[Federal Register Volume 81, Number 161 (Friday, August 19, 2016)]
[Rules and Regulations]
[Pages 55561-55627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16046]



[[Page 55561]]

Vol. 81

Friday,

No. 161

August 19, 2016

Part III





 Department of Education





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34 CFR Parts 367, 369, 370, et al.





 Workforce Innovation and Opportunity Act, Miscellaneous Program 
Changes; Final Rule

Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules 
and Regulations

[[Page 55562]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 367, 369, 370, 371, 373, 376, 377, 379, 381, 385, 386, 
387, 388, 389, 390, and 396

[Docket No. 2015-ED-OSERS-0002]
RIN 1820-AB71


Workforce Innovation and Opportunity Act, Miscellaneous Program 
Changes

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final Regulations.

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SUMMARY: The Secretary amends the regulations governing a number of 
programs administered by the Rehabilitation Services Administration 
(RSA) to implement changes to the Rehabilitation Act of 1973 (Act) made 
by the Workforce Innovation and Opportunity Act, signed on July 22, 
2014.
    The Secretary also implements changes to the Act made by the 
Workforce Investment Act of 1998, signed on August 7, 1998, that have 
not previously been implemented in regulations, and otherwise updates, 
clarifies, and improves RSA's current regulations.

DATES: This final rule is effective September 19, 2016, except the 
removal of part 388, amendatory instruction 13, is effective on October 
1, 2016.

FOR FURTHER INFORMATION CONTACT: Ed Anthony, 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:

Background

    The Secretary amends the regulations governing a number of programs 
administered by the Rehabilitation Services Administration (RSA) to 
implement changes to the Rehabilitation Act of 1973 (Act) made by the 
Workforce Innovation and Opportunity Act (WIOA), signed on July 22, 
2014 (Pub. L. 113-128). These programs and their corresponding 
regulations are:
     The Independent Living Services for Older Individuals Who 
Are Blind (OIB) program, 34 CFR part 367;
     The Client Assistance Program (CAP), 34 CFR part 370;
     The American Indian Vocational Rehabilitation Services 
(AIVRS) program, 34 CFR part 371 (formerly known as ``Vocational 
Rehabilitation Service Projects for American Indians with 
Disabilities'');
     The Rehabilitation National Activities program, 34 CFR 
part 373 (formerly known as ``Special Demonstration Projects'');
     The Protection and Advocacy of Individual Rights (PAIR) 
program, 34 CFR part 381;
     The Rehabilitation Training program, 34 CFR part 385;
     The Rehabilitation Long-Term Training program, 34 CFR part 
386;
     The Innovative Rehabilitation Training program, 34 CFR 
part 387 (formerly known as the ``Experimental and Innovative 
Training'');
     The Training of Interpreters for Individuals Who are Deaf 
or Hard of Hearing and Individuals who are Deaf-Blind program, 34 CFR 
part 396 (formerly known as the ``Training of Interpreters for 
Individuals Who are Deaf and Individuals who are Deaf-Blind program'').
    WIOA also repealed the statutory authority for four programs, and 
the Secretary, therefore, removes their corresponding regulations. 
These programs and regulations are:
     Vocational Rehabilitation Service Projects for Migratory 
Agricultural Workers and Seasonal Farmworkers with Disabilities 
(Migrant Workers) program, portions of 34 CFR part 369;
     Projects for Initiating Special Recreation Programs for 
Individuals with Disabilities (Recreational programs), portions of 34 
CFR part 369;
     Projects with Industry, 34 CFR part 379 and portions of 
part 369; and
     The State Vocational Rehabilitation Unit In-Service 
Training program, 34 CFR part 388.
    In addition, the Secretary implements changes to the Act made by 
the Workforce Investment Act of 1998 (WIA), signed into law August 7, 
1998 (Pub. L. 105-220). These changes were not previously implemented 
in the OIB, CAP, AIVRS, and PAIR program regulations, and the Secretary 
now makes these changes in the applicable regulations.
    Separate and apart from amendments to the Act made by WIOA and WIA, 
the Secretary updates and clarifies the regulations governing the 
various rehabilitation training programs--34 CFR parts 373, 385, 386, 
387, and 396--and 34 CFR part 390, which governs the Rehabilitation 
Short-Term Training program. These regulations have not been updated in 
some time, and updating them now is intended to improve how these 
programs function.
    Finally, as part of this update, the Secretary removes regulations 
that are superseded or obsolete and consolidates regulations, where 
appropriate. In addition to removing portions of 34 CFR part 369 
pertaining to specific programs whose statutory authority was repealed 
under WIOA (i.e., Migrant Workers program, the Recreational Programs, 
and the Projects With Industry program), the Secretary is removing the 
remaining portions of the Part 369 regulations. The Secretary is also 
removing parts 376, 377, and 389.

Public Comment

    On April 16, 2015, the Secretary published a notice of proposed 
rulemaking (NPRM) for these programs in the Federal Register (80 FR 
20988). In response to our invitation in the NPRM, more than 100 
parties submitted comments on the proposed regulations. Because the 
amendments described in these final regulations are so many and varied, 
we first discuss those programs whose regulations we amend and do not 
remove. We discuss these programs in the order in which their parts 
appear in the Code of Federal Regulations (CFR). For each part, we 
provide a summary of the changes we proposed, a summary of the 
differences between the proposed regulations and these final 
regulations, and a detailed discussion of the public comment we 
received on the proposed regulations. We then discuss those programs 
whose regulations we remove. Generally, we do not address technical and 
other minor changes.

Independent Living Services for Older Individuals who are Blind (OIB), 
34 CFR Part 367

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 20989 through 
20991 the major changes proposed to part 367 implementing the 
amendments to the OIB program made by WIOA. These included a 
requirement that not less than 1.8 percent and not more than 2 percent 
of the funds for this program be reserved to provide training and 
technical assistance to designated State agencies (DSA) or other 
providers of independent living services for older individuals who are 
blind.
    In addition, we proposed to incorporate into part 367 the text of 
relevant provisions of parts 364 and 365 regarding general independent 
living and State independent living services that were previously 
incorporated only by reference.
    There are five differences between the NPRM and these final 
regulations. As a result of our further review, we add the

[[Page 55563]]

entities eligible to apply for awards under the training and technical 
assistance funding in Sec.  367.21; we revise Sec.  367.24 to give the 
Secretary the discretion to conduct the application process and make 
the subsequent award in accordance with 34 CFR part 75, but not require 
it; we clarify in Sec. Sec.  367.65 and 367.66 requirements for the use 
of program income; we address in a new Sec.  367.67 the financial 
participation by consumers served by the OIB program; and we revise 
Sec.  367.69 by requiring that designated State agencies and other 
service providers enter into written agreements when sharing personal 
information with entities and organizations for the purpose of 
evaluations, audits, research, and other program purposes. We also make 
other, minor technical changes.

Public Comment

    In response to our invitation in the NPRM, eight parties submitted 
comments on the proposed regulations amending the OIB program. One 
commenter agreed with all of the proposed regulations as written. 
Another expressed specific support for incorporating into part 367 the 
independent living (IL) services from section 7(17) of the Act, 
including the requisite supports and services that facilitate the 
transition of individuals from nursing homes and other institutions to 
home- and community-based residences and services to assist older 
individuals who are blind and who are at risk of entering institutions 
to remain in their communities. We address those commenters that 
requested clarifications or proposed additions to the regulations. 
Because we made a number of structural and numbering revisions to part 
367, we provide an analysis of public comment by subpart and, within 
each subpart, by subject or section. We do not address areas about 
which we did not receive public comments, i.e. Subpart D--How Does the 
Secretary Award Discretionary Grants? and Subpart E--How Does the 
Secretary Award Formula Grants?

Subpart A--General

    Comment: An organization representing State agencies for the blind 
and that supports the concept of ``employment first'' recommended that 
part 367 refer all consumers presumed eligible for the OIB program 
based upon age to the State VR services program to be assessed for 
employment potential prior to being served under the OIB program. The 
commenter stated that this would relieve the ``underfunded'' OIB 
program of the costs of eligibility and assessment and allow for these 
costs to be met by the VR program.
    Discussion: We appreciate the commenter's support for ``employment 
first,'' which regards employment as the preferred option for 
individuals of working age. However, we understand that many older 
individuals with vision loss may not believe that employment is an 
option for them. The purpose of the OIB program is to provide IL 
services to individuals age 55 or older whose significant visual 
impairment makes competitive employment extremely difficult but for 
whom IL goals are feasible. Individuals served by the OIB program who 
subsequently express an interest in employment during or after 
receiving OIB services may be referred at any time to the VR program; 
however, there is no statutory authority to require that all potential 
OIB consumers be referred to the VR program before receiving OIB 
services.
    We acknowledge the commenter's concerns about relieving the OIB 
program of the costs of eligibility and assessments; however, to 
require that all individuals presumed eligible for the OIB program be 
referred first to the VR program for assessment of employment potential 
is not appropriate, as it shifts those costs to the VR program for 
individuals for whom competitive employment may not be likely.

