 361.28)
Statute: None.
Current Regulations: Current Sec. 361.28 includes requirements
related to third-party cooperative arrangements, a mechanism by which a
DSU may work with another public agency to provide VR services.
Proposed Regulations: We propose to amend Sec. 361.28(a) by
removing the words ``administering'' and ``furnishing'' and providing
more accurate descriptions of the cooperating agency's
responsibilities. Proposed Sec. 361.28(a) also would clarify that the
non-Federal share provided by the cooperating agency must be consistent
with the requirements in proposed Sec. 361.28(c). Proposed Sec.
361.28(a)(4) and 361.28(b) change references to ``cooperative
programs'' and ``cooperative agreements'' to ``cooperative
arrangements'' to make the language consistent throughout this section.
We propose to insert a new paragraph (c) to clarify the manner in which
other public agencies may contribute toward the non-Federal share under
a third-party cooperative arrangement.
Reasons: With the exception of Sec. 361.28(c), the changes to this
section are editorial and the minor clarifications would ensure
consistent language and interpretation. Proposed Sec. 361.28(c) would
list the manner in which a State agency or a local public agency could
provide part or all of the non-Federal share under a third-party
cooperative arrangement. Under the proposed Sec. 361.28(c) the DSU
could utilize cash transfers or certified personnel expenditures for
the time cooperating agency staff spent providing direct VR services
pursuant to a third-party cooperative arrangement to meet part or all
of the non-Federal share. Given the prohibition in Sec. 361.60(b)(2)
against using third-party in-kind contributions for match purposes
under the VR program, we have not included certified expenditures for
equipment and supplies as an allowable source of match under the VR
program. In so doing, we avoid potential third-party in-kind
contributions that could arise with such certified expenditures.
Statewide Assessment; Estimates; State Goals and Priorities;
Strategies; and Progress Reports (Sec. 361.29)
Statute: Section 101(a)(15) of the Act, as amended by WIOA, makes
several technical and conforming changes, as well as expands the scope
of estimates that the DSUs must report and the areas of focus the
States must consider in
[[Page 21073]]
conducting their triennial needs assessment.
Section 101(a)(23) requires DSUs to assure that the State will
submit to the Secretary reports required by section 101(a)(15) at such
time and in such manner as the Secretary may determine to be
appropriate. This statutory requirement remains unchanged by WIOA.
Current Regulations: Current Sec. 361.29 implements the
requirements of section 101(a)(15) of the Act, but does not include the
new statutory requirements. The current regulations also require that
the State submit reports regarding goals, strategies, and estimates
annually.
Proposed Regulations: We propose to amend current Sec. 361.29 by
requiring that reports and updates related to assessment, estimates,
goals and priorities, and reports of progress, be submitted to the
Secretary, in such time and such manner as determined by the Secretary,
rather than annually. We also propose to amend the regulations to
require DSUs to report estimates of the number of individuals not
receiving services because of the implementation of an order of
selection. We also propose to make several technical and conforming
changes throughout. See related discussion of this section in the
context of transition services later in this NPRM, for proposed changes
related to students and youth in transition.
Reasons: The proposed changes are necessary, in part, to implement
the statutory amendments to section 101(a)(15) of the Act made by WIOA.
The proposed changes also would ensure consistency in the reporting
requirements imposed throughout section 101(a) of the Act, as well as
in title I of WIOA since the VR State plan will be incorporated into
the State's Unified or Combined State Plan as a portion of that plan.
To date, we have collected the required information through the
annual submission of the VR State plan (now known as the VR services
portion of the Unified or Combined State Plan), rather than through the
submission of separate reports. Because the VR services portion will be
submitted with all other components of the Unified or Combined State
Plan every four years with modifications submitted every two years,
there would be no vehicle for the submission of these annual reports
without imposing additional reporting requirements on the State
separate from the State plan.
By permitting the submission of the required information at a time
and in a manner determined by the Secretary, rather than annually, the
Secretary exercises the statutory flexibility to establish reporting
requirements consistent with those for the VR services portion of the
Unified or Combined State Plan under section 101(a)(1) of the Act, as
amended by WIOA, and section 102(c) of WIOA, and avoid any additional
burden that would be imposed on DSUs through the submission of separate
reports.
Provision of Training and Services for Employers (Sec. 361.32)
Statute: Section 109 of the Act, as amended by WIOA, expands the
types of training, technical assistance, and other services DSUs may
provide under the VR program, to employers, who have hired or are
interested in hiring individuals with disabilities. In addition, WIOA
repealed the Projects with Industry program, previously authorized at
title VI, part A of the Act.
Current Regulations: Current Sec. 361.32 implements requirements
regarding coordination between the VR program and the Projects with
Industry program. There are no current regulations that implement
section 109 of the Act.
Proposed Regulations: We propose to amend Sec. 361.32 in its
entirety by eliminating all requirements related to the Projects with
Industry program since those requirements are no longer applicable. In
its place, we propose to implement requirements regarding the types of
activities DSUs may engage in with employers, pursuant to section 109
of the Act.
Reasons: The changes are necessary to implement new statutory
requirements in section 109 of the Act, as amended by WIOA, as well as
remove requirements that are no longer applicable to the VR program due
to the repeal of the Projects with Industry program. Section 109 of the
Act, as amended by WIOA, authorizes the DSU to expend VR funds for
training and services for employers who are interested in hiring
individuals with disabilities, thereby assisting those individuals in
achieving competitive integrated employment. This training could assist
employers in providing opportunities for work-based learning
experiences; training employees who are individuals with disabilities;
and promoting awareness of disability-related obstacles to continued
employment.
The amendments made throughout WIOA place heightened emphasis on
the collaboration between DSUs and employers to improve and maximize
opportunities for individuals with disabilities, including those with
the most significant disabilities, to achieve competitive integrated
employment.
Innovation and Expansion Activities (Sec. 361.35)
Statute: Section 101(a)(18) of the Act sets forth requirements
regarding innovation and expansion activities for DSUs. This statutory
provision remains unchanged by WIOA.
Current Regulations: Current Sec. 361.35 requires the State plan
to assure that the State will reserve and use a portion of its VR funds
to support, among other things, the resource plans for the State
Rehabilitation Council and the Statewide Independent Living Council.
Proposed Regulations: Proposed Sec. 361.35 would clarify that the
State must reserve a portion of its VR program funds to support the
resource plan for the Statewide Independent Living Council, but it may
choose not to use these funds if the Statewide Independent Living
Council and the State decide to use other available resources to fund
the resource plan for the Statewide Independent Living Council.
Reasons: This proposed change is consistent with the Department's
longstanding interpretation of section 101(a)(18) of the Act and
current Sec. 361.35. In the case of the State Rehabilitation Council,
there is no other funding source available under the Act to support its
resource plan. The funds for the State Rehabilitation Council must come
from this section. On the other hand, the Statewide Independent Living
Council has multiple funding sources that may be used to support the
resource plan, including independent living funds under title VII, part
B, of the Act; State-appropriated independent living funds; and other
public and private sources, to the extent allowable by those sources.
Therefore, our interpretation of the requirement has been that the
State and the Statewide Independent Living Council may decide in the
resource plan of the Statewide Independent Living Council to use funds
under this section, but do not have to use these funds. They can use
other sources of available funding to fund the Statewide Independent
Living Council resource plan. This interpretation would have minimal
impact on States since not all States use innovation and expansion
funds to support the resource plan of the Statewide Independent Living
Council.
Ability To Serve All Eligible Individuals; Order of Selection for
Services (Sec. 361.36)
Statute: Section 101(a)(5) of the Act, as amended by WIOA, permits
DSUs to serve eligible individuals who require specific services or
equipment to maintain employment, regardless of
[[Page 21074]]
whether they are currently receiving VR services. The DSUs may serve
these individuals regardless of any order of selection the State has
established.
Current Regulations: Although current Sec. 361.36(a)(3) sets forth
criteria a State must follow in establishing an order of selection,
there is no mention of this particular discretionary exemption because
this is a new statutory requirement.
Proposed Regulations: We propose to amend current Sec.
361.36(a)(3) by adding a new paragraph (v) that would require DSUs
implementing an order of selection to indicate in the VR services
portion of the Unified or Combined State Plan if they have elected to
serve eligible individuals in need of specific services or equipment
for the purpose of maintaining employment, regardless of their
assignment to a priority category in the State's order of selection.
Reasons: This change is necessary to implement the amendments to
the Act. Prior to the enactment of WIOA, DSUs who were on an order of
selection were not permitted to serve eligible individuals who did not
meet the criteria of that order, which was designed to ensure that
individuals with the most significant disabilities received a priority
for services when resources were limited. Section 101(a)(5) of the Act,
as amended by WIOA, allows greater flexibility by permitting DSUs to
serve eligible individuals, regardless of any order of selection that
has been established by the State, if those individuals require
specific services or equipment to maintain employment (e.g., because
the individual's disability has progressed or the individual's job
duties have changed).
This statutory change, as well as the proposed regulatory change,
is significant because, in effect, it creates an exemption from order
of selection for eligible individuals who need a specific service or
equipment in order to maintain employment. Prior to the passage of
WIOA, these individuals would have been placed in the order, depending
on the severity of their disability, which could have resulted in a
placement on a waiting list. With the proposed regulatory change, DSUs
may, at their discretion, elect to serve these individuals outside of
the order of selection criteria that are otherwise in place in order to
serve these individuals who could be at risk of losing employment if
such services or equipment is not received. In this way, DSUs could
assist these individuals, including those with significant
disabilities, to maintain economic self-sufficiency, thereby reducing
their potential need for publicly-funded services or benefits.
We want to make four points clear. First, proposed Sec.
361.36(a)(3)(v) is discretionary. DSUs would have the ability to serve
these individuals outside of the established order and should consider
doing so if financial and staff resources are sufficient. Second, if a
DSU elects to do so, it must, in accordance with proposed Sec.
361.36(a)(3)(v), its plans in the VR services portion of the Unified or
Combined State Plan before implementing this authority. Third, the
services and equipment provided under this authority must be consistent
with an individual's individualized plan for employment, in the same
manner as any other service or equipment provided under the VR program.
Finally, proposed Sec. 361.36(a)(3)(v) would apply to those specific
services or equipment that the individual needs to maintain employment,
not to other services the individual may need for other purposes.
Reports; Evaluation Standards and Performance Indicators (Sec. 361.40)
Statute: Section 101(a)(10)(C) of the Act, as amended by WIOA,
expands the data that DSUs must report to include data about: Students
with disabilities who are receiving pre-employment transition services;
individuals with open service records and the types of services they
are receiving; individuals referred to the VR program by one-stop
operators; and individuals referred to these one-stop operators by
DSUs. In addition, section 106 of the Act, as amended by WIOA, requires
the VR program to be subject to the common performance accountability
measures, established in section 116 of WIOA, applicable to core
programs of the workforce development system.
Current Regulations: Current Sec. 361.40 addresses the data that a
DSU must report, but does not include the new data elements since these
are new statutory requirements. Current Sec. Sec. 361.81 through
361.89 implement current evaluation standards and performance
indicators applicable to the VR program. These standards and indicators
do not incorporate the common performance measures since these are new
statutory requirements.
Proposed Regulations: We propose to reorganize current Sec. 361.40
into two paragraphs. Proposed paragraph (a) would retain all existing
provisions in current Sec. 361.40, as well as incorporate requirements
regarding new VR-specific data related to individuals with open service
records and the types of services they are receiving; students with
disabilities receiving pre-employment transition services; and
individuals referred to the State VR program by one-stop operators and
those referred to these one-stop operators by the State VR program.
In proposed paragraph (b), we provide a cross-reference to subpart
E of this part, which will include the joint regulations implementing
common performance measures. In so doing, we also propose to remove
current Sec. Sec. 361.80 through 361.89, as the current standards and
indicators are no longer applicable to the VR program.
Reasons: The proposed changes to current Sec. 361.40 are necessary
to implement amendments to the Act made by WIOA. Specifically, we
include VR-specific data regarding, among others, individuals with open
service records and the types of services they are receiving, as well
as students with disabilities who are receiving pre-employment
transition services, to ensure that the Secretary has the information
needed to assess the performance of the VR program.
It is significant to note that the VR program will no longer be
subject to its own set of performance standards and indicators
established by the Department. Section 106 of the Act requires that the
VR program comply with the common performance accountability measures
established under section 116 of WIOA, which apply to all core programs
of the workforce development system. To that end, the Departments of
Labor and Education have developed proposed joint regulations to
implement these requirements. The proposed joint regulations regarding
the performance accountability system, which will be incorporated in
subpart E of this part, will be presented in a separate NPRM published
elsewhere in this issue of the Federal Register. Given this significant
statutory change in section 106 of the Act, we have determined that
most of the provisions we had in current Sec. Sec. 361.80 through
361.89 are no longer applicable and, therefore, we propose to remove
them. We ask that you provide only comments specific to the VR program
with respect to this section. Any comments regarding the common
performance measures or data requirement, applicable to all core
programs, should be provided in connection with the relevant provisions
of the joint proposed regulations.
Assessment for Determining Eligibility and Priority for Services (Sec.
361.42)
Eligibility Criteria
Statute: Section 102(a)(1) of the Act, as amended by WIOA, makes
clear that
[[Page 21075]]
an individual with a disability, whose physical or mental impairment
constitutes a substantial impediment to employment, may be determined
eligible for VR services if he or she requires services to advance in
employment.
Current Regulations: Current Sec. 361.42(a)(1)(iii) specifies that
the applicant may be determined eligible if he or she meets all other
eligibility criteria and requires VR services to prepare for, secure,
retain, or regain employment. Current regulations do not reference
advancing in employment since this is a new statutory requirement.
Proposed Regulations: We propose to amend current Sec.
361.42(a)(1)(iii) to clarify that an applicant, who meets all other
eligibility criteria, may be determined eligible if he or she requires
VR services to advance in employment.
We also propose to clarify in current Sec. 361.42(c)(2) that a DSU
must not consider an applicant's employment history, current employment
status, level of education or educational credentials when determining
eligibility for services.
Reasons: The proposed changes are necessary, in part, to implement
statutory amendments to section 102(a)(1) of the Act made by WIOA. The
proposed changes also would ensure that individuals with disabilities
are able to obtain through the VR program the skills necessary to
engage in the high demand jobs available in today's economy. It has
been the Department's long-standing policy that the VR program is not
intended solely to place individuals with disabilities in entry-level
jobs, but rather to assist them to obtain employment that is
appropriate given their unique strengths, resources, priorities,
concerns, abilities, capabilities, and informed choice. The extent to
which DSUs should assist eligible individuals to advance in their
careers through the provision of VR services depends upon whether the
individual has achieved employment that is consistent with this
standard.
Furthermore, the proposed additional factors that a DSU must not
consider when determining an applicant's eligibility for VR services in
proposed Sec. 361.42(c)(2) would be consistent with longstanding
policy. By specifically proposing the additional factors related to
employment and education history in the regulation, we reinforce the
requirement in section 102(a)(1)(iii) of the Act and proposed Sec.
361.42(a)(1)(iii).
Residency
Statute: Section 101(a)(12) of the Act requires that the State plan
will include an assurance that the State will not impose a residence
requirement that excludes from services provided under the plan any
individual who is present in the State. This provision remains
unchanged by WIOA.
Current Regulations: Current Sec. 361.42(c)(1) requires that the
State plan must assure that the State unit will not impose, as part of
determining an applicant's eligibility for VR services, a duration of
residence requirement that excludes from services any applicant who is
present in the State.
Proposed Regulations: We propose to amend current Sec.
361.42(c)(1) to clarify that a DSU must not require the applicant to
demonstrate a presence in the State by the production of documentation
that would, under State or local law, or practical circumstances,
result in a duration of residency.
Reasons: The proposed clarification in Sec. 361.42(c)(1) is
consistent with our long-standing interpretation of this statutory
requirement, as expressed in monitoring reports and other guidance.
Many State VR agencies require individuals applying for VR services to
provide documents that substantiate that the individual is present in
the State and, hence, available to participate in the eligibility
determination process and to receive VR services. Some forms of
documentation, however, such as a driver's license or voter
registration card, may require a significant amount of time to obtain.
Moreover, States or local jurisdictions may impose durational
requirements prior to the issuance of some forms of documentation or
identification. By proposing these changes, we would clarify that the
requirement of such forms of documentation to demonstrate presence in
the State constitutes a de facto duration requirement, which is
prohibited by the Act. Although documents that take time to obtain may
be accepted as proof of an applicant's presence in the State if
available at the time of application, the DSU must permit the use of
other documentation that includes sufficient information to demonstrate
presence in the State, such as documentation that includes a
residential address in the State.
Extended Evaluation
Statute: WIOA amends section 102(a)(2)(B) of the Act by removing
the limited exception to trial work experiences, whereby VR agencies
made extended evaluations available to applicants, prior to determining
that an individual is unable to benefit from VR services due to the
severity of the individual's disability and, thus, is ineligible for VR
services. Although the term ``extended evaluation'' was not referenced
in the Act, this is the term used in current regulation to describe the
process by which the DSUs assess an individual's ability to benefit
from VR services due to the severity of disability, when the
individual, under limited circumstances, is unable to participate in
trial work experiences.
Current Regulations: Current Sec. 361.42(f) permits, in limited
circumstances, the provision of extended evaluations to individuals
with disabilities who cannot take advantage of trial work experiences,
or for whom trial work experiences have been exhausted.
Current Sec. 361.41(b)(1)(ii) permits the exploration of an
individual's abilities, capabilities, and capacity to perform in work
situations in accordance with Sec. 361.42(e) or, if appropriate, an
extended evaluation in accordance with Sec. 361.42(f).
Proposed Regulations: We propose to remove paragraph (f) from
current Sec. 361.42 and redesignate (g) as (f).
Proposed Sec. 361.41(b)(1)(ii) would remove reference to extended
evaluation and only permit an exploration of the individual's
abilities, capabilities, and capacity to perform in work situations
carried out in accordance with current Sec. 361.42(e).
Reasons: These changes are necessary to implement the amendments to
section 102(a)(2)(B) of the Act made by WIOA. The proposed changes also
would ensure that before a DSU make an ineligibility determination, it
must conduct a full assessment of the capacity of the applicant to
perform in realistic work settings, without the exception of extended
evaluations.
Development of the Individualized Plan for Employment (Sec. 361.45)
Timeframe for Completing the Individualized Plan for Employment
Statute: Section 102(b)(3)(F) of the Act, as amended by WIOA,
mandates that the individualized plan for employment be developed as
soon as possible but no later than 90 days after the date of
determination of eligibility, unless the DSU and the eligible
individual agree to an extension of that timeframe.
Current Regulations: Current Sec. 361.45(e) requires the DSU to
establish and implement standards for the prompt development of
individualized plans for employment for eligible individuals; however,
the 90-day timeframe is not included because this is a new statutory
requirement.
Proposed Regulations: We propose to amend current Sec. 361.45(e)
to require
[[Page 21076]]
that the DSU develop the individualized plan for employment for each
eligible individual as soon as possible, but no later than 90 days
following determination of eligibility, unless the DSU and the
individual agree to a specific extension of that timeframe.
Reasons: This change is necessary to implement the statutory
requirement made by WIOA that VR agencies develop the individualized
plan for employment within 90 days following determination of
eligibility. The intent is to move all eligible individuals through the
VR process with minimal delay in order to efficiently and effectively
serve these individuals, resulting in the achievement of employment
outcomes in competitive integrated employment. While the majority of
DSUs have already adopted the 90-day timeframe, some DSUs have adopted
extended timeframes that impede the efficient and effective movement of
individuals through the VR process, therefore, resulting in the delay
of services, and ultimately delaying the achievement of employment
outcomes. Additionally, some DSUs have established interim steps or
plans prior to the development of the individualized plan for
employment or have adopted longer timeframes for transition-age youth
or other specific populations. The establishment of a 90-day timeframe
by WIOA ensures consistency across the VR program nationally and sets
the expectation that all eligible individuals receive timely services
through an effective and efficient VR program with an outcome of
improved VR agency performance and resulting in employment outcomes for
individuals with disabilities.
Options for Developing the Individualized Plan for Employment
Statute: WIOA amends section 102(b)(1)(A) of the Act by clarifying
that the DSU must provide eligible individuals with information
regarding the availability of assistance in developing all or part of
the individualized plan for employment from disability advocacy
organizations. In addition, WIOA amends section 102(b) to require a DSU
to provide to eligible individuals entitled to Social Security benefits
under titles II or XVI of the Social Security Act, general information
on additional supports, such as assistance with benefits planning.
Current Regulations: Current Sec. 361.45(c)(1) requires that the
DSU provide eligible individuals information regarding the options for
developing the individualized plan for employment, but does not
reference disability advocacy organizations since this is a new
statutory requirement. Current Sec. 361.45(c)(2) requires the DSU to
provide additional information to eligible individuals relevant to the
development of the individualized plan for employment, but does not
mention benefits planning or other information specific to Social
Security beneficiaries with disabilities since this is a new statutory
requirement.
Proposed Regulations: We propose to amend current Sec.
361.45(c)(1) by requiring a DSU to provide eligible individuals
information about the option of requesting assistance from a disability
advocacy organization when developing the individualized plan for
employment. We also propose to amend current Sec. 361.45(c)(2) by
adding a new paragraph (v) that would require a DSU to provide eligible
individuals entitled to Social Security benefits under titles II or XVI
of the Social Security Act information on assistance and supports
available to individuals desiring to enter the workforce, including
benefits planning.
Reasons: The proposed changes are necessary to implement the
amendments to section 102(b) of the Act made by WIOA. The inclusion of
disability advocacy groups as a specific source of assistance, as
appropriate, for eligible individuals in the development of the
individualized plan for employment supports, and acknowledges the
important role that these groups may play in mentoring an eligible
individual through the VR process and in designing the plan of services
that will successfully lead to an employment outcome. In coordination
with the expertise of the qualified rehabilitation counselor, the
experience of advocacy groups may lend a perspective and understanding
of the disability-related needs, responsibilities, and services that
are required to achieve the individual's employment goal. The inclusion
of advocacy groups as a resource also recognizes and emphasizes the
importance of self-determination, empowerment, and self-advocacy as
cornerstones in rehabilitation.
By requiring that a DSU provide eligible individuals entitled to
Social Security benefits under titles II or XVI of the Social Security
Act with information on benefits planning, we intend that the
individuals understand the implications of employment for continued
receipt of their benefits so that they can make a fully informed choice
of an employment goal.
Content of the Individualized Plan for Employment (Sec. 361.46)
Statute: WIOA amends section 102(b)(4) of the Act to require that
the description of the specific employment goal chosen by the eligible
individual, required as a mandatory component of the individualized
plan for employment, be consistent with the general goal of competitive
integrated employment.
Current Regulations: Current Sec. 361.46(a)(1) establishes the
content requirements for the individualized plan for employment and
requires that the plan include a specific employment goal based upon
the unique strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice of the eligible
individual. The regulation does not contain the new statutory
requirement.
Proposed Regulations: We propose to amend current Sec.
361.46(a)(1) to require that the vocational goal selected by the
individual in accordance with this section be consistent with the
general goal of competitive integrated employment.
Reasons: The proposed revision to current Sec. 361.46(a)(1) is
necessary to implement the statutory requirements under WIOA, and is
consistent with the purpose of the VR program, which is to assist
individuals with disabilities, including those with significant
disabilities, to prepare for and engage in competitive integrated
employment.
Transition of Students and Youth With Disabilities
The Act, as amended by WIOA, places heightened emphasis on the
provision of services to students and youth with disabilities to ensure
that they have meaningful opportunities to receive the training and
other services they need to achieve employment outcomes in competitive
integrated employment. To that end, the Act expands not only the
population of students with disabilities who may receive services but
also the kinds of services that the VR agencies may provide to youth
and students with disabilities who are transitioning from secondary
school to postsecondary education and employment.
Most notably, section 110(d) of the Act, as amended by WIOA,
requires States to reserve 15 percent of their VR allotment to provide
pre-employment transition services to students with disabilities who
are eligible or potentially eligible for VR services. Section 113 of
the Act, as added by WIOA, outlines the services that must be provided
with these reserved funds. These services are designed to be an early
start at job exploration.
[[Page 21077]]
With the addition of these pre-employment transition services, and
expansion of services to youth, the VR program can be characterized as
providing a continuum of VR services, especially for students and youth
with disabilities. Specifically, it can provide pre-employment
transition services to any student with a disability who needs these
services, regardless of whether the student has applied for or been
determined eligible for VR services. In addition, section 103(b) of the
Act permits the VR agency to provide transition services to groups of
youth with disabilities, regardless of whether they have applied for or
been determined eligible for services. If either a student or youth
with a disability requires more intensive services, he or she would
apply for VR services. Once determined eligible, an individualized plan
for employment would be developed, which would outline the specific
services that he or she may need in order to achieve an employment
outcome. In sum, the VR program provides a range of services, from most
basic to the most individualized and intensive service, thereby meeting
the evolving needs of a student or a youth with a disability who is
transitioning from school to post-school life.
This portion of the NPRM will describe the key regulatory changes
we propose to implement statutory amendments related to transition
services. The major substantive changes relate to certain key
definitions and the provision of pre-employment transition services and
transition services to groups of youth with disabilities. Throughout
this section of the NPRM, we will provide additional guidance for those
areas that we expect will generate significant comments. The proposed
changes are presented by relevant section of the regulations.
Transition-Related Definitions (Sec. 361.5(c))
Statute: Section 7 of the Act includes several new definitions
related to transition services. In particular, section 7 adds new
definitions for the terms: ``pre-employment transition services'' in
section 7(30); ``student with a disability'' in section 7(37); and
``youth with a disability'' in section 7(42). WIOA also deleted the
term, ``transition services,'' which had been defined previously in
section 7(37).
Current Regulations: Current Sec. 361.5(b) contains definitions
for terms relevant to the VR program, but does not define ``pre-
employment transition services,'' student with a disability, or youth
with a disability since these are new statutory terms.
Proposed Regulations: We propose to add new definitions to current
Sec. 361.5(c), as redesignated elsewhere in this NPRM, for ``pre-
employment transition services'' in proposed Sec. 361.5(c)(42);
``student with a disability'' in proposed Sec. 361.5(c)(51); and
``youth with a disability'' in proposed Sec. 361.5(c)(59). We also
propose to retain the current definition for ``transition services'' in
Sec. 361.5(c)(55), despite its removal from the statute as a defined
term, since it is still used throughout the Act and the regulations in
part 361. In retaining this definition, we propose to clarify that this
particular service is available to both students and youth with
disabilities.
Reasons: These changes are necessary to implement the amendments to
the Act. Given the heightened emphasis throughout the Act on students
and youth with disabilities, especially with regard to the provision of
pre-employment transition services and other transition-related
services, it is essential that stakeholders understand the definitions
for these terms and how they can be distinguished from other terms
commonly used.
For example, pre-employment transition services are those specific
services specified in section 113 of the Act and implemented in
proposed Sec. 361.48(a). These services, paid for with a percentage of
funds reserved from the State's VR allotment, are available only to
those individuals who meet the definition of a student with a
disability. On the other hand, other transition-related services,
including those that could be similar to pre-employment transition
services, may be provided to students or youth with disabilities and do
not require a specific reservation of funds (e.g., either as an
individualized VR service pursuant to section 103(a) or as a service to
groups pursuant to section 103(b) of the Act).
It also is important to distinguish between the terms ``student
with a disability'' and ``youth with a disability'' because, as just
described, different services are available for different populations.
A student with a disability is an individual with a disability in
school who is (1) 16 years old, or younger, if determined appropriate
under the Individuals with Disabilities Education Act (IDEA), unless
the State elects to provide pre-employment transition services at a
younger age, and no older than 21, unless the State provides transition
services under IDEA at an older age; and (2) receiving transition
services pursuant to IDEA, or is a student who is an individual with a
disability for the purposes of section 504 of the Act (29 U.S.C. 794).
However, it is important to note that we have interpreted a student
with a disability, given the plain meaning of the statutory definition,
as not including an individual with a disability in postsecondary
education. A youth with a disability, on the other hand, is anyone who
has a disability as defined in section 7(20) of the Act and is aged 14
to 24, regardless of whether they are in school. The terms ``student
with a disability'' and ``youth with a disability'' do not affect
coverage under section 504. All individuals with disabilities
regardless of whether they meet the definition of ``student with a
disability'' and ``youth with a disability'' continue to be covered
under section 504.
Therefore, all students with disabilities would meet the definition
of a youth with a disability, but not all youth with disabilities would
satisfy the definition of a student with a disability. For example, an
18-year-old individual with a disability who is in secondary school and
receiving services under IDEA meets both the definition of a student
with a disability as well as the definition of a youth with a
disability. However, an 18-year-old with a disability who is not in
school would meet only the definition of a youth with a disability.
The distinctions between these two terms are critical for purposes
of the various authorities for providing transition-related services.
For example, pre-employment transition services provided under proposed
Sec. 361.48(a) are only available to students with disabilities;
whereas transition services provided for the benefit of a group of
individuals may be provided to both students and youth with
disabilities under proposed Sec. 361.49(a).
Despite the removal of the definition of ``transition services''
from the Act, we believe it is important to retain this definition in
part 361 given that the term continues to be used throughout the Act
and these regulations. Therefore, we propose to retain the definition
of ``transition services.'' However, we propose to clarify that this
service is available to both students and youth with disabilities in
order to be consistent with proposed regulations in Sec. Sec.
361.48(b) and 361.49(a) governing the provision of transition services.
Specific guidance about these terms and how they relate to various
transition-related services will be provided in this NPRM in
conjunction with the relevant proposed regulation.
[[Page 21078]]
Coordination With Education Officials (Sec. 361.22)
Statute: Section 101(a)(11)(D) of the Act, as amended by WIOA,
clarifies two points: (1) Interagency coordination between the DSUs and
educational agencies must include coordination regarding the provision
of pre-employment transition services; and (2) DSUs may provide
consultation and technical assistance to education officials through
alternative means, such as conference calls and video conferences. This
section also includes other technical changes.
In addition, WIOA adds a new section 101(c) to the Act that makes
clear that nothing in the Act is to be construed as reducing the
responsibility of the local educational agencies or any other agencies
under IDEA to provide or pay for any transition services that are also
considered to be special education or related services necessary for
providing a free appropriate public education to students with
disabilities.
Finally, section 511 of the Act, as amended by WIOA, imposes
several requirements, particularly related to documentation of services
for DSUs and State and local educational agencies with regard to youth
with disabilities seeking subminimum wage employment. Unlike the rest
of the Act, which took effect upon enactment, section 511 does not take
effect until July 22, 2016.
Current Regulations: Current Sec. 361.22 requires VR agencies to
develop policies and procedures for coordinating with education
officials to facilitate the transition of students with disabilities
from education services to the provision of VR services. However,
current regulations do not reference pre-employment transition services
or the option of providing consultation services through alternative
means since these are new statutory requirements. Current regulations
also do not reference the statutory construction clause or the
statutory requirements contained in section 511, as these are new
statutory requirements.
Proposed Regulations: We propose to amend current Sec. 361.22(a)
to incorporate reference to pre-employment transition services as an
area that must be included during inter-agency coordination of
transition services.
We propose to amend current Sec. 361.22(b)(1) to clarify that VR
agencies may use alternative means, such as video conferences and
conference calls, for providing consultation and technical assistance
to education officials. We also propose to amend current Sec.
361.22(b) by adding new clauses (5) and (6) to incorporate, by
reference, certain requirements from section 511 into the formal
interagency agreement between the DSU and the State educational agency.
Finally, we propose to add a new paragraph (c) under Sec. 361.22
to incorporate the construction clause in section 101(c) of the Act.
We also propose other technical or conforming changes throughout
this section.
Reasons: The proposed changes to current Sec. 361.22 are necessary
to implement the amendments to the Act made by WIOA. While most of the
proposed changes are self-explanatory, we believe additional guidance
is necessary to clarify a few of the proposed provisions.
First, section 511 of the Act, as added by WIOA, imposes certain
requirements on DSUs and State and local educational agencies with
regard to youth with disabilities seeking subminimum wage employment.
Specifically, DSUs and local educational agencies must provide these
youth with disabilities documentation demonstrating that the youth
completed certain activities, such as receipt of transition services
under IDEA and pre-employment transition services under the VR program,
as applicable. Section 511 also requires the DSU, in consultation with
the State educational agency, to develop a process, or utilize an
existing process, to document completion by youth with disabilities of
the required activities, as applicable, under section 511. We believe
the formal interagency agreement that is required by section
101(a)(11)(D) of the Act, and current Sec. 361.22(b) is the
appropriate mechanism for ensuring the consultation necessary to
develop and implement the documentation process required by section 511
and 34 CFR 397.10.
Second, section 511(b)(2) of the Act prohibits a State or local
educational agency from entering into a contract or other arrangement
with an entity for purposes of operating a program in which youth with
disabilities are employed at subminimum wage. Again, we believe the
formal interagency agreement, required by section 101(a)(11)(D) of the
Act, and current Sec. 361.22(b), between the State educational agency
and the DSU, is the appropriate mechanism whereby State and local
educational agencies will assure that they will comply with the
prohibition imposed by section 511(b)(2) of the Act and proposed 34 CFR
397.31. We believe that incorporating both of these requirements from
section 511, and proposed part 397, into an existing formal interagency
agreement will reduce burden on the States so new mechanisms for
requirements are unnecessary.
Third, we want to provide additional clarification regarding
proposed Sec. 361.22(c) given questions that have arisen over the
years as to which entity, the local educational agency or DSU, is
responsible for providing transition services to students with
disabilities (who are also VR consumers) when such services fall under
the purview of both entities. The following examples illustrate the
types of scenarios that have been at the heart of questions posed by
DSUs in the past:
1. A VR-eligible student who is blind is participating in a work-
experience placement after school hours as part of her individualized
education program. Because that activity takes place in a location
outside of school, the student needs travel training in order to travel
independently from school to work and then home.
2. A VR-eligible student is enrolled in an apprenticeship program
in construction trades as part of his individualized education program
under IDEA. The program requires the student to have special gloves,
clothing, equipment, and footwear to attend the program.
3. A VR-eligible student is participating in a work experience
activity during school hours as part of her individualized education
program. The school has arranged for several IDEA-eligible students to
participate in this same work activity and is providing a school bus to
transport the IDEA-eligible students to and from the worksite. The VR-
eligible student needs transportation to the worksite and a uniform.
While neither the Act nor IDEA is explicit as to which entity, the
VR agency or the local education agency, is financially responsible for
providing transition services, which are not considered solely special
education or related services under IDEA, both proposed Sec. 361.22(c)
and current 34 CFR 300.324(c)(2)) make clear that neither the local
educational agency nor the VR agency may shift the burden for providing
a service, for which it otherwise would be responsible, to the other
entity. We want to make clear that the Act and IDEA, along with their
implementing regulations in proposed Sec. 361.22(c) and 34 CFR
300.324(c)(2), are to be read in concert.
Therefore, we believe decisions related to which entity will be
responsible for providing transition or pre-employment transition
services that
[[Page 21079]]
can be considered both a special education and a VR service must be
made at the State and local level as part of the collaboration between
the VR agencies, State educational agencies, and local educational
agencies. This coordination and collaboration is crucial to successful
transition planning and service delivery. Both the IDEA and the
Rehabilitation Act require State educational agencies and VR agencies
to plan and coordinate transition services for students with
disabilities. This occurs through an interagency agreement or other
mechanism for interagency coordination, such as described in section
612(a)(12) of IDEA (20 U.S.C. 1412(a)(12))). Coordination, including
clearly articulated roles and responsibilities for the provision of
transition services and for activities under section 511 of the Act, as
well as mechanisms to resolve disputes between the State educational
agencies and the VR agencies ensures a seamless delivery of transition
services that enable eligible students with disabilities to make a
smooth transition from school to post-school education and employment.
Moreover, under IDEA, this interagency coordination may be necessary to
ensure the provision of transition services that are necessary for the
provision of a free appropriate public education to students with
disabilities (see section 612(a)(12) of IDEA and 34 CFR 300.154).
States have the flexibility to include local educational agencies as
parties to the State-level agreement.
Since the ultimate decisions related to financial responsibility
for the provision of transition services must be established at the
State and local level during the collaboration and coordination of
transition and pre-employment transition services, a State's formal
interagency agreement or other mechanism for interagency coordination
can provide a foundation for addressing these issues by including
criteria to be used by the VR agencies and local educational agencies
when considering and assigning the financial responsibility of each
agency for the provision of transition services to students with
disabilities on an individualized basis. For example, the criteria
could include:
1. The purpose of the service--Is it related more to an employment
outcome or education (i.e., is it considered a special education or
related service (e.g., rehabilitation counseling that is necessary for
the provision of a free appropriate public education))?
2. Customary Services--Is the service one that the school
customarily provides under IDEA part B? For example, if the school
ordinarily provides job exploration counseling to its eligible students
with disabilities, the mere fact that such a service is now authorized
under the Rehabilitation Act as a pre-employment transition service
does not mean the school should cease providing that service and refer
those students to the VR program.
3. Eligibility--Is the student with a disability eligible for
transition services under IDEA? As stated earlier, the definition of a
``student with a disability,'' for purposes of the VR program, is
broader than that under IDEA because the definition in the
Rehabilitation Act includes those students who are individuals with a
disability under section 504 of the Rehabilitation Act. It is possible
that these students do not have an individualized education program
under IDEA and, therefore, would not be eligible for or receiving
special education and related services under IDEA. As a result, VR
agencies are authorized to provide transition services under the VR
program to a broader population than local educational agencies are
authorized to provide under IDEA.
We believe that criteria such as these could be beneficial as DSUs
and local educational agencies and State educational agencies
collaborate and coordinate the provision of transition services,
including pre-employment transition services to students with
disabilities, and resolve disputes related to the provision of these
services.
Cooperation and Coordination With Other Entities (Sec. 361.24)
Statute: Section 101(a)(11) of the Act makes several changes that
highlight the importance of transition and other matters affecting
students and youth with disabilities with regard to the coordination of
services between the VR program and other non-educational programs.
Current Regulations: Current regulations in Sec. 361.24 address
only the cooperation and coordination between the State VR agency and
Federal, State and local agencies that are not carrying out activities
through the workforce development system. Current regulations do not
address the coordination that must occur with the section 121 projects
in a State, if applicable, with regard to the provision of pre-
employment transition services or non-educational agencies serving out-
of-school youth because these are new statutory requirements.
Proposed Regulations: Proposed Sec. 361.24(a) would incorporate
non-educational agencies serving out-of-school youth as another entity
with which the VR agency must coordinate.
We also propose to amend current Sec. 361.24(c) and (d), which
govern coordination between the DSUs and employers and section 121
projects, respectively, to include transition services among the
matters that must be included in coordination efforts.
Reasons: These changes are necessary to implement the amendments to
the Act made by WIOA, all of which are designed to improve
relationships and coordination between the VR agencies, employers, and
all other agencies (e.g., workforce development, child welfare and
juvenile justice agencies) serving individuals with disabilities,
especially youth with disabilities, to ensure they have meaningful
opportunities to achieve employment outcomes in competitive integrated
employment. While DSUs have been required to coordinate with American
Indian Vocational Rehabilitation Services projects in the State, if
any, the coordination now must also include pre-employment transition
services.
Statewide Assessment; Estimates; State Goals and Priorities;
Strategies; and Progress Reports (Sec. 361.29)
Statute: Section 101(a)(15) of the Act, as amended by WIOA,
requires the comprehensive needs assessments to include: a review of
the needs of youth and students, especially with regard to pre-
employment transition services and the coordination of services with
educational agencies; and the methods used to improve the provision of
VR services, especially transition services.
Current Regulations: Current Sec. 361.29 requires that the State
plan include the results of a statewide assessment, but does not
contain new statutory requirements related to transition and pre-
employment transition services.
Proposed Regulations: Proposed Sec. 361.29(a)(1)(i)(D) reflects
the addition of the new statutory requirement for the statewide needs
assessment to identify the vocational rehabilitation needs of youth and
students with disabilities, including their need for pre-employment
transition services as defined under proposed Sec. 361.5(c)(42) or
other transition services. Proposed Sec. 361.29(a)(1)(i)(D)(2) would
require that the State plan include an assessment of the needs for
transition services and pre-employment transition services and the
extent to which VR services are coordinated with services provided
under IDEA in order to meet the needs of individuals with disabilities.
The proposed Sec. 361.29(d)(4) would require that the State plan
include strategies to
[[Page 21080]]
provide pre-employment transition services.
Reasons: These proposed changes are necessary to implement the
amendments to the Act made by WIOA. These proposed changes reflect the
Act's emphasis on transition-related issues affecting students and
youth with disabilities.
Development of the Individualized Plan for Employment (Sec. 361.45)
Statute: None.
Current Regulations: Current Sec. 361.45(d)(9) requires that an
individualized plan for employment be developed in consideration of a
student with a disability's individualized education program under
IDEA. There is no reference to 504 services in this context.
Proposed Regulations: We propose to amend current Sec.
361.45(d)(9)(i) to incorporate consideration of a student's section 504
services.
Reasons: This proposed change is necessary to implement the
amendments to the Act made by WIOA with regard to the addition of a
definition of ``student with a disability.'' Because a student with a
disability could be an individual who is receiving services under
section 504 rather than under an individualized education program
pursuant to IDEA, we believe this proposed change is essential to
ensure consistent implementation of all requirements affecting students
with disabilities.
Content of the Individualized Plan for Employment (Sec. 361.46)
Statute: As amended by WIOA, section 102(b)(4)(A) of the Act
permits an individualized plan for employment to contain a specific
post-school employment outcome or a more general, projected outcome.
Section 102(b)(4)(B) requires the individualized plan for employment
for a student with a disability to include the specific transition
services needed by the student for the achievement of the employment
goal.
Current Regulations: Current Sec. 361.46 outlines the components
of an individualized plan for employment, but does not contain specific
requirements related to transition since these are new statutory
requirements.
Proposed Regulations: We propose to revise current Sec.
361.46(a)(1) to permit, in lieu of a specific employment goal, a
description of an eligible student's or youth's projected post-school
employment outcome.
Proposed Sec. 361.46(a)(2)(ii) would require that the description
of the specific VR services under proposed Sec. 361.48 include the
specific transition services and supports needed for an eligible
student with a disability or youth with disability to achieve an
employment outcome or projected post-school employment outcome.
Reasons: These changes are necessary to implement the amendments
made to the Act by WIOA. By permitting the individualized plan for
employment for a student or youth with a disability to include a
projected, or generally described, rather than a specific employment
goal, we recognize that some students and youth with disabilities,
particularly those of a younger age, may not have formulated a specific
employment goal when they begin the VR process. As a result, VR
agencies may find it necessary to amend the individualized plan for
employment to reflect career exploration consistent with vocational
growth and development and the resulting evolution in the student's or
youth's employment goal. However, VR agencies should continue to work
with students and youth who have identified a specific employment goal,
especially those who are older, to develop individualized plans for
employment that contain a specific goal. For students and youth who
have yet to identify a specific employment goal, this change would
remove the need for these frequent amendments. However, the inclusion
of a projected employment goal in the individualized plan for
employment would not eliminate the responsibility of the VR counselor
and student to amend the individualized plan for employment and the VR
services needed to achieve that goal as the employment goal changes.