What activities may the Secretary fund? (Sec.  367.3(b))

    Comments: Some commenters asked for clarification about whether it 
is mandatory to provide all independent living (IL) services that may 
be funded under this part. Commenters were concerned about their 
capacity to provide all IL services, particularly those defined in 
proposed Sec.  367.5(b)(10). The commenters noted that some of the 
services are duplicative of those provided by Centers for Independent 
Living (CILs), while others may not usually apply to the OIB program 
(e.g. shelter, supported living, physical rehabilitation, therapeutic 
treatment, and prostheses).
    Additionally, commenters stated that vision rehabilitation 
specialists would require extensive training to gain the qualifications 
needed to provide all services and that providing the full array of 
services would affect the quality of vision services provided to 
clients by an already overstretched staff.
    Discussion: We acknowledge the concerns expressed by some 
commenters about whether providing all IL services identified in Sec.  
367.3(b)--particularly the catchall in Sec.  367.3(b)(8), ``Other IL 
services as defined in Sec.  367.5''--is required. While Sec.  367.3(a) 
specifies that the DSA may use funds under part 367 for activities 
described in Sec.  367.1 and Sec.  367.5(b), it does not require the 
DSA to provide the full array of services and activities that the 
Secretary may fund. In fact, many of these IL services and activities 
may also be provided under title VII, chapter 1 of the Act, and older 
individuals who are blind may be referred to these programs, which 
include CILs, for services that may not be specific to the vision-
related services traditionally provided by the OIB program. However, 
the broad scope of IL services that an OIB program may provide allows 
the program to determine what array of services and activities it will 
provide and to individualize services according to need.
    Changes: None.

Transfer of Title VII, Chapter 1 IL Programs

    Comment: One commenter requested further clarification about how 
the Department intends to work with the Department of Health and Human 
Services (HHS) throughout the IL program transition process to assure 
that older individuals who are blind continue to receive the necessary 
services that provide the greatest opportunity for complete and full 
independence.
    Discussion: The Department has worked collaboratively with HHS to 
ensure the efficient and effective transfer of the Title VII, Chapter 1 
programs from the Department of Education to HHS. The OIB program, 
which continues to be administered by the Department, was transferred 
within RSA to staff in the Technical Assistance Unit who have the 
knowledge and expertise necessary to administer the OIB program.
    Change: None.

Subpart B--Training and Technical Assistance

    Comment: One commenter strongly recommended that a portion of the 
technical assistance and training funds be required to be used to train 
service providers on techniques and best practices for serving older 
individuals who are deaf-blind, including those who are blind or 
visually impaired and hard of hearing. This specialized training would 
increase understanding of the needs of deaf-blind individuals, assist 
service providers who routinely work with individuals who are blind to 
recognize those who also have hearing loss, and provide techniques 
designed to maximize independence.
    Discussion: We appreciate the commenter's recommendation.

[[Page 55564]]

Individuals who are deaf-blind, including those who are blind or 
visually impaired and hard of hearing, encompass a growing population 
within those who may be served under the OIB program. As such, we 
anticipate that training and technical assistance for DSAs and other 
service providers will address the needs of this dual sensory loss 
group, as well as of other individuals who are blind or visually 
impaired and have multiple disabilities.
    Change: None.

Eligible Entities for Grants, Contracts, or Cooperative Agreements 
(Sec.  367.21(a))

    Comment: None.
    Discussion: In proposed Sec.  367.21(a), we did not describe the 
entities eligible to compete for funds reserved under Sec.  367.20 to 
carry out training and technical assistance through grants, contracts, 
or cooperative agreements. This was an oversight.
    Change: We added eligible entities to final Sec.  367.21(a): State 
and public or non-profit agencies and organizations and institutions of 
higher education.

How does the Secretary evaluate an application? (Sec.  367.24)

    Comments: None.
    Discussion: When WIOA added a training and technical assistance 
authority to the OIB program it gave the Secretary the ability to make 
awards by grant, cooperative agreement or contract. Since the 
Department generally makes these awards by grants using the procedures 
in part 75, which uses the peer review process identified in the 
statute, we added a subsection in the NPRM that provided that the 
Secretary would use the procedures in part 75, even when awarding a 
contract. However, upon further reflection, we have determined that 
there may be circumstances when the Department has an amount of funds 
that is too small to compete but could be used to support a contract 
consistent with the training and technical assistance authority, in the 
form of a task order or modification under an existing Department 
contract for example, in which case, the Department would not want to 
use the grant processes in part 75. Therefore, we have determined that 
it is more appropriate to change the language in this subsection to 
give the Secretary the authority to use part 75 if awarding a contract, 
where the Secretary determines it is appropriate but not require its 
use.
    Changes: We have revised final Sec.  367.24(b) to give the 
Secretary the discretion to conduct the application process and make 
the subsequent award in accordance with 34 CFR part 75, but not require 
it.

Subpart C--What are the application requirements under this part?

Removal of State Plan for Independent Living OIB Requirements

    Comments: Two commenters, an organization representing agencies for 
the blind and an individual, acknowledged that WIOA eliminated the 
requirement for including a reference to the OIB program in the State 
Plan for Independent Living (SPIL) and expressed concern that this 
would disenfranchise and remove the ``voice'' of older individuals with 
vision loss. These commenters recommended that an OIB section be added 
to the Vocational Rehabilitation (VR) portion of the Unified or 
Combined State Plans submitted by States, with the requirement that 
plans require coordination with VR, CILs, aging, and other entities 
that would further the independence of older persons with visual 
impairments.
    Discussion: We appreciate the commenters' concerns surrounding the 
potential elimination of the ``voice'' of older individuals who are 
blind or visually impaired that resulted from the transfer of the IL 
programs to HHS. However, the previous SPIL requirements for IL 
coordination with the OIB program and for including any new methods or 
approaches for providing OIB services were minimal.
    In addition, nothing prohibits older individuals who are blind or 
visually impaired from participating in the development of the SPIL. In 
fact, for the periodic review and revision of the SPIL, section 
704(a)(3)(C)(ii)(II) of the Act requires collaboration and working 
relationships with, among others, entities carrying out programs that 
provide independent living services and that serve older individuals. 
Furthermore, some State OIB programs have developed advisory committees 
to provide input into determining the needs of the older blind 
population and developing the services required to meet those needs.
    While we appreciate the recommendation to add an OIB section to the 
VR services portion of the Unified or Combined State Plan, section 
101(a) of the Act dictates its required components, which do not 
include the OIB program. We encourage OIB consumers to make their views 
known to the DSA and other service providers, and we encourage State 
OIB programs to develop strategies to coordinate and link OIB programs 
with other disability and aging-related activities and programs within 
each State to maximize collaboration and availability of services.
    Change: None.

Subpart F--What conditions must be met after an award?

Use of Program Income (Sec.  367.65(a)(2) and (b)(2))

    Comment: None.
    Discussion: After further review, we have revised Sec.  367.65 to 
clarify that payments received by the State agency, subrecipients, or 
contractors for IL services provided under the OIB program to 
individual consumers will be treated as program income. We have also 
revised final Sec.  367.65(b)(2) to require OIB grantees to use program 
income only to supplement the OIB grant. Grantees will not be permitted 
to deduct program income from the grant.
    Upon closer examination of the grant formula set forth in the 
statute, we have concluded that the use of the deduction method would, 
in effect, result in a reduction of an OIB program grantee's allotment. 
Absent specific statutory authority, these reductions would be 
inconsistent with the statute and general appropriations law 
principles. In reviewing the grantees' financial reports, we have found 
that very few, if any, OIB programs elect to use the deduction method. 
Instead, most, if not all, grantees elect to use the addition method, 
which is still permissible and, in fact, will be the only permissible 
use of program income under the OIB final regulations. We do not 
believe this change will negatively affect any grantee.
    Changes: We have added Sec.  367.65(a)(2), stating that payments 
received by the State agency, subrecipients, or contractors from 
insurers, consumers, or others for IL services provided under the OIB 
program to defray part or all of the costs of services provided to 
individual consumers will be treated as program income. We have revised 
final Sec.  367.65(b)(2) to permit grantees to use program income only 
to supplement their OIB grant and have removed all references to the 
deduction method.