Scope of Vocational Rehabilitation Services for Individuals With
Disabilities (Sec. 361.48)
Pre-Employment Transition Services
Statute: WIOA amends the Act by including a new section 113 that
requires VR agencies to coordinate with local educational agencies in
providing, or arranging for the provision of, pre-employment transition
services to students with disabilities who are eligible or potentially
eligible for VR services and in need of such services. Section 110(d)
requires States to reserve 15 percent of their VR allotment to provide
these services.
Current Regulations: None.
Proposed Regulations: We propose to add regulations implementing
the provision of pre-employment transition services in a new paragraph
in proposed Sec. 361.48(a). The current regulations will be moved to a
new paragraph (b) in Sec. 361.48.
Proposed Sec. 361.48(a)(1) would permit pre-employment transition
services to be provided to all students with disabilities regardless of
whether they have applied for VR services and would clarify that
similar transition services are available to youth with disabilities
under proposed Sec. 361.48(b) when specified in an individualized plan
for employment.
Proposed Sec. 361.48(a)(2) would specify the required pre-
employment transition services that are provided directly to students
with disabilities.
Proposed Sec. 361.48(a)(3) would describe the authorized
activities that the State may provide, if sufficient funds are
available, to improve the transition of students with disabilities from
school to postsecondary education or an employment outcome.
Proposed Sec. 361.48(a)(4) would describe the responsibilities for
pre-employment transition coordination to be carried out by VR
agencies.
Finally, proposed Sec. 361.48(a)(5) would support DSUs in
providing pre-employment transition services, consulting with other
Federal agencies, and identifying best practices of the States for the
provision of transition services to students with a variety of
disabilities.
Reasons: The proposed regulations in Sec. 361.48(a) would
implement the requirements of section 113 of the Act, which were added
by WIOA. This new section presents an innovative approach to providing
pre-employment transition services to students with disabilities.
The services required by this section are those that would be most
beneficial to an individual in the early stages of employment
exploration. These services are designed to provide job exploration and
other services, such as counseling and self-advocacy training, in the
early stages of the transition process. To that end, we believe
Congress intended these services be provided to the broadest population
of students with disabilities to ensure that as many students with
disabilities as possible are given the opportunity to receive the
services necessary in order to achieve an employment outcome.
Therefore, the proposed regulation clarifies that pre-employment
transition services would be available to all students with
disabilities. However, it is important to note that a student with a
disability in this instance does not mean an individual with a
disability in postsecondary education. We believe this interpretation
is consistent with the statutory language ``all students with
disabilities who are eligible or
[[Page 21081]]
potentially eligible'' for VR services and intent, as well as the
definition of a ``student with a disability.'' As an individual with a
disability, every student with a disability satisfies at least one of
the eligibility criteria for VR services in current Sec. 361.42(a)(1).
In so doing, we would ensure that the broadest possible group of
students with disabilities is able to receive the services they need to
better identify and prepare for post-school activities, including
postsecondary education and competitive integrated employment. We do
not believe that a student with a disability would have to apply for,
or be determined eligible for, VR services prior to receiving pre-
employment transition services under proposed Sec. 361.48(a). However,
if the student does apply for VR services, he or she would be subject
to all relevant requirements for eligibility and order of selection, as
applicable, for purposes of receiving other VR services.
It is important to point out, in this context, that the definition
in proposed Sec. 361.5(c)(51) of a ``student with a disability,'' for
purposes of the VR program, is broader than the definition used under
IDEA. For that reason, the VR agency may provide pre-employment
transition services under this section to a broader group of students
than could receive such services under IDEA since VR agencies may
provide these services to students eligible for or receiving section
504 services, not all of whom may be eligible for or receiving special
education or related services under IDEA.
We are particularly interested in receiving comments and
alternative suggestions about the interpretation of ``potentially
eligible'' as used in section 113(a) of the Act to mean all students
with disabilities as defined under proposed Sec. 361.5(c)(51).
In providing pre-employment transition services, a DSU may consider
providing these services to students with disabilities in group
settings or on an individual basis. When provided in group settings,
these services are general in nature and are not typically customized
to an individual student's disability-related or vocational needs. For
example, job exploration counseling provided in group settings may
include the presentation of general local labor market composition and
information, administration of vocational interest inventories, and
instruction regarding self-advocacy and self-determination. On the
other hand, job exploration counseling provided on an individual basis
might include discussion of the student's vocational interest inventory
results and discussion of local labor market information that applies
to those interests.
The manner in which pre-employment transition services are
delivered (e.g., either in a group setting or on an individual basis)
will most likely depend on the amount of information the DSU has
available regarding the student with a disability at the time services
are provided. As a student progresses through the VR process by
applying, and being determined eligible, for VR services, the DSU would
obtain the information necessary to provide individually tailored
services that address the student's particular disability-related and
vocational needs. This aspect of pre-employment transition services,
the fact that they can be either generalized or individualized, further
highlights the continuum of services available under the VR program.
We want to make clear that if a student with a disability requires
services that are beyond the limited scope of pre-employment transition
services, the student would have to apply for and be determined
eligible for VR services and develop an individualized plan for
employment for the receipt of those services as would be true for any
other applicant. To that end, we encourage DSUs to work with the local
educational agencies and State educational agencies to develop a
process whereby individuals expressing interest in VR services are able
to access the program and apply for services in a timely manner. VR
agencies are encouraged to develop a referral process that is simple
and engaging, especially for students with disabilities and their
families who could become discouraged or disinterested in VR services
by needlessly complex and prolonged procedures. An individual may
initiate the application process by requesting individualized pre-
employment transition services and other VR services. Current Sec.
361.41(b)(2) permits a student or the student's representative, as
appropriate, to apply for VR services through a variety of means,
including a simple request for VR services, such as submitting a form
consenting to the provision of VR services or even a telephone call, so
long as the request contains the limited demographic and other
information necessary to begin an assessment for the determination of
eligibility and the student is available to participate in the
assessment.
Services for Individuals Who Have Applied for or Been Determined
Eligible for VR Services (Sec. 361.48(b))
Statute: Section 103(a)(15) of the Act, as amended by WIOA, adds
pre-employment transition services among the scope of VR services that
may be provided in accordance with an individual's individualized plan
for employment.
Current Regulations: Current Sec. 361.48 includes transition
services among the list of authorized activities. Pre-employment
transition services are not specifically mentioned because this is a
result of statutory changes.
Proposed Regulations: As discussed earlier, we propose to
reorganize current Sec. 361.48 so that all current provisions are
retained in proposed Sec. 361.48(b). We also propose to incorporate
along with those transition services already provided for, pre-
employment transition services among the authorized list of
individualized services a VR agency may provide under proposed Sec.
361.48(b)(18).
Reasons: This change is necessary to implement the amendments to
the Act made by WIOA. Under the VR program, any allowable service may
be provided as a transition service to an individual transitioning from
secondary school to postsecondary education or employment, who has been
determined eligible and for whom an individualized plan for employment
has been developed and approved. Services most commonly provided as
transition services to students with disabilities under an
individualized plan for employment include, but are not limited to,
assessments, counseling and guidance, assistive technology, job
coaching, orientation and mobility training, vocational counseling and
guidance, and vocational and other training services, such as personal
and vocational adjustment training.
It is important to note that many of the services described as pre-
employment transition services in proposed Sec. 361.48(a) were
previously provided as transition services, as defined in proposed
Sec. 361.5(c)(55), or other individualized services, including
community-based work experiences and other career exploration services,
even though no specific category of pre-employment transition services
was mentioned in the Act or current Sec. 361.48.
Scope of Vocational Rehabilitation Services for Groups of Individuals
With Disabilities (Sec. 361.49)
Statute: Section 103(b)(7) of the Act expands the scope of
allowable services
[[Page 21082]]
for the benefit of groups of individuals with disabilities to include
transition services for youth and students with disabilities. Other
technical changes were made in section 103(b)(6).
Current Regulations: Current Sec. 361.49(a) includes allowable
services for the benefit of groups of individuals with disabilities,
but does not include transition services since this is a new statutory
requirement.
Proposed Regulations: We propose to amend current Sec.
361.49(a)(6) to clarify that educational agencies referenced in current
regulations mean State or local educational agencies.
We also propose to add a new Sec. 361.49(a)(7) to incorporate
transition services to students and youth with disabilities as a
permissible service for the benefit of groups of individuals with
disabilities. This service would be provided in coordination with other
relevant agencies and providers.
Reasons: These changes are necessary to implement the amendments to
the Act made by WIOA. Under this new provision, VR agencies would be
able to engage in transition activities with some entities that have
not typically been involved in transition planning. As a service to
groups, these transition services would be provided in group settings
in a manner that benefits a group of students or youth with
disabilities, rather than being customized for any one individual.
Individualized transition services are provided under proposed Sec.
361.48(b).
Examples of group transition services may include, but are not
limited to, class tours of universities and vocational training
programs, employer or business site visits to learn about career
opportunities, career fairs coordinated with workforce development
systems and employers where students and youth participate in resume
writing classes and mock interviews. Additionally, these services are
not limited to those individuals who are still in school since section
103(b)(7) of the Act includes youth with disabilities between the ages
of 14-24 who may or may not be enrolled in secondary education.
DSUs will need to be mindful of the authority they are using when
providing these services since requirements differ for those transition
services provided under services to groups (see proposed Sec. 361.49)
or pursuant to an individualized plan for employment (see proposed
Sec. 361.48(b)) or as a pre-employment transition service under
proposed Sec. 361.48(a).
Services for Individuals Who Have Applied for and Been Determined
Eligible for Vocational Rehabilitation Services (Sec. 361.48(b))
Scope of Vocational Rehabilitation Services for Individuals With
Disabilities
Statute: WIOA amends section 103(a) of the Act by adding customized
employment to the list of VR services that may be provided to eligible
individuals under an individualized plan for employment. The amendments
also encourage qualified individuals who are eligible for VR services
to pursue advanced training in specified fields.
Current Regulations: Current Sec. 361.48 provides a non-exhaustive
list of VR services available to assist an individual with a disability
in preparing for, securing, retaining, or regaining an employment
outcome. Neither customized employment nor advanced training is
specified in this list because these are new statutory requirements.
Proposed Regulations: We propose to reorganize current Sec.
361.48. Proposed Sec. 361.48(a) incorporates new regulations governing
pre-employment transition services to students with disabilities, which
are required by section 113 of the Act. Proposed Sec. 361.48(b)
contains all of the services that are listed in current Sec. 361.48
and that are available to an eligible individual under an
individualized plan for employment.
Proposed Sec. 361.48(b)(6) would specify that advanced training in
a field of science, technology, engineering, or mathematics (including
computer science), medicine, law, or business may be provided to an
eligible individual receiving vocational and other training services
under an individualized plan for employment.
Finally, we propose to include customized employment as an
available VR service in proposed Sec. 361.48(b)(20).
We also propose to make other conforming changes throughout this
section.
Reasons: These changes are necessary to implement amendments to
section 103(a) of the Act made by WIOA. It has been our long-standing
policy that VR services are available to individuals with disabilities
to enable them to advance in employment and that financial support for
the graduate-level degrees specified in proposed Sec. 361.48(b)(6),
may be provided to eligible individuals when necessary to achieve
employment. The specific mention of this service in section 103(a) of
the Act and the proposed regulation underscores the importance of
advanced training when preparing individuals with disabilities for high
demand careers in today's economy.
Prior to enactment of WIOA, customized employment was an available
service under the VR program when necessary to assist the eligible
individual to achieve an employment outcome. See the discussion of
customized employment in the Applicable Definitions section for further
information.
Scope of Vocational Rehabilitation Services for Groups of Individuals
With Disabilities (Sec. 361.49(a))
Statute: Section 103(b) of the Act makes several changes with
regard to the services to groups that VR agencies may provide,
including those related to technical assistance to businesses,
assistive technology, and advanced training in specific fields of
study.
Current Regulations: Current Sec. 361.49(a) describes the services
that VR agencies may provide for the benefit of groups, but they do not
specifically address services related to assistive technology or
advanced training, or other changes made by WIOA.
Proposed Regulations: We propose to amend current Sec.
361.49(a)(1), regarding the establishment, development, or improvement
of a community rehabilitation program, to clarify that services
provided under this authority must be used to promote competitive
integrated employment, including customized and supported employment.
We propose to amend current Sec. 361.49(a)(4) to incorporate
statutory changes that expand a VR agency's authority to provide
technical assistance to all businesses who are considering hiring
individuals with disabilities.
We propose to add new Sec. 361.49(a)(8) and (9) regarding services
related to assistive technology and advanced training, respectively, to
reflect new statutory authorities for these services.
We also propose to make other conforming changes throughout this
section.
Reasons: These changes are necessary to implement statutory
changes, which both expand the types of services that a VR agency may
provide for the benefit of groups of individuals with disabilities and
provide clarification as needed.
The proposed changes in Sec. 361.49(a)(1) regarding the
establishment, development, or improvement of a community
rehabilitation program are primarily for clarification purposes.
Services provided under this authority have always been for the purpose
of promoting integration into the community with respect to
[[Page 21083]]
employment. However, the proposed changes highlight the statute's
heightened emphasis on competitive integrated employment, supported
employment, and customized employment.
Proposed changes to current Sec. 361.49(a)(4) would permit VR
agencies to provide technical assistance to all businesses who are
considering hiring individuals with disabilities. This technical
assistance could assist businesses with recruitment, hiring,
employment, and retention, including resources and tools to help with
accessing and use of assistive technology, workplace accessibility, and
accommodations for individuals with disabilities. VR agencies can work
with businesses to develop systems for the matching and training of
qualified workers with job requirements. Previously, a VR agency could
provide such services only to those businesses that are not subject to
title I of the Americans with Disabilities Act of 1990. This proposed
change is also consistent with the heightened emphasis throughout WIOA
on employer engagement, especially with regard to assisting individuals
with disabilities to enter competitive integrated employment.
Proposed new Sec. 361.49(a)(8) would incorporate a new statutory
authority for VR agencies to provide assistive technology-related
services for the benefit of groups of individuals with disabilities. VR
agencies may now establish, develop, or improve assistive technology
programs. This new authority would expand access to assistive
technology for individuals with disabilities and employers in
recognition of the critical role it plays in the vocational
rehabilitation and employment of individuals with disabilities.
However, we believe that this authority should be implemented in a
manner that is consistent with the authority to establish, develop, or
improve a community rehabilitation program in proposed Sec.
361.49(a)(1) in that the services provided under this authority should
be limited to applicants and eligible individuals receiving VR
services. In so doing, this authority would be used in coordination
with, rather than to supplant, the activities otherwise provided under
the Assistive Technology Act.
We also want to make clear that the assistive technology services
provided under this authority would be distinguished from those
provided under proposed Sec. 361.48(b), which are individualized and
provided pursuant to an individual's plan for employment. The assistive
technology services provided under proposed Sec. 361.49(a)(8) are for
the benefit of a group of individuals and are not tied to the
individualized plan for employment of any one individual. For example,
a DSU may, in coordination with the State's assistive technology grant
program, use VR funds to support an assistive technology lending
library in proportion to the benefit received by applicants and
eligible individuals. Once an eligible individual needs a specific
assistive technology device to participate in VR services or the
employment outcome, the DSU could provide the device as an
individualized service under an individualized plan for employment
pursuant to proposed Sec. 361.48(b).
Proposed Sec. 361.49(a)(9) would implement a new authority for VR
agencies to provide support for advanced training in a manner that
benefits groups of eligible individuals. Before WIOA was enacted, a DSU
could provide this service only on an individualized basis, pursuant to
an individual's individualized plan for employment, in accordance with
proposed Sec. 361.48(b), which remains unchanged in this context. This
new authority is in addition to that provided under proposed Sec.
361.48(b) and is not intended to replace such services as being
provided on an individualized basis.
Under this new authority, VR agencies may provide support services
to eligible individuals who meet specific criteria and are pursuing
advanced training in specific fields, as a service for the benefit of a
group of individuals with disabilities. Examples of when a DSU may
consider providing such support services, not directly related to an
individualized plan for employment, could include the enrollment of
multiple students determined eligible for VR services in the same
training, or the development and implementation of specific programming
for eligible individuals with an institution of higher education or
community provider. Furthermore, VR agencies could consider
establishing a scholarship fund for advanced training in science,
technology, engineering or mathematics (STEM) or other fields as
described in section 103(b)(9) of the Act. These funds may support the
costs of graduate level training not covered by any other source for
those services, including support provided by the VR program under
proposed Sec. 361.48(b). If a DSU establishes such scholarships, it
should consider establishing criteria governing the receipt of such
support, including merit and other competitive criteria.
We want to make clear that DSUs should continue to provide any
individualized advanced training support that an eligible individual
requires in order to achieve an employment outcome in competitive
integrated employment, and that is consistent with the individual's
plan for employment, under proposed Sec. 361.48(b), not under the
services to groups authority discussed here. For that reason, we
believe there would only be limited circumstances in which it would be
appropriate for a DSU to provide support for advanced training under
proposed Sec. 361.49(a)(9). Given that this service may be provided as
either an individualized service under proposed Sec. Sec. 361.48(b) or
361.49(a)(9), DSUs would have to keep in mind the distinctions between
the two different authorities to ensure proper implementation and
record-keeping for reporting purposes.
Comparable Services and Benefits (Sec. 361.53)
Statute: Section 101(a)(8) of the Act clarifies that accommodations
and auxiliary aids and services are included in the requirement to
determine whether comparable services and benefits are available prior
to the DSU providing most VR services. In addition, section
101(a)(8)(B) is amended to clarify that interagency agreements for
coordination of services between the DSU and other public entities in
the State, including institutions of higher education, should
specifically address accommodations and auxiliary aids and services
among the services to be coordinated.
Current Regulations: Current Sec. 361.53 sets forth the
requirements related to comparable services and benefits, as well as
requirements related to interagency agreements, without specifically
identifying accommodations and auxiliary aids and services.
Proposed Regulations: We propose to add language to Sec. Sec.
361.53(a) and 361.53(d)(1) and (3) that would include accommodations
and auxiliary aids and services among the VR services that would
require the determination of the availability of comparable services
and benefits prior to the provision of such services to an eligible
individual. The proposed changes also would address interagency
coordination of the provision of these services.
Reasons: The proposed changes reflect the clarifications in section
101(a)(8) of the Act made by WIOA. WIOA reinforces the Department's
longstanding position that accommodations and auxiliary aids and
services are considered to be part of the
[[Page 21084]]
determination of the availability of comparable services and benefits
and the services to be coordinated through the required interagency
agreements with public entities should include accommodations and
auxiliary aids and services. The changes to section 101(a)(8) of the
Act and proposed Sec. 361.53 make this interpretation explicit.
The need for the DSU to coordinate the provision of accommodations
and auxiliary aids and services often occurs when serving eligible
individuals attending institutions of higher education for
postsecondary training and education. Both DSUs and public institutions
of higher education must adhere to the requirements of title II of the
Americans with Disabilities Act and section 504 of the Rehabilitation
Act to ensure access to their services for individuals with
disabilities. Additionally, private institutions of higher education
must adhere to requirements of section 504 of the Act to ensure access
to their services for individuals with disabilities. Accordingly, the
responsibilities of each entity for the provision of accommodations and
auxiliary aids and services to individuals served by each must be
determined at the State level. Therefore, the interagency agreement
under proposed Sec. 361.53(d) would ensure interagency coordination
and describe the responsibilities of the DSU and the institutions of
higher education for the provision of VR services, including
accommodations and auxiliary aids and services, and would provide a
vehicle for resolving interagency disputes. To that end, Governors
could assist the DSUs and institutions of higher education, in
accordance with section 101(a)(8)(B) of the Act, to develop these
agreements to ensure they are sufficient for ensuring individuals with
disabilities receive the services they need, including accommodations
and auxiliary aids and services, to enable them to achieve competitive
integrated employment. The Rehabilitation Act requires DSUs to enter
into interagency agreements for coordination of services (including
each agency's financial responsibilities) with institutions of higher
education, as well as other public entities. DSUs have experienced
difficulty engaging with institutions of higher education, and other
public agencies, for the purpose of developing the required interagency
agreements. In addition, DSUs and institutions of higher education have
often executed interagency agreements that do not clearly describe the
manner in which services will be coordinated, particularly the
accommodations and auxiliary aids and services that each agency will be
responsible to provide. The lack of specificity in these agreements, in
turn, does not provide adequate guidance to higher education or VR
personnel responsible for carrying out their responsibilities to
provide such aids and devices to assist individual students with
disabilities. Such guidance is crucial when a particular service could
be provided by either the DSU or institution of higher education in
accordance with their mutual obligations under the Americans with
Disabilities Act and section 504 of the Act to ensure the ability of
individuals with disabilities to participate in educational programs
and activities, and the timely delivery of VR services.
We believe that the terms of the interagency agreement should take
into account State laws and the resources of each party. For example,
an interagency agreement could include a term that could require
institutions of higher education to provide auxiliary aids and services
(e.g., interpreters) to VR eligible individuals in the classroom and
the DSUs could provide these aids and services during educational
activities outside the classroom. In States where students who are deaf
or blind and attend a State university tuition-free, the interagency
agreement could specify that the DSU provide auxiliary aids and
services, such as reader and interpreter services, both in and out of
the classroom, since the school is responsible for the full cost of
tuition. Greater specificity in the terms of the interagency agreements
at the State level will promote consistency across the State in the
coordination of services and in the provision of accommodations and
auxiliary aids and services to eligible individuals attending
institutions of higher education.
Finally, we want to make clear that accommodations and auxiliary
aids and services, for purposes of implementing the requirements of
section 101(a)(8) and these proposed regulations, do not include
personally prescribed devices, such as eye glasses, hearing aids,
wheelchairs, or other such individually-prescribed devices and
services.
Semi-Annual Review of Individuals in Extended Employment and Other
Employment Under Special Certificate Provisions of the Fair Labor
Standards Act (Sec. 361.55)
Statute: Section 101(a)(14) of the Act, as amended by WIOA,
increases the frequency of reviews that the DSUs must conduct when
individuals with disabilities, who have been served by the VR program,
obtain subminimum wage employment or extended employment.
Current Regulations: Current Sec. 361.55 requires the DSU to
conduct an annual review and re-evaluation annually for the first two
years after an individual obtains subminimum wage employment or
extended employment.
Proposed Regulations: We propose to amend Sec. 361.55 to
incorporate the new statutory requirement that these reviews be
conducted semi-annually for the first two years of the individual's
employment and annually thereafter. We also propose to make other
technical and conforming changes throughout.
Reasons: The proposed changes are necessary to implement new
statutory requirements and ensure individuals with disabilities do not
languish in subminimum wage employment or extended employment. Prior to
the passage of WIOA, DSUs conducted these reviews annually for two
years. With the amendments made by WIOA, DSUs must conduct these
reviews twice a year for two years and then annually thereafter for as
long as the individual remains employed at the subminimum wage level or
in extended employment. These changes are consistent with the
heightened emphasis throughout WIOA that individuals with disabilities,
including those with the most significant disabilities, be given every
opportunity to achieve competitive integrated employment.
Matching Requirements (Sec. 361.60)
Statute: Section 101(a)(3) of the Act requires the State to pay a
non-Federal share in carrying out the VR program. Section 7(14) of the
Act defines ``Federal share'' as 78.7 percent. These statutory
provisions remain unchanged by WIOA.
Current Regulations: Current regulations in Sec. 361.60(b) outline
the requirements for satisfying the non-Federal share requirement under
the VR program.
Proposed Regulations: We propose to amend current (b)(3) to clarify
that non-Federal expenditures, for match purposes under the VR program,
from private contributions must be made from cash contributions that
have been deposited in the VR agency's account prior to their use for
this purpose. We also propose to make conforming changes throughout
current Sec. 361.60 to refer to 2 CFR part 200, as applicable and to
new terms, such as the ``vocational rehabilitation services portion of
the Unified or Combined State Plan'' and ``subaward.''
Reasons: Proposed Sec. 361.60(b)(3) makes no substantive changes
but
[[Page 21085]]
would clarify existing regulatory requirements pertaining to
expenditures made from private contributions and used for match
purposes under the VR program. Specifically, we would clarify that
contributions by private entities must be in cash and that the funds
must be deposited into the State agency's account before they are used
for match purposes under the VR program. In so doing, we make two
points clear: (1) Certified expenditures made by private entities or
individuals may not be used by the VR agency for match purposes under
the VR program; and (2) a contract, budgeted projection, or any other
promise by a private entity or individual to make a contribution may
not be used, on its face, by the VR agency for satisfying its match
requirement. The VR agency must actually receive the cash contribution
before it may be used for match purposes under the VR program. We
believe these clarifications are necessary to ensure VR agencies have a
better understanding of, and comply with these existing requirements.
Finally, other revisions proposed throughout this section are necessary
to conform to other changes proposed throughout part 361.
Maintenance of Effort Requirements (Sec. 361.62)
Statute: Section 111(a)(2)(B) of the Act, as amended by WIOA,
requires the Secretary to reduce a grant in a fiscal year for any prior
fiscal year's Maintenance of Effort (MOE) shortfall.
Current Regulations: Current Sec. 361.62(a) requires the Secretary
to reduce the grant in the fiscal year immediately following the fiscal
year with the MOE deficit. In the event that the MOE deficit is
discovered after the next fiscal year's grant was awarded, the
Secretary is required to seek a remedy for the MOE violation pursuant
to the disallowance process.
Proposed Regulations: We propose to amend current Sec. 361.62(a)
in four ways: (1) By amending current Sec. 361.62(a)(1) to require the
Secretary to reduce a grant in any fiscal year by the amount of any
prior fiscal year's MOE shortfall; (2) by removing the example in
current Sec. 361.62(a)(1) as it is no longer applicable, given
statutory amendments; (3) by removing current Sec. 361.62(a)(2) since
it is no longer necessary given new statutory requirements t; and (4)
by redesignating current Sec. 361.62(a) to reflect the removal of
current Sec. 361.62(a)(2).
We propose to amend current Sec. 361.62(b) by removing the
requirement for the Secretary to recover the MOE deficit through an
audit disallowance process.
We propose to amend the current Sec. 361.62(d)(3) to clarify that
a request for a waiver or modification of the MOE requirement must be
submitted as soon as the State has determined that it has failed to
satisfy the requirement due to an exceptional or uncontrollable
circumstance. Finally, we propose to make conforming changes throughout
current Sec. 361.62 to reflect the restructuring of paragraph (a).
Reasons: The proposed changes to current Sec. 361.62(a) are
necessary to implement the amendments to the Act made by WIOA.
Previously, the Secretary could reduce the State's VR award to satisfy
a MOE deficit only in the fiscal year immediately following the fiscal
year in which the MOE deficit occurred. In the event the MOE deficit
was discovered after the next fiscal year's grant was awarded, the
Secretary was required to seek recovery for the MOE deficit pursuant to
a disallowance process, whereby, the State was required to make payment
for that recovery action with non-Federal funds. Under the proposed
regulations the Secretary would no longer be limited to reducing only
the next fiscal year's grant, but rather could reduce any subsequent
fiscal year's grant to satisfy the MOE deficit. Therefore, in the event
that a MOE shortfall is revealed after the next fiscal year's grant has
been awarded, the Secretary would reduce the Federal grant in another
subsequent fiscal year. Consequently, it is no longer necessary for the
Secretary to seek recovery through a disallowance process and for a
State to use non-Federal funds to satisfy the deficit. The proposed
change to current Sec. 361.62(b) is necessary to ensure consistency
with paragraph (a) for purposes of satisfying a MOE deficit.
The change in proposed Sec. 361.62(d)(3) is necessary for
clarification purposes. The proposed change would not substantively
revise the requirements related to submitting a request for a MOE
waiver or modification, but rather would add clarifying language to
existing requirements. Some States have interpreted the existing
regulation as meaning that the request should be submitted as soon as
they anticipate that they would be unable to satisfy the MOE
requirement, even if that was years in advance. We have always
interpreted paragraph (d)(3) as meaning that the request should be
submitted as soon as the State has determined it has not satisfied the
MOE requirement. The proposed change provides further clarification.
Program Income (Sec. 361.63)
Statute: None.
Current Regulations: Current Sec. 361.63 defines program income
and lists potential sources of program income and uses for purposes of
the VR program.
Proposed Regulations: We propose to amend current Sec. 361.63(a)
to make the definition of program income consistent with 2 CFR 200.80.
We propose to amend current Sec. 361.63(b) by providing additional
examples of common sources of program income generated by the VR
program.
We propose to amend current Sec. 361.63(c)(1) to clarify that
program income must be disbursed during the period of performance of
the award to be consistent with 2 CFR 200.77, which defines the period
of performance of the award as the time during which the non-Federal
entity may incur new obligations to carry out the work authorized under
the Federal award.
We propose to amend current Sec. 361.63(c)(2) to reflect statutory
restructuring of title VI of the Act.
Finally, we propose to amend current Sec. 361.63(c)(3) to be
consistent with 2 CFR 200.307(e)(1) and (2).
Reasons: The proposed changes to current Sec. 361.63 are necessary
for clarification purposes and to ensure consistency with other
relevant requirements, especially those contained in 2 CFR part 200.
Allotment and Payment of Federal Funds for Vocational Rehabilitation
Services (Sec. 361.65)
Statute: Section 110(d) of the Act, as amended by WIOA, requires VR
agencies to reserve not less than 15 percent of the State's VR
allotment for the provision of pre-employment transition services, in
accordance with section 113 of the Act. Section 110(d)(2) of the Act
prohibits a State from using these reserved funds to pay for
administrative costs or any other VR service.
Current Regulations: Current Sec. 361.65 specifies the process the
Secretary uses to allot and reallot Federal funds, but does not address
the reservation by States of funds for the provision of pre-employment
transition services since this is a new statutory requirement.
Proposed Regulations: We propose to amend current Sec. 361.65(a)
by adding a new paragraph (3) to implement the new statutory
requirement for a State to reserve not less than 15 percent of its VR
allotment for the provision of pre-employment transition services. The
proposed provision would make clear
[[Page 21086]]
that such reserved funds must be used only for services authorized in
proposed Sec. 361.48(a), and must not be used to pay for
administrative costs associated with the provision of such services or
for any other VR service.
We propose to amend current Sec. 361.65(b)(2) by revising the
language to clarify that reallotment would occur in the fiscal year the
funds were appropriated; however, the funds may be obligated or
expended during the period of performance, provided matching
requirements are met. We propose to add a new paragraph (b)(3) to
current Sec. 361.65 that would give the Secretary the authority to
determine the criteria to be used to reallot funds when the amount
requested exceeds the amount of funds relinquished.
Finally, we propose other technical and conforming changes
throughout this section.
Reasons: The proposed changes to current Sec. 361.65(a) are
necessary to implement new statutory requirements related to the
reservation of Federal funds for the provision of pre-employment
transition services. We make clear that the funds to be reserved are
those awarded to the State pursuant to section 110 of the Act and do
not refer to an allotment of State funds awarded by the State.
None of the funds reserved for the provision of pre-employment
transition services in accordance with section 110(d) may be used to
pay for administrative costs or any other VR service. These funds must
be used solely for the provision of services described in Sec.
361.48(a) of this part. We want to make clear that States must use the
entire amount reserved solely for the provision of pre-employment
transition services in accordance with section 113 of the Act and Sec.
361.48(a) of this part.
The proposed change to current Sec. 361.65(b)(2) is necessary to
ensure consistency with 2 CFR 200.77.
The change in proposed Sec. 361.65(b) is necessary to inform
grantees about the reallotment process in the event there are more
requests for reallotment funds than are available to satisfy those
requests.
Part 363--The State Supported Employment Services Program
Proposed substantive changes to part 363 are presented in a format
that highlights topical areas in the order that the relevant sections
appear in this part.
Competitive Integrated Employment (Sec. 363.1)
Statute: Section 7(38) of the Act, as amended by WIOA, revises the
definition of ``supported employment'' to mean, in pertinent part,
employment with supports in competitive integrated employment or, if
not in competitive integrated employment, employment in an integrated
setting in which the individual is working toward competitive
integrated employment on a short-term basis, not to exceed six months.
Other key relevant statutory provisions include section 7(5), which
defines competitive integrated employment; section 602, which makes
clear the purpose of the Supported Employment program is to enable
individuals with the most significant disabilities, including youth
with the most significant disabilities, to achieve supported employment
in competitive integrated employment; and section 604, which authorizes
the services to be provided under the Supported Employment program to
enable individuals to achieve supported employment in competitive
integrated employment. Title VI contains references to this requirement
throughout.
Current Regulations: Current Sec. 363.1 sets out the purpose of
the Supported Employment program, which is to assist States in
developing and implementing collaborative programs with entities to
provide supported employment services for individuals with the most
severe disabilities who require such services to enter or retain
competitive employment. Current regulations do not reference
competitive integrated employment or working towards competitive
integrated employment since these are new statutory requirements.
Proposed Regulations: We propose to amend current Sec. 363.1 to
reflect the revised statutory definition of ``supported employment,''
namely that the employment be in competitive integrated employment or,
if it is not, that the employment be in an integrated setting in which
the individual with a most significant disability is working toward
competitive integrated employment on a short-term basis.
As proposed, the regulations would make clear that the purpose of
the Supported Employment program is to enable individuals with the most
significant disabilities, with on-going supports, to achieve
competitive integrated employment (i.e., employment in an integrated
setting that is compensated at or above the minimum wage).
The proposed definition of ``supported employment'' would take into
account that under some circumstances an individual's employment, which
must always be in an integrated setting, may not meet all of the
criteria for competitive integrated employment initially. In those
circumstances, an individual with a most significant disability would
be considered to have achieved an employment outcome of supported
employment if he or she is working in an integrated setting, on a
short-term basis, toward competitive integrated employment. In the
proposed definition, we would interpret ``short-term basis'' in this
context to mean within six months of the individual entering supported
employment.
We also propose to amend current Sec. 363.50(b)(3) and (b)(4) to
state that the collaborative agreements developed with other relevant
entities for providing supported employment services and extended
services may include efforts to increase opportunities for competitive
integrated employment for individuals with the most significant
disabilities, including youth with the most significant disabilities.
Finally, we propose to amend the balance of current Sec. 363.50 to
reflect in the States' required collaborative agreements the new scope
and purpose of supported employment, as well as the new time limits for
providing services that are discussed in detail under the sections
``Services to Youth with the Most Significant Disabilities'' and
``Extension of Time for the Provision of Supported Employment
Services.''
Reasons: The proposed revisions are necessary to implement in part
363 the statutory changes made by WIOA. We believe these proposed
changes are consistent with the purpose of the Supported Employment
program, as expressed throughout title VI of the Act. The proposed
changes are also consistent with proposed changes to part 361, which
governs the vocational rehabilitation (VR) program, since the supported
employment program is supplemental to that program. In particular, we
propose to establish a specific time frame--e.g., six months--for
``short term basis'' in the context of ``supported employment,''
because we believe it is necessary to limit the time allowed for
individuals to work in non-competitive employment in order to be
consistent with the clear intention of the Act, as amended by WIOA,
which places heightened emphasis on competitive integrated employment
throughout.
Services to Youth With the Most Significant Disabilities (Sec. Sec.
363.6 and 363.54)
Statute: Section 603(d) of the Act, as amended by WIOA, requires
each State to reserve and use 50 percent of its allotment under the
Supported
[[Page 21087]]
Employment program to provide supported employment services, including
extended services, to youth with the most significant disabilities.
Other relevant statutory provisions are found in section 602, which
highlights services to youth with the most significant disabilities in
the purpose section of title VI; section 604, which authorizes services
specifically for youth with the most significant disabilities; section
605, which identifies youth with the most significant disabilities as
eligible for supported employment services; and section 606, which
establishes certain State plan requirements specific for services to
youth with the most significant disabilities.
Current Regulations: None.
Proposed Regulations: We propose to amend multiple sections in part
363 to incorporate these new requirements for providing supported
employment services, including extended services, to youth with the
most significant disabilities.
We propose to amend current Sec. 363.1 to state that a purpose of
the Supported Employment program is to provide individualized supported
employment services, including extended services in an integrated
setting, to youth with the most significant disabilities in order to
assist them in achieving supported employment in competitive integrated
employment.
We propose to amend current Sec. 363.3 to clarify that youth with
the most significant disabilities are eligible to receive supported
employment services. It is important to note that youth have always
been eligible to receive supported employment services; however,
amendments made by WIOA emphasize this population in the context of the
Supported Employment program.
In proposed Sec. 363.4(a) and (b), we would implement new
statutory provisions permitting the expenditure of supported employment
program funds, reserved for the provision of supported employment
services to youth with the most significant disabilities on extended
services to youth with the most significant disabilities for up to four
years following the transition from support from the designated State
unit (DSU). We propose to amend current Sec. 363.4(c) to clarify that
nothing in this part is to be construed as prohibiting the VR program
from providing extended services to youth with the most significant
disabilities with funds allotted under part 361.
In proposed Sec. 363.4(d), we would set out the statutory
requirement that a State must coordinate its supported employment
services with its VR services provided under part 361 in order to avoid
duplication.
We propose to amend current Sec. 363.11 to incorporate supported
employment services, including extended services, for youth with the
most significant disabilities into the existing requirements for the VR
services portion of the Unified or Combined State Plan supplement.
We propose a new Sec. 363.22, which would implement the new
statutory requirement that a State must reserve and use half of its
allotment under the supported employment program for the provision of
supported employment services, including extended services, to youth
with the most significant disabilities.
We propose changes throughout part 363 to conform to new statutory
nomenclature, such as referring to ``the vocational rehabilitation
services portion of the Unified or Combined State Plans'' in Sec. Sec.
363.10 and 363.11, instead of just ``the State plan,'' and ``the most
significant disabilities'' instead of ``severe disabilities.''
Reasons: The proposed revisions are necessary to implement in part
363 statutory changes made by WIOA. The proposed changes are also
consistent with proposed changes to part 361, which governs the VR
program, since the Supported Employment program is supplemental to that
program. Specifically, the proposed changes are consistent with the
heightened emphasis throughout the Act, as amended by WIOA on the
provision of services to youth with disabilities, especially those with
the most significant disabilities, to ensure they receive the services
and supports necessary to achieve competitive integrated employment.
Accordingly, the proposed changes would implement the statutory
requirement that States must reserve half of their supported employment
allotment for the provision of supported employment services, including
extended services, to youth with the most significant disabilities.
This new statutory requirement reflects the fact that this particular
population may need more intensive services for a longer period of time
in order to achieve competitive integrated employment. It is important
to note that, prior to the passage of WIOA, States were not permitted
to use supported employment and/or VR program funds to provide extended
services under any circumstance. States still are prohibited from
providing extended services to individuals who are not youth with the
most significant disabilities.
Extension of Time for the Provision of Supported Employment Services
(Sec. Sec. 363.6 and 363.54)
Statute: Section 7(39) of the Act, as amended by WIOA, revises the
definition of ``supported employment services'' to mean those on-going
supports provided for a period of time not to exceed 24 months.
Current Regulations: Current Sec. 363.6 defines ``supported
employment services'' as ongoing services provided by the DSU for a
limited period of time to achieve job stabilization and assist an
individual with the most severe disability before the transition to
extended services. The current regulations do not reference the 24-
month time limit for the provision of services since this is a new
statutory requirement.
Proposed Regulations: We propose to amend the definition of
``supported employment services'' in part 361, which will be
incorporated by reference throughout part 363. The proposed definition
would extend the time allowed for the provision of supported employment
services from 18 months to 24 months.
We also propose to update and streamline current Sec. 363.6 by
removing the current set of definitions and inserting, instead, cross-
references to relevant definitions from other parts of the Department's
regulations.
We propose to amend current Sec. 363.53 to require that an
individual must transition to extended services within 24 months of
starting to receive supported employment services unless a longer time
period is agreed to in the individualized plan for employment. The
proposed regulation would specify conditions that must be met before a
DSU assists an individual in transitioning to extended services, such
as ensuring the individual is engaged in supported employment that is
in competitive integrated employment, or in an integrated work setting
in which the individual is working on a short-term basis toward
competitive integrated employment, and the employment is customized for
the individual consistent with his or her strengths, abilities,
interests, and informed choice. Administratively, the State unit would
also have to identify the source of extended services and meet all
requirements for case closure.
Reasons: The proposed revisions are necessary to implement in part
363 statutory changes made by WIOA. The proposed changes are also
consistent with proposed changes to part 361, which governs the VR
program, since
[[Page 21088]]
the Supported Employment program is supplemental to that program.
Match Requirements for Funds Reserved for Serving Youth With the Most
Significant Disabilities (Sec. 363.23)
Statute: Section 606(b)(7)(I) of the Act, as amended by WIOA,
requires that a State provide non-Federal contributions in an amount
not less than 10 percent of the costs of providing supported employment
services, including extended services, to youth with the most
significant disabilities. States are also authorized to leverage public
and private funds.
Current Regulations: None.
Proposed Regulations: We propose to add a new Sec. 363.23 to
implement these new statutory requirements. In the event that a
designated State agency uses more than 50 percent of its allotment to
provide supported employment services to youth with the most
significant disabilities as required by Sec. 363.22, there is no
requirement that a designated State agency provide non-Federal
expenditures to match the excess Federal funds spent for this purpose.
In this proposed new section, we would clarify, to ensure consistency
with part 361, that third-party in-kind contributions are not
permitted, but contributions by private entities are permitted, for
match purposes under the Supported Employment program.
We propose to amend Sec. 363.4(a)(3) to implement the new
statutory provision authorizing States to use funds reserved for youth
with the most significant disabilities to leverage other public and
private funds to increase resources for extended services and expand
supported employment opportunities for youth with the most significant
disabilities.
We also propose to amend Sec. 363.11(g)(9) to incorporate both the
new match requirement and the description of the activities surrounding
how the State will leverage funds reserved for youth with the most
significant disabilities into the assurances that a State must submit
as part of its supported employment State plan supplement.
Reasons: The proposed revisions are necessary to implement in part
363 statutory changes made by WIOA. The proposed changes are also
consistent with proposed changes to part 361 governing the VR program
since the Supported Employment program is supplemental to that program.
Given the new statutory requirement that States provide a 10 percent
match on the funds reserved for providing supported employment services
to youth with the most significant disabilities, coupled with the fact
that States may use VR funds to supplement the provision of supported
employment services, we believe it is important to ensure the match
requirements under the Supported Employment program are consistent with
those under the VR program. To that end, we propose that third-party
in-kind contributions would not be a permissible source of match under
the Supported Employment program, since it is not permitted under the
VR program. In so doing, we reduce the administrative burden on States
from having to distinguish whether a match source is applicable to the
supported employment funds verses the VR funds.