The Requirements That Apply to the Obligation of Federal Funds and 
Program Income (Sec.  367.66)

    Comment: None.
    There has been a long-standing, government-wide requirement under 
the common rule implementing former OMB Circular A-102 and the former 
OMB guidance in Circular A-110, as codified by the Department of 
Education at former 34 CFR 80.21(f)(2) and

[[Page 55565]]

74.22(g), respectively, that non-Federal grantees must expend program 
income prior to drawing down Federal grant funds. The Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards (Uniform Guidance), codified at 2 CFR part 200, were 
adopted by the Department at 2 CFR 3474 on December 19, 2014 (79 FR 
76091), and apply to all new and continuing awards made after December 
26, 2014.
    The new 2 CFR 200.305(a) specifies the payment procedures that 
States must use to draw down Federal funds; however, these procedures 
appear, on the surface, to apply only to funds included in a Treasury-
State Agreement (TSA), and not all Federal program funds made available 
to States are subject to TSAs. For this reason, 2 CFR 200.305(a) has 
created an ambiguity about how States should draw Federal funds under 
non-TSA programs.
    Moreover, TSAs do not cover program income earned by State 
grantees, and 2 CFR 200.305(a) does not address whether States should 
expend available program income funds before requesting additional 
Federal cash, which had been the long-standing government-wide 
requirement in OMB Circular A-102 and codified for Department grantees 
at 34 CFR 80.21(f)(2). This silence creates concern because, for all 
other non-Federal entities, 2 CFR 200.305(b)(5) requires them to expend 
available program income funds before requesting payments of Federal 
funds.
    While the silence in 2 CFR 200.305(a) creates an unintended 
ambiguity, we do not believe that it should be construed to change the 
prior rule and remove the requirement that States must expend program 
income funds before requesting additional Federal cash. No such policy 
change was discussed in the preambles to either the final guidance in 2 
CFR part 200, which was published on December 26, 2013 (78 FR 78589), 
or in the Interim Final Guidance published on December 19, 2014 (79 FR 
75867).
    Further, Sec.  361.63(c)(2) permits the transfer of VR Social 
Security reimbursement program income to carry out programs under title 
VII, Chapter 2 of the Act (Independent Living Services for Older 
Individuals Who Are Blind). For this reason, we believe it is essential 
that we resolve this unintended ambiguity for the OIB program.
    We proposed in the NPRM to incorporate the requirement to expend 
program income before requesting payment of funds by referencing 2 CFR 
200.305(a). Given the ambiguity in that section, however, the proposed 
rule did not clearly state the requirement. We resolve the ambiguity by 
revising Sec.  367.66(c) to explicitly require States to expend 
available program income funds before requesting additional cash 
payments, as was the long-standing requirement under former 34 CFR 
80.21(f)(2).
    We believe this change is essential to protect the Federal interest 
by using program income to increase the funds devoted to this program, 
to which VR Social Security reimbursement program income may also be 
transferred, keeping to a minimum the interest costs to the Federal 
government of making grant funds available to the States. This change 
should not negatively affect States because it merely maintains the 
status quo that existed under 34 CFR 80.21(f)(2).
    Changes: We have revised final Sec.  367.66(c) to make clear that 
all designated agencies must disburse program income prior to drawing 
down Federal funds or, as stated in 2 CFR 200.305(b)(5), ``requesting 
additional cash payments.'' Finally, we have made other technical and 
conforming edits.

Financial Participation

    Comment: One commenter pointed out that the proposed regulations 
did not address how a grantee should consider a consumer's ability to 
pay.
    Discussion: We agree that the proposed regulations did not address 
the subject of financial participation by consumers of the OIB program. 
Since there is neither a Federal requirement for, nor prohibition of, 
consumers of the OIB program to participate in the cost of IL services, 
we believe it is beneficial to address the commenter's suggestion by 
including regulatory language to provide guidance to States that might 
want to consider this as an option.
    Change: We added new Sec.  367.67--May an individual's ability to 
pay be considered in determining his or her participation in the costs 
of OIB services? A State is neither required to charge, nor is it 
prohibited from charging, consumers for the cost of IL services 
provided under the OIB program. Also, a State is neither required to, 
nor prohibited from, considering the ability of individual consumers to 
pay for the cost of OIB services in determining how much a particular 
consumer must contribute to the costs of a particular service. However, 
specific requirements apply if the State does choose to charge 
consumers or allow providers of services to charge consumers for 
services provided under the OIB program. Specific requirements also 
apply if the State considers, or allows providers of services to 
consider, the ability of individual consumers to pay for the cost of 
OIB services. These requirements are outlined in the new Sec.  367.67. 
Because this is a new section added to the regulations, the sections 
after it are renumbered accordingly.

CAP (Sec.  367.68)

    Comment: One commenter, noting the inclusion of the notice of the 
availability of CAP in this subpart, remarked that the OIB regulations 
should, but do not, address appeals procedures.
    Discussion: The Act does not include an appeals procedure for the 
OIB program; therefore, there is no statutory authority to include any 
regulations beyond those relating to the availability of CAP to the OIB 
program.
    Change: None.

What are the special requirements pertaining to the protection, use, 
and release of personal information? (Sec.  367.69)

    Comments: None.
    Discussion: We anticipate that other Federal and State agencies, 
and researchers will have an increased interest in using the data 
required to be collected by programs established under the Act, 
including the OIB program. Therefore, after further departmental 
review, we have strengthened the protection of the confidentiality of 
personal information collected by the OIB program by requiring in final 
Sec.  367.69 that designated State agencies and service providers enter 
into written agreements with any entity seeking access to this 
information for the purpose of audits, evaluations, research, or for 
other program purposes. This change is consistent with revisions to 
final 34 CFR 361.38 governing the protection of confidentiality of 
personal information collected by the VR program.
    Changes: We have revised final Sec.  367.69(a), (d), and (e)(1) by 
requiring that designated State agencies and service providers enter 
into written agreements with other organizations and entities receiving 
personal OIB program information during the conduct of audits, 
evaluations, research, and for other program purposes.

Client Assistance Program (CAP), 34 CFR Part 370

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 20991 through 
20994 the major changes proposed to part 370 that would implement the 
amendments to the CAP made by WIOA and WIA. To implement those changes 
made by WIA, the Secretary proposed amending the regulations governing 
the redesignation of a designated CAP

[[Page 55566]]

agency to require the governor to redesignate the designated CAP agency 
if it is internal to the designated State agency (DSA) for the 
Vocational Rehabilitation program and that DSA undergoes a significant 
reorganization that meets certain statutory criteria.
    The Secretary also proposed making three substantive changes to 
incorporate statutory changes made to section 112 by WIOA. First, we 
proposed adding the protection and advocacy system serving the American 
Indian Consortium as an entity eligible to receive a CAP grant. Second, 
we proposed requiring the Secretary to reserve funds from the CAP 
appropriation, once it reaches a specified level, to award a grant for 
the provision of training and technical assistance to designated CAP 
agencies. Finally, we proposed clarifying that authorized activities 
under the CAP include assisting client and client-applicants who are 
receiving services under sections 113 and 511 of the Act.
    In addition to substantive changes required by statutory 
amendments, the Secretary proposed making other changes to update part 
370 so that it, among other things, conforms with RSA practice (i.e., 
with regard to submission of application and assurances), reflects 
current CAP grantee practice (i.e., with regard to contracts with 
centers for independent living), and conforms to the new Uniform 
Guidance at 2 CFR part 200.
    There are no differences between the NPRM and these final 
regulations, except that, as a result of our further review, we clarify 
in final Sec.  370.47 requirements related to the use of program income 
and make other minor technical changes.
    Public Comment: In response to our invitation in the NPRM, 41 
parties submitted comments on the proposed regulations amending the CAP 
(part 370). In general, these comments supported the proposed 
regulations. We provide an analysis of public comments by subject and 
section only for those regulations about which we received opposing 
comments or requests for clarification. In addition, we provide an 
explanation of the clarification in Sec.  370.47 regarding requirements 
related to the use of program income.