Program Income (Sec. 363.24)
Statute: Section 19 of the Act governs the carryover of funds,
including program income, received by the Supported Employment program.
In addition, section 108 of the Act permits the VR program to transfer
payments received by the Social Security Administration under part 361
to the Supported Employment program. These statutory provisions
remained substantively unchanged by WIOA.
Current Regulations: None.
Proposed Regulations: We propose to create a new Sec. 363.24 that
would define program income, identify its uses, and clarify that
program income may be treated as either an addition or deduction to the
award.
In addition, we propose including requirements related to the
carry-over of program income in proposed Sec. 363.25. This provision
would clarify that program income may be carried over into the
succeeding fiscal year.
Reasons: These regulations are necessary to govern the use and
treatment of program income, consistent with sections 19 and 108 of the
Act. Although statutory requirements governing program income have
always applied to the Supported Employment program, we have found,
through monitoring, that confusion exists among States as to how and
when program income should be reported under the Supported Employment
program as opposed to under the VR program. We believe this proposed
change would minimize such confusion and result in more accurate
reporting of program income. Furthermore, these proposed changes are
consistent with those proposed in part 361, which governs the VR
program, since the Supported Employment program is supplemental to that
program.
Carryover (Sec. 363.25)
Statute: Section 19 of the Act permits States to carry funds over
to a succeeding fiscal year to the extent the State has satisfied any
applicable match requirements.
Current Regulations: None.
Proposed Regulations: We propose to add a new Sec. 363.25 that
mirrors the carryover requirements under part 361, which governs the VR
program. Although section 19 of the Act has always applied to the
Supported Employment program, the amendments made by WIOA change the
effect of this requirement since States, for the first time, have a
match requirement under this program. Therefore, a State would be
permitted to carry over the 50 percent of the allotment reserved for
serving youth with the most significant disabilities only if it has met
the 10 percent match for those funds in the fiscal year in which the
funds were awarded. A State would be able to continue to carry over the
other half of the allotment, to serve all other individuals, without
having to satisfy a match requirement since the statute does not impose
a match requirement on that portion of the supported employment
allotment.
Reasons: The proposed revisions are necessary to implement in part
363 statutory changes made by WIOA. The proposed changes are also
consistent with proposed changes to part 361, which governs the VR
program, since the Supported Employment program is supplemental to that
program.
Limitations on Administrative Costs (Sec. 363.51)
Statute: Section 603(c) of the Act, as amended by WIOA, reduces the
limit allowed for administrative costs from 5 percent of the allotment
to 2.5 percent. In addition, section 606(b)(7)(H) requires the State to
assure in its State plan supplement for the Supported Employment
program within the VR section of the Unified or Combined State Plan,
that it will not expend more than 2.5 percent of the allotment for
administrative costs.
Current Regulations: Current Sec. 363.51(b) contains a 5 percent
limit. The current regulations do not reference the 2.5 percent limit
since this is a new statutory requirement.
Proposed Regulations: We propose to amend Sec. 363.51(b) to
implement the reduced administrative cost limit of 2.5 percent. We also
propose to amend the State plan requirements in Sec. 363.11
accordingly.
Reasons: The proposed revisions are necessary to implement in part
363 statutory changes made by WIOA.
[[Page 21089]]
Miscellaneous Changes for Clarity
Statute: Section 603 of the Act, as redesignated by WIOA, sets
forth the procedures for allotting and reallocating funds under the
Supported Employment program. This statutory provision remained
substantively unchanged by WIOA.
Current Regulations: Current Sec. Sec. 363.20 and 363.21 merely
cross-reference to statutory provisions regarding procedures for
allocating and reallocating funds that are obsolete given revisions
made to title VI of the Act by WIOA.
Proposed Regulations: We propose to amend Sec. Sec. 363.20 and
363.21 to mirror the statutory text regarding procedures for allocating
and reallocating supported employment funds.
Reasons: The proposed changes are necessary to conform to statutory
amendments made by WIOA that restructure title VI. The proposed changes
would also outline the procedures for allocating and reallocating
funds, rather than merely cross-referencing the Act, thereby making the
proposed sections more user-friendly.
Limitation on Use of Subminimum Wages (Proposed 34 Part 397)
Our discussion of part 397 is presented by subject in the order in
which relevant sections appear in this part.
Purpose and the Department's Jurisdiction
Statute: Section 511 of the Act, as added by WIOA, imposes
limitations on employers who hold special wage certificates under the
Fair Labor Standards Act (FLSA) that must be satisfied before the
employers may hire youth with disabilities at subminimum wage or
continue to employ individuals with disabilities of any age at
subminimum wage. Section 511 of the Act also establishes the roles and
responsibilities of the designated State units (DSU) for the vocational
rehabilitation (VR) program and State and local educational agencies,
in assisting individuals with disabilities, including youth with
disabilities, who are considering employment, or who are already
employed, at a subminimum wage, to maximize opportunities to achieve
competitive integrated employment through services provided by VR and
the local educational agencies.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 397.1 establishes the purpose
of the regulations in this part, which is to set forth requirements the
DSUs and State and local educational agencies must satisfy to ensure
that individuals with disabilities, especially youth with disabilities,
have a meaningful opportunity to prepare for, obtain, maintain, advance
in, or regain competitive integrated employment, including supported or
customized employment.
This proposed section also states that these regulations should be
read in concert with: Part 300, which implements requirements under
part B of the Individuals with Disabilities Education Act; part 361,
which implements requirements for the VR program; and part 363, which
implements the State Supported Employment Services program. We believe
this clarification is necessary to ensure all stakeholders understand
that nothing in this part is to be construed as altering any
requirement under parts 300, 361, or 363.
Other relevant proposed regulations in this part include: Sec.
397.2, regarding the Department's jurisdiction; Sec. 397.3, regarding
rules of construction; Sec. 397.4, regarding other applicable
regulations; and Sec. 397.5, regarding applicable definitions.
Reasons: These proposed regulations are necessary to ensure
stakeholders understand the purpose of section 511 of the Act, as added
by WIOA, and the Department's authority and jurisdiction under this
section, as well as the inter-relationship of these requirements with
those under the Individuals with Disabilities Education Act and the VR
program and Supported Employment program.
Coordinated Documentation Process
Statute: Section 511(d) of the Act, as added by WIOA, requires the
DSU and the State educational agency to develop a coordinated process,
or use an existing process, for providing youth with disabilities
documentation demonstrating completion of the various actions required
by section 511 of the Act. Other relevant statutory provisions include
section 511(a) of the Act, regarding the actions that a youth must
complete prior to beginning subminimum wage employment, and section
511(c) of the Act, regarding the actions that individuals with
disabilities of any age must complete in order to continue employment
at subminimum wage.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 397.10 would require the DSU,
in consultation with the State educational agency, to develop a process
that ensures individuals with disabilities, including youth with
disabilities, receive documentation demonstrating completion of the
various activities required by section 511 of the Act, such as, to name
a few, the receipt of transition services by eligible children with
disabilities under the Individuals with Disabilities Education Act and
pre-employment transition services under section 113 of the Act, as
appropriate.
Proposed Sec. Sec. 397.20 and 397.30 would establish the
documentation that the DSUs and local educational agencies, as
appropriate, must provide to demonstrate completion of the various
activities, required by section 511(a)(2) of the Act, by a youth with a
disability. These would include completing pre-employment transition
services under proposed Sec. 361.48(a) and the determination of
eligibility or ineligibility for VR services under proposed Sec.
361.42 and Sec. 361.43.
Proposed Sec. 397.40 would establish the documentation that the
DSUs must provide to individuals with disabilities of any age who are
employed at a subminimum wage upon the completion of certain
information and career counseling-related services, as required by
section 511(c) of the Act.
Reasons: These proposed regulations are necessary to implement new
statutory requirements. In so doing, these proposed regulations would
inform DSUs, State, and local educational agencies of their specific
responsibilities related to documentation required under section 511 of
the Act and would ensure that individuals with disabilities have
sufficient information available to make informed choices.
Contracting Prohibition
Statute: Section 511(b)(2) of the Act, as added by WIOA, prohibits
a local or State educational agency (as defined in section 9101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)) from
entering into a contract or other arrangement with an entity, which
holds a special wage certificate under 14(c) of the FLSA for the
purpose of operating a program for a youth under which work is
compensated at a subminimum wage.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 397.31 would prohibit a local
educational agency or a State educational agency from entering into a
contract with an entity that employs individuals at subminimum wage for
the purpose of operating a program under which a youth with a
disability is engaged in subminimum wage employment. Although section
511(b)(2) of the Act refers to youth in general, the
[[Page 21090]]
proposed regulation is limited to youth with disabilities in order to
be consistent with all other provisions of section 511 of the Act.
Reasons: This proposed section is necessary to implement new
statutory requirements. In so doing, this proposed regulation is
consistent with the heightened emphasis in the Act, as amended by WIOA,
on ensuring that individuals with disabilities, especially youth with
disabilities, are given the opportunity to train for and obtain work in
competitive integrated employment. While some State and local
educational agencies contract with employers who hold special wage
certificates under FLSA, others contract with employers who pay minimum
wage, to create job training and other work experiences for students
with disabilities. Through these training and work experience programs,
students with disabilities gain knowledge and skills that transfer into
eventual jobs similar to those in which they receive their training,
not only with regard to the type of duties performed, but also the
wages earned. In the context of this proposed regulation, State and
local educational agencies are not employers, but rather partners that
facilitate entry of students with disabilities into training programs
that are implemented by employers holding special wage certificates
under the FLSA. We believe this statutory prohibition, which is
contained in the proposed regulations, will result in fewer students
with disabilities, participating in training programs at the subminimum
wage level. As a result, we believe more students with disabilities,
especially those with the most significant disabilities, will have the
opportunity to gain work experiences in competitive integrated
employment settings which, in turn, will lead to eventual employment
outcomes in those settings rather than at the subminimum wage level.
With regard to this proposed provision, the Secretary specifically
seeks comments regarding the Department's role and jurisdiction with
respect to these provisions.
Review of Documentation Process
Statute: Section 511(e)(2)(B) of the Act, as added by WIOA, permits
DSUs, along with the Department of Labor, to review individual
documentation held by entities holding special wage certificates under
the FLSA to ensure the required documentation for individuals with
disabilities, including youth with disabilities, who are employed at
the subminimum wage level, is maintained.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 397.50 would authorize a DSU
to review individual documentation, required by this part, for all
individuals with disabilities who are employed at the subminimum wage
level, that is maintained by employers, who hold special wage
certificates under the FSLA.
Reasons: This proposed provision is necessary to implement new
statutory requirements. In this context, the DSU's role is one of
review not enforcement. The Department of Labor retains enforcement
authority with respect to these employers under the FLSA.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by the
OMB. Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This proposed regulatory action is a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We also have determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
We have 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
we have determined as necessary for administering these programs
effectively and efficiently. Elsewhere in this section under Paperwork
Reduction Act of 1995, we identify and explain burdens specifically
associated with information collection requirements.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, we have determined that
the benefits would justify the costs.
Need for Regulatory Action
Executive Order 12866 emphasizes that ``Federal agencies should
promulgate only such regulations as are required by law, are necessary
to interpret the law, or are made necessary by compelling public need,
such as material failures of private markets to protect or improve the
health and safety of the public, the environment, or the well-being of
the American people.'' The Department's goal in regulating is to
[[Page 21091]]
incorporate the provisions of the Act, as amended by WIOA, into the
Department's regulations governing the VR program and Supported
Employment program at parts 361 and 363, respectively, as well as to
clarify, update and improve these regulations. This regulatory action
is also necessary to establish a new part 397 to implement specific the
provisions of section 511 of the Act, as added by WIOA, which places
limitations on the use of subminimum wages for individuals with
disabilities.
Summary of Potential Costs and Benefits
The Secretary believes that the proposed changes would
substantially improve the programs covered in this NPRM, and would
yield substantial benefits in terms of program management, efficiency,
and effectiveness. The Secretary believes that the proposed regulations
represent the least burdensome way to implement the amendments to the
Act made by WIOA. Due to the number of proposed regulatory changes, our
analysis focuses solely on new requirements imposed by WIOA, organized
in the following manner. First, we discuss the potential costs and
benefits related to the VR program under section A that specifically
address: competitive integrated employment and employment outcomes,
pre-employment transition services and transition services, and
additional VR program provisions. Second, we discuss the potential
costs and benefits related to the Supported Employment program under
section B. Finally, we discuss the costs and benefits pertaining to the
establishment of proposed part 397 under section C.
Where possible The Department derived estimates by comparing the
existing program regulations against the benefits and costs associated
with implementation of provisions contained in this WIOA-required NPRM.
The Department also made an effort, when feasible, to quantify and
monetize the benefits and costs of the NPRM. When we were unable to
quantify them--for example, due to data limitations--we describe the
benefits and costs qualitatively. In accordance with the regulatory
analysis guidance contained in OMB Circular A-4 and consistent with the
Department's practices in previous rulemakings, this regulatory
analysis focuses on the likely consequences (benefits and costs that
accrue to individuals with disabilities) of the WIOA-required NPRM. In
this analysis, the Department also considers the transfer of benefits
from one group to another that do not affect total resources available
to the VR program and Supported Employment program. However, in a
number of service records the Department is unable to quantify these
transfers due to limitations of the data it currently collects. In
estimating costs, we used wage rates from the Bureau of Labor
Statistics' Mean Hourly Wage Rate for State employees.
A. Vocational Rehabilitation Program Competitive Integrated Employment
and Employment Outcomes
The Act, as amended by WIOA, places heightened emphasis on the
achievement of competitive integrated employment by individuals with
disabilities, including those with the most significant disabilities.
In so doing, Congress added a new term and accompanying definition to
the Act--``competitive integrated employment.'' While this is a new
statutory term, it represents, in general, a consolidation of two
existing regulatory definitions--``competitive employment'' and
``integrated setting.'' As a result of the statutory amendments, we
propose to replace the existing regulatory definition of ``competitive
employment,'' with the new term ``competitive integrated employment,''
by mirroring the statute and incorporating critical criteria from the
existing regulatory definition of ``integrated setting.'' Because this
proposed change is more technical than substantive, and given that the
substance of the proposed definition already exists in two separate
definitions, we believe this particular change will have no significant
impact on the VR program.
In addition to proposing to implement the new definition of
``competitive integrated employment,'' we also believe it is necessary
to propose changes to the current regulatory definition of ``employment
outcome.'' While the Act, as amended by WIOA, made only technical
changes to the statutory definition of ``employment outcome,'' we
believe a regulatory change is necessary in light of the heightened
emphasis throughout the Act on the achievement of competitive
integrated employment under the VR program and Supported Employment
program. To that end, we propose to define ``employment outcome'' as an
outcome in competitive integrated employment or supported employment,
thereby eliminating uncompensated employment (e.g., homemakers and
unpaid family workers) from the scope of employment outcomes for
purposes of the VR program.
To date, the Department has exercised the Secretary's statutory
discretion to permit types of employment not specified in the Act as
``employment outcomes'' under the VR program. In so doing, the
Department has permitted uncompensated employment, such as work as
homemakers and unpaid family workers, to constitute as an employment
outcome under the VR program. However, given the heightened emphasis on
competitive integrated employment in the Act, as amended by WIOA--from
the purpose of the Act to the addition of section 511, the Secretary
proposes to amend the current regulatory definition of ``employment
outcome'' to include only compensated employment within its scope for
purposes of the VR program. Thus, the Secretary intends to ensure that
VR funds are no longer diverted for the provision of services that can
be appropriately provided, in many cases, by independent living and
other programs.
It is difficult to quantify the extent to which the proposed change
to the definition of ``employment outcome,'' which has the effect of
eliminating homemakers and unpaid family workers from its scope, will
affect VR program costs nationally due to a number of highly variable
factors. For example, it is not known whether individuals who
previously achieved homemaker outcomes will choose to pursue
competitive integrated employment through the VR program in the future,
or seek out other resources, such as those available from independent
living programs. Based on data reported by VR agencies through the VR
Case Service Report (RSA-911) for the period beginning in FY 1980 and
ending in FY 2013, the percentage of individuals exiting the VR program
as homemakers nationally declined significantly from 15 percent of all
individuals achieving an employment outcome in fiscal year (FY) 1980 to
1.9 percent in FY 2013 (representing 3,467 of the 182,696 total
employment outcomes that year). While the national percentage of
homemaker outcomes compared to all employment outcomes is small, some
designated State units (DSU) have a greater percentage of homemaker
outcomes than others, particularly those serving only individuals who
are blind and visually impaired. In FY 2013, the 24 DSUs that only
provided services to individuals who are blind and visually impaired
reported that 10.5 percent of the 6,121 employment outcomes in that
year were homemaker outcomes (or 645 outcomes). DSUs that serve
individuals with disabilities other than those with
[[Page 21092]]
blindness and visual impairments reported 656 homemaker outcomes in
that year, or 0.8 percent of the 84,238 employment outcomes. In
addition, the 32 DSUs that serve individuals with all disabilities
reported 2,166 homemaker outcomes in FY 2013, representing 2.3 percent
of their total 92,337 employment outcomes.
The average cost per employment outcome, including the average cost
per homemaker outcome, can be calculated based on data reported by DSUs
in the RSA-911 on the cost of purchased services for individuals
exiting the VR program with an employment outcome. In FY 2013, the
average cost per homemaker outcome for the VR program was $6,626, while
the comparable average cost per employment outcome for all individuals
exiting the VR program with an employment outcome that year was $5,672.
It is possible that this higher average cost is because individuals
obtaining a homemaker outcome generally require more intensive services
or costly equipment because the nature or severity of their
disabilities have prevented them from pursuing competitive integrated
employment. However, there may be other factors that drive up the
average cost of these outcomes. For example, it may be that some of
these individuals originally had a goal of competitive employment, but
after receiving services for an intensive or long period of time
without obtaining such an outcome, they may have chosen to change their
goal. Further analysis is needed to identify the factors that
contribute to the average higher cost of homemaker closures.
Given current information reported to the Department by DSUs, we
are not able to predict how many individuals who would have possibly
had a homemaker outcome might now choose to seek competitive
employment. However, for the purpose of providing a gross estimate of
these costs, we assume that approximately one-fourth (867) of the
number of individuals who exited the VR program with a homemaker
outcome will choose a goal of competitive integrated employment and
continue to seek services through the VR program. We also assume that
obtaining competitive integrated employment for these individuals may
be more expensive than the current cost for obtaining a homemaker
outcome, but also assume it is unlikely that the average costs for
providing services to these individuals would exceed more than 150
percent of their current costs (or approximately 175 percent of the
average cost per employment outcome for all agencies in FY 2013). As
such, we estimate the additional cost to DSUs to provide VR services to
those individuals who previously would have exited the program with a
homemaker outcomes would not exceed $3,313 per outcome, or about
$2,872,370 per year. Alternatively, assuming that about 75 percent of
the number of individuals who would have otherwise attained a homemaker
outcome no longer seek services from DSUs (2,600) at an average cost of
$6,626, there would be a net savings of $17,227,600 to the VR program.
Based on these assumptions, we estimate an overall savings to the VR
program of approximately $14,355,230.
We recognize that the proposed change in the definition of
employment outcome could potentially increase the demand for services
from independent living and other programs that can provide services
similar to those that such individuals would have previously sought
from the VR program and that some of these savings for the VR program
could result in a cost transfer to other Federal, State, and local
programs. The Department plans to provide guidance and technical
assistance to: (1) Facilitate the transition to the new definition of
employment outcome; and (2) minimize the potential disruption of
services to current VR program consumers who do not currently have a
competitive integrated employment or supported employment goal
reflected in their individualized plan for employment. The Department
also plans to provide guidance and technical assistance to assist both
VR agencies and potential service providers in the referral and
acquisition of services for individuals with disabilities seeking
services for outcomes other than those covered under the proposed
revised definition of employment outcome.
Finally the Department plans to work with other Federal agencies,
such as the Administration for Community Living at the Department of
Health and Human Services, in identifying any impact of the proposed
change on independent living and other related programs and developing
strategies to address potential problems.
Pre-Employment Transition Services and Transition Services
The Act, as amended by WIOA, places heightened emphasis on the
provision of pre-employment transition services and other transition
services to students and youth with disabilities, as applicable. As a
result, the Secretary proposes to make numerous amendments to the VR
program regulations to implement new statutory requirements. A few of
those proposed changes are relevant to this regulatory impact analysis
discussion.
Foremost among these proposed changes is the requirement that DSUs
reserve at least 15 percent of the State's VR allotment for the
provision of pre-employment transition services to students with
disabilities who are eligible or potentially eligible for VR services.
Additionally, States may not include administrative costs associated
with the provision of pre-employment transition services in the
calculation of that 15 percent.
The proposed regulation would require DSUs to dedicate resources
to: (1) Ensure that the 15 percent is reserved from the State's VR
allotment; (2) track the provision of pre-employment transition
services to ensure funds were spent solely on authorized services and
not on administrative costs; and (3) provide for administrative costs
related to pre-employment transition services with non-reserved VR
funds.
Second, section 113 of the Act, as added by WIOA, requires VR
agencies to provide pre-employment transition services to students with
disabilities who are eligible or potentially eligible for VR services.
We propose to interpret the term ``potentially eligible'' to mean all
students with disabilities, as defined in proposed Sec. 361.5(c)(51).
Prior to the enactment of WIOA, VR agencies were only permitted to
provide pre-employment transition services or any other transition
services to individuals who had been determined eligible for the VR
program and who had an approved individualized plan for employment. In
developing the proposed regulation, the Department considered limiting
the provision of pre-employment transition services to those students
with disabilities who have applied for VR services. However, this
alternative interpretation is not proposed because we believe that
Congress intended these services to reach a broader group of
individuals than those who are eligible under current VR program
regulations. The Department's proposed interpretation, which is the
broadest possible given the plain meaning of the statute, is consistent
with Congressional intent and the stated desires of some VR agencies
and other stakeholders.
Although pre-employment transition services are a new category of
services identified in the Act, many of these services historically
were provided under a more general category of transition services.
Therefore, the provision of these services is not new to VR agencies.
However, until the enactment of WIOA, all such services
[[Page 21093]]
were provided only to those students with disabilities who had been
determined eligible for the VR program. Consequently, providing pre-
employment transition services to all students with disabilities could
increase staff time and resources spent on the provision of these
services.
We are unable to estimate the potential increase in DSU
administrative costs that may arise from implementation of new section
113 of the Act or the required 15 percent reservation of funds at this
time. However, we have attempted to estimate the impact that this 15
percent reservation could have on the VR program as a whole.
Assuming that States are able to match all of the funds provided
for the VR program in the FY 2015 VR appropriation, $3,052,453,598, the
total aggregate amount of VR funds that would be required to be
reserved for pre-employment transition services from all 80 State VR
agencies would be $457,868,040. Because each State VR agency must
reserve a portion of its allotment, it will now have fewer funds
available to use for all other authorized activities, thereby reducing
the available resources for services other than pre-employment
transition services. The extent of the impact of the reservation on a
particular State will depend largely on the extent to which it has been
providing transition services to students with disabilities that are
now specified under section 113 as pre-employment transition services.
States that currently provide extensive transition services to students
with disabilities, including services that would meet the definition of
pre-employment transition services, are likely to see less transfer of
benefits among eligible individuals served by their agency. For States
that have not provided such services or have only provided such
services to this population to a small extent, there may be more
extensive transfers of services and benefits of the VR program among
individuals (i.e., to students with disabilities and away from other
individuals who otherwise would have been served).
Ultimately, the total value of the benefits transfer is equivalent
to the difference between the amount reserved by States under this
provision (we assume here $457,868,040) and the cost of providing pre-
employment transition services to students with disabilities who have
such services outlined in their individualized plan for employment
(i.e., those who would receive such services in the absence of the
mandated reservation).
Based on data reported through the RSA-911 for FY 2013, the service
records for 206,050 transition-age youth (individuals ages 14 to 24 at
the time of application) were closed, of which 123,119 received
services. A portion of those served may qualify as students with a
disability that would be able to receive pre-employment transition
services. In FY 2013, of the 123,119 transition-age individuals who
received services, 98,212 were aged 16 through 21, and most closely
represent the population of ``students with a disability'' as defined
under proposed regulations. DSUs expended a total of $503,208,438 on
the purchase of VR services for these individuals, for an average cost
of $5,124 per individual. Recognizing that the 98,212 students include
only those who have applied for VR services and that under proposed
regulations DSUs would provide pre-employment transition services to
students with disabilities prior to their application for VR services,
we anticipate that DSUs will be providing these services to a
potentially larger number of students with disabilities with the
reserved funds.
We emphasize that this is an estimate based on assumptions and that
we cannot more definitively project the transfer of benefits across the
VR program related to the provision of pre-employment transition
services due to both the unknown number of students in each State and
nationally who may receive these services and the specific services
that will be provided.
Third, section 103(b)(7) of the Act, as added by WIOA, permits VR
agencies to provide transition services to groups of youth and students
with disabilities. To that end, we propose to add Sec. 361.49(a)(7) to
implement this requirement. In so doing, DSUs would be permitted to
provide transition services to groups of students and youth with
disabilities, who may not have applied, or been determined eligible,
for VR services.
The proposed regulation benefits VR agencies in two significant
ways: (1) It would give them the ability to serve groups of youth and
students with disabilities simultaneously, who may need only basic
generalized services, thereby reducing the amount of cost expended per
individual; and (2) it would reduce administrative burden on the VR
agencies, as well as the burden on students or youth with disabilities
and their families, by not having to engage in processes for
determining eligibility, conducting assessments, and developing
individualized plans for employment. However, we have not attempted to
quantify the impact of this provision due to the variability in the
number of individuals that may seek out these services nationally, the
degree to which individuals would require these services within each
State, and the services that would be provided in each State.
Additional Vocational Rehabilitation Program Provisions
VR Services Portion of the Unified or Combined State Plan
WIOA requires the VR State plan, which has been a stand-alone State
plan, to be submitted as a VR services portion of a State's Unified or
Combined State Plan for all six core programs of the workforce
development system. Requirements related to the submission of Unified
or Combined State Plans do not take effect until July 2016.
In preparing for the transition to the submission of Unified or
Combined State Plans every four years, with modifications submitted
every two years, we propose to amend regulations governing the annual
submissions of certain reports and updates. In so doing, we would no
longer require the submission of these particular reports and updates
annually, but rather, they would be included in the VR services portion
of the Unified or Combined State Plan and would be submitted at such
time and in such manner as determined by the Secretary. This
flexibility would allow for VR program-specific reporting to be done in
a manner consistent with those for the Unified or Combined State Plan
under sections 102 or 103 of WIOA, thus avoiding additional burden or
costs to DSUs through the submission of separate reports annually or
whenever updates are made.
Section 101(a) of the Act, as amended by WIOA, requires DSUs to
include additional descriptive information in the VR services portion
of the Unified or Combined State Plan. Therefore, we propose to amend
part 361 by requiring that DSUs describe in the VR services portion of
the Unified or Combined State Plan the results of the comprehensive
statewide needs assessment with respect to the needs of students and
youth with disabilities for pre-employment transition services and
other transition services, as appropriate; to identify goals and
priorities to address these needs; and to describe strategies for the
achievement of these goals. We also propose that the VR services
portion of the Unified or Combined State Plan include a description of
how the DSU will work with employers to identify competitive integrated
employment opportunities
[[Page 21094]]
and career exploration opportunities, in order to facilitate the
provision of VR services, and transition services for youth with
disabilities and students with disabilities, such as pre-employment
transition services. We also propose that the VR services portion of
the Unified or Combined State Plan contain a description of
collaboration with the State agency responsible for administering the
State Medicaid plan under title XIX of the Social Security Act, the
State agency responsible for providing services for individuals with
developmental disabilities, and the State agency responsible for
providing mental health services, to develop opportunities for
community-based employment in integrated settings, to the greatest
extent practicable. As a result, DSUs would be required to expend
additional effort in the development of these descriptions beyond the
25 hours currently estimated for the development and submission of the
entire State plan, now the VR services portion of the Unified or
Combined State Plan. We estimate that DSUs will require an additional
five hours for the development of these descriptions, for a total of 30
hours per agency. At an average hourly rate of $39.78 (based on data
obtained from the Bureau of Labor Statistics for State government
management occupations), a rate more consistent with State rates of pay
than the $22.00 per hour used to calculate current costs, each DSU
would expend $1,193 in the development of and submission of the VR
services portion of the Unified or Combined State Plan, resulting in a
total of $95,472 for all 80 DSUs. Although these costs are
significantly higher than the current estimate of $2,000 incurred by
all 80 DSUs in the development and submission of the State plan, we
believe that the additional burden is more accurate and outweighed by
the benefit to the public through a more comprehensive understanding of
the activities DSUs engage in to assist individuals with disabilities
to obtain the skills necessary to achieve competitive integrated
employment in job-driven careers.
Order of Selection
Section 101(a)(5) of the Act, as amended by WIOA, permits DSUs, at
their discretion, to serve eligible individuals who require specific
services or equipment to maintain employment, regardless of whether
they are receiving VR services under an order of selection or their
assignment to a priority category. Therefore, we propose to amend part
361 to implement this new statutory requirement. It is important to
note that DSUs implementing an order of selection are not required to
use this authority; rather, they may choose to do so based upon agency
policy, or the availability of financial and staff resources. DSUs
implementing an order of selection would be required to state in the VR
services portion of the Unified or Combined State Plan whether they
have elected to exercise this discretion, thereby signaling a decision
to serve eligible individuals who otherwise might have been placed on a
waiting list under the State's order of selection, and who are at risk
of losing their employment. This proposed change would increase
flexibility for a State managing its resources. If a State were to
implement this flexibility, it could prevent an individual from losing
employment by avoiding a delay in services. On the other hand, DSUs
that elect to implement this option would potentially need to
reallocate resources to cover expenditures for services or equipment
for individuals who meet the qualifications of this provision, and fall
outside the open priority category of a DSU's order of selection.
For FY 2015, the State Plans of 34 of the 80 DSUs documented that
the agency had established an order of selection, one agency more than
in FY 2014. This total includes 8 percent of the 24 DSUs serving only
individuals who are blind and visually impaired and 57 percent of the
56 other DSUs. Based on data reported through the RSA-911 in FY 2013,
17 percent of the individuals whose service records were closed and who
received services were employed at application, with an average cost of
purchased services $4,744. In addition, according to data reported
through the VR program Cumulative Caseload (RSA-113) report, 33,856
individuals were on a waiting list for VR services at the close of FY
2013 due to the implementation of an order of selection. Assuming that
17 percent of the 33,856 individuals on the waiting list could
potentially benefit from the provision of services and equipment to
maintain employment, a possible 5,756 individuals could benefit from
the proposed regulatory change for a total cost of $27,306,464. This
figure represents the potential reallocation of resources to cover the
cost of services for individuals who, prior to enactment of WIOA, may
have not received them, and away from eligible individuals who would
have received services based on a VR agency's order of selection
policy.
However, the implementation of an order of selection by individual
DSUs may differ from year to year, as well as within a given fiscal
year. In fact, not all DSUs that indicate they have established an
order of selection as part of their State Plan actually implement that
order or report that they had individuals on a waiting list during the
year. In addition, we are unable to predict which DSUs on an order of
selection would choose this option. The degree to which individuals
will be referred for this service will also vary widely, as will the
level of services or equipment that an individual could need to
maintain employment.
Reports, Standards, and Indicators
As a result of amendments to the Act made by WIOA, we propose to
revise Sec. 361.40 to reflect changes to reporting requirements in
section 116(b) in title I of WIOA and amendments to section 101(a)(10)
of the Act. Section 361.40, as proposed, does not list the actual data
to be reported, but rather requires the collection and reporting of the
information specified in sections 13, 14, and 101(a)(10) of the Act.
New requirements under section 101(a)(10) include the reporting of data
on the number of: Individuals with open service records and the types
of services these individuals are receiving (including supported
employment); students with disabilities receiving pre-employment
transition services; and individuals referred to State VR programs by
one-stop operators and individuals referred to such one-stop operators
by State VR programs. The RSA-911 would be revised as described in the
information collection published for comment elsewhere in this issue of
the Federal Register, consistent with the requirements in proposed
Sec. 361.40.
Proposed 361.40 also would require States to report the data
necessary to assess VR agency performance on the standards and
indicators subject to the performance accountability provisions
described in section 116 of WIOA. The common performance accountability
measures apply to all core programs of the workforce development system
and will be implemented in joint regulations set forth in subpart E of
part 361. The impact analysis of these regulations are addressed in the
joint regulations.
We estimate that each DSU will need an additional 15 minutes per VR
counselor to collect the new VR-specific data required by Section
101(a)(10) of the Act. Estimating an average of 125 counselors per DSU,
the number of hours per DSU would increase by 31.25 for a total
increase of 2,500 hours for all 80 DSUs. The estimated cost per DSU,
using an hourly wage of $22.27 (based on data from the Bureau of Labor
Statistics for State-employed VR counselors), would result in an
increase
[[Page 21095]]
of $695.94 per DSU and a total increase of $55,675 for all 80 DSUs.
In addition, we estimate the burden hours for submission of the
entire RSA-911 data file per DSU would increase from 50 hours per
agency to 100 hours per agency, representing an increase of 50 hours
due to the need to report all open case data on a quarterly basis
(rather than only data for closed service records on an annual basis).
The total number of hours needed for the submission of the data file
for 80 agencies would increase from 4,000 to 8,000 hours. Using an
average hourly wage rate of $33.63 (based on data from the Bureau of
Labor Statistics State-employed database administrators), the estimated
cost per DSU would be $3,363, and the estimated cost for all 80 DSUs
would be $269,040. The total burden hours for both collection and
submission would be 131.25 hours per DSU or a total of 10,500 hours for
all 80 DSUs. The estimated total burden cost for both collection and
submission per DSU would be $4,059, with a total burden cost of
$324,715 for all 80 DSUs.
Finally, DSUs will incur expenses related to programming and
modifications of data retrieval systems as a result of the revisions to
the RSA-911 and its instructions due to the new VR-specific data
required under section 101(a)(10) of the Act. The costs are one-time,
first-year costs. The burden on the DSUs related to the programming of
their case management systems as a result of the redesigned RSA-911
will vary widely because agencies themselves range in size and the
sophistication of their information technology systems. Roughly half of
the 80 DSUs use case management and reporting systems purchased from
software providers who are responsible for maintaining and updating
software. We estimate those DSUs would experience no or minimal
increases in cost burden. The remaining DSUs have developed their own
case management systems for which changes will be made by their
information technology staff or outside contractors. Approximately,
half of these DSUs would make the changes internally and half would
contract for the changes to be made.
We estimate those 20 DSUs that own, maintain, and update internal
case management and reporting systems will expend an average of 240
hours at $44.72 (based on data from the Bureau of Labor Statistics for
State-employed computer and information systems managers), for a total
of $10,732.80 per DSU. The estimated total burden hours for all 20 DSUs
would be 4,800 hours and at a cost of $214,656. We estimate that
contractors who provide maintenance and system updates to the 20 DSUs
with internal case management systems would need 500 hours per DSU to
accomplish the reprogramming of these systems, for a total of 10,000
hours, as a result of the proposed changes to the RSA-911 data file.
Using an average hourly wage rate of $39.21 x 100 hours for private
sector computer programmers, and a wage rate $67.32 x 400 hours for
private sector computer and information system managers (based on
Bureau Labor Statistics data for 2013), we estimate these 20 DSUs will
incur expenses of $30,849.00 per DSU, or a total cost of $616,980.00.
We believe that these costs are outweighed by the benefits to the
VR program because the new information to be reported and having access
to more timely information on individuals currently participating in
the VR program will better enable the Department and its partners to
assess the performance of the program and monitor the implementation of
WIOA, particularly as it relates to key policy changes, such as pre-
employment transition services and its integration in the workforce
development system.
Extended Evaluation
In implementing amendments to the Act made by WIOA, we propose to
amend current Sec. Sec. 361.41 and 361.42 by removing requirements
related to extended evaluation. Instead, a DSU would be required to use
trial work experiences when conducting an exploration of an individual
with a significant disability's abilities, capabilities, and capacity
to perform in work situations. These proposed revisions would
streamline the eligibility or ineligibility determination process for
all applicants whose ability to benefit from VR services is in
question.
VR program data collected by the Department do not distinguish
between individuals who had a trial work experience and those that had
an extended evaluation. However, data show that 5,205 individuals
exited from the VR program during or after trial work experiences or
extended evaluations in FY 2013. DSUs expended a total of $4,385,963 on
the provision of services to these individuals for an average cost of
$843 per individual. Because we are unable to estimate how many of the
5,205 individuals were in extended evaluation, we cannot quantify
either the current or the potential change in costs for this specific
group of individuals. Based on the monitoring of VR agencies, it should
be noted that the use of these services varies among DSUs, mainly due
to variations in opportunities for individuals to participate in trial
work experiences, and the extent to which DSUs historically utilized
extended evaluation. We believe that the benefits of streamlining the
eligibility determination process for applicants whose ability to
benefit from VR services is in question and ensuring that ineligibility
determinations are based on a full assessment of the capacity of an
applicant to perform in realistic work settings outweighs the costs of
removing the limited exception to trial work experiences.
Timeframe for Completing the Individualized Plan for Employment
Section 102(b) of the Act, as amended by WIOA, requires DSUs to
develop individualized plans for employment within 90 days of date of
eligibility determination. Consequently, we propose to amend Sec.
361.45 to implement this 90-day requirement. Due to variations in
current DSU timelines for the development of the individualized plan
for employment, the establishment of a 90-day timeframe by WIOA would
ensure consistency across the VR program nationally and the timely
delivery of services, thereby improving DSU performance and successful
employment outcomes for individuals with disabilities.
We are unable to quantify potential additional costs to DSUs
nationwide due to the variance in timelines currently in place. It is
likely that States with prolonged timelines beyond 90 days could
experience an increase in outlays. For example, an increase in outlays
could occur as a result of larger numbers of individuals, with approved
individualized plans for employment, beginning to receive VR services
at an earlier time than had historically been the case. However, while
the overall cost per individual served are not likely to be affected by
this proposed provision, the average time before some DSUs incur
expenses related to the development of, and provision of services
under, individualized plans for employment may be shortened, resulting
in a shift of VR program outlays for services sooner than has been
experienced. Therefore, in any given fiscal year outlays for these DSUs
could be higher. While costs over the life of the service record should
not be affected, some VR agencies could find it necessary to implement
an order of selection due to the shifting of cost that would have been
incurred in a subsequent fiscal year to a prior fiscal year as the
result of a larger number of individuals with individualized plans for
employment developed within 90
[[Page 21096]]
days. As always, DSUs are encouraged to conduct planning that
incorporates programmatic and fiscal elements to make projections and
assessments of VR program resources and the number of individuals
served, utilizing management tools including order of selection, as
appropriate.
Services to Groups of Individuals With Disabilities
Section 103(b)(8) of the Act, as added by WIOA, permits a DSU to
establish, develop, or improve assistive technology demonstration,
loan, reutilization, or financing programs designed to promote access
to assistive technology. To that end, we propose to amend Sec. 361.49
to implement this new authority. In so doing, we propose to limit the
population to be served to individuals with disabilities who have
applied, or been determined eligible, for VR services, thereby
maintaining consistency with the authority to establish, develop, or
improve a community rehabilitation program. We anticipate that this
provision will benefit individuals with disabilities and employers
through expanded access to assistive technology, reflecting the
integral role assistive technology plays in the vocational
rehabilitation and employment of individuals with disabilities.
However, by limiting the use of this authority to services and
activities that benefit applicants and eligible individuals, we ensure
that this authority is used in coordination with, rather than to
supplant, services and activities provided under the Assistive
Technology Act. We have not attempted to quantify additional costs
associated with this provision due to the variable nature of the
specific assistive technology needs of VR program participants, and the
availability of assistive technology demonstration, loan,
reutilization, or financing programs within each State.
Maintenance of Effort Requirements
Section 111(a) of the Act, as amended by WIOA, requires the
Secretary to reduce any subsequent fiscal year VR award to satisfy a
maintenance of effort (MOE) deficit in a prior year. As a result, we
propose to amend Sec. 361.62 to implement this new requirement. Prior
to the enactment of WIOA, the Secretary could only reduce the
subsequent year's grant to satisfy an MOE deficit from the preceding
fiscal year. If a MOE deficit was discovered after it was too late to
reduce the succeeding years grant, the Secretary was required to seek
recovery through an audit disallowance, whereby the State repaid the
deficit amount with non-Federal funds.
Because the Secretary is now able to reduce any subsequent year's
VR grant for any prior year's MOE deficit, DSUs benefit as they are no
longer required to repay MOE shortfalls with non-Federal funds, thereby
increasing the availability of non-Federal funds, in those instances,
for obligation as match under the VR program. Since FY 2010, two States
were required to pay a total of $791,342 in non-Federal funds related
to MOE penalties because their MOE shortfall was not known at the time
the reduction in Federal funds would have been authorized. As a result,
these funds were unavailable to be used as matching funds for the VR
program in the year they were paid. On the other hand, the new
authority could have resulted in the deduction of the $791,342 MOE
penalties from a future Federal award.
B. The Supported Employment Program Services To Youth With the Most
Significant Disabilities in Supported Employment
Section 603(d) of the Act, as amended by WIOA, requires DSUs to
reserve 50 percent of their supported employment State grant allotment
to provide supported employment services, including extended services,
to youth with the most significant disabilities. This new statutory
requirement is consistent with the heightened emphasis throughout the
Act on the provision of services to youth with disabilities, especially
those with the most significant disabilities. To that end, we propose
to amend part 363 to implement this new requirement. The proposed
changes are consistent with proposed changes to the VR program
regulations, since the Supported Employment program is supplemental to
that program.
After setting aside funds to assist in carrying out section 21 of
the Act, the FY 2015 Federal appropriation provides $27,272,520 for
distribution to DSUs under the Supported Employment State Grants.
Assuming that States are able to provide the required 10 percent non-
Federal match for the available Supported Employment formula grant
funds in FY 2015, the 50 percent reservation would result in the
dedication of $13,636,260 for supported employment services to youth
with the most significant disabilities. Conversely, the reserved funds
would not be available for the provision of supported employment
services to individuals who are not youth with the most significant
disabilities.
Match Requirements for Funds Reserved for Serving Youth With the Most
Significant Disabilities in Supported Employment
Section 606(b) of the Act, as amended by WIOA, requires States to
provide a ten percent match for the 50 percent of the supported
employment allotment reserved for providing supported employment
services, including extended services, to youth with the most
significant disabilities. We propose to implement this requirement in
part 363. To date, the supported program has not had a match
requirement.