Clients and Client-Applicants (Sec.  370.1)

    Comments: A few commenters supported the revision to Sec.  370.1 
clarifying that CAP services are available to assist individuals 
seeking or receiving services under sections 113 and 511 of the Act. 
Yet, a few other commenters believe the same proposed regulations were 
confusing in that the terms ``clients'' and ``client-applicants'' would 
not include those individuals who are potentially eligible to receive 
pre-employment transition services. These commenters recommended that 
we incorporate the definitions of ``student with a disability'' and 
``youth with a disability'' within this part to clarify that these 
individuals are clients and client-applicants. These commenters also 
recommended that we amend this section to prohibit the provision of CAP 
services to youth with disabilities seeking subminimum wage employment 
in sheltered settings.
    Discussion: We appreciate the commenters' support for this 
regulation. We disagree that there is a need to clarify in the 
regulation that students and youth with a disability, including those 
students with disabilities seeking or receiving pre-employment 
transition services, are clients and client-applicants for the purposes 
of this part. As defined in Sec.  370.6, ``client or client-applicant'' 
means an individual receiving or seeking services under the Act, 
respectively. Moreover, section 112(a) makes clear that CAPs may serve 
clients and client-applicants who are receiving services under section 
113--e.g., students with disabilities. In fact, students and youth with 
disabilities may be eligible to receive a wide range of services under 
the Act, such as transition services, training, transportation, 
supported employment, and independent living. Therefore, students and 
youth with disabilities who are receiving services under the Act are 
clients and client-applicants for purposes of part 370 and are, 
therefore, eligible to receive CAP services.
    We also appreciate the commenter's concerns about the payment of 
subminimum wages to youth with disabilities. However, we disagree that 
we should prohibit the provision of CAP services to youth with 
disabilities seeking subminimum wage employment. Section 112(a) of the 
Act, as amended by WIOA, specifically establishes CAPs to assist 
clients and client-applicants with all benefits and services available 
under the Act, including those required by section 511. Given this 
mandate, there is no authority under the Act for the Secretary to 
prohibit the provision of CAP services to youth with disabilities 
seeking subminimum wage employment, regardless of the setting. We 
believe that the final regulation is consistent with the statute.
    Change: None.

Requirements for Redesignation (Sec.  370.10)

    Comments: One commenter supported the proposed changes in this 
section. However, another commenter suggested that redesignation should 
ultimately be based on criteria, such as the efficiency and 
effectiveness of the grantee as assessed by RSA through its monitoring 
activities, in addition to the determination of ``good cause'' by the 
governor.
    Discussion: We appreciate the comment supporting this regulation, 
as well as the recommendation from the commenter regarding criteria on 
which to base the redesignation of a CAP grantee. However, other than a 
determination of good cause by the governor, the Act does not provide 
the Secretary with authority to specify criteria that would require the 
redesignation of a designated CAP agency. We believe that the final 
regulation is consistent with the statute.
    Change: None.

Access to Records and Monitoring

    Comments: Several commenters were concerned that the proposed 
regulations did not provide CAPs with the authority to access records 
and conduct monitoring to help carry out the mandate to assist 
individuals seeking or receiving services under sections 113 and 511 of 
the Act. These commenters recommended that CAPs be given the same 
authority to access records as do other component programs, including 
the PAIR program, of the protection and advocacy system established 
under the Developmental Disabilities Assistance and Bill of Rights Act 
of 2000, believing this general authority would enable CAP grantees to 
access records and documentation developed under both sections 113 and 
511 of the Act.
    Discussion: We disagree with the commenters' recommendation. 
Although many CAPs are housed within a State's protection and advocacy 
system, section 112 of the Act neither establishes the CAP as a 
mandatory component of the protection and advocacy system nor requires 
that the CAP have the same general authorities as those established in 
part C of the Developmental Disabilities Assistance and Bill of Rights 
Act of 2000.
    Rather, section 112(a) of the Act establishes CAPs to: (1) Advise 
and inform clients and client-applicants of all services and benefits 
available to them under the Act; (2) upon the request of these clients 
and client-applicants, assist and advocate for these individuals in 
their relationships with projects, programs, and services provided 
under the Act; and (3) inform individuals with disabilities of the 
services and benefits available to them under the Act and under Title I 
of the Americans with Disabilities Act.

[[Page 55567]]

    In assisting and advocating for clients and client-applicants upon 
their request, section 112(a) of the Act authorizes the CAP to pursue 
legal, administrative, or other appropriate remedies to ensure the 
protection of their rights under the Act and to facilitate access to, 
and services funded under, the Act through individual and systemic 
advocacy, as defined at Sec.  370.6(b). This advocacy, whether 
individual or systemic, must be at the request of the client or client-
applicant and must be solely for the purpose of protecting the rights 
of clients and client-applicants under the Act or to facilitate their 
access to services under the Act. In this situation alone, the CAPs 
could access relevant records so long as they follow the requirements 
of the holder of those records, which typically would require the 
informed written consent of the client or client-applicant. There is no 
authority under section 112 for the CAP to engage in advocacy for the 
sole purpose of gaining general access to records or conducting 
monitoring.
    For these reasons, section 112 of the Act does not provide a basis 
on which to amend these regulations, as recommended by commenters, to 
include the same general authorities as those established in part C of 
the Developmental Disabilities Assistance and Bill of Rights Act of 
2000 for mandatory components of the protection and advocacy system, 
which the CAP is not.
    Change: None.

Program Income (Sec.  370.47)

    Comments: None.
    Discussion: In further reviewing the interplay between Sec.  370.47 
and 2 CFR 200.305, the Department has determined additional 
clarification is necessary in final Sec.  370.47, particularly with 
regard to the use of available program income.
    There has been a long-standing government-wide requirement under 
the common rule implementing former OMB Circular A-102 and the former 
OMB guidance in Circular A-110, as codified by the Department at former 
34 CFR 80.21(f)(2) and 74.22(g), respectively, that non-Federal 
grantees must expend program income prior to drawing down Federal grant 
funds. The Uniform Guidance, codified at 2 CFR part 200, was adopted by 
the Department at 2 CFR part 3474 on December 19, 2014 (79 FR 76091) 
and applies to all new and continuing awards made after December 26, 
2014.
    The new 2 CFR 200.305 specifies the payment procedures that non-
Federal entities must use to draw down Federal funds; however, 2 CFR 
200.305(a), which applies to State agencies, does not address whether 
designated agencies that are State agencies should expend available 
program income funds before drawing down Federal funds, as had been the 
long-standing government-wide requirement under OMB Circulars A-102 and 
A-110.
    This silence creates concern because 2 CFR 200.305(b)(5), which 
appears to apply to non-Federal entities other than States, requires 
that those entities expend available program income funds before 
requesting payments of Federal funds. While the silence in 2 CFR 
200.305(a) creates an unintended ambiguity, we do not believe that this 
ambiguity should be construed to change the prior rule and remove the 
requirement that State agencies must expend program income funds before 
requesting additional Federal cash. No such policy change was discussed 
in the preambles to either the OMB final guidance in 2 CFR part 200, 
which was published on December 26, 2013 (78 FR 78589), or in the 
Interim Final Guidance published on December 19, 2014 (79 FR 75867).
    Therefore, we believe it is essential that we resolve this 
unintended ambiguity here. To that end, we have amended Sec.  370.47 in 
these final regulations to make clear that all designated CAP agencies, 
regardless of their organizational structure, must expend program 
income before drawing down Federal funds. In so doing, we have revised 
final Sec.  370.47(b)(2)(ii) to explicitly require CAP grantees to 
expend available program income funds before requesting additional cash 
payments, as was the long-standing requirement under former 34 CFR 
74.22(g) and 80.21(f)(2).
    We believe the change is essential to protect the Federal interest 
by using program income to increase the funds devoted to the CAP 
program and keeping to a minimum the interest costs to the Federal 
government of making grant funds available to the designated agencies. 
This change should not negatively affect designated CAP agencies that 
are State agencies because it merely maintains the status quo that 
existed under 34 CFR 80.21(f)(2).
    We also have revised final Sec.  370.47(b)(2) by requiring CAP 
grantees to use program income only to supplement the CAP grant. Upon 
closer examination of the grant formula set forth in the statute, we 
have concluded that the use of the deduction method would, in effect, 
result in a reduction of a CAP's grant allotment. Absent specific 
statutory authority, such reductions would be inconsistent with the 
statute and general appropriations law principles. In reviewing the 
grantees' financial reports, we have found that very few, if any, 
designated CAP agencies elect to use the deduction method. Instead, 
most, if not all, grantees elect to use the addition method, which is 
still permissible and, in fact, will be the only permissible use of 
program income under these CAP final regulations. We do not believe 
this change will negatively affect any grantee.
    Changes: We have revised final Sec.  370.47(b)(2) to permit 
grantees to use program income only to supplement their CAP grant and 
to remove all references to the deduction method. We have also added a 
new Sec.  370.47(b)(2)(ii) to make clear that all designated CAP 
agencies must disburse program income prior to drawing down Federal 
funds or, as stated in 2 CFR 200.305(b)(5), ``requesting additional 
cash payments.'' Finally, we have made other technical and conforming 
edits.