As stated above, $27,272,520 is available for formula grants to
States under the Supported Employment program for FY 2015. The 10
percent match requirement would generate $1,515,140 in non-Federal
funds for supported employment services that will benefit youth with
the most significant disabilities. In addition, if the appropriation
increases in future years, the match requirement would result in
additional supported employment resources for youth with the most
significant disabilities. However, States will have to identify
additional non-Federal resources in order to match the Federal funds
reserved for this purpose.
Extended Services
Title VI of the Act, as amended by WIOA, permits DSUs to provide
extended services to youth with the most significant disabilities,
using the funds reserved for the provision of supported employment
services to this population. These services may be provided for a
period up to four years. To that end, we propose to amend part 363 to
implement this requirement. Prior to the enactment of WIOA, DSUs were
not permitted to provide extended services to individuals of any age.
Under the Act, as amended by WIOA, DSUs still may not provide extended
services to individuals with the most significant disabilities who are
not youth with the most significant disabilities. Since extended
services have not previously been an authorized activity with the use
of VR or supported employment funds, this proposed change could have
significant impacts on States.
Nonetheless, we want to make clear that DSUs are not required to
provide extended services to youth with the most significant
disabilities, but rather are permitted to do so, thereby creating a
funding source for the services that previously was not available.
[[Page 21097]]
Extension of Time for the Provision of Supported Employment Services
We propose to amend the definition of supported employment services
in Sec. 361.5(c)(54) to implement the statutory change made by WIOA
that extends the provision of supported employment services from 18 to
24 months. The definition of supported employment services applies to
both the VR program and Supported Employment program. In addition,
under both current and proposed regulations, DSUs have the authority to
exceed this time period under special circumstances if jointly agreed
to by the individual and the rehabilitation counselor.
The statutory change implemented in these proposed regulations
would benefit individuals with the most significant disabilities who
require ongoing support services for a longer period of time to achieve
stability in the employment setting, prior to full transition to
extended services. This provision could result in DSUs using more
resources under both the VR program and Supported Employment program to
provide ongoing services.
DSUs typically have not provided ongoing support services for a
full 18 months. In FY 2013, 15,458 individuals achieved supported
employment outcomes within 21 months following the development of the
individualized plans for employment, which period we assume could
include the provision of supported employment services for a full 18
months and a minimum period of 90 days prior to case closure. Of these
individuals, 10,608, or approximately 69 percent, achieve supported
employment outcomes within 12 months. While we anticipate that most
individuals may not need supported employment services for the full
period of 24 months, in FY 2013, 1,759 individuals achieved supported
employment outcomes within a period ranging from 21 months to 27 months
of the development of the individualized plan for employment. DSUs
expended $13,257, 816 on purchased services for these individuals, or
an average of $7,537 per individual. Assuming this period includes the
provision of supported employment services for a full 24 months and a
minimum period of 90 days prior to case closure we estimate that an
approximate number of individuals would benefit from the provision of
supported employment services for an additional six months and that
DSUs would incur similar costs for the provision of these services as a
result of the proposed regulatory change.
Limitations on Supported Employment Administrative Costs
We propose to amend part 363 to implement a new requirement in the
Act, as amended by WIOA, that reduces the maximum amount of a State's
grant allotment under the Supported Employment program that can be used
for administrative costs from 5 percent of the State's grant allotment
to 2.5 percent. As a result, a larger portion of Federal supported
employment funds must be spent on the provision of supported employment
services, including extended services to youth with the most
significant disabilities, rather than administrative costs. However,
any administrative costs incurred beyond the 2.5 percent limit on the
use of Supported Employment funds may be paid for with VR program
funds.
Based upon the $27,272,520 available for formula grants to States
under the Supported Employment program in FY 2015, the total allowable
amount of these Federal funds that can be used to support
administrative costs would be reduced by half, from $1,363,626 to
$681,813. Thus, for those DSUs that have typically used more than 2.5
percent of their allotment to cover program administrative costs, the
new requirement would provide a small increase in the amount of funds
available for the provision of services to individuals with the most
significant disabilities pursuing a supported employment outcome. DSUs
will be able to shift these excess costs to the VR State grants program
since it does not have a cap on the amount of administrative funds that
can be spent under that program.
C. Limitations on the Use of Subminimum Wage
The Act, as amended by WIOA, imposes limitations on the payment of
subminimum wages by employers who hold special wage certificates under
the Fair Labor Standards Act. The requirements imposed by section 511
and thus proposed in part 397, do not take effect until July 22, 2016.
Pursuant to statutory requirements contained in section 511 of the
Act, as added by WIOA, we propose to create a new Sec. 397.10 that
would require the DSU, in consultation with the State educational
agency, to develop a process, or utilize an existing process, that
ensures individuals with disabilities, including youth with
disabilities, receive documentation demonstrating completion of the
various activities required by section 511. Proposed Sec. Sec. 397.20
and 397.30 would establish the documentation that the DSUs and local
educational agencies, as appropriate, must provide to demonstrate an
individual's completion of the various activities required by section
511(a)(2) of the Act. These include completing pre-employment
transition services under proposed Sec. 361.48(a) and the
determination under an application for VR services under proposed
Sec. Sec. 361.42 and 361.43. Proposed Sec. 397.40 would establish the
documentation that the DSUs must provide to individuals with
disabilities upon the completion of certain information and career
counseling-related services, as required by section 511(c) of the Act.
We have not attempted to quantify the costs to the DSUs related to the
provision of this required documentation because the number of youth
and other individuals who potentially could receive services under
proposed part 397 will vary widely from State to State. In addition,
there exists no reliable national data on which to base a calculation
of costs. However, DSUs generate documentation throughout the
vocational rehabilitation process that may meet the requirements of
Sec. Sec. 397.20 and 397.30, including written notification of a
consumer's eligibility or ineligibility, copies of individualized plans
for employment and subsequent amendments, and written notification when
the consumer's case record is closed. As a result, the utilization of
this documentation to meet section 511 requirements should not result
in significant additional burden to DSUs.
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require 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:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading: For example,
Sec. 361.1 Purpose.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of
[[Page 21098]]
this preamble be more helpful in making the proposed regulations easier
to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make
these proposed regulations easier to understand, see the instructions
in the ADDRESSES section.
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. The 80 entities that administer the VR program and Supported
Employment program are State agencies, including those in 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. States and State agencies
are not defined as ``small entities'' in the Regulatory Flexibility
Act.
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and respondent
burden, the Department provides the general public and Federal agencies
with an opportunity to comment on proposed and continuing collections
of information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public
understands the Department's collection instructions, respondents can
provide the requested data in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and the Department can properly assess the impact
of collection requirements on respondents.
The following sections contain information collection requirements:
Sections 361.10, 361.12, 361.13, 361.15, 361.16, 361.17,
361.18, 361.19, 361.20, 361.21, 361.22, 361.23, 361.24, 361.25, 361.26,
361.27, 361.29, 361.30, 361.31, 361.32, 361.34, 361.35, 361.36, 361.37,
361.40, 361.46, 361.51, 361.52, 361.53, and 361.55, as well as
Sec. Sec. 363.10 and 363.11, pertaining to the VR services portion of
the Unified or Combined State Plan and Supplement for Supported
Employment Services; and
Sections 361.40 and 363.52, related to the VR program Case
Service Report.
As a result of the amendments to the Act made by WIOA, we propose
changes to some of these sections and their corresponding information
collection requirements. Under the PRA the Department has submitted a
copy of these sections to OMB for its review.
A Federal agency may not conduct or sponsor a collection of
information unless OMB approves the collection under the PRA and the
corresponding information collection instrument displays a currently
valid OMB control number. Notwithstanding any other provision of law,
no person is required to comply with, or is subject to penalty for
failure to comply with, a collection of information if the collection
instrument does not display a currently valid OMB control number. In
the final regulations, we will display the OMB control numbers assigned
by OMB to any information collection requirement proposed in this NPRM
and adopted in the final regulations, including: 1820-0013 (Cumulative
Case Report), 1820-0017 (Annual Vocational Rehabilitation Program/Cost
Report), 1820-0500 (VR State Plan), 1820-0508 (VR Case Service Report),
1820-0563 (Annual Report of Appeals), 1820-0693 (Program Improvement
Plan), and 1820-0694 (VR Program Corrective Action Plan).
VR Services Portion of the Unified or Combined State Plan and
Supplement for Supported Employment Services (1820-0500)
Section 101(a) of the Act, as amended by WIOA, adds new content
requirements to the State plan, which is now to be submitted as the
vocational rehabilitation services portion of the Unified or Combined
State Plan under section 102 or 103 of title I of WIOA. As a result,
proposed Sec. Sec. 361.10, 361.18, 361.24, 361.29, and 361.36, along
with proposed Sec. Sec. 363.10 and 363.11, would cause substantive
changes to the active and OMB-approved data collection under 1820-0500
(VR State Plan). In addition, the VR State Plan form includes
previously approved information collection requirements related to a
number of current regulations that remain unchanged as a result of the
amendments to the Act. There are also several proposed regulations
related to this data collection that necessitate primarily conforming
or technical changes to the form.
These current and proposed sections that contain already approved
information collection requirements or that do not cause substantive
changes to the form include: Sec. Sec. 361.12, 361.13, 361.15, 361.16,
361.17, 361.19, 361.20, 361.21, 361.22, 361.23, 361.25, 361.26, 361.27,
361.30, 361.31, 361.34, 361.35, 361.37, 361.40, 361.46, 361.51, 361.52,
361.53, and 361.55. The proposed regulations and other adjustments
described here would change the current OMB-approved annual aggregate
burden of 1,002,000 hours at $22.00 per hour and estimated total annual
costs of $22,044,000.00 for all 80 respondents.
The currently OMB-approved estimated annual burden of 1,002,000
hours for all 80 VR agencies includes a total of 2,000 hours (25 hours
per agency) for the preparation and submission of the VR State Plan and
a total of 1,000,000 hours (12,500 hours per agency) for record keeping
associated with the case management of the individuals who apply for
and receive services from the VR program, and Supported Employment
program. However, we have determined that the time associated with this
record keeping (1,000,000 hours annually for all 80 respondents) is
part of the customary and usual business practices carried out by VR
agencies, and thus, should not be included in the estimated annual
burden for this form.
As previously stated there are a number of proposed regulations in
parts 361 and 363 that necessitate substantive changes to the State
plan. The most significant of these changes is in proposed Sec. 361.10
and would require VR agencies to submit the VR services portion of the
Unified or Combined State Plan to be eligible to receive Federal VR
program funds. Proposed Sec. 361.18 would require the VR services
portion of the Unified or Combined State Plan to describe the
procedures and activities the State agency will take to ensure it
employs qualified rehabilitation personnel, including the minimum
academic and experience requirements as amended by WIOA. Proposed Sec.
361.24 would require VR agencies to describe their coordination with
employers to increase awareness and employment opportunities for
individuals with disabilities, as well as coordination with non-
educational agencies serving out-of-school youth, and the lead agency
and implementing entity for the coordination of activities available
under section 4 of the Assistive Technology Act of 1998. Proposed Sec.
361.24 also would require VR agencies to describe in the plan their
collaboration, to develop opportunities for community-based employment
in integrated settings, to the greatest extent practicable, with the
State agency responsible for administering the State Medicaid plan
under title XIX of the Social Security Act, agencies providing services
and supports for individuals with developmental disabilities, and the
State agency responsible for providing mental health services. Proposed
Sec. 361.29 would require VR agencies to include in the VR services
portion of the Unified or Combined State Plan the
[[Page 21099]]
results of the comprehensive statewide assessment regarding the needs
of students and youth with disabilities for pre-employment transition
services and other transition services. In addition, proposed Sec.
361.29 would require the plan to include an estimate of the number of
eligible individuals who are not receiving VR services due to the
implementation of an order of selection. This proposed section also
would require the plan to contain strategies to improve VR services for
students and youth with disabilities, to address their needs as
identified through the statewide needs assessment, and to provide pre-
employment transition services. Proposed Sec. 361.36 would require VR
agencies implementing an order of selection to indicate in the plan if
they elect to provide services or equipment to individuals with
disabilities to enable them to maintain employment, regardless of
whether these individuals are receiving services under the order.
There are also proposed regulations in part 363 governing the State
Supported Employment Services program that necessitate changes to the
VR State Plan form. Proposed Sec. 363.10 would require the State to
submit with the VR services portion of the Unified or Combined State
Plan a supplement that meets the requirements of Sec. 363.11 to
receive a grant under the State Supported Employment Services program.
Proposed Sec. 363.11 would require the VR services portion of the
Unified or Combined State Plan to describe the quality, scope, and
extent of supported employment services to eligible individuals
(including youth with the most significant disabilities), the State's
goals and priorities with respect to the distribution of funds received
under this section, the provision of extended services for a period not
to exceed four years, and an assurance to expend no more than 2.5
percent of the award under this part for administrative costs.
The regulations proposed under these sections of parts 361 and 363
would increase the time needed by each VR agency to prepare and submit
the VR services portion of the Unified or Combined State Plan and its
supported employment supplement from 25 to 30 hours annually.
In addition, the total cost of this data collection may increase
due to the proposed adjustment to the average hourly wage rate of State
personnel used to estimate the annual burden for this data collection
from $22.00 to $39.78, so that wage rates are consistent with data
reported by the Bureau of Labor Statistics.
In summary, our new information collection estimate for the VR
State plan reflects the removal of the burden associated with the
maintenance of case management records for individuals served through
the VR program and Supported Employment program, adjustment of the
average hourly wage rate for State VR personnel responsible for
preparing the VR State plan form, and the increase in the estimated
number of hours needed to prepare and submit this data collection due
to proposed regulatory changes. As a result of these changes, we
estimate a total annual burden of 2,400 hours (30 hours for each of the
80 respondents), at $39.78 per hour, for a total annual cost of
$95,472.00.
VR Case Service Report 1820-0508
The VR Case Service Report is used to collect annual individual
level data on the individuals that have exited the VR program,
including individuals receiving services with funds provided under the
Supported Employment program. Sections 101(a)(10) and 606 of the Act
contain data reporting requirements under the VR program and Supported
Employment program, respectively. WIOA amends these sections to require
States to report additional data describing the individuals served and
the services provided through these programs. In addition, WIOA amends
section 106 of the Act by eliminating the current VR evaluation
standards and indicators and requiring that the standards and
indicators used to assess the performance of the VR program be
consistent with the performance accountability measures for the core
programs of the workforce development system established under section
116 of WIOA. Consequently, we propose changes to Sec. Sec. 361.40 and
363.52 that would cause substantive changes to the active and OMB-
approved data collection under 1820-0508--the VR Case Service Report
(RSA-911). Specifically the proposed regulations described here would
change the current OMB-approved annual aggregate burden of 4,000 hours
at $40.00 per hour and estimated total annual costs of $160,000.00 for
all 80 respondents.
The most significant proposed change to this data collection
affects the time at which data is collected as well as the frequency
with which data is collected. Under the current approved form, VR
agencies annually report data on each individual whose case file is
closed after exiting the VR program in that fiscal year. However, new
statutory requirements would necessitate the reporting of data for both
current program participants (open service records), as well as
individuals who have exited the program (closed records) on a quarterly
basis. Specifically, proposed Sec. 361.40 would require a State to
ensure in the VR services portion of the Unified or Combined State Plan
that it will submit reports, including reports required under sections
13, 14, and 101(a)(10) of the Act. New reporting requirements under
section 101(a)(10)(C) of the Act include data on the number of:
Individuals currently receiving services (open records) and the types
of services they are receiving, students with disabilities receiving
pre-employment transition services, and individuals referred to the
State VR program by one-stop operators and those referred to such one-
stop operators by the State VR program. In addition, proposed Sec.
363.52 would require States to report separately data regarding
eligible youth receiving supported employment services under parts 361
and 363.
Proposed Sec. 361.40 also would require States to report the data
necessary to assess VR agency performance on the standards and
indicators subject to the performance accountability provisions
described in section 116 of WIOA. The common performance accountability
measures established under section 116 of WIOA apply to all core
programs of the workforce development system and will be implemented in
joint regulations set forth in subpart E of part 361.
Because these new requirements would necessitate the reporting of
data for both current program participants (open service records) as
well as individuals who have exited the program (closed service
records) on a quarterly basis, estimated data collection and reporting
burden will increase. However, we propose to reduce the burden to
respondents by eliminating redundant elements and reorganizing some
existing elements of the form. The regulations proposed under this
section will increase the total annual burden for the 80 respondents by
4,000 hours. We estimate the total annual reporting burden to be 8,000
hours at $33.63 per hour (a rate more consistent with the rate reported
through the Bureau of Labor Statistics for State-employed database
administrators), for a total annual cost of $269,040.00.
Related OMB-Approved Data Collections That Remain Unchanged
The regulations proposed through this NPRM do not cause substantive
changes to the OMB-approved annual burden, respondents, or costs for
the following OMB-approved data collections:
[[Page 21100]]
1820-0013 Cumulative Caseload Report
In the Cumulative Caseload Report State VR agencies report
cumulative aggregate data on individuals served in the various stages
of the VR process and services provided. Proposed regulations related
to this data collection would not cause substantive changes to the
current OMB-approved annual burden of 320 annual burden hours at $30.00
per hour with 80 respondents reporting quarterly for a total of 320
responses, and total annual costs of $9,600.00.
1820-0017 Annual Vocational Rehabilitation Program/Cost Report
Proposed regulations related to this data collection would not
cause substantive changes to the current OMB-approved annual burden of
320 annual burden hours at $30.00 per hour with 80 respondents and
annual costs of $9,600.00.
1820-0563 Annual Report of Appeals
In this report, State VR agencies submit data on the number of
individuals who have requested appeals for decisions made by the DSU
pertaining to the provision of services, the types of dispute
resolutions used to resolve these appeals, and the outcomes of these
appeals. Proposed regulations related to this data collection would not
cause substantive changes to the current OMB-approved annual burden of
160 annual burden hours at $30.00 per hour with 80 respondents and
annual costs of $4,800.00.
1820-0693 Performance Improvement Plan (PIP)
A Performance Improvement Plan is developed when a VR agency has
failed to achieve the required performance level for the evaluation
standards and indicators established under section 106 of the Act.
Proposed regulations related to this data collection would not cause
substantive changes to the current OMB-approved annual burden of 125
annual burden hours at $30.00 per hour with 5 respondents reporting
quarterly for a total of 20 responses, and annual costs of $3,750.00.
1820-0694 VR Program Corrective Action Plan
A Corrective Action Plan is required when a DSU is found to be out
of compliance with the Federal requirements governing the
administration of the VR program through monitoring activities engaged
in pursuant to section 107 of the Act. Proposed regulations related to
this data collection would not cause substantive changes to the current
OMB-approved annual burden of 975 annual burden hours at $30.00 per
hour with 15 respondents reporting quarterly for a total of 60
responses, and annual costs of $29,250.00.
Note that in accordance with the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards published at 2 CFR 200, we require an authorized certifying
official for each data collection to certify that the data is true,
accurate and complete to the best of his or her knowledge or belief.
This requirement does not cause any change to the estimated annual
burden related to the preparation and submission of the data
collections described in this section of the NPRM.
We have prepared an Information Collection Request (ICR) for these
collections. If you want to review and comment on the ICR please follow
the instructions listed under the ADDRESSES section of this notice.
Please note the Office of Information and Regulatory Affairs (OMB) and
the Department review all comments on an ICR that are posted at
www.regulations.gov. In preparing your comments you may want to review
the ICR in www.regulations.gov or in www.reginfo.gov. The comment
period will run concurrently with the comment period of the NPRM. When
commenting on the information collection requirements, we consider your
comments on these collections of information in--
Deciding whether the collections are necessary for the
proper performance of our functions, including whether the information
will have practical use;
Evaluating the accuracy of our estimate of the burden of
the collections, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond.
This includes exploring the use of appropriate automated,
electronic, mechanical, or other technological collection techniques.
OMB is required to make a decision concerning the collections of
information contained in these regulations between 30 and 60 days after
publication of this document in the Federal Register. Therefore, to
ensure that OMB gives your comments full consideration, it is important
that OMB receives your comments by May 18, 2015. This does not affect
the deadline for your comments to us on the proposed regulations.
ADDRESSES: Comments submitted in response to this notice should be
submitted electronically through the Federal eRulemaking Portal at
www.regulations.gov by selecting Docket ID ED-2015-OSERS-0001 or via
postal mail commercial delivery, or hand delivery. Please specify the
Docket ID number and indicate ``Information Collection Comments'' on
the top of your comments if your comment relates to the information
collection for this rule. Written requests for information or comments
submitted by postal mail or delivery should be addressed to the
Director of the Information Collection Clearance Division, U.S.
Department of Education, 400 Maryland Avenue SW., Mailstop L-OM-2-
2E319LBJ, Room 2E115, Washington, DC 20202-4537. Comments submitted by
fax or email and those submitted after the comment period will not be
accepted. FOR FURTHER INFORMATION CONTACT: Electronically mail
[email protected]. Please do not send comments here.
Intergovernmental Review
These programs are subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for these programs.
Assessment of Educational Impact
In accordance with section 411 of the General Education Provisions
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on
whether these proposed regulations would require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. The proposed regulations in Sec. Sec. 361, 363, and 397
may
[[Page 21101]]
have federalism implications. We encourage State and local elected
officials to review and provide comments on these proposed regulations.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the person listed under FOR
FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at the
site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department. (Catalog of Federal Domestic Assistance Numbers:
84.126A State Vocational Rehabilitation Services program; and 84.187
State Supported Employment Services program)
List of Subjects
34 CFR Part 361
Administrative practice and procedure, Grant programs-education,
Grant programs-social programs, Reporting and recordkeeping
requirements, Vocational rehabilitation.
34 CFR Part 363
Grant programs-education, Grant programs-social programs, Manpower
training programs, Reporting and recordkeeping requirements, and
Vocational rehabilitation.
34 CFR Part 397
Individuals with disabilities, Reporting and recordkeeping
requirements, Students, Vocational rehabilitation, Youth.
Dated: March 6, 2015.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary of
Education proposes to amend title 34 of the Code of Federal Regulations
as follows:
0
1. Part 361 is revised to read as follows:
PART 361--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 and Other Requirements for Vocational
Rehabilitation Services
361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.
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 Council.
361.17 Requirements for a State Rehabilitation Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 Public participation requirements.
361.21 Consultations regarding the administration of the vocational
rehabilitation services portion of the Unified or Combined State
Plan.
361.22 Coordination with education officials.
361.23 Requirements related to the statewide workforce development
system.
361.24 Cooperation and coordination with other entities.
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 assessment; annual estimates; annual State goals
and priorities; strategies; and progress reports.
361.30 Services to American Indians.
361.31 Cooperative agreements with private nonprofit organizations.
361.32 Provision of training and services for employers.
361.33 [Reserved]
361.34 Supported employment State plan supplement.
361.35 Innovation and expansion activities.
361.36 Ability to serve all eligible individuals; order of selection
for services.
361.37 Information and referral programs.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports; Evaluation standards and performance indicators.
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 plan for employment.
361.46 Content of the individualized plan for employment.
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 for
individuals with disabilities.
361.51 Standards for facilities and providers of services.
361.52 Informed choice.
361.53 Comparable services and benefits.
361.54 Participation of individuals in cost of services based on
financial need.
361.55 Annual review of individuals in extended employment and other
employment under special certificate provisions of the Fair Labor
Standards Act.
361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
361.57 Review of determinations made by designated State unit
personnel.
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.
361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
Subpart D--[Reserved]
Subpart E--[Reserved]
Subpart F--[Reserved]
Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c), unless otherwise noted.
Subpart A--General
Sec. 361.1 Purpose.
Under the State Vocational Rehabilitation Services Program, the
Secretary provides grants to assist States in operating statewide
comprehensive, coordinated, effective, efficient, and accountable
vocational rehabilitation programs, each of which is--
(a) An integral part of a statewide workforce development system;
and
(b) Designed to assess, plan, develop, and provide vocational
rehabilitation services for individuals with
[[Page 21102]]
disabilities, consistent with their unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice so that they may prepare for and engage in competitive
integrated employment and achieve economic self-sufficiency.
(Authority: Section 100(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 720(a))
Sec. 361.2 Eligibility for a grant.
Any State that submits to the Secretary a vocational rehabilitation
services portion of the Unified or Combined 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 Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a))
Sec. 361.3 Authorized activities.
The Secretary makes payments to a State to assist in--
(a) The costs of providing vocational rehabilitation services under
the vocational rehabilitation services portion of the Unified or
Combined State Plan; and
(b) Administrative costs under the vocational rehabilitation
services portion of the Unified or Combined State Plan.
(Authority: Section 111(a)(1) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 731(a)(1))
Sec. 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 76 (State-Administered Programs).
(2) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(3) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(5) 34 CFR part 82 (New Restrictions on Lobbying).
(b) The regulations in this part 361.
(c) 2 CFR part 190 (OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement)) as adopted in 2 CFR part
3485.
(d) 2 CFR part 200 (Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards) as adopted in 2
CFR part 3474.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.5 Applicable definitions.
The following definitions apply to this part:
(a) Definitions in EDGAR 77.1.
(b) Definitions in 2 CFR part 200 subpart A.
(c) The following definitions:
(1) Act means the Rehabilitation Act of 1973, as amended (29 U.S.C.
701 et seq.).
(2) Administrative costs under the vocational rehabilitation
services portion of the Unified or Combined State Plan means
expenditures incurred in the performance of administrative functions
under the vocational rehabilitation program carried out under this
part, including expenses related to program planning, development,
monitoring, and evaluation, including, but not limited to, expenses
for--
(i) Quality assurance;
(ii) Budgeting, accounting, financial management, information
systems, and related data processing;
(iii) Providing information about the program to the public;
(iv) Technical assistance and support services to other State
agencies, private nonprofit organizations, and businesses and
industries, except for technical assistance and support services
described in Sec. 361.49(a)(4);
(v) The State Rehabilitation Council and other advisory committees;
(vi) Professional organization membership dues for designated State
unit employees;
(vii) The removal of architectural barriers in State vocational
rehabilitation agency offices and State-operated rehabilitation
facilities;
(viii) Operating and maintaining designated State unit facilities,
equipment, and grounds, but not including capital expenditures as
defined in 2 CFR 200.13;
(ix) Supplies;
(x) Administration of the comprehensive system of personnel
development described in Sec. 361.18, including personnel
administration, administration of affirmative action plans, and
training and staff development;
(xi) Administrative salaries, including clerical and other support
staff salaries, in support of these administrative functions;
(xii) Travel costs related to carrying out the program, other than
travel costs related to the provision of services;
(xiii) Costs incurred in conducting reviews of determinations made
by personnel of the designated State unit, including costs associated
with mediation and impartial due process hearings under Sec. 361.57;
and
(xiv) Legal expenses required in the administration of the program.
(Authority: Sections 7(1) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(1) and 709(c))
(3) Applicant means an individual who submits an application for
vocational rehabilitation services in accordance with Sec.
361.41(b)(2).
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(4) Appropriate modes of communication means specialized aids and
supports that enable an individual with a disability 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, augmentative communication devices,
graphic presentations, and simple language materials.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(5) Assessment for determining eligibility and vocational
rehabilitation needs means, as appropriate in each case--
(i)(A) A review of existing data--
(1) To determine if an individual is eligible for vocational
rehabilitation services; and
(2) To assign priority for an order of selection described in Sec.
361.36 in the States that use an order of selection; and
(B) To the extent necessary, the provision of appropriate
assessment activities to obtain necessary additional data to make the
eligibility determination and assignment;
(ii) To the extent additional data are necessary to make a
determination of the employment outcomes and the nature and scope of
vocational rehabilitation services to be included in the individualized
plan for employment of an eligible individual, a comprehensive
assessment to determine the unique strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice,
including the need for supported employment, of the eligible
individual. This comprehensive assessment--
(A) Is limited to information that is necessary to identify the
rehabilitation needs of the individual and to develop the
individualized plan of employment of the eligible individual;
(B) Uses as a primary source of information, to the maximum extent
possible and appropriate and in
[[Page 21103]]
accordance with confidentiality requirements--
(1) Existing information obtained for the purposes of determining
the eligibility of the individual and assigning priority for an order
of selection described in Sec. 361.36 for the individual; and
(2) Information that can be provided by the individual and, if
appropriate, by the family of the individual;
(C) May include, to the degree needed to make such a determination,
an assessment of the personality, interests, interpersonal skills,
intelligence and related functional capacities, educational
achievements, work experience, vocational aptitudes, personal and
social adjustments, and employment opportunities of the individual and
the medical, psychiatric, psychological, and other pertinent
vocational, educational, cultural, social, recreational, and
environmental factors that affect the employment and rehabilitation
needs of the individual;
(D) May include, to the degree needed, an appraisal of the patterns
of work behavior of the individual and services needed for the
individual to acquire occupational skills and to develop work
attitudes, work habits, work tolerance, and social and behavior
patterns necessary for successful job performance, including the use of
work in real job situations to assess and develop the capacities of the
individual to perform adequately in a work environment; and
(E) To the maximum extent possible, relies on information obtained
from experiences in integrated employment settings in the community and
in other integrated community settings;
(iii) Referral, for the provision of rehabilitation technology
services to the individual, to assess and develop the capacities of the
individual to perform in a work environment; and
(iv) An exploration of the individual's abilities, capabilities,
and capacity to perform in work situations, which must be assessed
periodically during trial work experiences, including experiences in
which the individual is provided appropriate supports and training.
(Authority: Sections 7(2) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(2) and 709(c))
(6) Assistive technology terms.
(i) Assistive technology has the meaning given such term in section
3 of the Assistive Technology Act of 1998 (29 U.S.C. 3002).
(ii) Assistive technology device has the meaning given such term in
section 3 of the Assistive Technology Act of 1998, except that the
reference in such section to the term individuals with disabilities
will be deemed to mean more than one individual with a disability as
defined in paragraph (20)(A) of the Act.
(iii) Assistive technology service has the meaning given such term
in section 3 of the Assistive Technology Act of 1998, except that the
reference in such section to the term--
(A) Individual with a disability will be deemed to mean an
individual with a disability, as defined in paragraph (20)(A) of the
Act; and
(B) Individuals with disabilities will be deemed to mean more than
one such individual.
(Authority: Sections 7(3) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(3) and 709(c))
(7) 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) Customized employment.
(P) Services to family members if necessary to enable the applicant
or eligible individual to achieve an employment outcome.
(Q) Personal assistance services.
(R) Services similar to the services described in paragraphs (A)
through (Q) of this definition.
(ii) For the purposes of this definition, 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: Section 7(4) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(4))
(8) Comparable services and benefits. (i) Comparable services and
benefits means services and benefits, including accommodations and
auxiliary aids and services, that are--
(A) Provided or paid for, in whole or in part, by other Federal,
State, or local public agencies, by health insurance, or by employee
benefits;
(B) Available to the individual at the time needed to ensure the
progress of the individual toward achieving the employment outcome in
the individual's individualized plan for employment in accordance with
Sec. 361.53; and
(C) Commensurate to the services that the individual would
otherwise receive from the designated State vocational rehabilitation
agency.
(ii) For the purposes of this definition, comparable services and
benefits do not include awards and scholarships based on merit.
(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))
(9) Competitive integrated employment means work that--
(i) Is performed on a full-time or part-time basis (including self-
employment) and for which an individual is compensated at a rate that--
(A) Is not less than the higher of the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
or the rate required under in the applicable State or local minimum
wage law;
(B) Is not less than the customary rate paid by the employer for
the same or similar work performed by other employees who are not
individuals with disabilities and who are similarly situated in similar
occupations by the same employer and who have similar training,
experience, and skills; and
(C) In the case of an individual who is self-employed, yields an
income that is comparable to the income received by other individuals
who are not individuals with disabilities and who are self-employed in
similar occupations or on similar tasks and who have similar training,
experience, and skills; and
(D) Is eligible for the level of benefits provided to other
employees; and
(ii) Is at a location--
[[Page 21104]]
(A) Typically found in the community; and
(B) Where the employee with a disability interacts for the purpose
of performing the duties of the position with other employees within
the particular work unit and the entire work site, and, as appropriate
to the work performed, other persons (e.g., customers and vendors), who
are not individuals with disabilities (not including supervisory
personnel or individuals who are providing services to such employee)
to the same extent that employees who are not individuals with
disabilities and who are in comparable positions interact with these
persons; and
(iii) Presents, as appropriate, opportunities for advancement that
are similar to those for other employees who are not individuals with
disabilities and who have similar positions.
(Authority: Sections 7(5) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(5) and 709(c))
(10) 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 construction of new buildings;
(iii) The acquisition of existing buildings;
(iv) The expansion, remodeling, alteration, or renovation of
existing buildings;
(v) Architect's fees, site surveys, and soil investigation, if
necessary, in connection with the acquisition of land or existing
buildings, or the and construction, expansion, remodeling, or
alteration of community rehabilitation facilities;
(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(6) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(6) and 709(c))
(11) Customized employment means competitive integrated employment,
for an individual with a significant disability, that is--
(i) Based on an individualized determination of the unique
strengths, needs, and interests of the individual with a significant
disability;
(ii) Designed to meet the specific abilities of the individual with
a significant disability and the business needs of the employer; and
(iii) Carried out through flexible strategies, such as--
(A) Job exploration by the individual; and
(B) Working with an employer to facilitate placement, including--
(1) Customizing a job description based on current employer needs
or on previously unidentified and unmet employer needs;
(2) Developing a set of job duties, a work schedule and job
arrangement, and specifics of supervision (including performance
evaluation and review), and determining a job location;
(3) Using a professional representative chosen by the individual,
or if elected self-representation, to work with an employer to
facilitate placement; and
(4) Providing services and supports at the job location.
(Authority: Section 7(7) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(7) and 709(c))
(12) Designated State agency or State agency means the sole State
agency, designated, in accordance with Sec. 361.13(a), to administer,
or supervise the local administration of, the vocational rehabilitation
services portion of the Unified or Combined State Plan. 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 Unified or
Combined State Plan relating to the vocational rehabilitation of
individuals who are blind.
(Authority: Sections 7(8)(A) and 101(a)(2)(A) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(8)(A) and 721(a)(2)(A))
(13) Designated State unit or State unit means either--
(i) The State 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 Sec. 361.13(b); or
(ii) The State agency that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities.
(Authority: Sections 7(8)(B) and 101(a)(2)(B) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(8)(B) and 721(a)(2)(B))
(14) Eligible individual means an applicant for vocational
rehabilitation services who meets the eligibility requirements of Sec.
361.42(a).
(Authority: Sections 7(20)(A) and 102(a)(1) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(20)(A) and 722(a)(1))
(15) Employment outcome means, with respect to an individual,
entering, advancing in, or retaining full-time or, if appropriate,
part-time competitive integrated employment, as defined in Sec.
361.5(c)(9) (including customized employment, self-employment,
telecommuting, or business ownership), or supported employment, that is
consistent with an individual's unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice.
(Authority: Sections 7(11), 12(c), 100(a), and 102(b)(3)(A) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(11), 709(c),
720(a), and 722(b)(4)(A))
(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 rehabilitation program, as defined in paragraph (c)(17) of
this section, to provide vocational rehabilitation services to
applicants or eligible individuals;
(ii) Staffing, if necessary to establish, develop, or improve a
public or nonprofit community rehabilitation program for the purpose of
providing vocational rehabilitation services to applicants or eligible
individuals, 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; and
(D) 45 percent of staffing costs for the fourth year; and
(iii) Other expenditures and activities related to the
establishment, development, or improvement of a public or nonprofit
community rehabilitation program that are necessary to make the program
functional or increase its effectiveness in providing vocational
rehabilitation services to applicants or eligible individuals, but are
not ongoing operating expenses of the program.
(Authority: Sections 7(12) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(12) and 709(c))
[[Page 21105]]
(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 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: Sections 7(12) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(12) and 709(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.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(19) Extended services means ongoing support services and other
appropriate services that are--
(i) Needed to support and maintain an individual with a most
significant disability including a youth with a most significant
disability, in supported employment;
(ii) Organized or made available, singly or in combination, in such
a way as to assist an eligible individual in maintaining supported
employment;
(iii) Based on the needs of an eligible individual, as specified in
an individualized plan for employment;
(iv) Provided by a State agency, a private nonprofit organization,
employer, or any other appropriate resource, after an individual has
made the transition from support from the designated State unit; and
(v) Provided to youth with the most significant disabilities by the
designated State unit in accordance with requirements set forth in this
part and part 363 for a period not to exceed 4 years. The designated
State unit may not provide extended services to individuals with the
most significant disabilities who are not youth with the most
significant disabilities.
(Authority: Sections 7(13), 12(c), and 604(b) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(13), 709(c) and 795i)
(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)(A)(i)(III) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
721(a)(8)(A)(i)(III))
(21) Fair hearing board means a committee, body, or group of
persons established by a State prior to January 1, 1985, that--
(i) Is authorized under State law to review determinations made by
personnel of the designated State unit that affect the provision of
vocational rehabilitation services; and
(ii) Carries out the responsibilities of the impartial hearing
officer in accordance with the requirements in Sec. 361.57(j).
(Authority: Sections 12(c) and 102(c)(6) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 722(c)(6))
(22) Family member, for purposes of receiving vocational
rehabilitation services in accordance with Sec. 361.48(b)(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)(19) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(19))
(23) Governor means a chief executive officer of a State.
(Authority: Section 7(15) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(15))
(24) 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 Council for the
designated State unit;
(C) Has not been involved previously in the vocational
rehabilitation of the applicant or eligible individual;
(D) Has knowledge of the delivery of vocational rehabilitation
services, the vocational rehabilitation services portion of the Unified
or Combined 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 could
affect the objectivity of the individual.
(ii) An individual is not 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(16) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(16))
(25) Indian; American Indian; Indian American; Indian Tribe.
(i) In general. The terms ``Indian'', ``American Indian'', and
``Indian American'' mean an individual who is a member of an Indian
tribe and include a Native and a descendant of a Native, as such terms
are defined in subsections (b) and (c) of section 3 of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602).
(ii) Indian tribe. The term ``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) and a tribal organization (as defined in section 4(1)
of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450(b)(1)).
(Authority: Section 7(19) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(19))
(26) Individual who is blind means a person who is blind within the
meaning of applicable State law.
[[Page 21106]]
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(27) Individual with a disability, except as provided in paragraph
(c)(28)of this section, 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(20)(A) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(20)(A))
(28) Individual with a disability, for purposes of Sec. Sec.
361.5(c)(13), 361.13(a), 361.13(b)(1), 361.17(a), (b), (c), and (j),
361.18(b), 361.19, 361.20, 361.23(b)(2), 361.29(a) and (d)(8), and
361.51(b), means an individual--
(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(20)(B) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(20)(B))
(29) Individual with a most significant disability means an
individual with a significant disability who meets the designated State
unit's criteria for an individual with a most significant disability.
These criteria must be consistent with the requirements in Sec.
361.36(d)(1) and (2).
(Authority: Sections 7(21)(E) and 101(a)(5)(C) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(21)(E) and 721(a)(5)(C))
(30) Individual with a significant 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
illness, multiple sclerosis, muscular dystrophy, musculo-skeletal
disorders, neurological disorders (including stroke and epilepsy),
spinal cord conditions (including paraplegia and quadriplegia), sickle
cell anemia, intellectual disability, 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(21)(A) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(21)(A))
(31) Individual's representative means any representative chosen by
an applicant or eligible individual, as appropriate, 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: Sections 7(22) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(22) and 709(c))
(32) Integrated setting means--
(i) With respect to the provision of services, a setting typically
found in the community in which applicants or eligible individuals
interact with non-disabled individuals other than non-disabled
individuals who are providing services to those applicants or eligible
individuals; and
(ii) With respect to an employment outcome, means a setting--
(A) Typically found in the community; and
(B) Where the employee with a disability interacts, for the purpose
of performing the duties of the position, with other employees within
the particular work unit and the entire work site, and, as appropriate
to the work performed, other persons (e.g., customers and vendors) who
are not individuals with disabilities (not including supervisory
personnel or individuals who are providing services to such employee)
to the same extent that employees who are not individuals with
disabilities and who are in comparable positions interact with these
persons.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(33) Local workforce development board means a local board, as
defined in section 3 of the Workforce Innovation and Opportunity Act.
(Authority: Section 7(25) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(25))
(34) Maintenance means monetary support provided to an individual
for expenses, such as food, shelter, and clothing, that are in excess
of the normal expenses of the individual and that are necessitated by
the individual's participation in an assessment for determining
eligibility and vocational rehabilitation needs or the individual's
receipt of vocational rehabilitation services under an individualized
plan for employment.
(Authority: Sections 12(c) and 103(a)(7) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(7))
(i)Examples: The following are examples of expenses that would meet
the definition of maintenance. The examples are illustrative, do not
address all possible circumstances, and are not intended to substitute
for individual counselor judgment.
Example 1: The cost of a uniform or other suitable clothing that is
required for an individual's job placement or job-seeking activities.
Example 2: The cost of short-term shelter that is required in order
for an individual to participate in assessment activities or vocational
training at a site that is not within commuting distance of an
individual's home.
Example 3: 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.
(ii) [Reserved]
(35) Mediation means the act or process of using an independent
third party to act as a mediator, intermediary, or conciliator to
assist persons or parties in settling differences or disputes prior to
pursuing formal administrative or other legal remedies. Mediation under
the program must be conducted in accordance with the requirements in
Sec. 361.57(d) by a qualified and impartial mediator as defined in
Sec. 361.5(c)(43).
(Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 722(c)(4))
(36) 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 1986.
[[Page 21107]]
(Authority: Section 7(26) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(26))
(37) Ongoing support services, as used in the definition of
supported employment, means services that--
(i) Are needed to support and maintain an individual with a most
significant disability, including a youth with a most significant
disability, in supported employment;
(ii) Are identified based on a determination by the designated
State unit of the individual's need as specified in an individualized
plan for employment;
(iii) Are 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;
(iv) 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 specific circumstances, especially at the request of
the individual, the individualized plan for employment provides for
off-site monitoring, twice monthly meetings with the individual;
(v) Consist of--
(A) Any particularized assessment supplementary to the
comprehensive assessment of rehabilitation needs described in paragraph
(c)(5)(ii) of this section;
(B) The provision of skilled job trainers who accompany the
individual for intensive job skill training at the work site;
(C) Job development and training;
(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 Sec. 361.48; or
(I) Any service similar to the foregoing services.
(Authority: Sections 7(27) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(27) and 709(c))
(38) Personal assistance services means a range of services,
including, among other things, training in managing, supervising, and
directing personal assistance services, provided by one or more
persons, that are--
(i) 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 the individual did not have a
disability;
(ii) Designed to increase the individual's control in life and
ability to perform everyday activities on or off the job;
(iii) Necessary to the achievement of an employment outcome; and
(iv) 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(28), 12(c), 102(b)(4)(B)(i)(I)(bb), and
103(a)(9) of the Rehabilitation Act of 1973, as amended; 29 U.S.C.
705(28), 709(c), 722(b)(4)(B)(i)(I)(bb), and 723(a)(9))
(39) 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 and orthotic devices;
(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 who 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)(6) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(6))
(40) Physical or mental impairment means--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Neurological, musculo-skeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and
endocrine; or
(ii) Any mental or psychological disorder such as intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))
(41) Post-employment services means one or more of the services
identified in Sec. 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 unique strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice.
(Authority: Sections 12(c) and 103(a)(20) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(20))
Note to paragraph(c)(41): Post-employment services are intended to
ensure that the employment outcome remains consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice. These services
are available to meet rehabilitation needs that do not require a
complex and comprehensive provision of services and, thus, should be
limited
[[Page 21108]]
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 plan for
employment; thus, a re-determination 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 co-
workers, and the individual needs mental health services and counseling
to maintain the employment, or the individual requires assistive
technology 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 unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice.
(42) Pre-employment transition services means the required
activities and authorized activities specified in Sec. 361.48(a).
(Authority: Sections 7(30) and 113 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 7(30) and 733)
(43) Qualified and impartial mediator. (i) Qualified and impartial
mediator means an individual who--
(A) Is not an employee of a public agency (other than an
administrative law judge, hearing examiner, employee of a State office
of mediators, or employee of an institution of higher education);
(B) Is not a member of the State Rehabilitation Council for the
designated State unit;
(C) Has not been involved previously in the vocational
rehabilitation of the applicant or eligible individual;
(D) Is knowledgeable of the vocational rehabilitation program and
the applicable Federal and State laws, regulations, and policies
governing the provision of vocational rehabilitation services;
(E) Has been trained in effective mediation techniques consistent
with any State-approved or -recognized certification, licensing,
registration, or other requirements; and
(F) Has no personal, professional, or financial interest that could
affect the individual's objectivity during the mediation proceedings.
(ii) An individual is not considered to be an employee of the
designated State agency or designated State unit for the purposes of
this definition solely because the individual is paid by the designated
State agency or designated State unit to serve as a mediator.
(Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 722(c)(4))
(44) 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(32) and (12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(32) and 709(c))
(45) 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(32) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(32))
(46) Reservation means a Federal or State Indian reservation, a
public domain Indian allotment, a 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 (43 U.S.C. 1601 et seq.); or a
defined area of land recognized by a State or the Federal Government
where there is a concentration of tribal members and on which the
tribal government is providing structured activities and services.
(Authority: Section 121(e) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 741(e))
(47) 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 vocational rehabilitation services
portion of the Unified or Combined State Plan.
(Authority: Section 7(24) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(24))
(48) 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(34) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(34))
(49) State workforce development board means a State workforce
development board, as defined in section 3 of the Workforce Innovation
and Opportunity Act (29 U.S.C. 3102).
(Authority: Section 7(35) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(35))
(50) Statewide workforce development system means a workforce
development system, as defined in section 3 of the Workforce Innovation
and Opportunity Act (29 U.S.C. 3102).
(Authority: Section 7(36) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(36))
(51) Student with a disability. (i) Student with a disability
means, in general, an individual with a disability who--
(A)(1) Is not younger than the earliest age for the provision of
transition services under section 614(d)(1)(A)(i)(VIII) of the
Individuals with Disabilities Education Act (20 U.S.C.
1414(d)(1)(A)(i)(VIII)); or
(2) If the State involved elects to use a lower minimum age for
receipt of pre-employment transition services under this Act, is not
younger than that minimum age; and
(B)(1) Is not older than 21 years of age; or
(2) If the State law for the State provides for a higher maximum
age for receipt of services under the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.), is not older than that maximum
age; and
(C)(1) Is eligible for, and receiving, special education or related
services under Part B of the Individuals with Disabilities Education
Act (20 U.S.C. 1411 et seq.); or
(2) Is a student who is an individual with a disability, for
purposes of section 504.
(ii) Students with disabilities means more than one student with a
disability.
(Authority: Section 7(37) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(37))
[[Page 21109]]
(52) Substantial impediment to employment means that a physical or
mental impairment (in light of attendant medical, psychological,
vocational, educational, communication, and other related factors)
hinders an individual from preparing for, entering into, engaging in,
advancing in, or retaining employment consistent with the individual's
abilities and capabilities.
(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))
(53) Supported employment. (i) Supported employment means--
(A) Competitive integrated employment, including customized
employment, or employment in an integrated work setting in which an
individual with a most significant disability, including a youth with a
most significant disability, is working on a short-term basis toward
competitive integrated employment that is individualized, consistent
with the unique strengths, abilities, interests, and informed choice of
the individual, including with ongoing support services for individuals
with the most significant disabilities--
(1) For whom competitive integrated employment has not historically
occurred, or for whom competitive integrated employment has been
interrupted or intermittent as a result of a significant disability;
and
(2) Who, because of the nature and severity of their disability,
need intensive supported employment services and extended services
after the transition from support provided by the designated State
unit, in order to perform this work; or
(B) Transitional employment, as defined in paragraph (c)(56) of
this section, for individuals with the most significant disabilities
due to mental illness, including youth with the most significant
disabilities, constitutes supported employment.
(ii) For purposes of this part, an individual with the most
significant disabilities, whose supported employment in an integrated
setting does not satisfy the criteria of competitive integrated
employment, as defined in paragraph (c)(9) of this section, is
considered to be working on a short-term basis toward competitive
integrated employment so long as the individual can reasonably
anticipate achieving competitive integrated employment within six
months of achieving an employment outcome of supported employment.
(Authority: Sections 7(38), 12(c), and 602 of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 705(38), 709(c), and 795g)
(54) Supported employment services means ongoing support services,
including customized employment, and other appropriate services needed
to support and maintain an individual with a most significant
disability, including a youth with a most significant disability, in
supported employment that are--
(i) Organized and made available, singly or in combination, in such
a way as to assist an eligible individual to achieve competitive
integrated employment;
(ii) Based on a determination of the needs of an eligible
individual, as specified in an individualized plan for employment;
(iii) Provided by the designated State unit for a period of time
not to exceed 24 months, unless under special circumstances the
eligible individual and the rehabilitation counselor or coordinator
jointly agree to extend the time to achieve the employment outcome
identified in the individualized plan for employment; and
(iv) Following transition, as post-employment 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(39), 12(c), and 103(a)(16) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(39), 709(c),
and 723(a)(16))
(55) Transition services means a coordinated set of activities for
a student or youth with a disability--
(i) Designed within an outcome-oriented 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;
(ii) Based upon the individual student's needs, taking into account
the student's preferences and interests;
(iii) That includes 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; and
(iv) That promotes or facilitates the achievement of the employment
outcome identified in the student's individualized plan for employment.
(Authority: Sections 12(c) and 103(a)(15) and (b)(7) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
723(a)(15) and (b)(7))
(56) Transitional employment, as used in the definition of
supported employment, means a series of temporary job placements in
competitive integrated employment with ongoing support services for
individuals with the most significant 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(38)(B) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(38)(B) and 709(c))
(57) Transportation means travel and related expenses that are
necessary to enable an applicant or eligible individual to participate
in a vocational rehabilitation service, including expenses for training
in the use of public transportation vehicles and systems.
(Authority: Sections 12(c) and 103(a)(8) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(8))
(i) Examples. The following are examples of expenses that would
meet the definition of transportation. The examples are purely
illustrative, do not address all possible circumstances, and are not
intended as substitutes for individual counselor judgment.
Example 1: 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 2: The purchase and repair of vehicles, including vans, but
not the modification of these vehicles, as modification would be
considered a rehabilitation technology service.
Example 3: 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.
(ii) [Reserved]
(58) Vocational rehabilitation services--
(i) If provided to an individual, means those services listed in
Sec. 361.48; and
(ii) If provided for the benefit of groups of individuals, means
those services listed in Sec. 361.49.
(Authority: Sections 7(40) and 103 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(40) and 723)
(59) Youth with a disability. (i) Youth with a disability means an
individual with a disability who is not--
(A) Younger than 14 years of age; and
(B) Older than 24 years of age.
[[Page 21110]]
(ii) Youth with disabilities means more than one youth with a
disability.
(Authority: Section 7(42) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(42))
Subpart B--State Plan and Other Requirements for Vocational
Rehabilitation Services
Sec. 361.10 Submission, approval, and disapproval of the State plan.
(a) Purpose. (1) To be eligible to receive funds under this part
for a fiscal year, a State must submit, and have approved, a vocational
rehabilitation services portion of a Unified or Combined State Plan in
accordance with sections 102 or 103 of the Workforce Innovation and
Opportunity Act.
(2) The vocational rehabilitation services portion of the Unified
or Combined State Plan must satisfy all requirements set forth in this
part.
(b) Separate part relating to the vocational rehabilitation of
individuals who are blind. If a separate State agency administers or
supervises the administration of a separate part of the vocational
rehabilitation services portion of the Unified or Combined State Plan
relating to the vocational rehabilitation of individuals who are blind,
that part of the vocational rehabilitation services portion of the
Unified or Combined State Plan must separately conform to all
applicable requirements under this part.
(c) Public participation. Prior to the adoption of any substantive
policies or procedures specific to the provision of vocational
rehabilitation services under the vocational rehabilitation services
portion of the Unified or Combined State Plan, including making any
substantive amendment to those policies and procedures, the designated
State agency must conduct public meetings throughout the State, in
accordance with the requirements of Sec. 361.20.
(d) Submission, approval, disapproval, and duration. All
requirements regarding the submission, approval, disapproval, and
duration of the vocational rehabilitation services portion of the
Unified or Combined State Plan are governed by joint regulations set
forth in subpart D of this part.
(e) Submission of policies and procedures. The State is not
required to submit policies, procedures, or descriptions required under
this part that have been previously submitted to the Secretary and that
demonstrate that the State meets the requirements of this part,
including any policies, procedures, or descriptions submitted under
this part that are in effect on July 22, 2014.
(f) Due process. If the Secretary disapproves the vocational
rehabilitation services portion of the Unified or Combined State Plan,
the Secretary will follow these procedures:
(1) Informal resolution. Prior to disapproving the vocational
rehabilitation services portion of the Unified or Combined 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
vocational rehabilitation services portion of the Unified or Combined
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 part 81.
(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 vocational rehabilitation services portion of the
Unified or Combined 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 101(a) and (b) and 107(d) of the Rehabilitation
Act of 1973, as amended; 20 U.S.C. 1231g(a); and 29 U.S.C. 721(a)
and (b) and 727(d))
Sec. 361.11 Withholding of funds.
(a) Basis for withholding. The Secretary may withhold or limit
payments under section 111 or 603(a) of the Act, as provided by section
107(c) of the Act, if the Secretary determines that--
(1) The vocational rehabilitation services portion of the Unified
or Combined State Plan, including the supported employment supplement,
has been so changed that it no longer conforms with the requirements of
this part or part 363; or
(2) In the administration of the vocational rehabilitation services
portion of the Unified or Combined State Plan there is a failure to
comply substantially with any provision of such plan or with an
evaluation standard or performance indicator established under 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
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 12(c), 101(b), 107(c) and (d) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(b),
727(c) and (d))
Administration
Sec. 361.12 Methods of administration.
The vocational rehabilitation services portion of the Unified or
Combined 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
[[Page 21111]]
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: Sections 12(c) and 101(a)(6) and (a)(10)(A) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
721(a)(6) and (a)(10)(A))
Sec. 361.13 State agency for administration.
(a) Designation of State agency. The vocational rehabilitation
services portion of the Unified or Combined State Plan must designate a
State agency as the sole State agency to administer the vocational
rehabilitation services portion of the Unified or Combined 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 (a)(3) of
this section, the vocational rehabilitation services portion of the
Unified or Combined State Plan must provide that the designated State
agency is one of the following types of agencies:
(i) A State agency that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities; or
(ii) A State agency that includes a vocational rehabilitation unit
as provided in paragraph (b) of this section.
(2) American Samoa. In the case of American Samoa, the vocational
rehabilitation services portion of the Unified or Combined 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 vocational rehabilitation
services portion of the Unified or Combined 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) General. If the designated State
agency is not of the type specified in paragraph (a)(1)(i) of this
section or if the designated State agency specified in paragraph (a)(3)
of this section is not primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities, the vocational rehabilitation services portion of
the Unified or Combined 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 vocational rehabilitation
services portion of the Unified or Combined State Plan;
(ii) Has a full-time director who is responsible for the day-to-day
operations of the vocational rehabilitation program;
(iii) Has a staff, at least 90 percent of whom are employed full
time on the rehabilitation work of the organizational unit;
(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; and
(v) Has the sole authority and responsibility described within the
designated State agency in paragraph (a) of this section to expend
funds made available under the Act in a manner that is consistent with
the purpose of the Act.
(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 vocational rehabilitation services portion of the Unified
or Combined State 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. (1) Required activities. At
a minimum, the following activities are the responsibility of the
designated State unit or the sole local agency under the supervision of
the State unit:
(i) All decisions affecting eligibility for vocational
rehabilitation services, the nature and scope of available services,
and the provision of these services.
(ii) The determination to close the record of services of an
individual who has achieved an employment outcome in accordance with
Sec. 361.56.
(iii) Policy formulation and implementation.
(iv) The allocation and expenditure of vocational rehabilitation
funds.
(v) Participation as a partner in the one-stop service delivery
system established under title I of the Workforce Investment Act of
1998, in accordance with 20 CFR part 662.
(2) Non-delegable responsibility. The responsibility for the
functions described in paragraph (c)(1) of this section may not be
delegated to any other agency or individual.
(Authority: Section 101(a)(2) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a)(2))
Sec. 361.14 Substitute State agency.
(a) General provisions. (1) If the Secretary has withheld all
funding from a State under Sec. 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 must submit a vocational rehabilitation
services portion of the Unified or Combined 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 Rehabilitation Act of 1973, as
amended; 29 U.S.C. 727(c)(3))
Sec. 361.15 Local administration.
(a) If the vocational rehabilitation services portion of the
Unified or Combined State Plan provides for the administration of the
plan by a local agency, the designated State agency must--
(1) Ensure that each local agency is under the supervision of the
designated State unit and is the sole local agency as defined in Sec.
361.5(c)(47) that is responsible for the administration of the
[[Page 21112]]
program within the political subdivision that it serves; and
(2) Develop methods that each local agency will use to administer
the vocational rehabilitation program, in accordance with the
vocational rehabilitation services portion of the Unified or Combined
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: Sections 7(24) and 101(a)(2)(A) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(24) and 721(a)(2)(A))
Sec. 361.16 Establishment of an independent commission or a State
Rehabilitation Council.
(a) General requirement. Except as provided in paragraph (b) of
this section, the vocational rehabilitation services portion of the
Unified or Combined State Plan must contain one of the following two
assurances:
(1) An assurance that the designated State agency is an independent
State commission that--
(i) Is responsible under State law for operating, or overseeing the
operation of, the vocational rehabilitation program in the State and is
primarily concerned with vocational rehabilitation or vocational and
other rehabilitation services, in accordance with Sec.
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,
unless the designated State unit under the direction of the commission
is the State agency for individuals who are blind;
(iii) Includes family members, advocates, or other representatives
of individuals with mental impairments; and
(iv) Conducts the functions identified in Sec. 361.17(h)(4).
(2) An assurance that--
(i) The State has established a State Rehabilitation Council
(Council) that meets the requirements of Sec. 361.17;
(ii) The designated State unit, in accordance with Sec. 361.29,
jointly develops, agrees to, and reviews annually State goals and
priorities and jointly submits to the Secretary annual reports of
progress with the Council;
(iii) The designated State unit regularly consults with the Council
regarding the development, implementation, and revision of State
policies and procedures of general applicability pertaining to the
provision of vocational rehabilitation services;
(iv) The designated State unit transmits to the Council--
(A) All plans, reports, and other information required under this
part to be submitted to the Secretary;
(B) All policies and information on all practices and procedures of
general applicability provided to or used by rehabilitation personnel
providing vocational rehabilitation services under this part; and
(C) Copies of due process hearing decisions issued under this part
and transmitted in a manner to ensure that the identity of the
participants in the hearings is kept confidential; and
(v) The vocational rehabilitation services portion of the Unified
or Combined State Plan, and any revision to the vocational
rehabilitation services portion of the Unified or Combined State Plan,
includes a summary of input provided by the Council, including
recommendations from the annual report of the Council, the review and
analysis of consumer satisfaction described in Sec. 361.17(h)(4), and
other reports prepared by the Council, and the designated State unit's
response to the input and recommendations, including its reasons for
rejecting any input or recommendation 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 Sec. 361.13(a)(3) to administer the part of the vocational
rehabilitation services portion of the Unified or Combined State Plan
under which vocational rehabilitation services are provided to
individuals who are blind, the State must either establish a separate
State Rehabilitation Council for each agency that does not meet the
requirements in paragraph (a)(1) of this section or establish one State
Rehabilitation Council for both agencies if neither agency meets the
requirements of paragraph (a)(1) of this section.
(Authority: Sections 101(a)(21) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(21))
Sec. 361.17 Requirements for a State Rehabilitation Council.
If the State has established a Council under Sec. 361.16(a)(2) or
(b), the Council must meet the following requirements:
(a) Appointment. (1) The members of the Council must be appointed
by the Governor or, in the case of a State that, under State law, vests
authority for the administration of the activities carried out under
this part in an entity other than the Governor (such as one or more
houses of the State legislature or an independent board), the chief
officer of that entity.
(2) The appointing authority must 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. In selecting
members, the appointing authority must consider, to the greatest extent
practicable, the extent to which minority populations are represented
on the Council.
(b) Composition. (1) General. Except as provided in paragraph
(b)(3) of this section, the Council must be composed of at least 15
members, including--
(i) At least one representative of the Statewide Independent Living
Council, who must be the chairperson or other designee of the Statewide
Independent Living Council;
(ii) At least one representative of a parent training and
information center established pursuant to section 682(a) of the
Individuals with Disabilities Education Act;
(iii) At least one representative of the Client Assistance Program
established under part 370 of this chapter, who must be the director of
or other individual recommended by the Client Assistance Program;
(iv) At least one qualified vocational rehabilitation counselor
with knowledge of and experience with vocational rehabilitation
programs who serves as an ex officio, nonvoting member of the Council
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) Representatives of individuals with disabilities who have
difficulty representing themselves or are unable due to their
disabilities to represent themselves;
(viii) Current or former applicants for, or recipients of,
vocational rehabilitation services;
(ix) In a State in which one or more projects are funded under
section 121 of the Act (American Indian Vocational Rehabilitation
Services), at least one representative of the directors of the projects
in such State;
(x) At least one representative of the State educational agency
responsible for the public education of students with
[[Page 21113]]
disabilities who are eligible to receive services under this part and
part B of the Individuals with Disabilities Education Act;
(xi) At least one representative of the State workforce development
board; and
(xii) The director of the designated State unit as an ex officio,
nonvoting member of the Council.
(2) Employees of the designated State agency. Employees of the
designated State agency may serve only as nonvoting members of the
Council. This provision does not apply to the representative appointed
pursuant to paragraph (b)(1)(iii) of this section.
(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 representative of an individual who is blind, has
multiple disabilities, and has difficulty representing himself or
herself or is unable due to disabilities to represent himself or
herself.
(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 15 members, the separate Council is 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. (1) A majority of the Council members must be
individuals with disabilities who meet the requirements of Sec.
361.5(c)(28) and are not employed by the designated State unit.
(2) In the case of a separate Council established under Sec.
361.16(b), a majority of the Council members must be individuals who
are blind and are not employed by the designated State unit.
(d) Chairperson. (1) The chairperson must be selected by the
members of the Council from among the voting members of the Council,
subject to the veto power of the Governor; or
(2) In States in which the Governor does not have veto power
pursuant to State law, the appointing authority described in paragraph
(a)(1) of this section must designate a member of the Council to serve
as the chairperson of the Council or must require the Council to
designate a member to serve as chairperson.
(e) Terms of appointment. (1) Each member of the Council must be
appointed for a term of no more than three years, and each member of
the Council, other than a representative identified in paragraph
(b)(1)(iii) or (ix) of this section, 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 must be appointed
for the remainder of the predecessor's term.
(3) The terms of service of the members initially appointed must
be, as specified by the appointing authority as described in paragraph
(a)(1) of this section, 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, except the
appointing authority as described in paragraph (a)(1) of this section
may delegate the authority to fill that vacancy to the remaining
members of the Council after making 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 may 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 must, after consulting with the State
workforce development board--
(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 in
achieving employment outcomes under this part;
(2) In partnership with the designated State unit--
(i) Develop, agree to, and review State goals and priorities in
accordance with Sec. 361.29(c); and
(ii) Evaluate the effectiveness of the vocational rehabilitation
program and submit reports of progress to the Secretary in accordance
with Sec. 361.29(e);
(3) Advise the designated State agency and the designated State
unit regarding activities carried out under this part and assist in the
preparation of the vocational rehabilitation services portion of the
Unified or Combined State Plan and amendments to the plan,
applications, reports, needs assessments, and evaluations required by
this part;
(4) To the extent feasible, conduct a review and analysis of the
effectiveness of, and consumer satisfaction with--
(i) The functions performed by the designated State agency;
(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 under the Act; and
(iii) The employment outcomes achieved by eligible individuals
receiving services under this part, including the availability of
health and other employment benefits in connection with those
employment outcomes;
(5) Prepare and submit to the Governor 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;
(6) To avoid duplication of efforts and enhance the number of
individuals served, coordinate activities with the activities of other
councils within the State, including the Statewide Independent Living
Council established under chapter 1, title VII of the Act, the advisory
panel established under section 612(a)(21) of the Individuals with
Disabilities Education Act, the State Developmental Disabilities
Planning Council described in section 124 of the Developmental
Disabilities Assistance and Bill of Rights Act, the State mental health
planning council established under section 1914(a) of the Public Health
Service Act, and the State workforce development board, and with the
activities of entities carrying out programs under the Assistive
Technology Act of 1998;
(7) Provide for coordination and the establishment of working
relationships between the designated State agency and the Statewide
Independent Living
[[Page 21114]]
Council and centers for independent living within the State; and
(8) Perform other comparable functions, consistent with the purpose
of this part, as the Council determines to be appropriate, that are
comparable to the other functions performed by the Council.
(i) Resources. (1) The Council, in conjunction with the designated
State unit, must prepare a plan for the provision of resources,
including staff and other personnel, that may be necessary and
sufficient for the Council to carry out its functions under this part.
(2) The resource plan must, to the maximum extent possible, rely on
the use of resources in existence during the period of implementation
of the plan.
(3) Any disagreements between the designated State unit and the
Council regarding the amount of resources necessary to carry out the
functions of the Council must be resolved by the Governor, consistent
with paragraphs (i)(1) and (2) of this section.
(4) The Council must, 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 must--
(1) Convene at least four meetings a year in locations determined
by the Council to be necessary to conduct Council business. The
meetings must be publicly announced, open, and accessible to the
general 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 121 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 Rehabilitation Act of 1973, as
amended; 29 U.S.C. 725)
Sec. 361.18 Comprehensive system of personnel development.
The vocational rehabilitation services portion of the Unified or
Combined 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 Council, this description must, at a
minimum, specify that the Council has an opportunity to review and
comment on the development of plans, policies, and procedures necessary
to meet the requirements of paragraphs (b) through (d) of this section.
This description must also conform with the following requirements:
(a) Personnel and personnel development data system. The vocational
rehabilitation services portion of the Unified or Combined 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 significant disabilities, the number of personnel
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 vocational rehabilitation services portion of the
Unified or Combined 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 vocational rehabilitation services
portion of the Unified or Combined State Plan must include the State
agency's policies and describe--
(i) Standards that are consistent with any national or State-
approved or recognized certification, licensing, or registration
requirements, or, in the absence of these requirements, 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) The establishment and maintenance of education and experience
requirements, to ensure that the personnel have a 21st-century
understanding of the evolving labor force and the needs of individuals
with disabilities, including requirements for--
(A)(1) Attainment of a baccalaureate degree in a field of study
reasonably related to vocational rehabilitation, to indicate a level of
competency and skill demonstrating basic preparation in a field of
study such as vocational rehabilitation counseling, social work,
psychology, disability studies, business administration, human
resources, special education, supported employment, customized
employment, economics, or another field that reasonably prepares
individuals to work with consumers and employers; and
(2) Demonstrated paid or unpaid experience, for not less than one
year, consisting of--
(i) Direct work with individuals with disabilities in a setting
such as an independent living center;
[[Page 21115]]
(ii) Direct service or advocacy activities that provide such
individual with experience and skills in working with individuals with
disabilities; or
(iii) Direct experience in competitive integrated employment
environments as an employer, as a small business owner or operator, or
in self-employment, or other experience in human resources or
recruitment, or experience in supervising employees, training, or other
activities; or
(B) Attainment of a master's or doctoral degree in a field of study
such as vocational rehabilitation counseling, law, social work,
psychology, disability studies, business administration, human
resources, special education, management, public administration, or
another field that reasonably provides competence in the employment
sector, in a disability field, or in both business-related and
rehabilitation-related fields; and
(2) As used in this section--
(i) 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 unit; and
(C) Has a specified scope of responsibility.
(ii) Ensuring that personnel have a 21st-century understanding of
the evolving labor force and the needs of individuals with disabilities
means that personnel have specialized training and experience that
enables them to work effectively with individuals with disabilities to
assist them to achieve competitive integrated employment and with
employers who hire such individuals. Relevant personnel skills include,
but are not limited to--
(A) Understanding the medical and psychosocial aspects of various
disabilities;
(B) Assessing an individual's skills and abilities to obtain and
retain competitive integrated employment and establishing a plan to
meet the individual's career goals;
(C) Counseling, case management, and advocacy to modify
environmental and attitudinal barriers;
(D) Understanding the effective utilization of rehabilitation
technology;
(E) Developing effective relationships with employers in the public
and private sectors and
(F) Delivering job development and job placement services that
respond to today's labor market.
(d) Staff development. (1) The vocational rehabilitation services
portion of the Unified or Combined 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 assessment, vocational counseling, job placement, and rehabilitation
technology, including training implemented in coordination with
entities carrying out State programs under section 4 of the Assistive
Technology Act of 1998 (29 U.S.C. 3003);
(ii) Procedures for acquiring and disseminating to rehabilitation
professionals and paraprofessionals within the designated State unit
significant knowledge from research and other sources; and
(iii) Policies and procedures relating to the establishment and
maintenance of standards to ensure that personnel, including
rehabilitation professionals and paraprofessionals, needed within the
designated State unit to carry out this part are appropriately and
adequately prepared and trained.
(2) The specific training areas for staff development should be
based on the needs of each State unit and may include, but are not
limited to--
(i) Training regarding the Workforce Innovation and Opportunity Act
and the amendments it made to the Rehabilitation Act of 1973;
(ii) Training with respect to the requirements of the Americans
with Disabilities Act, the Individuals with Disabilities Education Act,
and Social Security work incentive programs, including programs under
the Ticket to Work and Work Incentives Improvement Act of 1999,
training to facilitate informed choice under this program, and training
to improve the provision of services to culturally diverse populations;
and
(iii) Activities related to--
(A) Recruitment and retention of qualified rehabilitation
personnel;
(B) Succession planning; and
(C) Leadership development and capacity building.
(e) Personnel to address individual communication needs. The
vocational rehabilitation services portion of the Unified or Combined
State Plan must describe how the designated State unit includes among
its personnel, or obtains the services of--
(1) Individuals able to communicate in the native languages of
applicants and eligible individuals who have limited English
proficiency; and
(2) Individuals able to communicate with applicants and eligible
individuals in appropriate modes of communication.
(f) Coordination with personnel development under the Individuals
with Disabilities Education Act. The vocational rehabilitation services
portion of the Unified or Combined 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 the Individuals with Disabilities Education
Act.
(Authority: Sections 12(c) and 101(a)(7) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(7))
Sec. 361.19 Affirmative action for individuals with disabilities.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that the State agency takes affirmative
action to employ and advance in employment qualified individuals with
disabilities covered under and on the same terms and conditions as
stated in section 503 of the Act.
(Authority: Section 101(a)(6)(B) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(6)(B))
Sec. 361.20 Public participation requirements.
(a) Conduct of public meetings. (1) The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
prior to the adoption of any substantive policies or procedures
governing the provision of vocational rehabilitation services under the
Unified or Combined State Plan, the designated State agency conducts
public meetings throughout the State to provide the public, including
individuals with disabilities, an opportunity to comment on the
policies or procedures.
(2) For purposes of this section, substantive changes to the
policies or procedures governing the provision of vocational
rehabilitation services that would require the conduct of public
meetings are those that directly impact the nature and scope of the
services provided to individuals with disabilities, or the manner in
which individuals interact with the designated State agency or in
matters related to the delivery of vocational rehabilitation services.
Examples of substantive changes include, but are not limited to--
(i) Any changes to policies or procedures that fundamentally alter
the rights and responsibilities of individuals
[[Page 21116]]
with disabilities in the vocational rehabilitation process;
(ii) Organizational changes to the designated State agency or unit
that would likely affect the manner in which services are delivered;
(iii) Any changes that affect the nature and scope of vocational
rehabilitation services provided by the designated State agency or
unit;
(iv) Changes in formal or informal dispute procedures;
(v) The adoption or amendment of policies instituting an order of
selection; and
(vi) Changes to policies and procedures regarding the financial
participation of eligible individuals.
(3) Non-substantive, e.g., administrative changes that would not
require the need for public hearings include:
(i) Internal procedures that do not directly affect individuals
receiving vocational rehabilitation services, such as payment
processing or personnel procedures;
(ii) Changes to the case management system that only affect
vocational rehabilitation personnel;
(iii) Changes in indirect cost allocations, internal fiscal review
procedures, or routine reporting requirements;
(iv) Minor revisions to vocational rehabilitation procedures or
policies to correct production errors, such as typographical and
grammatical mistakes; and
(v) Changes to contract procedures that do not affect the delivery
of vocational rehabilitation services.
(b) Notice requirements. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that the
designated State agency, prior to conducting the public meetings,
provides appropriate and sufficient notice throughout the State of the
meetings in accordance with--
(1) State law governing public meetings; or
(2) In the absence of State law governing public meetings,
procedures developed by the designated State agency in consultation
with the State Rehabilitation Council.
(c) Summary of input of the State Rehabilitation Council. The
vocational rehabilitation services portion of the Unified or Combined
State Plan must provide a summary of the input of the State
Rehabilitation Council, if the State agency has a Council, into the
vocational rehabilitation services portion of the Unified or Combined
State Plan and any amendment to that portion of the plan, in accordance
with Sec. 361.16(a)(2)(v).
(d) Special consultation requirements. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must assure that the State agency actively consults with the director
of the Client Assistance Program, the State Rehabilitation Council, if
the State agency has a Council, and, as appropriate, Indian tribes,
tribal organizations, and native Hawaiian organizations on its policies
and procedures governing the provision of vocational rehabilitation
services under the vocational rehabilitation services portion of the
Unified or Combined State Plan.
(e) Appropriate modes of communication. The State unit must provide
to the public, through appropriate modes of communication, notices of
the public meetings, any materials furnished prior to or during the
public meetings, and the policies and procedures governing the
provision of vocational rehabilitation services under the vocational
rehabilitation services portion of the Unified or Combined State Plan.
(Authority: Sections 12(c), 101(a)(16)(A) and 105(c)(3) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(16)(A) and 725(c)(3))
Sec. 361.21 Consultations regarding the administration of the
vocational rehabilitation services portion of the Unified or Combined
State plan.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that, in connection with matters of
general policy arising in the administration of the vocational
rehabilitation services portion of the Unified or Combined State Plan,
the designated State agency takes into account the views of--
(a) Individuals and groups of individuals who are recipients of
vocational rehabilitation services or, as appropriate, the individuals'
representatives;
(b) Personnel working in programs that provide vocational
rehabilitation services to individuals with disabilities;
(c) Providers of vocational rehabilitation services to individuals
with disabilities;
(d) The director of the Client Assistance Program; and
(e) The State Rehabilitation Council, if the State has a Council.
(Authority: Sections 101(a)(16)(B) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 721(a)(16)(B))
Sec. 361.22 Coordination with education officials.
(a) Plans, policies, and procedures. (1) The vocational
rehabilitation services portion of the Unified or Combined State Plan
must contain plans, policies, and procedures for coordination between
the designated State agency and education officials responsible for the
public education of students with disabilities that are designed to
facilitate the transition of students with disabilities from the
receipt of educational services, including pre-employment transition
services, in school to the receipt of vocational rehabilitation
services under the responsibility of the designated State agency.
(2) These plans, policies, and procedures in paragraph (a)(1) of
this section must provide for the development and approval of an
individualized plan for employment in accordance with Sec. 361.45 as
early as possible during the transition planning process and not later
than the time a student determined to be eligible for vocational
rehabilitation services leaves the school setting or, if the designated
State unit is operating under an order of selection, before each
eligible student able to be served under the order leaves the school
setting.
(b) Formal interagency agreement. The vocational rehabilitation
services portion of the Unified or Combined State Plan must include
information on a formal interagency agreement with the State
educational agency that, at a minimum, provides for--
(1) Consultation and technical assistance, which may be provided
using alternative means for meeting participation (such as video
conferences and conference calls), to assist educational agencies in
planning for the transition of students with disabilities from school
to post-school activities, including vocational rehabilitation
services;
(2) Transition planning by personnel of the designated State agency
and educational agency personnel for students with disabilities that
facilitates the development and implementation of their individualized
education programs (IEPs) under section 614(d) of the Individuals with
Disabilities Education Act;
(3) The roles and responsibilities, including financial
responsibilities, of each agency, including provisions for determining
State lead agencies and qualified personnel responsible for transition
services;
(4) Procedures for outreach to and identification of students with
disabilities who are in need of transition
[[Page 21117]]
services. Outreach to these students should occur as early as possible
during the transition planning process and must include, at a minimum,
a description of the purpose of the vocational rehabilitation program,
eligibility requirements, application procedures, and scope of services
that may be provided to eligible individuals;
(5) Coordination necessary to satisfy documentation requirements
set forth at 34 CFR part 397 with regard to students and youth with
disabilities who are seeking subminimum wage employment; and
(6) Assurance that, in accordance with 34 CFR 397.31, neither the
State educational agency nor the local educational agency will enter
into a contract or other arrangement with an entity, as defined in 34
CFR 397.5(d), for the purpose of operating a program under which a
youth with a disability is engaged in subminimum wage employment.
(c) Construction. Nothing in this part will be construed to reduce
the obligation under the Individuals with Disabilities Education Act
(20 U.S.C. 1400 et seq.) of a local educational agency or any other
agency to provide or pay for any transition services that are also
considered special education or related services and that are necessary
for ensuring a free appropriate public education to children with
disabilities within the State involved.
(Authority: Sections 101(a)(11)(D), 101(c), and 511 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 721 (a)(11)(D),
721(c), and 794g)
Sec. 361.23 Requirements related to the statewide workforce
development system.
As a required partner in the one-stop service delivery system
(which is part of the statewide workforce development system under
title I of the Workforce Innovation and Opportunity Act), the
designated State unit must satisfy all requirements set forth in joint
regulations in subpart F of this part.
(Authority: Section 101(a)(11)(A) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(11)(A); Section 121 (b)(1)(B)(iv) of
the Workforce Innovation and Opportunity Act; 29 U.S.C. 3151)
Sec. 361.24 Cooperation and coordination with other entities.
(a) Interagency cooperation. The vocational rehabilitation services
portion of the Unified or Combined State Plan must describe the
designated State agency's cooperation with and use of the services and
facilities of Federal, State, and local agencies and programs,
including the State programs carried out under section 4 of the
Assistive Technology Act of 1998 (29 U.S.C. 3003), programs carried out
by the Under Secretary for Rural Development of the Department of
Agriculture, noneducational agencies serving out-of-school youth, and
State use contracting programs, to the extent that such Federal, State,
and local agencies and programs are not carrying out activities through
the statewide workforce development system.
(b) Coordination with the Statewide Independent Living Council and
independent living centers. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that the
designated State unit, the Statewide Independent Living Council
established under title VII, chapter 1, part B of the Act, and the
independent living centers established under title VII, Chapter 1, Part
C of the Act have developed working relationships and coordinate their
activities.
(c) Coordination with Employers. The vocational rehabilitation
services portion of the Unified or Combined State Plan must describe
how the designated State unit will work with employers to identify
competitive integrated employment opportunities and career exploration
opportunities, in order to facilitate the provision of--
(1) Vocational rehabilitation services; and
(2) Transition services for youth with disabilities and students
with disabilities, such as pre-employment transition services.
(d) Cooperative agreement with recipients of grants for services to
American Indians. (1) General. In applicable cases, the vocational
rehabilitation services portion of the Unified or Combined State Plan
must assure that the designated State agency has entered into a formal
cooperative agreement with each grant recipient in the State that
receives funds under part C of the Act (American Indian Vocational
Rehabilitation Services).
(2) Contents of formal cooperative agreement. The agreement
required under paragraph (d)(1) of this section must describe
strategies for collaboration and coordination in providing vocational
rehabilitation services to American Indians who are individuals with
disabilities, including--
(i) Strategies for interagency referral and information sharing
that will assist in eligibility determinations and the development of
individualized plans for employment;
(ii) Procedures for ensuring that American Indians who are
individuals with disabilities and are living on or near a reservation
or tribal service area are provided vocational rehabilitation services;
(iii) Strategies for the provision of transition planning by
personnel of the designated State unit, the State educational agency,
and the recipient of funds under part C of the Act, that will
facilitate the development and approval of the individualized plan for
employment under Sec. 361.45; and
(iv) Provisions for sharing resources in cooperative studies and
assessments, joint training activities, and other collaborative
activities designed to improve the provision of services to American
Indians who are individuals with disabilities.
(e) Reciprocal referral services between two designated State units
in the same State. If there is a separate designated State unit for
individuals who are blind, the two designated State units must
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.
(f) Cooperative agreement regarding individuals eligible for home
and community-based waiver programs. The vocational rehabilitation
services portion of the Unified or Combined State Plan must include an
assurance that the designated State unit has entered into a formal
cooperative agreement with the State agency responsible for
administering the State Medicaid plan under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) and the State agency with primary
responsibility for providing services and supports for individuals with
intellectual disabilities and individuals with developmental
disabilities, with respect to the delivery of vocational rehabilitation
services, including extended services, for individuals with the most
significant disabilities who have been determined to be eligible for
home and community-based services under a Medicaid waiver, Medicaid
State plan amendment, or other authority related to a State Medicaid
program.
(g) Interagency cooperation. The vocational rehabilitation services
portion of the Unified or Combined State Plan shall describe how the
designated State agency will collaborate with the State agency
responsible for administering the State Medicaid plan under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.), the State
[[Page 21118]]
agency responsible for providing services with developmental
disabilities, and the State agency responsible for providing mental
health services, to develop opportunities for community-based
employment in integrated settings, to the greatest extent practicable.
(h) Coordination with assistive technology programs. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must include an assurance that the designated State unit, and the lead
agency and implementing entity (if any) designated by the Governor of
the State under section 4 of the Assistive Technology Act of 1998 (29
U.S.C. 3003), have developed working relationships and will enter into
agreements for the coordination of their activities, including the
referral of individuals with disabilities to programs and activities
described in that section.
(i) Coordination with ticket to work and self-sufficiency program.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must include an assurance that the designated State
unit will coordinate activities with any other State agency that is
functioning as an employment network under the Ticket to Work and Self-
Sufficiency Program established under section 1148 of the Social
Security Act (42 U.S.C. 1320b-19).
(Authority: Sections 12(c) and 101(a)(11) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(11))
Sec. 361.25 Statewideness.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that services provided under the
vocational rehabilitation services portion of the Unified or Combined
State Plan will be available in all political subdivisions of the
State, unless a waiver of statewideness is requested and approved in
accordance with Sec. 361.26.
(Authority: Section 101(a)(4) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a)(4))
Sec. 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
vocational rehabilitation services portion of the Unified or Combined
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) For purposes other than those specified in Sec.
361.60(b)(3)(i) and consistent with the requirements in Sec.
361.60(b)(3)(ii), the State includes in its vocational rehabilitation
services portion of the Unified or Combined State Plan, and the
Secretary approves, 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 non-Federal 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 requirements of the
vocational rehabilitation services portion of the Unified or Combined
State Plan, including a State's order of selection requirements, will
apply to all services approved under the waiver.
(Authority: Section 101(a)(4) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a)(4))
Sec. 361.27 Shared funding and administration of joint programs.
(a) If the vocational rehabilitation services portion of the
Unified or Combined State Plan provides for the designated State agency
to share funding and administrative responsibility with another State
agency or local public agency to carry out a joint program to provide
services to individuals with disabilities, the State must submit to the
Secretary for approval a plan that describes its shared funding and
administrative arrangement.
(b) The plan under paragraph (a) of this section must include--
(1) A description of the nature and scope of the joint program;
(2) The services to be provided under the joint program;
(3) The respective roles of each participating agency in the
administration and provision of services; and
(4) The share of the costs to be assumed by each agency.
(c) If a proposed joint program does not comply with the
statewideness requirement in Sec. 361.25, the State unit must obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Authority: Section 101(a)(2)(A) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(2)(A))
Sec. 361.28 Third-party cooperative arrangements involving funds from
other public agencies.
(a) The designated State unit may enter into a third-party
cooperative arrangement for providing or contracting for the provision
of vocational rehabilitation services with another State agency or a
local public agency that is providing part or all of the non-Federal
share in accordance with paragraph (c) of this section, if the
designated State unit ensures 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
(4) All requirements of the vocational rehabilitation services
portion of the Unified or Combined State Plan, including a State's
order of selection, will apply to all services provided under the
cooperative arrangement.
(b) If a third party cooperative arrangement does not comply with
the statewideness requirement in Sec. 361.25, the State unit must
obtain a waiver of statewideness, in accordance with Sec. 361.26.
(c) The cooperating agency's contribution toward the non-Federal
share required under the arrangement, as set forth in paragraph (a) of
this section, may be made through:
(1) Cash transfers to the designated State unit; and
(2) Certified personnel expenditures for the time cooperating
agency staff spent providing direct vocational rehabilitation services
pursuant to a third-party cooperative arrangement that meets the
requirements of this section. Certified personnel expenditures may
include the allocable portion of staff salary and fringe benefits based
upon the amount of time cooperating agency
[[Page 21119]]
staff spent providing services under the arrangement.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.29 Statewide assessment; annual estimates; annual State
goals and priorities; strategies; and progress reports.