American Indian Vocational Rehabilitation Services Program (AIVRS), 34 
CFR Part 371

Tribal Consultation

    Consistent with Executive Order 13175, ``Consultation and 
Coordination With Indian Tribal Governments,'' in addition to seeking 
input from Indian tribal governments through the public comment 
process, the Department conducted tribal consultations to obtain input 
on the proposed changes in the AIVRS program. We hosted a webinar on 
June 9, 2015, and invited written comments from tribal officials, 
tribal governments, tribal organizations, and affected tribal members. 
We provided an overview of the AIVRS NPRM and the proposed changes to 
the regulations governing the program as a result of WIOA and WIA, and 
we asked for tribal input regarding those proposed changes.
    When announcing the tribal consultation, the Department 
acknowledged that it was somewhat unusual to ask for tribal input after 
an NPRM was published, but WIOA's requirement to publish an NPRM within 
six months for all the programs contained in the Rehabilitation Act, 
including regulations with the Department of Labor implementing the 
requirements for a joint state plan for the State Vocational 
Rehabilitation program, precluded the Department from engaging in a 
tribal consultation process before it needed to publish the NPRM. The 
consultation process also had to proceed quickly so that the Department 
could receive the comments before the public comment period for the 
NPRM ended in order for those

[[Page 55568]]

comments to be considered. Despite these constraints, the Indian 
community responded thoughtfully during the consultation process and 
provided 42 comments, many of them unique. Those comments were 
considered and are addressed along with the other public comments here.

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 20994 through 
20998 the major changes proposed to part 371 implementing the 
amendments to the AIVRS program made by WIOA. These included (1) the 
expansion of the definition of ``Indian'' to include natives and 
descendants of natives under the Alaska Native Claims Settlement Act, 
(2) the amendment of the definition of ``Indian tribe'' to include a 
``tribal organization,'' and (3) amendments to subpart B to require the 
reservation of not less than 1.8 percent and not more than 2 percent of 
the funds for the AIVRS program for the provision of training and 
technical assistance to the governing bodies of Indian tribes and 
consortia of those governing bodies eligible for a grant under this 
program.
    The amendments to part 371 also implement changes made by WIA in 
1998 that have not previously been incorporated, such as the expansion 
of services to American Indians with disabilities living ``near'' a 
reservation, as well as ``on'' a reservation, and the change of the 
project period from up to three to up to five years. Additionally, we 
incorporate relevant sections of part 369, which the Department 
proposed in the NPRM to repeal, and relevant sections of part 361, 
particularly definitions found in each of those parts.
    There are a few differences between the NPRM and these final 
regulations. Section 371.2(a)(2) now explicitly requires approval of 
the tribal government before a tribal organization may apply for an 
AIVRS grant and provide services to tribal members. We made a minor 
change in Sec.  371.2(a)(3) to make the language consistent with Sec.  
371.2(a)(1). We modified the definition of ``supported employment'' in 
Sec.  371.6 to reflect changes we made to the definition in 34 CFR 
361.5(c)(53) so that the term is used identically in both the State VR 
program and the AIVRS program. We revised Sec.  371.14 to give the 
Secretary the discretion to conduct the application process and make 
the subsequent award in accordance with 34 CFR part 75, but not require 
it. As a means of implementing the statutory requirement that the 
Secretary give priority consideration to applications for the 
continuation of programs that have been funded under section 121, we 
added paragraph (b) to Sec.  371.32 to authorize the Secretary to 
provide a competitive preference to applicants who previously received 
an AIVRS grant. Finally, after further departmental review, we revised 
Sec.  371.44 by requiring that Tribal Vocational Rehabilitation units 
enter into written agreements with organizations and entities when 
sharing personal information for the purposes of evaluations, audits, 
research and other program purposes.
    Public Comment: In response to our invitation in the NPRM, 65 
parties submitted comments on the proposed regulations amending the 
AIVRS program (part 371). We received comments in support of most of 
the proposed regulations, and we received comments questioning or 
opposing some. We thank the commenters for their support. We discuss 
only those comments that questioned or opposed particular regulations, 
and we organize our discussion by subject.

Funding for the AIVRS Program

    Comments: Under Section 100(c)(1)-(2) of the Act, the AIVRS program 
is funded annually through a set-aside of not less than 1 percent and 
not more than 1.5 percent of the funds appropriated for the State 
Vocational Rehabilitation (VR) program. A number of commenters 
requested that the Department increase the funds available for AIVRS 
projects by setting aside the maximum allowable level of 1.5 percent. 
Most of these commenters argued that an increase in the set-aside was 
needed to offset the effect of the new training and technical 
assistance requirement on the funding available to operate AIVRS 
projects and asked the Department to take this into consideration in 
determining the annual set-aside.
    Discussion: The level of funding set aside for the AIVRS program 
under Section 100(c)(1)-(2) of the Act is outside of the scope of the 
proposed rules. However, the Department is aware that the new 
reservation of funds for training and technical assistance, coupled 
with the sequester of mandatory funds under the Budget Control Act of 
2011 (Pub. L. 112-25), has in recent years reduced the funds available 
to operate AIVRS projects and provide services to American Indians with 
disabilities. The Department will take these and other factors into 
account when determining the annual level of the AIVRS set-aside.
    Changes: None.
    Comments: One commenter objected generally to the amount provided 
for the AIVRS program, stating that the government funds minority 
groups inequitably and gives too much to American Indians ``just for 
being Indian.''
    Discussion: The commenter's statement is outside the scope of this 
rulemaking. The Department is implementing a program funded by Congress 
based on a recognized need for vocational rehabilitation services for 
American Indians with disabilities.
    Changes: None.

60-Month Project Period--Sec.  371.4

    Comments: Some commenters proposed that, instead of limiting 
funding for AIVRS projects to five years, AIVRS projects ought to be 
funded permanently. These commenters stated that to compete for funds 
every five years, not knowing if the project will be re-funded, makes 
it difficult to ensure continuity of services and operate an efficient 
and effective program. Many of these commenters recommended that AIVRS 
projects, once funded, continue to be funded based on decisions from 
monitoring and technical assistance rather than competing for new 
awards every five years, much like the Centers for Independent Living 
program under Title VII of the Act, and some also recommended that each 
project receive an annual cost-of-living increase.
    Discussion: Section 121(b)(3) provides that grants can be effective 
for up to 60 months. Because the AIVRS program is a discretionary grant 
program, there is no statutory authority for the Commissioner to 
provide permanent funding. Section 121 does not provide authority 
similar to that for the Centers for Independent Living program under 
Part C of Title VII of the Act, which permits continued funding without 
competition. The Department can only continue to provide funds to a 
grant beyond 60 months if, given exceptional circumstances, the 
Secretary publishes a rule that waives the requirements of 34 CFR 
75.250 and 75.261(c)(2), which limit project periods to 60 months and 
restrict project period extensions that involve the obligation of 
additional Federal funds.
    As for annual cost-of-living increases, there are no provisions in 
the statute that permit the Commissioner to provide automatic cost-of-
living increases to all grantees. A grantee may request a cost-of-
living increase when filing its annual performance report and budget, 
and the request must provide a justification for the increase. The 
Commissioner will review and approve or disapprove requests for a cost-
of-living increase case-by-case.
    Changes: None.

[[Page 55569]]

Consolidation of AIVRS With Other Employment and Training Programs

    Comments: Two commenters requested that tribes that consolidate 
their employment and training programs under Public Law 102-477 (25 
U.S.C. 3401, et seq.) be able to add the AIVRS program to the programs 
they are able to consolidate under that statute.
    Discussion: This request is outside the scope of this rulemaking. 
In any event, the Department would be unable to grant it because the 
AIVRS program is not eligible for consolidation under Public Law 102-
477 (25 U.S.C. 3401, et seq. The Indian Employment, Training and 
Related Services Demonstration Act of 1992 (Pub. L. 102-477) is a 
statute under which the Secretary of the Interior, in cooperation with 
the appropriate Secretary of Labor, Health and Human Services, or 
Education, upon the receipt of a plan submitted by an Indian tribal 
government, may authorize it to coordinate and integrate its federally 
funded employment, training, and related services programs into a 
single, coordinated, comprehensive program, which reduces 
administrative costs. Section 5 of that Act (25 U.S.C. 3404), however, 
makes clear that the only programs that may be integrated in a plan 
submitted by a tribe are those under which an Indian tribe is eligible 
for receipt of funds under a statutory or administrative formula. 
Because the AIVRS program is a discretionary grant program, not a 
formula grant program, it is not eligible for consolidation under 
Public Law 102-477.
    Changes: None.