(a) Comprehensive statewide assessment. (1) The vocational
rehabilitation services portion of the Unified or Combined State Plan
must include--
(i) The results of a comprehensive, statewide assessment, jointly
conducted by the designated State unit and the State Rehabilitation
Council (if the State unit has a Council) every three years. Results of
the assessment are to be included in the vocational rehabilitation
portion of the Unified or Combined State Plan, submitted in accordance
with the requirements of Sec. 361.10(a) and the joint regulations of
this part. The comprehensive needs assessment must describe the
rehabilitation needs of individuals with disabilities residing within
the State, particularly the vocational rehabilitation services needs
of--
(A) Individuals with the most significant disabilities, including
their need for supported employment services;
(B) Individuals with disabilities who are minorities and
individuals with disabilities who have been unserved or underserved by
the vocational rehabilitation program carried out under this part;
(C) Individuals with disabilities served through other components
of the statewide workforce development system as identified by those
individuals and personnel assisting those individuals through the
components of the system; and
(D) Youth with disabilities, and students with disabilities,
including
(1) Their need for pre-employment transition services or other
transition services; and
(2) An assessment of the needs of individuals with disabilities for
transition services and pre-employment transition services, and the
extent to which such services provided under this part are coordinated
with transition services provided under the Individuals with
Disabilities Education Act (20 U.S.C. 1400 et seq.) in order to meet
the needs of individuals with disabilities.
(ii) An assessment of the need to establish, develop, or improve
community rehabilitation programs within the State.
(2) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the State will submit to the
Secretary a report containing information regarding updates to the
assessments under paragraph (a) of this section for any year in which
the State updates the assessments at such time and in such manner as
the Secretary determines appropriate.
(b) Annual estimates. The vocational rehabilitation services
portion of the Unified or Combined State Plan must include, and must
assure that the State will submit a report to the Secretary (at such
time and in such manner determined appropriate by the Secretary) that
includes, State estimates of--
(1) The number of individuals in the State who are eligible for
services under this part;
(2) The number of eligible individuals who will receive services
provided with funds provided under this part and under part Sec. 363,
including, if the designated State agency uses an order of selection in
accordance with Sec. 361.36, estimates of the number of individuals to
be served under each priority category within the order;
(3) The number of individuals who are eligible for services under
paragraph (b)(1) of this section, but are not receiving such services
due to an order of selection; and
(4) The costs of the services described in paragraph (b)(2) of this
section, including, if the designated State agency uses an order of
selection, the service costs for each priority category within the
order.
(c) Goals and priorities. (1) In general. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must identify the goals and priorities of the State in carrying out the
program.
(2) Council. The goals and priorities must be jointly developed,
agreed to, reviewed annually, and, as necessary, revised by the
designated State unit and the State Rehabilitation Council, if the
State unit has a Council.
(3) Submission. The vocational rehabilitation services portion of
the Unified or Combined State Plan must assure that the State will
submit to the Secretary a report containing information regarding
revisions in the goals and priorities for any year in which the State
revises the goals and priorities at such time and in such manner as
determined appropriate by the Secretary.
(4) Basis for goals and priorities. The State goals and priorities
must be based on an analysis of--
(i) The comprehensive statewide assessment described in paragraph
(a) of this section, including any updates to the assessment;
(ii) The performance of the State on the standards and indicators
established under section 106 of the Act; and
(iii) Other available information on the operation and the
effectiveness of the vocational rehabilitation program carried out in
the State, including any reports received from the State Rehabilitation
Council under Sec. 361.17(h) and the findings and recommendations from
monitoring activities conducted under section 107 of the Act.
(5) Service and outcome goals for categories in order of selection.
If the designated State agency uses an order of selection in accordance
with Sec. 361.36, the vocational rehabilitation services portion of
the Unified or Combined State Plan must identify the State's service
and outcome goals and the time within which these goals may be achieved
for individuals in each priority category within the order.
(d) Strategies. The vocational rehabilitation services portion of
the Unified or Combined State Plan must describe the strategies the
State will use to address the needs identified in the assessment
conducted under paragraph (a) of this section and achieve the goals and
priorities identified in paragraph (c) of this section, including--
(1) The methods to be used to expand and improve services to
individuals with disabilities, including how a broad range of assistive
technology services and assistive technology devices will be provided
to those individuals at each stage of the rehabilitation process and
how those services and devices will be provided to individuals with
disabilities on a statewide basis;
(2) The methods to be used to improve and expand vocational
rehabilitation services for students with disabilities, including the
coordination of services designed to facilitate the transition of such
students from the receipt of educational services in school to
postsecondary life, including the receipt of vocational rehabilitation
services under the Act, postsecondary education, employment, and pre-
employment transition services;
(3) Strategies developed and implemented by the State to address
the needs of students and youth with disabilities identified in the
assessments described in paragraph (a) of this section and strategies
to achieve the goals and priorities identified by the State to improve
and expand vocational rehabilitation services for students and youth
with disabilities on a statewide basis;
[[Page 21120]]
(4) Strategies to provide pre-employment transition services.
(5) Outreach procedures to identify and serve individuals with
disabilities who are minorities and individuals with disabilities who
have been unserved or underserved by the vocational rehabilitation
program;
(6) As applicable, the plan of the State for establishing,
developing, or improving community rehabilitation programs;
(7) Strategies to improve the performance of the State with respect
to the evaluation standards and performance indicators established
pursuant to section 106 of the Act and section 116 of Workforce
Innovation and Opportunity Act; and
(8) Strategies for assisting other components of the statewide
workforce development system in assisting individuals with
disabilities.
(e) Evaluation and reports of progress. (1) The vocational
rehabilitation services portion of the Unified or Combined State Plan
must include--
(i) The results of an evaluation of the effectiveness of the
vocational rehabilitation program; and
(ii) A joint report by the designated State unit and the State
Rehabilitation Council, if the State unit has a Council, to the
Secretary on the progress made in improving the effectiveness of the
program from the previous year. This evaluation and joint report must
include--
(A) An evaluation of the extent to which the goals and priorities
identified in paragraph (c) of this section were achieved;
(B) A description of the strategies that contributed to the
achievement of the goals and priorities;
(C) To the extent to which the goals and priorities were not
achieved, a description of the factors that impeded that achievement;
and
(D) An assessment of the performance of the State on the standards
and indicators established pursuant to section 106 of the Act.
(2) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the designated State unit and
the State Rehabilitation Council, if the State unit has a Council, will
jointly submit to the Secretary a report that contains the information
described in paragraph (e)(1) of this section at such time and in such
manner the Secretary determines appropriate.
(Authority: Section 101(a)(15) and (25) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 721(a)(15) and (25))
Sec. 361.30 Services to American Indians.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that the designated State agency
provides vocational rehabilitation services to American Indians who are
individuals with disabilities residing in the State to the same extent
as the designated State agency provides vocational rehabilitation
services to other significant populations of individuals with
disabilities residing in the State.
(Authority: Sections 101(a)(13) and 121(b)(3) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 721(a)(13) and 741(b)(3))
Sec. 361.31 Cooperative agreements with private nonprofit
organizations.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must describe the manner in which cooperative
agreements with private nonprofit vocational rehabilitation service
providers will be established.
(Authority: Section 101(a)(24)(B) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(24)(B))
Sec. 361.32 Provision of training and services for employers.
The designated State unit may expend payments received under this
part to educate and provide services to employers who have hired or are
interested in hiring individuals with disabilities under the vocational
rehabilitation program, including--
(a) Providing training and technical assistance to employers
regarding the employment of individuals with disabilities, including
disability awareness, and the requirements of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and other
employment-related laws;
(b) Working with employers to--
(1) Provide opportunities for work-based learning experiences
(including internships, short-term employment, apprenticeships, and
fellowships);
(2) Provide opportunities for pre-employment transition services;
(3) Recruit qualified applicants who are individuals with
disabilities;
(4) Train employees who are individuals with disabilities; and
(5) Promote awareness of disability-related obstacles to continued
employment.
(c) Providing consultation, technical assistance, and support to
employers on workplace accommodations, assistive technology, and
facilities and workplace access through collaboration with community
partners and employers, across States and nationally, to enable the
employers to recruit, job match, hire, and retain qualified individuals
with disabilities who are recipients of vocational rehabilitation
services under this part, or who are applicants for such services; and
(d) Assisting employers with utilizing available financial support
for hiring or accommodating individuals with disabilities.
(Authority: Section 109 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 728A)
Sec. 361.33 [Reserved]
Sec. 361.34 Supported employment State plan supplement.
(a) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the State has an acceptable
plan under part 363 of this chapter 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 any needed revisions,
must be submitted as a supplement to the vocational rehabilitation
services portion of the Unified or Combined State Plan submitted under
this part.
(Authority: Sections 101(a)(22) and 606 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 721(a)(22) and 795k)
Sec. 361.35 Innovation and expansion activities.
(a) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the State will reserve and use
a portion of the funds allotted to the State under section 110 of the
Act--
(1) For the development and implementation of innovative approaches
to expand and improve the provision of vocational rehabilitation
services to individuals with disabilities, particularly individuals
with the most significant disabilities, including transition services
for students and youth with disabilities and pre-employment transition
services for students with disabilities, consistent with the findings
of the comprehensive statewide assessment of the rehabilitation needs
of individuals with disabilities under Sec. 361.29(a) and the State's
goals and priorities under Sec. 361.29(c);
(2) To support the funding of the State Rehabilitation Council, if
the State has a Council, consistent with the resource plan identified
in Sec. 361.17(i); and
(3) To support the Statewide Independent Living Council, consistent
with the Statewide Independent Living Council resource plan prepared
under title VII, chapter 1 of the Act. The State
[[Page 21121]]
and the Statewide Independent Living Council may determine in the
Statewide Independent Living Council resource plan that other sources
of available funding may be used instead of funding under this section.
(b) The vocational rehabilitation services portion of the Unified
or Combined State Plan must--
(1) Describe how the reserved funds will be used; and
(2) Include a report describing how the reserved funds were used.
(Authority: Sections 12(c) and 101(a)(18) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(18))
Sec. 361.36 Ability to serve all eligible individuals; order of
selection for services.
(a) General provisions. (1) The designated State unit either must
be able to provide the full range of services listed in section 103(a)
of the Act and Sec. 361.48, as appropriate, to all eligible
individuals or, in the event that vocational rehabilitation services
cannot be provided to all eligible individuals in the State who apply
for the services, include in the vocational rehabilitation services
portion of the Unified or Combined State Plan the order to be followed
in selecting eligible individuals to be provided vocational
rehabilitation services.
(2) The ability of the designated State unit to provide the full
range of vocational rehabilitation services to all eligible individuals
must be supported by a determination that satisfies the requirements of
paragraph (b) or (c) of this section and a determination that, on the
basis of the designated State unit's projected fiscal and personnel
resources and its assessment of the rehabilitation needs of individuals
with significant disabilities within the State, it can--
(i) Continue to provide services to all individuals currently
receiving services;
(ii) Provide assessment services to all individuals expected to
apply for services in the next fiscal year;
(iii) Provide services to all individuals who are expected to be
determined eligible in the next fiscal year; and
(iv) Meet all program requirements.
(3) If the designated State unit is unable to provide the full
range of vocational rehabilitation services to all eligible individuals
in the State who apply for the services, the vocational rehabilitation
services portion of the Unified or Combined State Plan must--
(i) Show the order to be followed in selecting eligible individuals
to be provided vocational rehabilitation services;
(ii) Provide a justification for the order of selection;
(iii) Identify service and outcome goals and the time within which
the goals may be achieved for individuals in each priority category
within the order, as required under Sec. 361.29(c)(5);
(iv) Assure that--
(A) In accordance with criteria established by the State for the
order of selection, individuals with the most significant disabilities
will be selected first for the provision of vocational rehabilitation
services; and
(B) Individuals who do not meet the order of selection criteria
will have access to services provided through the information and
referral system established under Sec. 361.37; and
(v) State whether the designated State unit will elect to serve, in
its discretion, eligible individuals (whether or not the individuals
are receiving vocational rehabilitation services under the order of
selection) who require specific services or equipment to maintain
employment, notwithstanding the assurance provided pursuant to
paragraph (3)(iv)(A) of this section.
(b) Basis for assurance that services can be provided to all
eligible individuals. (1) For a designated State unit that determined,
for the current fiscal year and the preceding fiscal year, that it is
able to provide the full range of services, as appropriate, to all
eligible individuals, the State unit, during the current fiscal and
preceding fiscal year, must have in fact--
(i) Provided assessment services to all applicants and the full
range of services, as appropriate, to all eligible individuals;
(ii) Made referral forms widely available throughout the State;
(iii) Conducted outreach efforts to identify and serve individuals
with disabilities who have been unserved or underserved by the
vocational rehabilitation system; and
(iv) Not delayed, through waiting lists or other means,
determinations of eligibility, the development of individualized plans
for employment for individuals determined eligible for vocational
rehabilitation services, or the provision of services for eligible
individuals for whom individualized plans for employment have been
developed.
(2) For a designated State unit that was unable to provide the full
range of services to all eligible individuals during the current or
preceding fiscal year or that has not met the requirements in paragraph
(b)(1) of this section, the determination that the designated State
unit is able to provide the full range of vocational rehabilitation
services to all eligible individuals in the next fiscal year must be
based on--
(i) A demonstration that circumstances have changed that will allow
the designated State unit to meet the requirements of paragraph (a)(2)
of this section in the next fiscal year, including--
(A) An estimate of the number of and projected costs of serving, in
the next fiscal year, individuals with existing individualized plans
for employment;
(B) The projected number of individuals with disabilities who will
apply for services and will be determined eligible in the next fiscal
year and the projected costs of serving those individuals;
(C) The projected costs of administering the program in the next
fiscal year, including, but not limited to, costs of staff salaries and
benefits, outreach activities, and required statewide studies; and
(D) The projected revenues and projected number of qualified
personnel for the program in the next fiscal year.
(ii) Comparable data, as relevant, for the current or preceding
fiscal year, or for both years, of the costs listed in paragraphs
(b)(2)(i)(A) through (C) of this section and the resources identified
in paragraph (b)(2)(i)(D) of this section and an explanation of any
projected increases or decreases in these costs and resources; and
(iii) A determination that the projected revenues and the projected
number of qualified personnel for the program in the next fiscal year
are adequate to cover the costs identified in paragraphs (b)(2)(i)(A)
through (C) of this section to ensure the provision of the full range
of services, as appropriate, to all eligible individuals.
(c) Determining need for establishing and implementing an order of
selection. (1) The designated State unit must determine, prior to the
beginning of each fiscal year, whether to establish and implement an
order of selection.
(2) If the designated State unit determines that it does not need
to establish an order of selection, it must reevaluate this
determination whenever changed circumstances during the course of a
fiscal year, such as a decrease in its fiscal or personnel resources or
an increase in its program costs, indicate that it may no longer be
able to provide the full range of services, as appropriate, to all
eligible individuals, as described in paragraph (a)(2) of this section.
(3) If a designated State unit establishes an order of selection,
but determines that it does not need to implement that order at the
beginning of the fiscal year, it must continue to meet the requirements
of paragraph (a)(2) of this section, or it must implement the
[[Page 21122]]
order of selection by closing one or more priority categories.
(d) Establishing an order of selection. (1) Basis for order of
selection. An order of selection must be based on a refinement of the
three criteria in the definition of individual with a significant
disability in section 7(21)(A) of the Act and Sec. 361.5(c)(29).
(2) Factors that cannot be used in determining order of selection
of eligible individuals. An order of selection may not be based on any
other factors, including--
(i) Any duration of residency requirement, provided the individual
is present in the State;
(ii) Type of disability;
(iii) Age, sex, race, color, or national origin;
(iv) Source of referral;
(v) Type of expected employment outcome;
(vi) The need for specific services or anticipated cost of services
required by an individual; or
(vii) The income level of an individual or an individual's family.
(e) Administrative requirements. In administering the order of
selection, the designated State unit must--
(1) Implement the order of selection on a statewide basis;
(2) Notify all eligible individuals of the priority categories in a
State's order of selection, their assignment to a particular category,
and their right to appeal their category assignment;
(3) Continue to provide all needed services to any eligible
individual who has begun to receive services under an individualized
plan for employment prior to the effective date of the order of
selection, irrespective of the severity of the individual's disability;
and
(4) Ensure that its funding arrangements for providing services
under the vocational rehabilitation services portion of the Unified or
Combined State Plan, including third-party arrangements and awards
under the establishment authority, are consistent with the order of
selection. If any funding arrangements are inconsistent with the order
of selection, the designated State unit must renegotiate these funding
arrangements so that they are consistent with the order of selection.
(f) State Rehabilitation Council. The designated State unit must
consult with the State Rehabilitation Council, if the State unit has a
Council, regarding the--
(1) Need to establish an order of selection, including any
reevaluation of the need under paragraph (c)(2) of this section;
(2) Priority categories of the particular order of selection;
(3) Criteria for determining individuals with the most significant
disabilities; and
(4) Administration of the order of selection.
(Authority: Sections 12(d); 101(a)(5); 101(a)(12); 101(a)(15)(A),
(B) and (C); 101(a)(21)(A)(ii); and 504(a) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(d), 721(a)(5), 721(a)(12),
721(a)(15)(A), (B) and (C); 721(a)(21)(A)(ii), and 794(a))
Sec. 361.37 Information and referral programs.
(a) General provisions. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that--
(1) The designated State agency will implement an information and
referral system adequate to ensure that individuals with disabilities,
including eligible individuals who do not meet the agency's order of
selection criteria for receiving vocational rehabilitation services if
the agency is operating on an order of selection, are provided accurate
vocational rehabilitation information and guidance (which may include
counseling and referral for job placement) using appropriate modes of
communication to assist them in preparing for, securing, retaining,
advancing in, or regaining employment; and
(2) The designated State agency will refer individuals with
disabilities to other appropriate Federal and State programs, including
other components of the statewide workforce development system.
(b) The designated State unit must refer to appropriate programs
and service providers best suited to address the specific
rehabilitation, independent living and employment needs of an
individual with a disability who makes an informed choice not to pursue
an employment outcome under the vocational rehabilitation program, as
defined in Sec. 361.5(c)(15). Before making the referral required by
this paragraph, the State unit must--
(1) Consistent with Sec. 361.42(a)(4)(i), explain to the
individual that the purpose of the vocational rehabilitation program is
to assist individuals to achieve an employment outcome as defined in
Sec. 361.5(c)(15);
(2) Consistent with Sec. 361.52, provide the individual with
information concerning the availability of employment options, and of
vocational rehabilitation services, to assist the individual to achieve
an appropriate employment outcome;
(3) Inform the individual that services under the vocational
rehabilitation program can be provided to eligible individuals in an
extended employment setting if necessary for purposes of training or
otherwise preparing for employment in an integrated setting;
(4) Inform the individual that, if he or she initially chooses not
to pursue an employment outcome as defined in Sec. 361.5(c)(15), he or
she can seek services from the designated State unit at a later date
if, at that time, he or she chooses to pursue an employment outcome;
and
(5) Refer the individual, as appropriate, to the Social Security
Administration in order to obtain information concerning the ability of
individuals with disabilities to work while receiving benefits from the
Social Security Administration.
(c) Criteria for appropriate referrals. In making the referrals
identified in paragraph (a)(2) of this section, the designated State
unit must--
(1) Refer the individual to Federal or State programs, including
programs carried out by other components of the statewide workforce
development system, best suited to address the specific employment
needs of an individual with a disability; and
(2) Provide the individual who is being referred--
(i) A notice of the referral by the designated State agency to the
agency carrying out the program;
(ii) Information identifying a specific point of contact within the
agency to which the individual is being referred; and
(iii) Information and advice regarding the most suitable services
to assist the individual to prepare for, secure, retain, or regain
employment.
(d) Order of selection. In providing the information and referral
services under this section to eligible individuals who are not in the
priority category or categories to receive vocational rehabilitation
services under the State's order of selection, the State unit must
identify, as part of its reporting under section 101(a)(10) of the Act
and Sec. 361.40, the number of eligible individuals who did not meet
the agency's order of selection criteria for receiving vocational
rehabilitation services and did receive information and referral
services under this section.
(Authority: Sections 7(11), 12(c), 101(a)(5)(D), 101(a)(10)(C)(ii),
and 101(a)(20) of the Rehabilitation Act of 1973, as amended; 29
U.S.C. 709(c), 721(a)(5)(D), 721(a)(10)(C)(ii), and 721(a)(20))
Sec. 361.38 Protection, use, and release of personal information.
(a) General provisions. (1) The State agency and the State unit
must adopt
[[Page 21123]]
and implement written policies and procedures to safeguard the
confidentiality of all personal information, including photographs and
lists of names. These policies and procedures must ensure that--
(i) Specific safeguards are established to 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's 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 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 must 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 must
make all requested information in that individual's record of services
accessible to and must release the information 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 to the individual
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, unless a representative has been appointed
by a court to represent the individual, in which case the information
must be released to the court-appointed representative.
(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.
(4) An applicant or eligible individual who believes that
information in the individual's record of services is inaccurate or
misleading may request that the designated State unit amend the
information. If the information is not amended, the request for an
amendment must be documented in the record of services, consistent with
Sec. 361.47(a)(12).
(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 must release personal information if required by
Federal law or regulations.
(4) The State unit must 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 judge, magistrate, or other
authorized 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 Rehabilitation
Act of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(6)(A))
Sec. 361.39 State-imposed requirements.
The designated State unit must, upon request, identify 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, regulation, or guideline.
(Authority: Section 17 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 714)
Sec. 361.40 Reports; Evaluation standards and performance indicators.
(a) Reports. (1) The vocational rehabilitation services portion of
the Unified or Combined State Plan must assure that the designated
State agency
[[Page 21124]]
will submit reports, including reports required under sections 13, 14,
and 101(a)(10) of the Act--
(i) In the form and level of detail and at the time required by the
Secretary regarding applicants for and eligible individuals receiving
services, including students receiving pre-employment transition
services in accordance with Sec. 361.48(a); and
(ii) In a manner that provides a complete count (other than the
information obtained through sampling consistent with section
101(a)(10)(E) of the Act) of the applicants and eligible individuals
to--
(A) Permit the greatest possible cross-classification of data; and
(B) Protect the confidentiality of the identity of each individual.
(2) The designated State agency must comply with any requirements
necessary to ensure the accuracy and verification of those reports.
(b) Evaluation standards and performance indicators.
(1) Standards and indicators. The evaluation standards and
performance indicators for the vocational rehabilitation program
carried out under this part are subject to the performance
accountability provisions described in section 116(b) of the Workforce
Innovation and Opportunity Act and implemented in joint regulations set
forth in subpart E of this part.
(2) Compliance. A State's compliance with common performance
measures and any necessary corrective actions will be determined in
accordance with joint regulations set forth in subpart E of this part.
(Authority: Sections 12(c), 101(a)(10)(A) and (F), and 106 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(10)(A) and (F), and 726)
Provision and Scope of Services
Sec. 361.41 Processing referrals and applications.
(a) Referrals. The designated State unit must establish and
implement standards for the prompt and equitable handling of referrals
of individuals for vocational rehabilitation services, including
referrals of individuals made through the one-stop service delivery
systems under section 121 of the Workforce Innovation and Opportunity
Act. 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) Once an individual has submitted an
application for vocational rehabilitation services, including
applications made through common intake procedures in one-stop centers
under section 121 of the Workforce Innovation and Opportunity Act, an
eligibility determination must be made within 60 days, unless--
(i) Exceptional and unforeseen circumstances beyond the control of
the designated State unit preclude making an eligibility determination
within 60 days and the designated State unit and the individual agree
to a specific extension of time; or
(ii) An exploration of the individual's abilities, capabilities,
and capacity to perform in work situations is carried out in accordance
with Sec. 361.42(e).
(2) An individual is considered to have submitted an application
when the individual or the individual's representative, as
appropriate--
(i)(A) Has completed and signed an agency application form;
(B) Has completed a common intake application form in a one-stop
center requesting vocational rehabilitation services; or
(C) Has otherwise requested services from the designated State
unit;
(ii) Has provided to the designated State unit information
necessary to initiate an assessment to determine eligibility and
priority for services; and
(iii) Is available to complete the assessment process.
(3) The designated State unit must ensure that its application
forms are widely available throughout the State, particularly in the
one-stop centers under section 121 of the Workforce Innovation and
Opportunity Act.
(Authority: Sections 12(c), 101(a)(6)(A) and 102(a)(6) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(6)(A) and 722(a)(6))
Sec. 361.42 Assessment for determining eligibility and priority for
services.
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 must 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
designated State unit's determination of an applicant's eligibility for
vocational rehabilitation services must be based only on the following
requirements:
(i) A determination by qualified personnel that the applicant has a
physical or mental impairment;
(ii) A determination by qualified personnel that the applicant's
physical or mental impairment constitutes or results in a substantial
impediment to employment for the applicant; and
(iii) A determination by a qualified vocational rehabilitation
counselor employed by the designated State unit that the applicant
requires vocational rehabilitation services to prepare for, secure,
retain, advance in, or regain employment that is consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interest, and informed choice. For purposes of
an assessment for determining eligibility and vocational rehabilitation
needs under this part, an individual is presumed to have a goal of an
employment outcome.
(2) Presumption of benefit. The designated State unit must 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.
(3) Presumption of eligibility for Social Security recipients and
beneficiaries. (i) Any applicant who has been determined eligible for
Social Security benefits under title II or title XVI of the Social
Security Act is--
(A) Presumed eligible for vocational rehabilitation services under
paragraphs (a)(1) and (2) of this section; and
(B) Considered an individual with a significant disability as
defined in Sec. 361.5(c)(29).
(ii) If an applicant for vocational rehabilitation services asserts
that he or she is eligible for Social Security benefits under title II
or title XVI of the Social Security Act (and, therefore, is presumed
eligible for vocational rehabilitation services under paragraph
(a)(3)(i)(A) of this section), but is unable to provide appropriate
evidence, such as an award letter, to support that assertion, the State
unit must verify the applicant's eligibility under title II or title
XVI of the Social Security Act by contacting the Social Security
Administration. This verification must be made within a reasonable
period of time that enables the State unit to determine the applicant's
eligibility for vocational rehabilitation services within 60 days of
the individual submitting an application for services in accordance
with Sec. 361.41(b)(2).
(4) Achievement of an employment outcome. Any eligible individual,
including an individual whose eligibility for vocational rehabilitation
services is based on the individual being eligible for Social Security
benefits
[[Page 21125]]
under title II or title XVI of the Social Security Act, must intend to
achieve an employment outcome that is consistent with the applicant's
unique strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice.
(i) The State unit is responsible for informing individuals,
through its application process for vocational rehabilitation services,
that individuals who receive services under the program must intend to
achieve an employment outcome.
(ii) The applicant's completion of the application process for
vocational rehabilitation services is sufficient evidence of the
individual's intent to achieve an employment outcome, and no additional
demonstration on the part of the applicant is required for purposes of
satisfying paragraph (a)(4) of this section.
(5) Interpretation. Nothing in this section, including paragraph
(a)(3)(i), is to be construed to create an entitlement to any
vocational rehabilitation service.
(b) Interim determination of eligibility. (1) The designated State
unit may initiate the provision of vocational rehabilitation services
for an applicant on the basis of an interim determination of
eligibility prior to the 60-day period described in Sec. 361.41(b)(2).
(2) If a State chooses to make interim determinations of
eligibility, the designated State unit must--
(i) Establish criteria and conditions for making those
determinations;
(ii) Develop and implement procedures for making the
determinations; and
(iii) Determine the scope of services that may be provided pending
the final determination of eligibility.
(3) If a State elects to use an interim eligibility determination,
the designated State unit must make a final determination of
eligibility within 60 days of the individual submitting an application
for services in accordance with Sec. 361.41(b)(2).
(c) Prohibited factors. (1) The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that the
State unit will not impose, as part of determining eligibility under
this section, a duration of residence requirement that excludes from
services any applicant who is present in the State. The designated
State unit may not require the applicant to demonstrate a presence in
the State through the production of any documentation that under State
or local law, or practical circumstances, results in a duration of
residency.
(2) In making a determination of eligibility under this section,
the designated State unit also must ensure that--
(i) No applicant or group of applicants is excluded or found
ineligible solely on the basis of the type of disability; and
(ii) The eligibility requirements are applied without regard to
the--
(A) Age, sex, race, color, or national origin of the applicant;
(B) Type of expected employment outcome;
(C) Source of referral for vocational rehabilitation services;
(D) Particular service needs or anticipated cost of services
required by an applicant or the income level of an applicant or
applicant's family;
(E) Applicants' employment history or current employment status;
and
(F) Applicants' educational status or current educational
credential.
(d) Review and assessment of data for eligibility determination.
Except as provided in paragraph (e) of this section, the designated
State unit--
(1) Must base its determination of each of the basic eligibility
requirements in paragraph (a) of this section on--
(i) A review and assessment of existing data, including counselor
observations, education records, information provided by the individual
or the individual's family, particularly information used by education
officials, and determinations made by officials of other agencies; and
(ii) 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 trial work experiences, assistive
technology devices and services, personal assistance services, and any
other support services that are necessary to determine whether an
individual is eligible; and
(2) Must base its presumption under paragraph (a)(3)(i) of this
section that an applicant who has been determined eligible for Social
Security benefits under title II or title XVI of the Social Security
Act satisfies each of the basic eligibility requirements in paragraph
(a) of this section on determinations made by the Social Security
Administration.
(e) Trial work experiences for individuals with significant
disabilities. (1) Prior to any determination that an individual with a
disability is unable to benefit from vocational rehabilitation services
in terms of an employment outcome because of the severity of that
individual's disability or that the individual is ineligible for
vocational rehabilitation services, the designated State unit must
conduct an exploration of the individual's abilities, capabilities, and
capacity to perform in realistic work situations.
(2)(i) The designated State unit must develop a written plan to
assess periodically the individual's abilities, capabilities, and
capacity to perform in competitive integrated work situations through
the use of trial work experiences, which must be provided in
competitive integrated employment settings to the maximum extent
possible, consistent with the informed choice and rehabilitation needs
of the individual.
(ii) Trial work experiences include supported employment, on-the-
job training, and other experiences using realistic integrated work
settings.
(iii) Trial work experiences must be of sufficient variety and over
a sufficient period of time for the designated State unit to determine
that there is sufficient evidence to conclude that the individual
cannot benefit from the provision of vocational rehabilitation services
in terms of a competitive integrated employment outcome; and
(iv) The designated State unit must provide appropriate supports,
including assistive technology devices and services and personal
assistance services, to accommodate the rehabilitation needs of the
individual during the trial work experiences.
(f) Data for determination of priority for services under an order
of selection. If the designated State unit is operating under an order
of selection for services, as provided in Sec. 361.36, the State unit
must base its priority assignments on--
(1) A review of the data that was developed under paragraphs (d)
and (e) of this section to make the eligibility determination; and
(2) An assessment of additional data, to the extent necessary.
(Authority: Sections 7(2), 12(c), 101(a)(12), 102(a), 103(a)(1),
103(a)(9), 103(a)(10) and 103(a)(14) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(2), 709(c), 721(a)(12), 722(a),
723(a)(1), 723(a)(9), 723(a)(10) and 723(a)(14))
Note to Sec. 361.42: Clear and convincing evidence means that the
designated State unit has a high degree of certainty before it can
conclude that an individual is incapable of benefiting 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 is
to be individually applied on a case-by-case basis. The
[[Page 21126]]
term clear means unequivocal. 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. (S. Rep. No. 357, 102d
Cong., 2d. Sess. 37-38 (1992))
Sec. 361.43 Procedures for ineligibility determination.
If the State unit determines that an applicant is ineligible for
vocational rehabilitation services or determines that an individual
receiving services under an individualized plan for employment is no
longer eligible for services, the State unit must--
(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, supplemented as necessary by
other appropriate modes of communication consistent with the informed
choice of the individual, 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
State unit personnel determinations in accordance with Sec. 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;
(d) Refer the individual--
(1) To other programs that are part of the one-stop service
delivery system under the Workforce Investment Act that can address the
individual's training or employment-related needs; or
(2) To Federal, State, or local programs or service providers,
including, as appropriate, independent living programs and extended
employment providers, best suited to meet their rehabilitation needs,
if the ineligibility determination is based on a finding that the
individual has chosen not to pursue, or is incapable of achieving, an
employment outcome as defined in Sec. 361.5(c)(15).
(e) Review within 12 months and annually thereafter if requested by
the individual or, if appropriate, by the individual's representative
any ineligibility determination that is based on a finding that the
individual is incapable of achieving an employment outcome. This review
need not be conducted in situations in which the individual has refused
it, the individual is no longer present in the State, the individual's
whereabouts are unknown, or the individual's medical condition is
rapidly progressive or terminal.
(Authority: Sections 12(c) and 102(a)(5) and (c) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
722(a)(5) and (c))
Sec. 361.44 Closure without eligibility determination.
The designated State unit may not close an applicant's record of
services 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: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.45 Development of the individualized plan for employment.
(a) General requirements. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that--
(1) An individualized plan for employment meeting the requirements
of this section and Sec. 361.46 is developed and implemented in a
timely manner for each individual determined to be eligible for
vocational rehabilitation services or, if the designated State unit is
operating under an order of selection in accordance with Sec. 361.36,
for each eligible individual to whom the State unit is able to provide
services; and
(2) Services will be provided in accordance with the provisions of
the individualized plan for employment.
(b) Purpose. (1) The designated State unit must conduct an
assessment for determining vocational rehabilitation needs, if
appropriate, 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 employment outcome, and the nature and scope of
vocational rehabilitation services to be included in the individualized
plan for employment.
(2) The individualized plan for employment must be designed to
achieve a specific employment outcome, as defined in Sec.
361.5(c)(15), that is selected by the individual consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice.
(c) Required information. The State unit must provide the following
information to each eligible individual or, as appropriate, the
individual's representative, in writing and, if appropriate, in the
native language or mode of communication of the individual or the
individual's representative:
(1) Options for developing an individualized plan for employment.
Information on the available options for developing the individualized
plan for employment, including the option that an eligible individual
or, as appropriate, the individual's representative may develop all or
part of the individualized plan for employment--
(i) Without assistance from the State unit or other entity; or
(ii) With assistance from--
(A) A qualified vocational rehabilitation counselor employed by the
State unit;
(B) A qualified vocational rehabilitation counselor who is not
employed by the State unit;
(C) A disability advocacy organization; or
(D) Resources other than those in paragraph (c)(1)(ii)(A) through
(C) of this section.
(2) Additional information. Additional information to assist the
eligible individual or, as appropriate, the individual's representative
in developing the individualized plan for employment, including--
(i) Information describing the full range of components that must
be included in an individualized plan for employment;
(ii) As appropriate to each eligible individual--
(A) An explanation of agency guidelines and criteria for
determining an eligible individual's financial commitments under an
individualized plan for employment;
(B) Information on the availability of assistance in completing
State unit forms required as part of the individualized plan for
employment; and
(C) Additional information that the eligible individual requests or
the State unit determines to be necessary to the
[[Page 21127]]
development of the individualized plan for employment;
(iii) A description of the rights and remedies available to the
individual, including, if appropriate, recourse to the processes
described in Sec. 361.57; and
(iv) A description of the availability of a client assistance
program established under part 370 of this chapter and information on
how to contact the client assistance program.
(3) Individuals entitled to benefits under title II or XVI of the
Social Security Act. For individuals entitled to benefits under title
II or XVI of the Social Security Act on the basis of a disability or
blindness, the State unit must provide to the individual general
information on additional supports and assistance for individuals with
disabilities desiring to enter the workforce, including assistance with
benefits planning.
(d) Mandatory procedures. The designated State unit must ensure
that--
(1) The individualized plan for employment is a written document
prepared on forms provided by the State unit;
(2) The individualized plan for employment is developed and
implemented in a manner that gives eligible individuals the opportunity
to exercise informed choice, consistent with Sec. 361.52, in
selecting--
(i) The employment outcome, including the employment setting;
(ii) The specific vocational rehabilitation services needed to
achieve the employment outcome, including the settings in which
services will be provided;
(iii) The entity or entities that will provide the vocational
rehabilitation services; and
(iv) The methods available for procuring the services;
(3) The individualized plan for employment is--
(i) Agreed to and signed by the eligible individual or, as
appropriate, the individual's representative; and
(ii) Approved and signed by a qualified vocational rehabilitation
counselor employed by the designated State unit;
(4) A copy of the individualized plan for employment and a copy of
any amendments to the individualized plan for employment are provided
to the eligible individual or, as appropriate, to the individual's
representative, in writing and, if appropriate, in the native language
or mode of communication of the individual or, as appropriate, the
individual's representative;
(5) The individualized plan for employment is reviewed at least
annually by a qualified vocational rehabilitation counselor and the
eligible individual or, as appropriate, the individual's representative
to assess the eligible individual's progress in achieving the
identified employment outcome;
(6) The individualized plan for employment is amended, as
necessary, by the individual or, as appropriate, the individual's
representative, in collaboration with a representative of the State
unit or a qualified vocational rehabilitation counselor (to the extent
determined to be appropriate by the individual), if there are
substantive changes in the employment outcome, the vocational
rehabilitation services to be provided, or the providers of the
vocational rehabilitation services;
(7) Amendments to the individualized plan for employment do not
take effect until agreed to and signed by the eligible individual or,
as appropriate, the individual's representative and by a qualified
vocational rehabilitation counselor employed by the designated State
unit;
(8) The individualized plan for employment is amended, as
necessary, to include the postemployment services and service providers
that are necessary for the individual to maintain, advance in or regain
employment, consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice; and
(9) An individualized plan for employment for a student with a
disability is developed--
(i) In consideration of the student's individualized education
program or 504 services, as applicable; and
(ii) In accordance with the plans, policies, procedures, and terms
of the interagency agreement required under Sec. 361.22.
(e) Standards for developing the individualized plan for
employment. The individualized plan for employment must be developed as
soon as possible, but not later than 90 days after the date of
determination of eligibility, unless the State unit and the eligible
individual agree to the extension of that deadline to a specific date
by which the individualized plan for employment must be completed.
(f) Data for preparing the individualized plan for employment. (1)
Preparation without comprehensive assessment. To the extent possible,
the employment outcome and the nature and scope of rehabilitation
services to be included in the individual's individualized plan for
employment must be determined based on the data used for the assessment
of eligibility and priority for services under Sec. 361.42.
(2) Preparation based on comprehensive assessment.
(i) If additional data are necessary to determine the employment
outcome and the nature and scope of services to be included in the
individualized plan for employment of an eligible individual, the State
unit must conduct a comprehensive assessment of the unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice, including the need for supported employment
services, of the eligible individual, in the most integrated setting
possible, consistent with the informed choice of the individual in
accordance with the provisions of Sec. 361.5(c)(5)(ii).
(ii) In preparing the comprehensive assessment, the State unit must
use, to the maximum extent possible and appropriate and in accordance
with confidentiality requirements, existing information that is current
as of the date of the development of the individualized plan for
employment, including information--
(A) Available from other programs and providers, particularly
information used by education officials and the Social Security
Administration;
(B) Provided by the individual and the individual's family; and
(C) Obtained under the assessment for determining the individual's
eligibility and vocational rehabilitation needs.
(Authority: Sections 7(2)(B), 101(a)(9), 102(b), and 103(a)(1) of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(2)(B),
721(a)(9), 722(b), and 723(a)(1))
Sec. 361.46 Content of the individualized plan for employment.
(a) Mandatory components. Regardless of the approach in Sec.
361.45(c)(1) that an eligible individual selects for purposes of
developing the individualized plan for employment, each individualized
plan for employment must--
(1) Include a description of the specific employment outcome, as
defined in Sec. 361.5(c)(15), that is chosen by the eligible
individual and is consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, career
interests, and informed choice consistent with the general goal of
competitive integrated employment (except that in the case of an
eligible individual who is a student or a youth with a disability, the
description may be a description of the individual's projected post-
school employment outcome);
(2) Include a description under Sec. 361.48 of--
[[Page 21128]]
(i) These specific rehabilitation services needed to achieve the
employment outcome, including, as appropriate, the provision of
assistive technology devices, assistive technology services, and
personal assistance services, including training in the management of
those services; and
(ii) In the case of a plan for an eligible individual that is a
student or youth with a disability, the specific transition services
and supports needed to achieve the individual's employment outcome or
projected post-school employment outcome.
(3) Provide for services in the most integrated setting that is
appropriate for the services involved and is consistent with the
informed choice of the eligible individual;
(4) Include timelines for the achievement of the employment outcome
and for the initiation of services;
(5) Include a description of the entity or entities chosen by the
eligible individual or, as appropriate, the individual's representative
that will provide the vocational rehabilitation services and the
methods used to procure those services;
(6) Include a description of the criteria that will be used to
evaluate progress toward achievement of the employment outcome; and
(7) Include the terms and conditions of the individualized plan for
employment, including, as appropriate, information describing--
(i) The responsibilities of the designated State unit;
(ii) The responsibilities of the eligible individual, including--
(A) The responsibilities the individual will assume in relation to
achieving the employment outcome;
(B) If applicable, the extent of the individual's participation in
paying for the cost of services; and
(C) The responsibility of the individual with regard to applying
for and securing comparable services and benefits as described in Sec.
361.53; and
(iii) The responsibilities of other entities as the result of
arrangements made pursuant to the comparable services or benefits
requirements in Sec. 361.53.
(b) Supported employment requirements. An individualized plan for
employment for an individual with a most significant disability for
whom an employment outcome in a supported employment setting has been
determined to be appropriate must--
(1) Specify the supported employment services to be provided by the
designated State unit;
(2) Specify the expected extended services needed, which may
include natural supports;
(3) Identify the source of extended services or, to the extent that
it is not possible to identify the source of extended services at the
time the individualized plan for employment is developed, include a
description of the basis for concluding that there is a reasonable
expectation that those sources will become available;
(4) Provide for periodic monitoring to ensure that the individual
is making satisfactory progress toward meeting the weekly work
requirement established in the individualized plan for employment by
the time of transition to extended services;
(5) Provide for the coordination of services provided under an
individualized plan for employment with services provided under other
individualized plans established under other Federal or State programs;
(6) To the extent that job skills training is provided, identify
that the training will be provided on site; and
(7) Include placement in an integrated setting for the maximum
number of hours possible based on the unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice of individuals with the most significant disabilities.
(c) Post-employment services. The individualized plan for
employment for each individual must contain, as determined to be
necessary, statements concerning--
(1) The expected need for post-employment services prior to closing
the record of services of an individual who has achieved an employment
outcome;
(2) A description of the terms and conditions for the provision of
any post-employment services; and
(3) If appropriate, a statement of how post-employment services
will be provided or arranged through other entities as the result of
arrangements made pursuant to the comparable services or benefits
requirements in Sec. 361.53.
(d) Coordination of services for students with disabilities. The
individualized plan for employment for a student with a disability must
be coordinated with the individualized education program or 504
services, as applicable, for that individual in terms of the goals,
objectives, and services identified in the education program.
(Authority: Sections 101(a)(8), 101(a)(9), and 102(b)(4) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 721(a)(8),
721(a)(9), and 722(b)(4))
Sec. 361.47 Record of services.