Training and Technical Assistance Funding (Sec. Sec.  371.10-371.14)

    Comments: A number of commenters recognized the value of training 
and technical assistance and expressed support for these activities. 
However, most of these commenters did not believe that these activities 
should be provided at the expense of services for tribal VR consumers. 
While some commenters stated that tribal consumers would be better 
served by continuing to fund direct services rather than training for 
tribal vocational rehabilitation programs, others expressed the need 
for more balance in the funding of these activities.
    Discussion: New provisions in section 121(c) of the Act, 
implemented in subpart B of the AIVRS regulations, require the 
Commissioner to reserve not less than 1.8 percent and not more than 2 
percent of the funds set aside for the AIVRS program for training and 
technical assistance to the governing bodies of Indian tribes, and 
consortia of those governing bodies, eligible for a grant under this 
program. While the Act provides the Department with the authority to 
determine the amount of the reservation within the statutory 
parameters, taking into consideration the needs of the AIVRS program, 
it must reserve at least 1.8 percent of the funds set aside for the 
AIVRS program. The Department believes that the rules in Sec. Sec.  
371.11 through 371.14 implementing section 121(c), as well as the 
rigorous requirements for training and technical assistance grantees 
contained in the regulatory priorities applicants must meet, will help 
to ensure that the training and technical assistance provided is 
designed to help improve the operation of AIVRS projects and the 
quality of services provided to their consumers.
    Changes: None.
    Comment: Two commenters recommended that the Department consider 
and explore alternate funding sources for training and technical 
assistance for the AIVRS program. One of these commenters suggested 
that these activities should be funded as a set-aside under the 
training and technical assistance component of the Act.
    Discussion: While we appreciate the commenters' suggestions, the 
Department is required to reserve funds for this purpose from the AIVRS 
set-aside, consistent with section 121(c) of the Act.
    Change: None.

Culturally Appropriate Services (Sec.  371.1)

    Comments: A number of commenters expressed support for AIVRS 
providing culturally appropriate vocational rehabilitation services to 
American Indians with disabilities and for recognizing subsistence as a 
permissible employment outcome. Some commenters, however, criticized 
our illustration of culturally appropriate services in the NPRM 
preamble--``(i.e. services traditionally used by Indian tribes)''--as 
incomplete and requested that we include examples of culturally 
appropriate services that match the broad diversity of Indian country.
    Discussion: We thank these commenters for their support. Given, 
however, the large number of American Indian tribes, including Alaskan 
Native villages and regional corporations, and their widely varying 
cultural practices, any list of further examples of culturally 
appropriate practices would also be incomplete and may exclude cultural 
practices that are unique to some tribes.
    Changes: None.

Eligibility

Providing Services ``On or Near'' the Reservation (Sec.  371.3)

    Comments: In response to the proposed language that AIVRS projects 
provide services to American Indians with disabilities who live on ``or 
near'' the reservation, some commenters requested guidance on how to 
define ``near.'' Other commenters stated that as a matter of tribal 
sovereignty, it should be left to the tribes, not the Federal 
government, to define ``near'' and to define their service areas, which 
they do in other contexts such as working with the U.S. Census Bureau 
or in other Federal programs.
    Discussion: We agree with the commenters that it should be the 
tribes who define ``near'' the reservation. The change allowing AIVRS 
projects to serve American Indians with disabilities who live ``near'' 
a reservation, as well as ``on'' a reservation, was made by the 
Workforce Investment Act (WIA), Public Law 105-120, in August 1998. We 
proposed adding ``or near'' to Sec.  371.3 because, although we had 
implemented the statutory change in 1998, the regulations had not yet 
been updated to reflect the change. Consistent with our current 
practice under the statutory requirements, applicants for AIVRS grants 
will, as part of their applications, continue to define the service 
areas in which, and the populations to whom, they will provide 
services. RSA staff is always available to assist grantees or potential 
grantees in determining appropriate service areas for AIVRS grants that 
meet the criteria of ``on or near'' the applicant's reservation.
    Changes: None.

Tribal Organizations (Sec.  371.2, Sec.  371.6--definitions)

    Comment: Some commenters objected to proposed Sec.  
371.2(a)(1)(ii), which makes tribal organizations eligible applicants 
under AIVRS. These commenters pointed out that tribal organizations, 
like some ``urban'' Indian organizations, need not be tribal 
governmental entities or even affiliated with tribes. As such, tribal 
organizations may not be sufficiently responsible to tribal 
governments, they may temporarily create programs just to establish 
eligibility, and they may take funding away from established AIVRS 
programs and from consumers in need of VR services.
    Many other commenters requested that, while tribal organizations 
may be eligible for AIVRS grants, we should require an application from 
any tribal organization to have the approval of the tribe or tribes it 
plans to serve. A few

[[Page 55570]]

commenters asked who or what office must issue this approval; a few 
others noted that securing the necessary approvals may be difficult 
because an AIVRS project may provide services to members of several 
different tribes. Finally, some commenters suggested that there be a 
single tribal entity within the tribal government to conduct all AIVRS 
activities.
    Discussion: The amendments to WIOA added ``tribal organizations'' 
to the definition of ``Indian tribe'' in section 7(19)(B) of the Act. 
Because Indian tribes are eligible for grants under the AIVRS program, 
in Sec.  371.2, the Department is implementing a statutory requirement: 
Tribal organizations are eligible for AIVRS grants. Specifically, 
Section 7(19)(B) includes in the definition of ``Indian tribe,'' ``a 
tribal organization (as defined in section 4(l) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b(l)).'' 
Section 371.6 of the regulations adopts that definition. Under Sec.  
371.6, a tribal organization is:
    1. The recognized governing body of any Indian tribe; or
    2. Any legally established organization of Indians that is 
controlled, sanctioned, or chartered by the governing body of an Indian 
tribe; or
    3. Any legally established organization of Indians that is 
democratically elected by the adult members of the Indian community to 
be served by the organization and that includes the maximum 
participation of Indians in all phases of its activities.
    As such, if the organization is not the actual governing body of 
the tribe, it nevertheless has close ties to the governing body because 
the body has created it, authorized it, or is actually controlling it, 
or the organization has close ties to the tribal members because they 
have elected the membership of the tribal organization. Therefore, we 
do not believe that the concern expressed about ``urban'' tribal 
organizations that are unaffiliated with tribes competing with existing 
AIVRS projects, perhaps by creating pretextual vocational 
rehabilitation programs, is a likely outcome of this regulatory change. 
We also note that the tribal organization must also meet the other 
eligibility requirements under Sec.  371.2(a), including that they be 
located on Federal or State reservations. If the tribal organization is 
not a tribal governing body, then the tribes that make up the tribal 
organization have to meet the reservation requirement, again creating a 
close connection with the tribes themselves.
    Although we believe that the definition of ``tribal organization'' 
already requires a close connection with an Indian tribe, we agree with 
the commenters that applications from tribal organizations should have 
the approval of the tribal governments the organizations seek to serve. 
In part, the proposed regulations already required this.
    If a tribal organization serves more than one tribe, Sec.  
371.2(a)(3) requires the organization to obtain the approval of each of 
the tribes it seeks to serve. This requirement already applies to a 
consortium and a tribal government seeking to serve more tribes than 
its own. However, the proposed regulations did not explicitly require a 
tribal organization that is not a tribal government and seeks to serve 
only one tribe, to obtain approval to apply for an AIVRS grant from 
that tribal government.
    We are, therefore, adding this requirement as Sec.  
371.2(a)(2)(ii). This will ensure that it is the tribal governments 
that ultimately have the authority to determine the services provided 
to their members and the entity authorized to provide those services.
    Approval must be a formal action taken by the tribal government. It 
will often come in the form of a resolution from the tribal council. 
However, as the forms of government among the tribes are so many and 
varied, we cannot make an exhaustive list of the entity that must issue 
the approval or specify what form the approval must take. It may be 
sufficient for the tribal council to authorize a tribal organization to 
apply for any health or social service grant on its behalf and provide 
those services to its members. The council may not have to pass 
resolutions for each grant application. However, these are matters 
dictated by tribal law, as is the decision regarding the entity that 
will provide tribal vocational rehabilitation services to its members.
    As for the difficulty of securing approvals when multiple tribes 
are to be served, this change merely applies the existing approval 
requirement for consortia and inter-tribal agreements to tribal 
organizations, and our experience suggests that there is no great 
difficulty in securing the necessary approvals. The number of approvals 
may, in fact, be smaller than commenters suggested. The tribal 
organization needs approvals only from those tribes on (or near) whose 
reservations the tribal organization plans to provide services. The 
tribal organization is under no obligation to identify the tribal 
affiliation of all residents of those service areas who the AIVRS 
project may serve and who may have a different tribal affiliation, nor 
must it seek approval from those tribes.
    Changes: We have amended Sec.  371.2(a)(2) and added new Sec.  
371.2(a)(2)(ii) to require that, in order to receive a grant under this 
section, a tribal organization that is not a governing body of an 
Indian tribe must have the approval of the tribe to be served by the 
organization.