(a) The designated State unit must maintain for each applicant and
eligible individual a record of services that includes, to the extent
pertinent, the following documentation:
(1) If an applicant has been determined to be an eligible
individual, documentation supporting that determination in accordance
with the requirements under Sec. 361.42.
(2) If an applicant or eligible individual receiving services under
an individualized plan for employment has been determined to be
ineligible, documentation supporting that determination in accordance
with the requirements under Sec. 361.43.
(3) Documentation that describes the justification for closing an
applicant's or eligible individual's record of services if that closure
is based on reasons other than ineligibility, including, as
appropriate, documentation indicating that the State unit has satisfied
the requirements in Sec. 361.44.
(4) If an individual has been determined to be an individual with a
significant disability or an individual with a most significant
disability, documentation supporting that determination.
(5) If an individual with a significant disability requires an
exploration of abilities, capabilities, and capacity to perform in
realistic work situations through the use of trial work experiences or,
as appropriate, an extended evaluation to determine whether the
individual is an eligible individual, documentation supporting the need
for, and the plan relating to, that exploration or, as appropriate,
extended evaluation and documentation regarding the periodic
assessments carried out during the trial work experiences or, as
appropriate, the extended evaluation, in accordance with the
requirements under Sec. 361.42(e) and (f).
(6) The individualized plan for employment, and any amendments to
the individualized plan for employment, consistent with the
requirements under Sec. 361.46.
(7) Documentation describing the extent to which the applicant or
eligible individual exercised informed choice regarding the provision
of assessment services and the extent to which the eligible individual
exercised informed choice in the development of the individualized plan
for employment with respect to the selection of the specific employment
outcome, the specific vocational rehabilitation services needed to
achieve the employment outcome, the entity to provide the services, the
employment
[[Page 21129]]
setting, the settings in which the services will be provided, and the
methods to procure the services.
(8) In the event that an individual's individualized plan for
employment provides for vocational rehabilitation services in a non-
integrated setting, a justification to support the need for the non-
integrated setting.
(9) In the event that an individual obtains competitive employment,
verification that the individual is compensated at or above the minimum
wage and that the individual's wage and level of benefits are not less
than that customarily paid by the employer for the same or similar work
performed by non-disabled individuals in accordance with Sec.
361.5(c)(9)(i).
(10) In the event an individual achieves an employment outcome in
which the individual is compensated in accordance with section 14(c) of
the Fair Labor Standards Act or the designated State unit closes the
record of services of an individual in extended employment on the basis
that the individual is unable to achieve an employment outcome
consistent with Sec. 361.5(c)(15) or that an eligible individual
through informed choice chooses to remain in extended employment,
documentation of the results of the annual reviews required under Sec.
361.55, of the individual's input into those reviews, and of the
individual's or, if appropriate, the individual's representative's
acknowledgment that those reviews were conducted.
(11) Documentation concerning any action or decision resulting from
a request by an individual under Sec. 361.57 for a review of
determinations made by designated State unit personnel.
(12) In the event that an applicant or eligible individual requests
under Sec. 361.38(c)(4) that documentation in the record of services
be amended and the documentation is not amended, documentation of the
request.
(13) In the event an individual is referred to another program
through the State unit's information and referral system under Sec.
361.37, including other components of the statewide workforce
development system, documentation on the nature and scope of services
provided by the designated State unit to the individual and on the
referral itself, consistent with the requirements of Sec. 361.37.
(14) In the event an individual's record of service is closed under
Sec. 361.56, documentation that demonstrates the services provided
under the individual's individualized plan for employment contributed
to the achievement of the employment outcome.
(15) In the event an individual's record of service is closed under
Sec. 361.56, documentation verifying that the provisions of Sec.
361.56 have been satisfied.
(b) The State unit, in consultation with the State Rehabilitation
Council if the State has a Council, must determine the type of
documentation that the State unit must maintain for each applicant and
eligible individual in order to meet the requirements in paragraph (a)
of this section.
(Authority: Sections 12(c), 101(a)(6), (9), (14), and (20) and
102(a), (b), and (d) of the Rehabilitation Act of 1973, as amended;
29 U.S.C. 709(c), 721(a)(6), (9), (14), and (20) and 722(a), (b),
and (d))
Sec. 361.48 Scope of vocational rehabilitation services for
individuals with disabilities.
(a) Pre-employment transition services. Each State must ensure that
the designated State unit, in collaboration with the local educational
agencies involved, provide, or arrange for the provision of, pre-
employment transition services for all students with disabilities, as
defined in Sec. 361.5(c)(51), in need of such services, without regard
to the type of disability, from funds reserved in accordance with Sec.
361.65 and any funds made available from State, local, or private
funding sources.
(1) Availability of services. Pre-employment transition services
may be provided to all students with disabilities, regardless of
whether an application for services has been submitted.
(2) Required activities. The designated State unit must provide the
following pre-employment transition services:
(i) Job exploration counseling;
(ii) Work-based learning experiences, which may include in-school
or after school opportunities, or experience outside the traditional
school setting (including internships), that is provided in an
integrated environment in the community to the maximum extent possible;
(iii) Counseling on opportunities for enrollment in comprehensive
transition or postsecondary educational programs at institutions of
higher education;
(iv) Workplace readiness training to develop social skills and
independent living; and
(v) Instruction in self-advocacy (including instruction in person-
centered planning), which may include peer mentoring (including peer
mentoring from individuals with disabilities working in competitive
integrated employment).
(3) Authorized activities. Funds available and remaining after the
provision of the required activities described in paragraph (a)(2) of
this section may be used to improve the transition of students with
disabilities from school to postsecondary education or an employment
outcome by--
(i) Implementing effective strategies to increase the likelihood of
independent living and inclusion in communities and competitive
integrated workplaces;
(ii) Developing and improving strategies for individuals with
intellectual disabilities and individuals with significant disabilities
to live independently; participate in postsecondary education
experiences; and obtain, advance in and retain competitive integrated
employment;
(iii) Providing instruction to vocational rehabilitation
counselors, school transition personnel, and other persons supporting
students with disabilities;
(iv) Disseminating information about innovative, effective, and
efficient approaches to achieve the goals of this section;
(v) Coordinating activities with transition services provided by
local educational agencies under the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.);
(vi) Applying evidence-based findings to improve policy, procedure,
practice, and the preparation of personnel, in order to better achieve
the goals of this section;
(vii) Developing model transition demonstration projects;
(viii) Establishing or supporting multistate or regional
partnerships involving States, local educational agencies, designated
State units, developmental disability agencies, private businesses, or
other participants to achieve the goals of this section; and
(ix) Disseminating information and strategies to improve the
transition to postsecondary activities of individuals who are members
of traditionally unserved and underserved populations.
(4) Pre-employment transition coordination. Each local office of a
designated State unit must carry out responsibilities consisting of--
(i) Attending individualized education program meetings for
students with disabilities, when invited;
(ii) Working with the local workforce development boards, one-stop
centers, and employers to develop work opportunities for students with
disabilities, including internships, summer employment and other
employment opportunities available throughout the school year, and
apprenticeships;
[[Page 21130]]
(iii) Working with schools, including those carrying out activities
under section 614(d) of the IDEA, to coordinate and ensure the
provision of pre-employment transition services under this section;
(iv) When invited, attending person-centered planning meetings for
individuals receiving services under title XIX of the Social Security
Act (42 U.S.C. 1396 et seq.); and
(b) Services for individuals who have applied for or been
determined eligible for vocational rehabilitation services. As
appropriate to the vocational rehabilitation needs of each individual
and consistent with each individual's individualized plan for
employment, the designated State unit must ensure that the following
vocational rehabilitation services are available to assist the
individual with a disability in preparing for, securing, retaining,
advancing in or regaining an employment outcome that is consistent with
the individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice:
(1) Assessment for determining eligibility and priority for
services by qualified personnel, including, if appropriate, an
assessment by personnel skilled in rehabilitation technology, in
accordance with Sec. 361.42.
(2) Assessment for determining vocational rehabilitation needs by
qualified personnel, including, if appropriate, an assessment by
personnel skilled in rehabilitation technology, in accordance with
Sec. 361.45.
(3) Vocational rehabilitation counseling and guidance, including
information and support services to assist an individual in exercising
informed choice in accordance with Sec. 361.52.
(4) Referral and other services necessary to assist applicants and
eligible individuals to secure needed services from other agencies,
including other components of the statewide workforce development
system, in accordance with Sec. Sec. 361.23, 361.24, and 361.37, and
to advise those individuals about client assistance programs
established under 34 CFR part 370.
(5) In accordance with the definition in Sec. 361.5(c)(40),
physical and mental restoration services, to the extent that financial
support is not readily available from a source other than the
designated State unit (such as through health insurance or a comparable
service or benefit as defined in Sec. 361.5(c)(10)).
(6) Vocational and other training services, including personal and
vocational adjustment training, advanced training in a field of
science, technology, engineering, or mathematics (including computer
science), medicine, law, or business; 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 or any other postsecondary education institution)
may be paid for with funds under this part unless maximum efforts have
been made by the State unit and the individual 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
Sec. 361.5(c)(35).
(8) Transportation in connection with the provision of any
vocational rehabilitation service and in accordance with the definition
of that term in Sec. 361.5(c)(57).
(9) Vocational rehabilitation services to family members, as
defined in Sec. 361.5(c)(23), of an applicant or eligible individual
if necessary to enable the applicant or eligible individual to achieve
an employment outcome.
(10) Interpreter services, including sign language and oral
interpreter services, for individuals who are deaf or hard of hearing
and tactile interpreting services for individuals who are deaf-blind
provided by qualified personnel.
(11) Reader services, rehabilitation teaching services, and
orientation and mobility services for individuals who are blind.
(12) Job-related services, including job search and placement
assistance, job retention services, follow-up services, and follow-
along services.
(13) Supported employment services in accordance with the
definition of that term in Sec. 361.5(c)(54).
(14) Personal assistance services in accordance with the definition
of that term in Sec. 361.5(c)(39).
(15) Post-employment services in accordance with the definition of
that term in Sec. 361.5(c)(42).
(16) Occupational licenses, tools, equipment, initial stocks, and
supplies.
(17) Rehabilitation technology in accordance with the definition of
that term in Sec. 361.5(c)(45), including vehicular modification,
telecommunications, sensory, and other technological aids and devices.
(18) Transition services for students and youth with disabilities,
that facilitate the transition from school to postsecondary life, such
as achievement of an employment outcome in competitive integrated
employment, or pre-employment transition services for students.
(19) Technical assistance and other consultation services to
conduct market analyses, develop business plans, and otherwise provide
resources, to the extent those resources are authorized to be provided
through the statewide workforce development system, to eligible
individuals who are pursuing self-employment or telecommuting or
establishing a small business operation as an employment outcome.
(20) Customized employment in accordance with the definition of
that term in Sec. 361.5(c)(11).
(21) Other goods and services determined necessary for the
individual with a disability to achieve an employment outcome.
(Authority: Sections 7(37), 103(a), and 113 of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 704(37), 723(a), and 733)
Sec. 361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
(a) The designated State unit may 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 vocational rehabilitation services that promote integration
into the community and prepare individuals with disabilities for
competitive integrated employment, including supported employment and
customized employment, and under special circumstances, the
construction of a facility for a public or nonprofit community
rehabilitation program as defined in Sec. Sec. 361.5(c)(10),
361.5(c)(16) and 361.5(c)(17). 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 vocational
rehabilitation 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, video description services, satellite, tactile-vibratory
devices, and similar systems, as appropriate.
(3) Special services to provide nonvisual access to information for
individuals who are blind, including the use of telecommunications,
Braille, sound recordings, or other appropriate
[[Page 21131]]
media; captioned television, films, or video cassettes for individuals
who are deaf or hard of hearing; 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 to businesses that are seeking to employ
individuals with disabilities.
(5) In the case of any small business enterprise operated by
individuals with significant disabilities under the supervision of the
designated State unit, including enterprises established under the
Randolph-Sheppard program, management services and supervision provided
by the State unit along with the acquisition by the State unit of
vending facilities or other equipment, 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 significant 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 may not exceed six months.
(iii) Costs of establishing a small business enterprise may include
operational costs during the initial establishment period, which may
not exceed six months.
(iv) If the designated State unit provides for these services, it
must ensure that only individuals with significant disabilities will be
selected to participate in this supervised program.
(v) If the designated State unit provides for these services and
chooses to set aside funds from the proceeds of the operation of the
small business enterprises, the State unit must maintain 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) Consultation and technical assistance services to assist State
educational agencies and local educational agencies in planning for the
transition of students and youth with disabilities from school to
postsecondary life, including employment.
(7) Transition services to youth with disabilities and students
with disabilities who may not have yet applied or been determined
eligible for vocational rehabilitation services, for which a vocational
rehabilitation counselor works in concert with educational agencies,
providers of job training programs, providers of services under the
Medicaid program under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.), entities designated by the State to provide services for
individuals with developmental disabilities, centers for independent
living (as defined in section 702 of the Act), housing and
transportation authorities, workforce development systems, and
businesses and employers. These specific transition services are to
benefit a group of students with disabilities or youth with
disabilities and are not individualized services directly related to an
individualized plan for employment goal. Services may include, but are
not limited to, group tours of universities and vocational training
programs, employer or business site visits to learn about career
opportunities, career fairs coordinated with workforce development and
employers to facilitate mock interviews and resume writing, and other
general services applicable to groups of students with disabilities and
youth with disabilities.
(8) The establishment, development, or improvement of assistive
technology demonstration, loan, reutilization, or financing programs in
coordination with activities authorized under the Assistive Technology
Act of 1998 (29 U.S.C. 3001 et seq.) to promote access to assistive
technology for individuals with disabilities who are applicants of or
have been determined eligible for vocational rehabilitation services
and employers.
(9) Support (including, as appropriate, tuition) for advanced
training in a field of science, technology, engineering, or mathematics
(including computer science), medicine, law, or business, provided
after an individual eligible to receive services under this title
demonstrates--
(i) Such Eligibility;
(ii) Previous completion of a bachelor's degree program at an
institution of higher education or scheduled completion of such a
degree program prior to matriculating in the program for which the
individual proposes to use the support; and
(iii) Acceptance by a program at an institution of higher education
in the United States that confers a master's degree in a field of
science, technology, engineering, or mathematics (including computer
science), a juris doctor degree, a master of business administration
degree, or a doctor of medicine degree, except that--
(A) No training provided at an institution of higher education may
be paid for with funds under this program unless maximum efforts have
been made by the designated State unit to secure grant assistance, in
whole or in part, from other sources to pay for such training; and
(B) Nothing in this paragraph prevents any designated State unit
from providing similar support to individuals with disabilities within
the State who are eligible to receive support under this title and who
are not served under this section.
(b) If the designated State unit provides for vocational
rehabilitation services for groups of individuals, it must--
(1) Develop and maintain written policies covering the nature and
scope of each of the vocational rehabilitation services it provides and
the criteria under which each service is provided; and
(2) Maintain 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 benefiting from those services.
(Authority: Sections 12(c), 101(a)(6)(A), and 103(b) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6),
and 723(b))
Sec. 361.50 Written policies governing the provision of services for
individuals with disabilities.
(a) Policies. The State unit must develop and maintain written
policies covering the nature and scope of each of the vocational
rehabilitation services specified in Sec. 361.48 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 individualized plan for
employment and is consistent with the individual's informed choice. 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:
[[Page 21132]]
(b) Out-of-State services. (1) The State unit may establish a
preference for in-State 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 policies that effectively
prohibit the provision of out-of-State services.
(c) Payment for services. (1) The State unit must establish and
maintain written policies to govern the rates of payment for all
purchased vocational rehabilitation services.
(2) The State unit may establish a fee schedule designed to ensure
a reasonable cost to the program for each service, if 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.
(d) 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
individualized plan for employment.
(e) Authorization of services. The State unit must establish
policies related to the timely authorization of services, including any
conditions under which verbal authorization can be given.
(Authority: Sections 12(c) and 101(a)(6) of the Rehabilitation Act
of 1973, as amended and 29 U.S.C. 709(c) and 721(a)(6))
Sec. 361.51 Standards for facilities and providers of services.
(a) Accessibility of facilities. The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
any facility used in connection with the delivery of vocational
rehabilitation services under this part meets program accessibility
requirements consistent with the requirements, as applicable, of the
Architectural Barriers Act of 1968, the Americans with Disabilities Act
of 1990, section 504 of the Act, and the regulations implementing these
laws.
(b) Affirmative action. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that
community rehabilitation programs that receive assistance under part B
of title I of the Act take affirmative action to employ and advance in
employment qualified individuals with disabilities covered under and on
the same terms and conditions as in section 503 of the Act.
(c) Special communication needs personnel. The designated State
unit must ensure that providers of vocational rehabilitation services
are able to communicate--
(1) In the native language of applicants and eligible individuals
who have limited English proficiency; and
(2) By using appropriate modes of communication used by applicants
and eligible individuals.
(Authority: Sections 12(c) and 101(a)(6)(B) and (C) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
721(a)(6)(B) and (C))
Sec. 361.52 Informed choice.
(a) General provision. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that
applicants and eligible individuals or, as appropriate, their
representatives are provided information and support services to assist
applicants and eligible individuals in exercising informed choice
throughout the rehabilitation process consistent with the provisions of
section 102(d) of the Act and the requirements of this section.
(b) Written policies and procedures. The designated State unit, in
consultation with its State Rehabilitation Council, if it has a
Council, must develop and implement written policies and procedures
that enable an applicant or eligible individual to exercise informed
choice throughout the vocational rehabilitation process. These policies
and procedures must provide for--
(1) Informing each applicant and eligible individual (including
students with disabilities who are making the transition from programs
under the responsibility of an educational agency to programs under the
responsibility of the designated State unit and including youth with
disabilities), through appropriate modes of communication, about the
availability of and opportunities to exercise informed choice,
including the availability of support services for individuals with
cognitive or other disabilities who require assistance in exercising
informed choice throughout the vocational rehabilitation process;
(2) Assisting applicants and eligible individuals in exercising
informed choice in decisions related to the provision of assessment
services;
(3) Developing and implementing flexible procurement policies and
methods that facilitate the provision of vocational rehabilitation
services and that afford eligible individuals meaningful choices among
the methods used to procure vocational rehabilitation services;
(4) Assisting eligible individuals or, as appropriate, the
individuals' representatives, in acquiring information that enables
them to exercise informed choice in the development of their
individualized plans for employment with respect to the selection of
the--
(i) Employment outcome;
(ii) Specific vocational rehabilitation services needed to achieve
the employment outcome;
(iii) Entity that will provide the services;
(iv) Employment setting and the settings in which the services will
be provided; and
(v) Methods available for procuring the services; and
(5) Ensuring that the availability and scope of informed choice is
consistent with the obligations of the designated State agency under
this part.
(c) Information and assistance in the selection of vocational
rehabilitation services and service providers. In assisting an
applicant and eligible individual in exercising informed choice during
the assessment for determining eligibility and vocational
rehabilitation needs and during development of the individualized plan
for employment, the designated State unit must provide the individual
or the individual's representative, or assist the individual or the
individual's representative in acquiring, information necessary to make
an informed choice about the specific vocational rehabilitation
services, including the providers of those services, that are needed to
achieve the individual's employment outcome. This information must
include, at a minimum, information relating to the--
(1) Cost, accessibility, and duration of potential services;
(2) Consumer satisfaction with those services to the extent that
information relating to consumer satisfaction is available;
[[Page 21133]]
(3) Qualifications of potential service providers;
(4) Types of services offered by the potential providers;
(5) Degree to which services are provided in integrated settings;
and
(6) Outcomes achieved by individuals working with service
providers, to the extent that such information is available.
(d) Methods or sources of information. In providing or assisting
the individual or the individual's representative in acquiring the
information required under paragraph (c) of this section, the State
unit may use, but is not limited to, the following methods or sources
of information:
(1) Lists of services and service providers.
(2) Periodic consumer satisfaction surveys and reports.
(3) Referrals to other consumers, 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.
(5) Opportunities for individuals to visit or experience various
work and service provider settings.
(Authority: Sections 12(c), 101(a)(19); 102(b)(2)(B) and 102(d) of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(19); 722(b)(2)(B) and 722(d))
Sec. 361.53 Comparable services and benefits.
(a) Determination of availability. The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
prior to providing an accommodation or auxiliary aid or service or any
vocational rehabilitation services, except those services listed in
paragraph (b) of this section, to an eligible individual or to members
of the individual's family, the State unit must determine whether
comparable services and benefits, as defined in Sec. 361.5(c)(8),
exist under any other program and whether those services and benefits
are available to the individual unless such a determination would
interrupt or delay--
(1) The progress of the individual toward achieving the employment
outcome identified in the individualized plan for employment;
(2) An immediate job placement; or
(3) 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.
(b) Exempt services. The following vocational rehabilitation
services described in Sec. 361.48(a) are exempt from a determination
of the availability of comparable services and benefits under paragraph
(a) of this section:
(1) Assessment for determining eligibility and vocational
rehabilitation needs.
(2) Counseling and guidance, including information and support
services to assist an individual in exercising informed choice.
(3) Referral and other services to secure needed services from
other agencies, including other components of the statewide workforce
development system, if those services are not available under this
part.
(4) Job-related services, including job search and placement
assistance, job retention services, follow-up services, and follow-
along services.
(5) Rehabilitation technology, including telecommunications,
sensory, and other technological aids and devices.
(6) Post-employment services consisting of the services listed
under paragraphs (b)(1) through (5) of this section.
(c) Provision of services. (1) If comparable services or benefits
exist under any other program and are available to the individual at
the time needed to ensure the progress of the individual toward
achieving the employment outcome in the individual's individualized
plan for employment, the designated State unit must use those
comparable services or benefits to meet, in whole or part, the costs of
the vocational rehabilitation services.
(2) If comparable services or benefits exist under any other
program, but are not available to the individual at the time needed to
ensure the progress of the individual toward achieving the employment
outcome specified in the individualized plan for employment, the
designated State unit must provide vocational rehabilitation services
until those comparable services and benefits become available.
(d) Interagency coordination. (1) The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
the Governor, in consultation with the entity in the State responsible
for the vocational rehabilitation program and other appropriate
agencies, will ensure that an interagency agreement or other mechanism
for interagency coordination takes effect between the designated State
vocational rehabilitation unit and any appropriate public entity,
including the State entity responsible for administering the State
Medicaid program, a public institution of higher education, and a
component of the statewide workforce development system, to ensure the
provision of vocational rehabilitation services, and, if appropriate,
accommodations or auxiliary aids and services, (other than those
services listed in paragraph (b) of this section) that are included in
the individualized plan for employment of an eligible individual,
including the provision of those vocational rehabilitation services
(including, if appropriate, accommodations or auxiliary aids and
services) during the pendency of any interagency dispute in accordance
with the provisions of paragraph (d)(3)(iii) of this section.
(2) The Governor may meet the requirements of paragraph (d)(1) of
this section through--
(i) A State statute or regulation;
(ii) A signed agreement between the respective officials of the
public entities that clearly identifies the responsibilities of each
public entity for the provision of the services; or
(iii) Another appropriate mechanism as determined by the designated
State vocational rehabilitation unit.
(3) The interagency agreement or other mechanism for interagency
coordination must include the following:
(i) Agency financial responsibility. An identification of, or
description of a method for defining, the financial responsibility of
the designated State unit and other public entities for the provision
of vocational rehabilitation services, and, if appropriate,
accommodations or auxiliary aids and services other than those listed
in paragraph (b) of this section and a provision stating the financial
responsibility of the public entity for providing those services.
(ii) Conditions, terms, and procedures of reimbursement.
Information specifying the conditions, terms, and procedures under
which the designated State unit must be reimbursed by the other public
entities for providing vocational rehabilitation services, and
accommodations or auxiliary aids and services based on the terms of the
interagency agreement or other mechanism for interagency coordination.
(iii) Interagency disputes. Information specifying procedures for
resolving interagency disputes under the interagency agreement or other
mechanism for interagency coordination, including procedures under
which the designated State unit may initiate proceedings to secure
reimbursement from other public
[[Page 21134]]
entities or otherwise implement the provisions of the agreement or
mechanism.
(iv) Procedures for coordination of services. Information
specifying policies and procedures for public entities to determine and
identify interagency coordination responsibilities of each public
entity to promote the coordination and timely delivery of vocational
rehabilitation services, and accommodations or auxiliary aids and
services, other than those listed in paragraph (b) of this section.
(e) Responsibilities under other law. (1) If a public entity (other
than the designated State unit) is obligated under Federal law (such as
the Americans with Disabilities Act, section 504 of the Act, or section
188 of the Workforce Innovation and Opportunity Act) or State law, or
assigned responsibility under State policy or an interagency agreement
established under this section, to provide or pay for any services
considered to be vocational rehabilitation services (e.g., interpreter
services under Sec. 361.48(j)), and, if appropriate, accommodations or
auxiliary aids and services other than those services listed in
paragraph (b) of this section, the public entity must fulfill that
obligation or responsibility through--
(i) The terms of the interagency agreement or other requirements of
this section;
(ii) Providing or paying for the service directly or by contract;
or
(iii) Other arrangement.
(2) If a public entity other than the designated State unit fails
to provide or pay for vocational rehabilitation services, and, if
appropriate, accommodations or auxiliary aids and services for an
eligible individual as established under this section, the designated
State unit must provide or pay for those services to the individual and
may claim reimbursement for the services from the public entity that
failed to provide or pay for those services. The public entity must
reimburse the designated State unit pursuant to the terms of the
interagency agreement or other mechanism described in paragraph (d) of
this section in accordance with the procedures established in the
agreement or mechanism pursuant to paragraph (d)(3)(ii) of this
section.
(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))
Sec. 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 through trial work experiences under Sec.
361.42(e) 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 must maintain written policies--
(A) Explaining the method for determining the financial need of an
eligible individual; and
(B) Specifying the types of vocational rehabilitation services for
which the unit has established a financial needs test;
(ii) The policies must be applied uniformly to all individuals in
similar circumstances;
(iii) 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
(iv) 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, including
consideration of any disability-related expenses paid by the
individual; and
(C) Not so high as to effectively deny the individual a necessary
service.
(3) The designated State unit may not apply a financial needs test,
or require the financial participation of the individual--
(i) As a condition for furnishing the following vocational
rehabilitation services:
(A) Assessment for determining eligibility and priority for
services under Sec. 361.48(b)(1), except those non-assessment services
that are provided to an individual with a significant disability during
either an exploration of the individual's abilities, capabilities, and
capacity to perform in work situations through the use of trial work
experiences under Sec. 361.42(e).
(B) Assessment for determining vocational rehabilitation needs
under Sec. 361.48(b)(2).
(C) Vocational rehabilitation counseling and guidance under Sec.
361.48(b)(3).
(D) Referral and other services under Sec. 361.48(b)(4).
(E) Job-related services under Sec. 361.48(b)(12).
(F) Personal assistance services under Sec. 361.48(b)(14).
(G) Any auxiliary aid or service (e.g., interpreter services under
Sec. 361.48(b)(10), reader services under Sec. 361.48(b)(11)) that an
individual with a disability requires under section 504 of the Act (29
U.S.C. 794) or the Americans with Disabilities Act (42 U.S.C. 12101, et
seq.), or regulations implementing those laws, in order for the
individual to participate in the vocational rehabilitation program as
authorized under this part; or
(ii) As a condition for furnishing any vocational rehabilitation
service if the individual in need of the service has been determined
eligible for Social Security benefits under titles II or XVI of the
Social Security Act.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.55 Semi-annual review of individuals in extended employment
and other employment under special certificate provisions of the Fair
Labor Standards Act.
(a) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the designated State unit
conducts a semi-annual review and reevaluation for the first two years
of such employment and annually thereafter, in accordance with the
requirements in paragraph (b) of this section for an individual with a
disability served under this part--
(1) Who has achieved an employment outcome in which the individual
is compensated in accordance with section 14(c) of the Fair Labor
Standards Act; or
(2) Whose record of services is closed while the individual is in
extended employment on the basis that the individual is unable to
achieve an employment outcome consistent with Sec. 361.5(c)(15) or
that the individual made an informed choice to remain in extended
employment.
(b) For each individual with a disability who meets the criteria in
paragraph (a) of this section, the designated State unit must--
(1) Semi-annually review and reevaluate the status of each
individual for two years after the individual's record of services is
closed (and annually thereafter) to determine the interests,
priorities, and needs of the individual with respect to competitive
integrated employment or training for competitive integrated
employment;
(2) Enable the individual or, if appropriate, the individual's
representative to provide input into the review and reevaluation and
must document that input in the record of services, consistent with
Sec. 361.47(a)(10),
[[Page 21135]]
with the individual's or, as appropriate, the individual's
representative's signed acknowledgment that the review and reevaluation
have been conducted; and
(3) Make maximum efforts, including identifying and providing
vocational rehabilitation services, reasonable accommodations, and
other necessary support services, to assist the individual in engaging
in competitive integrated employment as defined in Sec. 361.5(c)(9).
(Authority: Sections 12(c) and 101(a)(14) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(14))
Sec. 361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
The record of services of an individual who has achieved an
employment outcome may be closed only if all of the following
requirements are met:
(a) Employment outcome achieved. The individual has achieved the
employment outcome that is described in the individual's individualized
plan for employment in accordance with Sec. 361.46(a)(1) and is
consistent with the individual's unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice.
(b) Employment outcome maintained. The individual has maintained
the employment outcome for an appropriate period of time, but not less
than 90 days, necessary to ensure the stability of the employment
outcome, and the individual no longer needs vocational rehabilitation
services.
(c) Satisfactory outcome. At the end of the appropriate period
under paragraph (b) of this section, the individual and the qualified
rehabilitation counselor employed by the designated State unit consider
the employment outcome to be satisfactory and agree that the individual
is performing well in the employment.
(d) Post-employment services. The individual is informed through
appropriate modes of communication of the availability of post-
employment services.
(Authority: Sections 12(c), 101(a)(6), and 106(a)(2) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 711(c), 721(a)(6),
and 726(a)(2))
Sec. 361.57 Review of determinations made by designated State unit
personnel.
(a) Procedures. The designated State unit must develop and
implement procedures to ensure that an applicant or eligible individual
who is dissatisfied with any determination made by personnel of the
designated State unit that affects the provision of vocational
rehabilitation services may request, or, if appropriate, may request
through the individual's representative, a timely review of that
determination. The procedures must be in accordance with paragraphs (b)
through (k) of this section:
(b) General requirements. (1) Notification. Procedures established
by the State unit under this section must provide an applicant or
eligible individual or, as appropriate, the individual's representative
notice of--
(i) The right to obtain review of State unit determinations that
affect the provision of vocational rehabilitation services through an
impartial due process hearing under paragraph (e) of this section;
(ii) The right to pursue mediation under paragraph (d) of this
section with respect to determinations made by designated State unit
personnel that affect the provision of vocational rehabilitation
services to an applicant or eligible individual;
(iii) The names and addresses of individuals with whom requests for
mediation or due process hearings may be filed;
(iv) The manner in which a mediator or impartial hearing officer
may be selected consistent with the requirements of paragraphs (d) and
(f) of this section; and
(v) The availability of the client assistance program, established
under 34 CFR part 370, to assist the applicant or eligible individual
during mediation sessions or impartial due process hearings.
(2) Timing. Notice described in paragraph (b)(1) of this section
must be provided in writing--
(i) At the time the individual applies for vocational
rehabilitation services under this part;
(ii) At the time the individual is assigned to a category in the
State's order of selection, if the State has established an order of
selection under Sec. 361.36;
(iii) At the time the individualized plan for employment is
developed; and
(iv) Whenever vocational rehabilitation services for an individual
are reduced, suspended, or terminated.
(3) Evidence and representation. Procedures established under this
section must--
(i) Provide an applicant or eligible individual or, as appropriate,
the individual's representative with an opportunity to submit during
mediation sessions or due process hearings evidence and other
information that supports the applicant's or eligible individual's
position; and
(ii) Allow an applicant or eligible individual to be represented
during mediation sessions or due process hearings by counsel or other
advocate selected by the applicant or eligible individual.
(4) Impact on provision of services. The State unit may not
institute a suspension, reduction, or termination of vocational
rehabilitation services being provided to an applicant or eligible
individual, including evaluation and assessment services and
individualized plan for employment development, pending a resolution
through mediation, pending a decision by a hearing officer or reviewing
official, or pending informal resolution under this section unless--
(i) The individual or, in appropriate cases, the individual's
representative requests a suspension, reduction, or termination of
services; or
(ii) The State agency has evidence that the services have been
obtained through misrepresentation, fraud, collusion, or criminal
conduct on the part of the individual or the individual's
representative.
(5) Ineligibility. Applicants who are found ineligible for
vocational rehabilitation services and previously eligible individuals
who are determined to be no longer eligible for vocational
rehabilitation services pursuant to Sec. 361.43 are permitted to
challenge the determinations of ineligibility under the procedures
described in this section.
(c) Informal dispute resolution. The State unit may develop an
informal process for resolving a request for review without conducting
mediation or a formal hearing. A State's informal process must not be
used to deny the right of an applicant or eligible individual to a
hearing under paragraph (e) of this section or any other right provided
under this part, including the right to pursue mediation under
paragraph (d) of this section. If informal resolution under this
paragraph or mediation under paragraph (d) of this section is not
successful in resolving the dispute within the time period established
under paragraph (e)(1) of this section, a formal hearing must be
conducted within that same time period, unless the parties agree to a
specific extension of time.
(d) Mediation. (1) The State must establish and implement
procedures, as required under paragraph (b)(1)(ii) of this section, to
allow an applicant or eligible individual and the State unit to resolve
disputes involving State unit determinations that affect the provision
of vocational rehabilitation services through a mediation process that
must be made available, at a minimum,
[[Page 21136]]
whenever an applicant or eligible individual or, as appropriate, the
individual's representative requests an impartial due process hearing
under this section.
(2) Mediation procedures established by the State unit under
paragraph (d) of this section must ensure that--
(i) Participation in the mediation process is voluntary on the part
of the applicant or eligible individual, as appropriate, and on the
part of the State unit;
(ii) Use of the mediation process is not used to deny or delay the
applicant's or eligible individual's right to pursue resolution of the
dispute through an impartial hearing held within the time period
specified in paragraph (e)(1) of this section or any other rights
provided under this part. At any point during the mediation process,
either party or the mediator may elect to terminate the mediation. In
the event mediation is terminated, either party may pursue resolution
through an impartial hearing;
(iii) The mediation process is conducted by a qualified and
impartial mediator, as defined in Sec. 361.5(c)(43), who must be
selected from a list of qualified and impartial mediators maintained by
the State--
(A) On a random basis;
(B) By agreement between the director of the designated State unit
and the applicant or eligible individual or, as appropriate, the
individual's representative; or
(C) In accordance with a procedure established in the State for
assigning mediators, provided this procedure ensures the neutrality of
the mediator assigned; and
(iv) Mediation sessions are scheduled and conducted in a timely
manner and are held in a location and manner that is convenient to the
parties to the dispute.
(3) Discussions that occur during the mediation process must be
kept confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(4) An agreement reached by the parties to the dispute in the
mediation process must be described in a written mediation agreement
that is developed by the parties with the assistance of the qualified
and impartial mediator and signed by both parties. Copies of the
agreement must be sent to both parties.
(5) The costs of the mediation process must be paid by the State.
The State is not required to pay for any costs related to the
representation of an applicant or eligible individual authorized under
paragraph (b)(3)(ii) of this section.
(e) Impartial due process hearings. The State unit must establish
and implement formal review procedures, as required under paragraph
(b)(1)(i) of this section, that provide that--
(1) hearing conducted by an impartial hearing officer, selected in
accordance with paragraph (f) of this section, must be held within 60
days of an applicant's or eligible individual's request for review of a
determination made by personnel of the State unit that affects the
provision of vocational rehabilitation services to the individual,
unless informal resolution or a mediation agreement is achieved prior
to the 60th day or the parties agree to a specific extension of time;
(2) In addition to the rights described in paragraph (b)(3) of this
section, the applicant or eligible individual or, if appropriate, the
individual's representative must be given the opportunity to present
witnesses during the hearing and to examine all witnesses and other
relevant sources of information and evidence;
(3) The impartial hearing officer must--
(i) Make a decision based on the provisions of the approved
vocational rehabilitation services portion of the Unified or Combined
State Plan, the Act, Federal vocational rehabilitation regulations, and
State regulations and policies that are consistent with Federal
requirements; and
(ii) Provide to the individual or, if appropriate, the individual's
representative and to the State unit a full written report of the
findings and grounds for the decision within 30 days of the completion
of the hearing; and
(4) The hearing officer's decision is final, except that a party
may request an impartial review under paragraph (g)(1) of this section
if the State has established procedures for that review, and a party
involved in a hearing may bring a civil action under paragraph (i) of
this section.
(f) Selection of impartial hearing officers. The impartial hearing
officer for a particular case must be selected--
(1) From a list of qualified impartial hearing officers maintained
by the State unit. Impartial hearing officers included on the list must
be--
(i) Identified by the State unit if the State unit is an
independent commission; or
(ii) Jointly identified by the State unit and the State
Rehabilitation 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 applicant or eligible individual or, as appropriate, the
individual's representative.
(g) Administrative review of hearing officer's decision. The State
may establish procedures to enable a party who is dissatisfied with the
decision of the impartial hearing officer to seek an impartial
administrative review of the decision under paragraph (e)(3) of this
section in accordance with the following requirements:
(1) A request for administrative review under paragraph (g) of this
section must be made within 20 days of the mailing of the impartial
hearing officer's decision.
(2) Administrative review of the hearing officer's decision must be
conducted by--
(i) The chief official of the designated State agency if the State
has established both a designated State agency and a designated State
unit under Sec. 361.13(b); or
(ii) An official from the office of the Governor.
(3) The reviewing official described in paragraph (g)(2)(i) of this
section--
(i) Provides both parties with an opportunity to submit additional
evidence and information relevant to a final decision concerning the
matter under review;
(ii) May not overturn or modify the hearing officer's decision, or
any part of that decision, that supports the position of the applicant
or eligible individual unless the reviewing official concludes, based
on clear and convincing evidence, that the decision of the impartial
hearing officer is clearly erroneous on the basis of being contrary to
the approved vocational rehabilitation services portion of the Unified
or Combined State Plan, the Act, Federal vocational rehabilitation
regulations, or State regulations and policies that are consistent with
Federal requirements;
(iii) Makes an independent, final decision following a review of
the entire hearing record and provides the decision in writing,
including a full report of the findings and the statutory, regulatory,
or policy grounds for the decision, to the applicant or eligible
individual or, as appropriate, the individual's representative and to
the State unit within 30 days of the request for administrative review
under paragraph (g)(1) of this section; and
(iv) May not delegate the responsibility for making the final
decision under paragraph (g) of this section to any officer or employee
of the designated State unit.
[[Page 21137]]
(4) The reviewing official's decision under paragraph (g) of this
section is final unless either party brings a civil action under
paragraph (i) of this section.
(h) Implementation of final decisions. If a party brings a civil
action under paragraph (h) of this section to challenge the final
decision of a hearing officer under paragraph (e) of this section or to
challenge the final decision of a State reviewing official under
paragraph (g) of this section, the final decision of the hearing
officer or State reviewing official must be implemented pending review
by the court.
(i) Civil action. (1) Any party who disagrees with the findings and
decision of an impartial hearing officer under paragraph (e) of this
section in a State that has not established administrative review
procedures under paragraph (g) of this section and any party who
disagrees with the findings and decision under paragraph (g)(3)(iii) of
this section have a right to bring a civil action with respect to the
matter in dispute. The action may be brought in any State court of
competent jurisdiction or in a district court of the United States of
competent jurisdiction without regard to the amount in controversy.
(2) In any action brought under paragraph (i) of this section, the
court--
(i) Receives the records related to the impartial due process
hearing and the records related to the administrative review process,
if applicable;
(ii) Hears additional evidence at the request of a party; and
(iii) Basing its decision on the preponderance of the evidence,
grants the relief that the court determines to be appropriate.
(j) State fair hearing board. A fair hearing board as defined in
Sec. 361.5(c)(21) is authorized to carry out the responsibilities of
the impartial hearing officer under paragraph (e) of this section in
accordance with the following criteria:
(1) The fair hearing board may conduct due process hearings either
collectively or by assigning responsibility for conducting the hearing
to one or more members of the fair hearing board.
(2) The final decision issued by the fair hearing board following a
hearing under paragraph (j)(1) of this section must be made
collectively by, or by a majority vote of, the fair hearing board.
(3) The provisions of paragraphs (b)(1), (2), and (3) of this
section that relate to due process hearings and of paragraphs (e), (f),
(g), and (h) of this section do not apply to fair hearing boards under
this paragraph (j).
(k) Data collection. (1) The director of the designated State unit
must 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:
(i) A copy of the standards used by State reviewing officials for
reviewing decisions made by impartial hearing officers under this
section.
(ii) The number of mediations held, including the number of
mediation agreements reached.
(iii) The number of hearings and reviews sought from impartial
hearing officers and State reviewing officials, including the type of
complaints and the issues involved.
(iv) The number of hearing officer decisions that were not reviewed
by administrative reviewing officials.
(v) The number of hearing decisions that were reviewed by State
reviewing officials and, based on these reviews, the number of hearing
decisions that were--
(A) Sustained in favor of an applicant or eligible individual;
(B) Sustained in favor of the designated State unit;
(C) Reversed in whole or in part in favor of the applicant or
eligible individual; and
(D) Reversed in whole or in part in favor of the State unit.
(2) The State unit director also must collect and submit to the
Secretary copies of all final decisions issued by impartial hearing
officers under paragraph (e) of this section and by State review
officials under paragraph (g) of this section.
(3) The confidentiality of records of applicants and eligible
individuals maintained by the State unit may not preclude the access of
the Secretary to those records for the purposes described in this
section.
(Authority: Section 102(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 722(c))
Subpart C--Financing of State Vocational Rehabilitation Programs
Sec. 361.60 Matching requirements.
(a) Federal share. (1) General. Except as provided in paragraph
(a)(2) of this section, the Federal share for expenditures made by the
State under the vocational rehabilitation services portion of the
Unified or Combined State Plan, including expenditures for the
provision of vocational rehabilitation services and the administration
of the vocational rehabilitation services portion of the Unified or
Combined State 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.
(b) Non-Federal share. (1) General. Except as provided in paragraph
(b)(2) and (b)(3) of this section, expenditures made under the
vocational rehabilitation services portion of the Unified or Combined
State Plan to meet the non-Federal share under this section must be
consistent with the provisions of 2 CFR 200.306(b).
(2) Third party in-kind contributions. Third party in-kind
contributions specified in 2 CFR 200.306(b) may not be used to meet the
non-Federal share under this section.
(3) Contributions by private entities. Expenditures made from those
cash contributions provided by private organizations, agencies, or
individuals and that are deposited in the State agency's account or, if
applicable, sole local agency's account, in accordance with State law
prior to their expenditure 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 funds are earmarked for--
(i) Meeting in whole or in part the State's share for establishing
a community rehabilitation program or constructing a particular
facility for community rehabilitation program purposes;
(ii) Particular geographic areas within the State for any purpose
under the vocational rehabilitation services portion of the Unified or
Combined State Plan, other than those described in paragraph (b)(3)(i)
of this section, in accordance with the following criteria:
(A) Before funds that are earmarked for a particular geographic
area may be used as part of the non-Federal share, the State must
notify the Secretary that the State cannot provide the full non-Federal
share without using these funds.
(B) Funds that are earmarked for a particular geographic area may
be used as part of the non-Federal share without requesting a waiver of
statewideness under Sec. 361.26.
(C) Except as provided in paragraph (b)(3)(i) of this section, all
Federal funds must be used on a statewide basis consistent with Sec.
361.25, unless a waiver of statewideness is obtained under Sec.
361.26; and
(iii) Any other purpose under the vocational rehabilitation
services portion of the Unified or Combined State Plan, provided the
expenditures do not benefit in any way the donor, employee, officer, or
agent, any member
[[Page 21138]]
of his or her immediate family, his or her partner, an individual with
whom the donor has a close personal relationship, or an individual,
entity, or organization with whom the donor shares a financial or other
interest. The Secretary does not consider a donor's receipt from the
State unit of a subaward or contract with funds allotted under this
part to be a benefit for the purposes of this paragraph if the subaward
or contract is awarded under the State's regular competitive
procedures.
(Authority: Sections 7(14), 101(a)(3), 101(a)(4) and 104 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(14),
721(a)(3), 721(a)(4) and 724)
Example for paragraph (b)(3): Contributions may be earmarked in
accordance with Sec. 361.60(b)(3)(iii) 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., students with
disabilities who are receiving special education services), 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 vocational rehabilitation services
portion of the Unified or Combined State Plan in accordance with the
requirements in Sec. 361.60(b)(3)(ii).
Sec. 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 Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(17)(A))
Sec. 361.62 Maintenance of effort requirements.
(a) General requirements. The Secretary reduces the amount
otherwise payable to a State for any fiscal year by the amount by which
the total expenditures from non-Federal sources under the vocational
rehabilitation services portion of the Unified or Combined State Plan
for any previous fiscal year were less than the total of those
expenditures for the fiscal year two years prior to that previous
fiscal year.
(b) Specific requirements for construction of facilities. If the
State 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.
(c) Separate State agency for vocational rehabilitation services
for individuals who are blind. If there is a separate part of the
vocational rehabilitation services portion of the Unified or Combined
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 is determined based on the total
amount of a State's non-Federal expenditures under both parts of the
vocational rehabilitation services portion of the Unified or Combined
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 any
fiscal year under each part of the plan in direct proportion to the
amount by which non-Federal expenditures under each part of the plan in
any previous fiscal year were less than they were for that part of the
plan for the fiscal year 2 years prior to that previous fiscal year.
(d) Waiver or modification. (1) The Secretary may waive or modify
the maintenance of effort requirement in paragraph (a) 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 that result in a general reduction of programs within the
State; or
(ii) Require the State to make 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 Sec. 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 for
consideration as soon as the State has determined that it has failed to
satisfy its maintenance of effort requirement due to an exceptional or
uncontrollable circumstance, as described in paragraphs (d)(1) and (2)
of this section.
(Authority: Sections 101(a)(17) and 111(a)(2) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 721(a)(17) and 731(a)(2))
Sec. 361.63 Program income.
(a) Definition. For purposes of this section, program income means
gross income received by the State that is directly generated by a
supported activity under this part.
(b) Sources. Sources of program income include, but are not limited
to: Payments from the Social Security Administration for assisting
Social Security beneficiaries and recipients to achieve employment
outcomes; payments received from workers' compensation funds; payments
received by the State agency from insurers, consumers, or others 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 for activities authorized under this
part.
(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 and the
administration of the vocational rehabilitation services portion of the
Unified or Combined State Plan. Program income--
(i) Is considered earned in the fiscal year in which it is
received; and
(ii) Must be disbursed during the period of performance of the
award, prior to requesting additional cash
[[Page 21139]]
payments, in accordance with 2 CFR 200.305(b)(5).
(2) Payments provided to a State from the Social Security
Administration for assisting Social Security beneficiaries and
recipients to achieve employment outcomes may also be used to carry out
programs under part B of title I of the Act (client assistance), title
VI of the Act (supported employment), and title VII of the Act
(independent living).
(3) The State is authorized to treat program income using the
deduction or addition alternative in accordance with 2 CFR
200.307(e)(1) and (2).
(4) Program income cannot be used to meet the non-Federal share
requirement under Sec. 361.60.
(Authority: Sections 12(c) and 108 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 728; 2 CFR part 200)
Sec. 361.64 Obligation of Federal funds.
(a) Except as provided in paragraph (b) of this section, any
Federal award 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 by the beginning of the succeeding fiscal year
remain available for obligation by the State 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 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 Rehabilitation Act of 1973, as
amended; 29 U.S.C. 716)
Sec. 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 vocational rehabilitation services portion of the
Unified or Combined 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.
(3) Reservation for pre-employment transition services. (i)
Pursuant to section 110(d) of the Act, the State must reserve at least
15 percent of the State's allotment, received in accordance with
section 110(a) of the Act for the provision of pre-employment
transition services, as described at Sec. 361.48(a) of this part.
(ii) The funds reserved in accordance with paragraph (3)(i) of this
section--
(A) Must only be used for pre-employment transition services
authorized in Sec. 361.48(a); and:
(B) Must not be used to pay for administrative costs associated
with the provision of such services or any other vocational
rehabilitation services.
(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 period of performance of the award,
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) In the event more funds are requested by agencies than are
available, the Secretary will determine the process for allocating
funds available for reallotment.
(4) 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 12(c), 110 and 111 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c), 730, and 731)
Subpart D--[Reserved]
Subpart E--[Reserved]
Subpart F--[Reserved]
0
2. Part 363 is revised to read as follows:
PART 363--THE STATE SUPPORTED EMPLOYMENT SERVICES PROGRAM
Subpart A--General
Sec.
363.1 What is the State Supported Employment Services Program?
363.2 Who is eligible for an award?
363.3 Who is eligible for services?
363.4 What are the authorized activities under the State Supported
Employment Services program?
363.5 What regulations apply?
363.6 What definitions apply?
Subpart B--How Does a State Apply for a Grant?
363.10 What documents must a State submit to receive a grant?
363.11 What are the vocational rehabilitation services portion of
the Unified or Combined State Plan supplement requirements?
Subpart C--How Are State Supported Employment Services Programs
Financed?
363.20 How does the Secretary allocate funds?
363.21 How does the Secretary reallocate funds?
363.22 How are funds reserved for youth with the most significant
disabilities?
363.23 What are the matching requirements?
363.24 What is program income and how may it be used?
363.25 What is the period of availability of funds?
Subpart D--[Reserved]
Subpart E--[Reserved]
Subpart F--What Post-Award Conditions Must Be Met by a State?
363.50 What collaborative agreements must the State develop?
363.51 What are the allowable administrative costs?
363.52 What are the information collection and reporting
requirements?
363.53 What requirements must a State meet before it provides for
the transition of an individual to extended services?
363.54 When will an individual be considered to have achieved an
employment outcome in supported employment?
363.55 What notice requirements apply to this program?
Authority: Sections 602-608 of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 795g-795m, unless otherwise noted.
Subpart A--General
Sec. 363.1 What is the State Supported Employment Services Program?
(a) Under the State supported employment services program, the
Secretary provides grants to assist States in developing and
implementing collaborative programs with appropriate entities to
provide programs of supported employment services for individuals with
the most significant disabilities, including youth with the most
significant disabilities, to enable them to achieve an employment
outcome of supported employment in competitive integrated employment.
Grants made under the State supported employment services program
supplement a State's vocational rehabilitation program grants under 34
CFR part 361.
(b) For purposes of this part, ``supported employment'' means
competitive integrated employment, including customized employment, or
employment in an integrated work setting in which individuals with the
most significant disabilities are working
[[Page 21140]]
on a short-term basis toward competitive integrated employment, that is
individualized and customized consistent with the unique strengths,
abilities, interests, and informed choice of the individuals with
ongoing support services for individuals with the most significant
disabilities--
(1)(i) For whom competitive integrated employment has not
historically occurred; or
(ii) For whom competitive integrated employment has been
interrupted or intermittent as a result of a significant disability;
and
(2) Who, because of the nature and severity of the disability, need
intensive supported employment services, and extended services after
the transition from support provided by the designated State unit in
order to perform the work.
(c) For purposes of this part, an individual with the most
significant disabilities, whose supported employment in an integrated
setting does not satisfy the criteria of competitive integrated
employment, as defined at 34 CFR 361.5(c)(9), is considered to be
working on a short-term basis toward competitive integrated employment
so long as the individual can reasonably anticipate achieving
competitive integrated employment within six months of the individual
entering supported employment.
(Authority: Sections 7(38), 7(39), 12(c), and 602 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C., 705(38), 705(39),
709(c), and 795g)
Sec. 363.2 Who is eligible for an award?
Any State that submits the documentation required by Sec. 363.10,
as part of the vocational rehabilitation services portion of the
Unified or Combined State Plan under 34 CFR part 361, is eligible for
an award under this part.
(Authority: Section 606(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795k(a))
Sec. 363.3 Who is eligible for services?
A State may provide services under this part to any individual,
including a youth with a disability, if--
(a) The individual has been determined to be--
(1) Eligible for vocational rehabilitation services in accordance
with 34 CFR 361.42; and
(2) An individual with the most significant disabilities;
(b) For purposes of activities carried out under Sec. 363.4(a)(2)
of this part, the individual is a youth with a disability, as defined
at 34 CFR 361.5(c)(59), who satisfies the requirements of this section;
and
(c) Supported employment has been identified as the appropriate
employment outcome for the individual on the basis of a comprehensive
assessment of rehabilitation needs, as defined at 34 CFR 361.5(c)(5),
including an evaluation of rehabilitation, career, and job needs.
(Authority: Section 605 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795j)
Sec. 363.4 What are the authorized activities under the State
Supported Employment Services program?
(a) The State may use funds allotted under this part to--
(1) Provide supported employment services, as defined at 34 CFR
361.5(c)(54);
(2) Provide extended services, as defined at 34 CFR 361.5(c)(19),
to youth with the most significant disabilities, in accordance with
Sec. 363.11(f), for a period of time not to exceed four years; and
(3) With funds reserved, in accordance with Sec. 363.22 for the
provision of supported employment services to youth with the most
significant disabilities, leverage other public and private funds to
increase resources for extended services and expand supported
employment opportunities.
(b) Except as provided in paragraph (a)(2) of this section, a State
may not use funds under this part to provide extended services to
individuals with the most significant disabilities.
(c) Nothing in this part will be construed to prohibit a State from
providing--
(1) Supported employment services in accordance with the vocational
rehabilitation services portion of the Unified or Combined State Plan
submitted under 34 CFR part 361 by using funds made available through a
State allotment under that part.
(2) Discrete postemployment services in accordance with 34 CFR
361.48(b) by using funds made available under 34 CFR part 361 to an
individual who is eligible under this part.
(d) A State must coordinate with the entities described in Sec.
363.50(a) regarding the services provided to individuals with the most
significant disabilities, including youth with the most significant
disabilities, under this part and under 34 CFR part 361 to ensure that
the services are complementary and not duplicative.
(Authority: Sections 7(39), 12(c), 604, 606(b)(6), and 608 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(39), 709(c),
795i, 795k(b)(6), and 795m)
Sec. 363.5 What regulations apply?
The following regulations apply to the State supported employment
services program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 76 (State-Administered Programs).
(2) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(3) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(5) 34 CFR part 82 (New Restrictions on Lobbying).
(b) The regulations in this part 363.
(c) The following regulations in 34 CFR part 361 (The State
Vocational Rehabilitation Services Program): Sec. Sec. 361.5, 361.31,
361.32, 361.34, 361.35, 361.39, 361.40, 361.41, 361.42, 361.47(a),
361.48, 361.49, and 361.53.
(d) 2 CFR part 200 (Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards), as adopted in 2
CFR part 3474.
(e) 2 CFR part 180 (OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement)), as adopted in 2 CFR part
3485.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 363.6 What definitions apply?
The following definitions apply to this part;
(a) Definitions in 34 CFR part 361.
(b) Definitions in 34 CFR part 77.
(c) Definitions in 2 CFR part 200, subpart A.
(Authority: Sections 7 and 12(c) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 705 and 709(c))
Subpart B--How Does a State Apply for a Grant?
Sec. 363.10 What documents must a State submit to receive a grant?
(a) To be eligible to receive a grant under this part, a State must
submit to the Secretary, as part of the vocational rehabilitation
services portion of the Unified or Combined State Plan under 34 CFR
part 361, a State plan supplement that meets the requirements of Sec.
363.11.
(b) A State must submit revisions to the vocational rehabilitation
services portion of the Unified or Combined State Plan supplement
submitted under this part as may be necessary.
[[Page 21141]]
(Authority: Section 606(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795k(a))
Sec. 363.11 What are the vocational rehabilitation services portion
of the Unified or Combined State Plan supplement requirements?
Each State plan supplement, submitted in accordance with Sec.
363.10, must--
(a) Designate a designated State unit or, as applicable, units, as
defined in 34 CFR 361.5(c)(13), as the State agency or agencies to
administer the Supported Employment program under this part;
(b) Summarize the results of the needs assessment of individuals
with most significant disabilities, including youth with the most
significant disabilities, conducted under 34 CFR 361.29(a), with
respect to the rehabilitation and career needs of individuals with most
significant disabilities and their need for supported employment
services. The results of the needs assessment must also address needs
relating to coordination;
(c) Describe the quality, scope, and extent of supported employment
services to be provided to eligible individuals with the most
significant disabilities under this part, including youth with the most
significant disabilities;
(d) Describe the State's goals and plans with respect to the
distribution of funds received under Sec. 363.20;
(e) Demonstrate evidence of the designated State unit's efforts to
identify and make arrangements, including entering into cooperative
agreements, with--
(1) Other State agencies and other appropriate entities to assist
in the provision of supported employment services; and
(2) Other public or non-profit agencies or organizations within the
State, employers, natural supports, and other entities with respect to
the provision of extended services;
(f) Describe the activities to be conducted for youth with the most
significant disabilities with the funds reserved in accordance with
Sec. 363.22, including-
(1) The provision of extended services to youth with the most
significant disabilities for a period not to exceed four years, in
accordance with Sec. 363.4(a)(2); and
(2) How the State will use supported employment funds reserved
under Sec. 363.22 to leverage other public and private funds to
increase resources for extended services and expand supported
employment opportunities for youth with the most significant
disabilities;
(g) Assure that--
(1) Funds made available under this part will only be used to
provide authorized supported employment services to individuals who are
eligible under this part to receive such services;
(2) The comprehensive assessments of individuals with significant
disabilities, including youth with the most significant disabilities,
conducted under 34 CFR part 361 will include consideration of supported
employment as an appropriate employment outcome;
(3) An individualized plan for employment, as described at 34 CFR
361.45 and 361.46, will be developed and updated, using funds received
under 34 CFR part 361, in order to--
(i) Specify the supported employment services to be provided,
including, as appropriate, transition services and pre-employment
transition services to be provided for youth with the most significant
disabilities;
(ii) Specify the expected extended services needed, including the
extended services that may be provided under this part to youth with
the most significant disabilities in accordance with an approved
individualized plan for employment for a period not to exceed four
years; and
(iii) Identify, as appropriate, the source of extended services,
which may include natural supports, programs, or other entities, or an
indication that it is not possible to identify the source of extended
services at the time the individualized plan for employment is
developed;
(4) The State will use funds provided under this part only to
supplement, and not supplant, the funds received under 34 CFR part 361,
in providing supported employment services specified in the
individualized plan for employment;
(5) Services provided under an individualized plan for employment
will be coordinated with services provided under other individualized
plans established under other Federal or State programs;
(6) To the extent job skills training is provided, the training
will be provided onsite;
(7) Supported employment services will include placement in an
integrated setting based on the unique strengths, resources, interests,
concerns, abilities, and capabilities of individuals with the most
significant disabilities, including youth with the most significant
disabilities;
(8) The designated State agency or agencies, as described in
paragraph (a) of this section, will expend no more than 2.5 percent of
the State's allotment under this part for administrative costs of
carrying out this program; and
(9) The designated State agency or agencies will provide, directly
or indirectly through public or private entities, non-Federal
contributions in an amount that is not less than 10 percent of the
costs of carrying out supported employment services provided to youth
with the most significant disabilities with the funds reserved for such
purpose under Sec. 363.22; and
(h) Contain any other information and be submitted in the form and
in accordance with the procedures that the Secretary may require.
(Authority: Section 606 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795k)
Subpart C--How Are State Supported Employment Services Programs
Financed?
Sec. 363.20 How does the Secretary allocate funds?
(a) States. The Secretary will allot the sums appropriated for each
fiscal year to carry out the activities of this part among the States
on the basis of relative population of each State, except that--
(1) No State will receive less than $250,000, or 1/3 of 1 percent
of the sums appropriated for the fiscal year for which the allotment is
made, whichever amount is greater; and
(2) If the sums appropriated to carry out this part for the fiscal
year exceed the sums appropriated to carry out this part (as in effect
on September 30, 1992) in fiscal year 1992 by $1,000,000 or more, no
State will receive less than $300,000, or 1/3 of 1 percent of the sums
appropriated for the fiscal year for which the allotment is made,
whichever amount is greater.
(b) Certain Territories. (1) For the purposes of this part, Guam,
American Samoa, the United States Virgin Islands, and the Commonwealth
of the Northern Mariana Islands are not considered to be States.
(2) Each jurisdiction described in paragraph (b)(1) of this section
will be allotted not less than 1/8 of 1 percent of the amounts
appropriated for the fiscal year for which the allotment is made.
(Authority: Section 603(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795h(a))
Sec. 363.21 How does the Secretary reallocate funds?
(a) Whenever the Secretary determines that any amount of an
allotment to a State under Sec. 363.20 for any fiscal year will not be
expended by such State for carrying out the provisions of this part,
the Secretary will make such amount available for carrying out the
provisions of this part to one or more of the States that the
[[Page 21142]]
Secretary determines will be able to use additional amounts during such
year for carrying out such provisions.
(b) Any amount made available to a State for any fiscal year in
accordance with paragraph (a) will be regarded as an increase in the
State's allotment under this part for such year.
(Authority: Section 603(b) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795h(b))
Sec. 363.22 How are funds reserved for youth with the most
significant disabilities?
A State that receives an allotment under this part must reserve and
expend 50 percent of such allotment for the provision of supported
employment services, including extended services, to youth with the
most significant disabilities in order to assist those youth in
achieving an employment outcome in supported employment.
(Authority: Sections 12(c) and 603(d) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 795h(d))
Sec. 363.23 What are the matching requirements?
(a) Non-Federal Share. (1) For funds allotted under Sec. 363.20
and not reserved under Sec. 363.22 for the provision of supported
employment services to youth with the most significant disabilities,
there is no non-Federal share requirement.
(2)(i) For funds allotted under Sec. 363.20 and reserved under
Sec. 363.22 for the provision of supported employment services to
youth with the most significant disabilities, a designated State agency
must provide non-Federal expenditures in an amount that is not less
than 10 percent of the total expenditures made with the reserved funds
for the provision of supported employment services to youth with the
most significant disabilities, including extended services.
(ii) In the event that a designated State agency uses more than 50
percent of its allotment under this part to provide supported
employment services to youth with the most significant disabilities as
required by Sec. 363.22, there is no requirement that a designated
State agency provide non-Federal expenditures to match the excess
Federal funds spent for this purpose.
(2) Except as provided under paragraphs (b) and (c) of this
section, non-Federal expenditures made under the vocational
rehabilitation services portion of the Unified or Combined State Plan
supplement to meet the non-Federal share requirement under this section
must be consistent with the provision of 2 CFR 200.306.
(b) Third-party in-kind contributions. Third-party in-kind
contributions, as described in 2 CFR 200.306(b), may not be used to
meet the non-Federal share under this section.
(c)(1) Contributions by private entities. Expenditures made from
contributions by private organizations, agencies, or individuals that
are deposited into the sole account of the State agency, in accordance
with State law may be used as part of the non-Federal share under this
section, provided the expenditures under the vocational rehabilitation
services portion of the Unified or Combined State Plan supplement, as
described in Sec. 363.11, 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 shares a financial interest.
(2) The Secretary does not consider a donor's receipt from the
State unit of a contract or subaward with funds allotted under this
part to be a benefit for the purpose of this paragraph if the contract
or subaward is awarded under the State's regular competitive
procedures.
(Authority: Sections 12(c) and 606(b)(7)(I) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 709(c) and 795k(b)(7)(I))
Sec. 363.24 What is program income and how may it be used?
(a) Definition. (1) Program income means gross income earned by the
State that is directly generated by authorized activities supported
under this part.
(2) Program income received through the transfer of Social Security
Administration payments from the State Vocational Rehabilitation
Services program, in accordance with 34 CFR 361.63(c)(2), will be
treated as program income received under this part.
(b) Use of program income. (1) Program income must be used for the
provision of services authorized under Sec. 363.4. Program income
earned or received during the fiscal year must be disbursed during the
period of performance of the award, prior to requesting additional cash
payments in accordance with 2 CFR 200.305(b)(5).
(2) States are authorized to treat program income as--
(i) A deduction from total allowable costs charged to a Federal
grant, in accordance with 2 CFR 200.307(e)(1); or
(ii) An addition to the grant funds to be used for additional
allowable program expenditures, in accordance with 2 CFR 200.307(e)(2).
(Authority: Sections 12(c) and 108 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 728)
Sec. 363.25 What is the period of availability of funds?
(a) Except as provided in paragraph (b) of this section, any
Federal award 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 by the beginning of the succeeding fiscal year,
and any program income received during a fiscal year that is not
obligated or expended by the State prior to the beginning of the
succeeding fiscal year in which the program income was received, remain
available for obligation by the State during that succeeding fiscal
year.
(b) Federal funds appropriated for a fiscal year and reserved for
the provision of supported employment services to youth with the most
significant disabilities, in accordance with Sec. 363.22 of this part,
remain available for obligation in the succeeding fiscal year only to
the extent that the State met the matching requirement, as described at
Sec. 363.23, 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: Sections 12(c) and 19 of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 709(c) and 716)
Subpart D--[Reserved]
Subpart E--[Reserved]
Subpart F--What Post-Award Conditions Must Be Met by a State?
Sec. 363.50 What collaborative agreements must the State develop?
(a) A designated State unit must enter into one or more written
collaborative agreements, memoranda of understanding, or other
appropriate mechanisms with other public agencies, private nonprofit
organizations, and other available funding sources, including employers
and other natural supports, as appropriate, to assist with the
provision of supported employment services and extended services to
individuals with the most significant disabilities in the State,
including youth with the most significant disabilities, to enable them
to achieve an employment outcome of supported employment in competitive
integrated employment.
(b) These agreements provide the mechanism for collaboration at the
State level that is necessary to ensure the smooth transition from
supported employment services to extended services, the transition of
which is inherent to the definition of ``supported employment'' in
Sec. 363.1(b). To that end,
[[Page 21143]]
the agreement may contain information regarding the--
(1) Supported employment services to be provided, for a period not
to exceed 24 months, by the designated State unit with funds received
under this part.
(2) Extended services to be provided to youth with the most
significant disabilities, for a period not to exceed four years, by the
designated State unit with the funds reserved under Sec. 363.22 of
this part;
(3) Extended services to be provided by other public agencies,
private nonprofit organizations, or other sources, including employers
and other natural supports, following the provision of authorized
supported employment services, or extended services as appropriate for
youth with the most significant disabilities, under this part; and
(4) Collaborative efforts that will be undertaken by all relevant
entities to increase opportunities for competitive integrated
employment in the State for individuals with the most significant
disabilities, especially youth with the most significant disabilities.
(Authority: Sections 7(38), 7(39), 12(c), 602, and 606(b) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(38), 705(39),
709(c), 795g, and 795k(b))
Sec. 363.51 What are the allowable administrative costs?
(a) A State may use funds under this part to pay for expenditures
incurred in the administration of activities carried out under this
part, consistent with the definition of administrative costs in 34 CFR
361.5(c)(2).
(b) A designated State agency may not expend more than 2.5 percent
of a State's allotment under this part for administrative costs for
carrying out the State supported employment program.
(Authority: Sections 7(1), 12(c), and 603(c) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(1), 709(c), and 795h(c))
Sec. 363.52 What are the information collection and reporting
requirements?
Each State agency designated in Sec. 363.11(a) of this part must
collect and report separately the information required under 34 CFR
361.40 for--
(a) Eligible individuals receiving supported employment services
under this part;
(b) Eligible individuals receiving supported employment services
under 34 CFR part 361;
(c) Eligible youth receiving supported employment services and
extended services under this part; and
(d) Eligible youth receiving supported employment services under 34
CFR part 361 and extended services.
(Authority: Sections 13 and 607 of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 710 and 795l)
Sec. 363.53 What requirements must a State meet before it provides
for the transition of an individual to extended services?
A designated State unit must provide for the transition of an
individual with the most significant disabilities, including youth with
the most significant disabilities, to extended services no later than
24 months after the individual enters supported employment, unless a
longer period is established in the individualized plan for employment.
Before assisting the individual in transitioning from supported
employment services to extended services, the designated State unit
must ensure--
(a) The supported employment is--
(1) In competitive integrated employment, including customized
employment; or
(2) In an integrated work setting in which individuals are working
on a short-term basis, as described in Sec. 363.1(c), toward
competitive integrated employment;
(3) Individualized and customized consistent with the strengths,
abilities, interests, and informed choice of the individual; and
(b) The source of extended services for the individual has been
identified so there will be no interruption of services.
(Authority: Sections 7(13), 7(38), 7(39), 12(c), 602, and 606(b) of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(13),
705(38), 705(39), 709(c), 795g, and 795k(b))
Sec. 363.54 When will an individual be considered to have achieved an
employment outcome in supported employment?
An individual with the most significant disabilities, including a
youth with the most significant disabilities, who is receiving services
under this part will be determined to have achieved an employment
outcome of supported employment if the individual--
(a) Maintains supported employment for at least 90 days after the
individual has--
(1) Completed all supported employment services provided under this
part, as well as any other services listed on the individualized plan
for employment and provided under 34 CFR part 361; and
(2) Begun extended services provided by either the designated State
unit, in the case of a youth with a most significant disabilities
receiving services with the funds reserved under Sec. 363.22, or
another provider for all other individuals with the most significant
disabilities;
(b) Satisfies requirements for case closure, as set forth in 34 CFR
361.56; and
(c) Satisfies the requirement at Sec. 363.1(c) if the individual's
supported employment is in an integrated setting, but is not in
competitive integrated employment, as defined in 34 CFR 361.5(c)(9).
(Authority: Sections 7(38), 7(39), 12(c), and 602 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(38), 705(39),
709(c), and 795g)
Sec. 363.55 What notice requirements apply to this program?
Each grantee must advise applicants for or recipients of services
under this part, or as appropriate, the parents, family members,
guardians, advocates, or authorized representatives of those
individuals, including youth with the most significant disabilities, of
the availability and purposes of the Client Assistance Program,
including information on seeking assistance from that program.
(Authority: Section 20 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 717)
0
3. Part 397 is added to read as follows:
PART 397--LIMITATIONS ON USE OF SUBMINIMUM WAGE
Subpart A--General Provisions
Sec.
397.1 Purpose.
397.2 What is the Department of Education's jurisdiction under this
part?
397.3 What rules of construction apply to this part?
397.4 What regulations apply?
397.5 What definitions apply?
Subpart B--Coordinated Documentation Procedures Related To Youth With
Disabilities
397.10 What documentation process must the designated State unit
develop?
Subpart C--Designated State Unit Responsibilities Prior To Youth With
Disabilities Starting Subminimum Wage Employment
397.20 What are the responsibilities of a designated State unit to
youth with disabilities who are known to be considering subminimum
wage employment?
Subpart D--Local Educational Agency Responsibilities Prior To Youth
With Disabilities Starting Subminimum Wage Employment
397.30 What are the responsibilities of a local educational agency
to youth with disabilities who are known to be considering
subminimum wage employment?
[[Page 21144]]
397.31 Are there any contracting limitations on educational agencies
under this part?
Subpart E--Designated State Unit Responsibilities To Individuals With
Disabilities During Subminimum Wage Employment
397.40 What are the responsibilities of a designated State unit for
individuals with disabilities, regardless of age, who are employed
at subminimum wage?
Subpart F--Review Of Documentation Process
397.50 What is the role of the designated State unit in the review
of documentation process under this part?
Authority: Section 511 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 794g, unless otherwise noted.
Subpart A--General Provisions
Sec. 397.1 Purpose.
(a) The purpose of this part is to set forth requirements the
designated State units and State and local educational agencies must
satisfy to ensure that individuals with disabilities, especially youth
with disabilities, have a meaningful opportunity to prepare for,
obtain, maintain, advance in, or regain competitive integrated
employment, including supported or customized employment.
(b) This part requires--
(1) A designated State unit to provide youth with disabilities
documentation demonstrating that they have completed certain
requirements, as described in this part, prior to starting subminimum
wage employment with entities holding special wage certificates under
section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C.
214(c)), as defined in 397.5(d);
(2) A designated State unit to provide, at certain prescribed
intervals, career counseling and information and referral services,
designed to promote opportunities for competitive integrated
employment, to individuals with disabilities, regardless of age, who
are known to be employed at a subminimum wage level for the duration of
such employment; and
(3) A designated State unit, in consultation with the State
educational agency, to develop a, or utilize an existing, process to
document completion of required activities under this part by a youth
with a disability.
(c) The provisions in this part authorize a designated State unit,
or a representative of a designated State unit, to engage in the review
of individual documentation required to be maintained by these entities
under this part.
(d) The provisions in this part work in concert with requirements
in 34 CFR part 300, 361, and 363, and do not alter any requirements
under those parts.
(Authority: Sections 12(c) and 511 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g)
Sec. 397.2 What is the Department of Education's jurisdiction under
this part?
(a) The Department of Education has jurisdiction under this part to
implement guidelines for--
(1) Documentation requirements imposed on designated State units
and local educational agencies;
(2) Requirements related to the services that designated State
units must provide to individuals regardless of age who are employed at
the subminimum wage level; and
(3) Requirements under Sec. 397.31 of this part.
(b) Nothing in this part will be construed to grant to the
Department of Education, or its grantees, jurisdiction over
requirements set forth in the Fair Labor Standards Act, including those
imposed on entities holding special wage certificates under section
14(c) of that Act, which is administered by the Department of Labor.
(Authority: Sections 12(c), 511(b)(3), and 511(c) and (d) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
794g(b)(3), 794g(c), and 794g(d))
Sec. 397.3 What rules of construction apply to this part?
Nothing in this part will be construed to--
(a) Change the purpose of the Rehabilitation Act, which is to
empower individuals with disabilities to maximize opportunities for
achieving competitive integrated employment;
(b) Promote subminimum wage employment as a vocational
rehabilitation strategy or employment outcome, as defined in 34 CFR
361.5(c)(15); and
(c) Affect the provisions of the Fair Labor Standards Act, as
amended before or after July 22, 2014.
(Authority: Sections 12(c) and 511(b) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g(b))
Sec. 397.4 What regulations apply?
(a) The regulations in 34 CFR part 300 governing the definition of
transition services, and the Individualized Education Program
requirements related to the development of postsecondary goals and the
transition services needed to assist the eligible child in reaching
those goals (Sec. Sec. 300.320(b), 300.321(b), 300.324(c), and
300.43).
(b) The regulations at 34 CFR part 361 governing the vocational
rehabilitation program, especially those regarding eligibility
determinations Sec. 361.42; individualized plans for employment Sec.
361.45 and Sec. 361.46; provision of vocational rehabilitation
services, including pre-employment transition services, transition
services, and supported employment services Sec. 361.48; ineligibility
determinations Sec. 361.43; and case closures Sec. 361.56.
(c) The regulations at 29 CFR part 525 governing the employment of
individuals with disabilities at subminimum wage rates pursuant to a
certificate issued by the Secretary of the Department of Labor.
(d) The regulations in this part 387.
(Authority: Sections 12(c), 102(a) and (b), 103(a), and 113 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 722(a) and
(b), 723(a), and 733; sections 601(34) and 614(d)(1)(A)(i)(VIII) of
the Individuals with Disabilities Education Act (20 U.S.C. 1401(34)
and 1414(d)); and section 14(c) of the Fair Labor Standards Act (29
U.S.C. 214(c))
Sec. 397.5 What definitions apply?
(a) The following terms have the meanings given to them in 34 CFR
Sec. 361.5(c):
(1) Act;
(2) Competitive integrated employment;
(3) Customized employment;
(4) Designated State unit;
(5) Extended services;
(6) Individual with a disability;
(7) Individual with a most significant disability;
(8) Individual's representative;
(9) Individualized plan for employment;
(10) Pre-employment transition services;
(11) Student with a disability;
(12) Supported employment;
(13) Vocational rehabilitation services; and
(14) Youth with a disability.
(b) The following terms have the meanings given to them in 34 CFR
part 300:
(1) Local educational agency (Sec. 300.28);
(2) State educational agency (Sec. 300.41); and
(3) Transition services (Sec. 300.43).
(c) The following terms have the meaning given to them in 29 CFR
525.3 and section 6(a)(1) of the Fair Labor Standards Act (29 U.S.C.
206(a)(1)):
(1) Federal minimum wage has the meaning given to that term in
section 6(a)(1) of the Fair Labor Standards Act (29 U.S.C. 206(a)(1));
and
(2) Special wage certificate means a certificate issued to an
employer under section 14(c) of the Fair Labor Standards
[[Page 21145]]
Act (29 U.S.C. 214(c)) and 29 CFR part 525 that authorizes payment of
subminimum wages, wages less than the statutory minimum wage, to
workers with disabilities for the work being performed.
(d) For purposes of this part, entity means an employer, or a
contractor or subcontractor of that employer, that holds a special wage
certificate described in section 14(c) of the Fair Labor Standards Act
(29 U.S.C. 214(c)).
(Authority: Sections 7, 12(c), and 511(a) and (f) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705, 709(c), and
794g(a) and (f); sections 601 and 614(d) of the Individuals with
Disabilities Education Act, 20 U.S.C. 1401 and 1414(d); section 901
of the Elementary and Secondary Education Act of 1965, 20 U.S.C.
7801; and sections 6(a)(1) and 14(c) of the Fair Labor Standards
Act, 29 U.S.C. 206(a)(1) and 29 U.S.C. 214(c))
Subpart B--Coordinated Documentation Procedures Related to Youth
With Disabilities
Sec. 397.10 What documentation process must the designated State unit
develop?
(a) The designated State unit, in consultation with the State
educational agency, must develop a new process, or utilize an existing
process, to document the completion of the actions described in Sec.
397.20 and Sec. 397.30 by a youth with a disability.
(b) The documentation process must ensure that--
(1) A designated State unit provides a youth with a disability
documentation of completion of appropriate pre-employment transition
services, in accordance with Sec. 361.48(a) and as required by Sec.
397.20(a)(1);
(2) In the case of a student with a disability, for actions
described in Sec. 397.30--
(i) The designated State unit will receive from the appropriate
school official, responsible for the provision of transition services,
documentation of completion of appropriate transition services under
the Individuals with Disabilities Education Act, including those
provided under section 614(d)(1)(A)(i)(VIII) (20 U.S.C.
1414(d)(1)(A)(i)(VIII));
(ii) The designated State unit must provide documentation of
completion of the transition services, as documented and provided by
the appropriate school official in accordance with paragraph (b)(2) of
this section, to the youth with a disability.
(c) The designated State unit must provide--
(1) Documentation required by this part in a form and manner
consistent with this part and in an accessible format for the youth;
and
(2) Documentation required by this part to a youth as soon as
possible upon the completion of each of the required actions, but no
later than 90 days after completion of each of the required actions in
Sec. 397.20 and Sec. 397.30.
(Authority: Sections 12(c) and 511(d) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g(d))
Subpart C--Designated State Unit Responsibilities Prior To Youth
With Disabilities Starting Subminimum Wage Employment
Sec. 397.20 What are the responsibilities of a designated State unit
to youth with disabilities who are known to be considering subminimum
wage employment?
(a) A designated State unit must provide youth with disabilities
documentation upon the completion of the following actions:
(1) Pre-employment transition services that are available to the
individual under Sec. 34 CFR 361.48; and
(2) Application for vocational rehabilitation services, in
accordance with 34 CFR Sec. 361.41(b), with the result that the
individual was determined--
(i) Ineligible for vocational rehabilitation services, in
accordance with 34 CFR Sec. 361.43; or
(ii) Eligible for vocational rehabilitation services, in accordance
with 34 CFR Sec. 361.42; and
(A) The youth with a disability had an approved individualized plan
for employment, in accordance with 34 CFR 361.46;
(B) The youth with a disability was unable to achieve the
employment outcome specified in the individualized plan for employment,
as described in 34 CFR 361.5(c)(15) and 361.46, despite working toward
the employment outcome with reasonable accommodations and appropriate
supports and services, including supported employment services and
customized employment services, for a reasonable period of time; and
(C) The youth with a disability's case record, which meets all of
the requirements of 34 CFR 361.47, is closed.
(3)(i) Regardless of the determination made under paragraph (a)(2)
of this section, the youth with a disability has received career
counseling, and information and referrals to Federal and State programs
and other resources in the individual's geographic area that offer
employment-related services and supports designed to enable the
individual to explore, discover, experience, and attain competitive
integrated employment.
(ii) The career counseling and information and referral services
provided in accordance with paragraph (a)(3)(i) of this section must--
(A) Be provided in a manner that facilitates informed choice and
decision-making by the youth, or the youth's representative as
appropriate; and
(B) Not be for subminimum wage employment by an entity defined in
Sec. 397.5(d), and such employment-related services are not
compensated at a subminimum wage and do not directly result in
employment compensated at a subminimum wage provided by such an entity.
(b) The following special requirements apply--
(1) For purposes of this part, all documentation provided by a
designated State unit must satisfy the requirements for such
documentation under 34 CFR part 361.
(2) The individualized plan for employment, required in paragraph
(a)(3)(i) of this section, must include a specific employment goal
consistent with competitive integrated employment, including supported
or customized employment.
(3)(i) For purposes of paragraph (a)(2)(ii)(B) of this section, a
determination as to what constitutes ``reasonable period of time'' must
be consistent with the disability-related and vocational needs of the
individual, as well as the anticipated length of time required to
complete the services identified in the individualized plan for
employment.
(ii) For an individual whose specified employment goal is in
supported employment, such reasonable period of time is up to 24
months, unless under special circumstances the individual and the
rehabilitation counselor jointly agree to extend the time to achieve
the employment outcome identified in the individualized plan for
employment.
(Authority: Sections 7(5), 7(39), 12(c), 102(a) and (b), 103(a),
113, and 511(a) and (d) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(5), 705(39), 709(c), 722(a) and (b), 723(a),
733, and 794g(a) and (d))
Subpart D--Local Educational Agency Responsibilities Prior To Youth
With Disabilities Starting Subminimum Wage Employment
Sec. 397.30 What are the responsibilities of a local educational
agency to youth with disabilities who are known to be seeking
subminimum wage employment?
Of the documentation to demonstrate a youth with a disability's
completion of the actions described in Sec. 397.20(a) of this part, a
local educational agency, as
[[Page 21146]]
defined in Sec. 397.5(b)(1), can provide the youth with documentation
that the youth has received transition services under the Individuals
with Disabilities Education Act (20 U.S.C. 1400 et seq.), such as
transition services available to the individual under section 614(d) of
that act (20 U.S.C. 1414(d)).
(Authority: Sections 511(a)(2)(A) and 511(d) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 794g(a)(2)(A) and (d))
Sec. 397.31 Are there any contracting limitations on educational
agencies under this part?
Neither a local educational agency, as defined in Sec.
397.5(b)(1), nor a State educational agency, as defined in Sec.
397.5(b)(2), may enter into a contract or other arrangement with an
entity, as defined in Sec. 397.5(d), for the purpose of operating a
program under which a youth with a disability is engaged in subminimum
wage employment.
(Authority: Section 511(b)(2) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 794g(b)(2))
Subpart E--Designated State Unit Responsibilities to Individuals
With Disabilities During Subminimum Wage Employment
Sec. 397.40 What are the responsibilities of a designated State unit
for individuals with disabilities, regardless of age, who are employed
at a subminimum wage?
(a) Counseling and information services. (1) A designated State
unit must provide career counseling, and information and referral
services, as described in Sec. 397.20(a)(4) to individuals with
disabilities, regardless of age, or the individual's representative as
appropriate, who are known by the designated State unit to be employed
by an entity, as defined in Sec. 397.5(d), at a subminimum wage level.
(2) A designated State unit may know the identification of
individuals with disabilities described in this paragraph through the
vocational rehabilitation process or by referral from the client
assistance program, another agency, or an entity, as defined in Sec.
397.5(d).
(3) The career counseling and information and referral services
must be provided in a manner that-
(i) Is understandable to the individual with a disability; and
(ii) Facilitates independent decision-making and informed choice as
the individual makes decisions regarding opportunities for competitive
integrated employment and career advancement, particularly with respect
to supported employment, including customized employment.
(b) Other services. (1) Upon a referral by an entity, as defined in
397.5(d), that has fewer than 15 employees, of an individual with a
disability who is employed at a subminimum wage by that entity, a
designated State unit must also inform the individual of self-advocacy,
self-determination, and peer mentoring training opportunities available
in the community.
(2) The services described in paragraph (c)(1) of this section must
be provided by an entity that does not have a financial interest in the
individual's employment outcome.
(c) Required intervals. The services required by this section must
be carried out once every six months for the first year of the
individual's subminimum wage employment and annually thereafter for the
duration of such employment.
(d) Documentation. The designated State unit must provide timely
documentation to the individual upon completion of the activities
required under this section.
(e) Provision of services. Nothing in this section will be
construed as requiring a designated State unit to provide the services
required by this section directly. A designated State unit may contract
with other entities, i.e., other public and private service providers,
as appropriate, to fulfill the requirements of this section.
(Authority: Sections 12(c) and 511(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g(c))
Subpart F-Review of Documentation Process
Sec. 397.50 What is the role of the designated State unit in the
review of documentation process under this part?
The designated State unit, or a contractor working directly for the
designated State unit is authorized to engage in the review of
individual documentation required under this part that is maintained by
entities, as defined at 397.5(d), under this part.
(Authority: Section 511(e) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 794g(e))
[FR Doc. 2015-05538 Filed 4-2-15; 4:15 pm]
BILLING CODE 4000-01-P