Who may make an application under the AIVRS Program? (Sec.  371.2)

    Comments: None.
    Discussion: Section 371.2(a) implements the statutory authorization 
that permits applications for the AIVRS program to be made by the 
governing bodies of Indian tribes or consortia of those governing 
bodies. Section 371.2(a)(1) implements the Education Department General 
Administrative Requirement at 34 CFR 75.128 that groups of applicants 
can only apply either by designating one member of the group--one of 
the governing bodies--to apply on behalf of the group or by 
establishing a separate eligible legal entity to apply for the group. 
In the proposed regulations, Sec.  371.2(a)(3) discussed grants being 
made to ``the governing body of an Indian tribe, a consortium of those 
governing bodies, or a tribal organization.'' However, in order to be 
consistent with 34 CFR 75.128 and Sec.  371.2(a)(1), Sec.  371.2(a)(3) 
must recognize that grants cannot go to a consortium itself but must go 
to a tribal governing body or a tribal organization on behalf of the 
consortium.
    Changes: We have revised final Sec.  371.2(a)(3) to reflect that 
grants are made to ``the governing body of an Indian tribe, either on 
its own behalf or on behalf of a consortium, or to a tribal 
organization. . . .''

Who Is Eligible To Receive Services (Sec.  371.3)

    Comment: A few commenters expressed concern about providing 
services to descendants of Alaska Natives. They asked about who 
determines their tribal membership and how those services would be 
funded.
    Discussion: Section 371.3 implements the statutory authorization in 
section 121(a) of the Act that makes American Indians with disabilities 
who reside on or near reservations eligible for services under AIVRS. 
WIOA amended Section 7(19)(A) to include within the definition of 
``American Indian'' a ``Native and a descendant of a Native as such 
terms are defined in subsections (b) and (r) of section 3 of the Alaska 
Native Claims

[[Page 55571]]

Settlement Act (ANCSA), 43 U.S.C. 1602.''
    ``Native'' is defined in subsection (b) of section 3 of ANCSA as a 
citizen of the United States who is a person of one-fourth degree or 
more Alaska Indian (including Tsimshian Indians not enrolled in the 
Metlakatla Indian Community) Eskimo, or Aleut blood, or combination 
thereof. The term includes any Native as so defined either or both of 
whose adoptive parents are not Natives. It also includes, in the 
absence of proof of a minimum blood quantum, any citizen of the United 
States who is regarded as an Alaska Native by the Native village or 
Native group of which he claims to be a member and whose father or 
mother is (or, if deceased, was) regarded as Native by any village or 
group. Alaska native villages and regional village corporations are 
included in the Rehabilitation Act's definition of ``Indian tribe,'' 
and Alaska Natives are their members.
    ``Descendant of a Native'' is defined in subsection (r) in section 
3 of ANCSA as--
    (1) A lineal descendant of a Native or of an individual who would 
have been a Native if such individual were alive on December 18, 1971, 
or
    (2) An adoptee of a Native or of a descendant of a Native, whose 
adoption--
    (A) Occurred prior to his or her majority,
    and
    (B) Is recognized at law or in equity.
    We understand the essence of the commenters' concern to be that the 
Act makes descendants of natives eligible for services under AIVRS, but 
not all descendants of natives are members of their parents' native 
corporations or tribes, potentially resulting in AIVRS projects 
providing services to non-tribal members. However, the Act does not 
require tribes to make any determination about the membership status of 
those eligible; it merely prescribes the pool of individuals eligible 
for services funded by Federal money. While this change in the American 
Indians with disabilities eligible for services may increase the number 
of consumers seeking services, we do not believe it will be such a 
substantial increase that the affected AIVRS projects cannot absorb it.
    Changes: None.

Definitions of ``Competitive Integrated Employment,'' ``Employment 
Outcome,'' and ``Subsistence'' (Sec.  371.6)

    Comments: Some commenters expressed strong support for the 
definitions of ``competitive integrated employment,'' ``employment 
outcome,'' and ``subsistence'' in Sec.  371.6. Several commenters 
recommended that the Secretary continue to recognize homemaker and 
unpaid family worker outcomes as appropriate vocational outcomes for 
purposes of the AIVRS program.
    Alternatively, a few commenters suggested that we include homemaker 
and unpaid family worker outcomes within the definition of 
``subsistence.'' One commenter recommended that we include a note in 
the definition of ``employment outcome'' that subsistence occupations 
are approved employment outcomes. Another commenter asked if we intend 
that the definition of ``subsistence'' apply only to individuals served 
through the AIVRS program or if it applies to all individuals served 
through the VR program, including those individuals who live in rural 
areas where few opportunities for competitive integrated employment 
exist. This commenter also asked if we propose any limits on hobby-type 
activities as self-employment outcomes.
    One commenter requested that we clarify the meaning of ``culturally 
appropriate'' as used in the definition of ``subsistence'' and the 
preamble to the NPRM covering the VR program regulations by providing 
examples.
    Finally, one commenter recommended that we standardize the 
definition of ``competitive integrated employment'' in Sec.  371.6 with 
the definition of that term in 34 CFR 361.5(c)(9) for the State 
Vocational Rehabilitation (VR) Services program, noting that the two 
definitions vary in some technical respects.
    In light of the interrelationship between the terms ``competitive 
integrated employment,'' ``employment outcome,'' and ``subsistence,'' 
we address the comments on these definitions together.
    Discussion: We appreciate the support expressed by the commenters. 
We believe that consistency in interpretation and implementation of the 
regulations governing the AIVRS and VR programs is essential given the 
large number of American Indians and Alaskan Natives with disabilities 
who are eligible for services from both programs, some of whom may be 
served by the programs sequentially or even simultaneously.
    This is imperative for the definition of ``employment outcome,'' 
which is the basis for services provided by both programs. As explained 
in more detail in the final regulations governing the VR program 
published elsewhere in this issue of the Federal Register, we have 
eliminated uncompensated outcomes, including homemaker and unpaid 
family worker outcomes, from the scope of the definition of 
``employment outcome'' in 34 CFR 361.5(c)(15). Although section 7(5) of 
the Act, as amended by WIOA, permits the Secretary to include within 
this definition other appropriate vocational outcomes, the Secretary 
must exercise this discretion in a manner consistent with the Act.
    Because of the extensive emphasis on competitive integrated 
employment throughout the Act, as amended by WIOA, it is no longer 
consistent with the Act to include uncompensated outcomes within the 
scope of the definition of ``employment outcome.'' Because we believe 
it is necessary to implement the term consistently under both the VR 
and AIVRS programs, we cannot include homemaker and unpaid family 
worker outcomes within the scope of the definition of ``employment 
outcome'' solely for the purposes of the AIVRS program as the 
commenters requested. For these reasons also, we disagree with the 
recommendation to include homemaker and unpaid family worker outcomes 
within the definition of ``subsistence'' in Sec.  371.6, which is 
defined as a form of self-employment and, thus, considered an allowable 
employment outcome under both the AIVRS and VR programs.
    We define ``subsistence'' in Sec.  371.6 for purposes of the AIVRS 
program to mean a form of self-employment in which individuals use 
culturally relevant or traditional methods to produce goods or services 
for household consumption or non-commercial barter and trade that 
constitute an important basis for the individual's livelihood. The 
definition of ``employment outcome'' in 34 CFR 361.5(c)(15) encompasses 
all forms of competitive integrated employment and specifically 
mentions self-employment. Because we consider subsistence occupations 
to be a form of self-employment, these occupations are already within 
the scope of the definition of ``employment outcome,'' and it is not 
necessary to revise the definition to refer specifically to subsistence 
as recommended by the commenters.
    To ensure consistency in the interpretation of ``competitive 
integrated employment'' under both the VR and the AIVRS programs, we 
stated in the preamble to the NPRM for the VR program that we 
understand subsistence employment as a form of self-employment common 
to cultures of many American Indian tribes (see NPRM, State Vocational 
Rehabilitation Services Program, Supported Employment Services Program, 
and

[[Page 55572]]

Limitations on the Use of Subminimum Wage, 80 FR 21059, April 16, 
2015). We do not intend that statement, or the inclusion of the 
definition of ``subsistence'' only in Sec.  371.6, to limit services 
designed to assist individuals to achieve subsistence occupations to 
those served through the AIVRS program.
    In addition, while we believe that subsistence occupations are most 
culturally relevant to American Indian and Alaskan Native tribes, we 
recognize that individuals may engage in traditional occupations in 
other native cultures. Thus, DSUs may find it appropriate to assist 
individuals from cultures other than American Indian and Alaskan Native 
tribes, such as individuals living in the Territories, to achieve self-
employment in subsistence occupations. However, because the definition 
of ``subsistence'' in Sec.  371.6 requires that the subsistence 
occupation be culturally relevant to the individual, we decline to 
extend the applicability of subsistence occupations to other 
individuals solely on the basis of their location in rural areas, even 
though there may be few opportunities for competitive integrated 
employment in those areas. Examples of subsistence occupations that are 
culturally relevant to American Indian or Alaskan Native tribes can 
include the exchange of fish caught, or grain raised, by the individual 
with the disability for other goods produced by other members of the 
tribe that are needed by the individual to live and maintain his or her 
home. Given, however, the large number of American Indian tribes, 
including Alaskan Native villages and regional corporations, and their 
widely varying cultural practices, any list of further examples of 
culturally relevant practices would also be incomplete and may exclude 
cultural practices that are unique to some tribes.
    Since the definition of ``subsistence'' in Sec.  371.6 requires 
that the activity be important to the individual's livelihood, AIVRS 
grantees cannot provide services to enable individuals to engage in 
mere hobbies, as hobbies do not meet the criteria for self-employment 
as an employment outcome.
    Finally, to avoid any misperception that the definitions of 
``competitive integrated employment'' in 34 CFR 361.5(c)(9) pertaining 
to the VR program and that in Sec.  371.6 applicable to the AIVRS 
program differ based on the lack of technical consistency, we have made 
the definitions identical.
    Changes: We have made the definition of ``competitive integrated 
employment'' in final Sec.  371.6 consistent with the definition of 
that term in 34 CFR 361.5(c)(9) by making technical changes.

Definition of ``Supported Employment'' (Sec.  371.6)

    Comment: One commenter noted that the definition of ``supported 
employment'' in the Act no longer includes ``transitional employment 
for individuals with mental illness'' and recommended that we remove 
reference to this type of employment from the definition of ``supported 
employment.''
    Discussion: Many other organizations and individuals submitted 
comments, in addition to the one comment discussed here submitted in 
connection with the AIVRS regulations, on the definition of ``supported 
employment'' in the proposed State VR regulation, 34 CFR 361.5(c)(53). 
We discuss all of these comments in detail in the final rule amending 
34 CFR 363, published elsewhere in this issue of the Federal Register. 
As a result of those comments, we have removed the reference to 
``transitional employment'' from the definition of ``supported 
employment'' in Sec.  361.5(c)(53) and have made other conforming 
changes to the definition of ``supported employment'' in Sec.  371.6 so 
that it is consistent with the definition in Sec.  361.5(c)(53).
    Changes: We have revised the definition of ``supported employment'' 
in final Sec.  371.6 so that it is substantively identical to the 
definition of that term in Sec.  361.5(c)(53). The only difference 
between the two definitions is that where Sec.  361.5(c)(53) refers to 
a ``Designated State Unit,'' the service provider under the State VR 
program, the definition in Sec.  371.6 refers to the ``Tribal 
Vocational Rehabilitation Unit,'' the appropriate term for the service 
provider under AIVRS.

Pre-Employment Transition Services and Coordination With AIVRS Projects 
(34 CFR 361.48(a), 34 CFR 361.24(d), and 34 CFR 361.65)

    Comment: Some commenters recommended that State VR agencies be 
required to include in their formal interagency agreements with AIVRS 
projects and to address in agreements with Tribal Education Agencies in 
the State how the State VR agency plans to provide equitable pre-
employment transition services to American Indian students and American 
Indian youth with disabilities and how services to American Indian 
students with disabilities will be incorporated into the budgeting and 
spending plans for the State's 15% set aside for transition of students 
with disabilities.
    Discussion: We note at the outset that only American Indian 
students with disabilities, rather than American Indian youth with 
disabilities, are eligible for pre-employment transitions services, as 
explained in more detail in the discussion of comments on 34 CFR 
361.48(a) in the final rule amending part 361 published elsewhere in 
this issue of the Federal Register. While we understand the commenters' 
concerns regarding the need to ensure that coordination among the DSU, 
AIVRS program, and educational agencies is taking place and that 
transition services, including pre-employment transition services, are 
provided to American Indian students with disabilities, the Department 
believes that the final regulations in part 361 accomplish this. The 
final regulation at 34 CFR 361.24 addresses the need for coordination 
among these entities and for providing transition services to American 
Indians living on or near a reservation. Section 361.24(d)(1) requires 
the VR services portion of the Unified or Combined State Plan to 
include a formal cooperative agreement with AIVRS programs. Section 
361.24(d)(2) sets out requirements for that cooperative agreement, and 
those include strategies for providing transition planning under Sec.  
361.24(d)(2)(iii). Furthermore, the Federal funds reserved in 
accordance with 34 CFR 361.65, and any funds made available from State, 
local, or private funding sources, are to be used to provide pre-
employment transition services to all students with disabilities, 
including American Indian students with disabilities, in need of such 
services. We also discuss comments on these sections in more detail in 
the final rule amending 34 CFR part 361 published elsewhere in this 
issue of the Federal Register.
    Changes: None.

Definition of ``Transition Services'' (34 CFR 361.5(c)(55) and 371.6)

    Comments: None.
    Discussion: We have made changes to the definition of ``transition 
services'' in final Sec.  371.6 to make it consistent with the 
definition of that term in final 34 CFR 361.5(c)(55) for purposes of 
the AIVRS program. Specifically, we revised the definition to clarify 
that it applies to students and youth with disabilities and includes 
outreach to parents, or, if appropriate, representatives of the student 
or youth.
    Changes: We have revised the final Sec.  371.6 so that the 
definition of ``transition services'' is consistent with the definition 
of the term in final 34 CFR 361.5(c)(55).

[[Page 55573]]

Evaluation of an Application for a Training and Technical Assistance 
Award (Sec.  371.14(b))

    Comment: A number of commenters recommended that, for a training 
and technical assistance award, the Secretary make mandatory a 10-point 
competitive preference priority for applications that include as 
project personnel in a substantive role individuals who have been 
employed by a tribal VR unit as a project director or VR counselor.
    Discussion: While we believe that this competitive preference 
priority in final Sec.  371.14(b) should be available to the Secretary 
to implement the training and technical assistance requirement of 
section 121(c)(2) of the Act, we disagree with the commenters that the 
priority should be mandatory and that it should always be worth 10 
points. When appropriate to an AIVRS training and technical assistance 
competition, we will publish this competitive preference priority, and 
its point value, in the notice inviting applications for the 
competition.
    Changes: None.

How does the Secretary evaluate an application? (Sec.  371.14(c))

    Comments: None.
    Discussion: When WIOA added a training and technical assistance 
authority to the AIVRS program, it gave the Secretary the ability to 
make awards by grant, cooperative agreement or contract. Since the 
Department generally makes these awards by grants using the procedures 
in part 75, which uses the peer review process identified in the 
statute, we added a subsection to the NPRM that provided that the 
Secretary would use the procedures in part 75, even when awarding a 
contract. However, upon further reflection, we have determined that 
there may be circumstances when the Department has an amount of funds 
that is too small to compete but could be used to support a contract 
consistent with the training and technical assistance authority, in the 
form of a task order or modification under an existing Department 
contract for example, in which case, the Department would not want to 
use the grant processes in part 75. Therefore, we have determined that 
it is more appropriate to change the language in this subsection to 
give the Secretary the authority to use part 75 if awarding a contract, 
where the Secretary determines it is appropriate but not require its 
use.
    Changes: We have revised final Sec.  371.14(c) to give the 
Secretary the discretion to conduct the application process and make 
the subsequent award in accordance with 34 CFR part 75, but not require 
it.

What other factors does the Secretary consider in reviewing an 
application? (Sec.  371.32)

    Comment: A number of commenters recommended that, in addition to 
the competitive preference priority for the training and technical 
assistance award in Sec.  371.14(b), the Secretary also make mandatory 
a 10-point competitive preference priority for applications for the 
AIVRS program that include as project personnel in a substantive role 
individuals who have been employed by a tribal VR unit as a project 
director or VR counselor.
    Discussion: We do not believe that this competitive preference is 
appropriate for the AIVRS program, whereas it is appropriate for the 
training and technical assistance program. While the quality of the 
project personnel is part of the selection criteria for both projects, 
the training and technical assistance applicants generally have a 
primary background in providing training, not necessarily VR services 
or VR services to American Indians. The competitive preference for 
training and technical assistance is a way to encourage applicants to 
consider personnel who have a background in the appropriate training 
and familiarity with the community that will be receiving the technical 
assistance. By contrast, the AIVRS projects require personnel with 
experience in tribal VR services.
    We do think, however, that this regulatory section should include a 
provision implementing the statutory requirement to give priority 
consideration to applications for the continuation of programs that 
have been funded under section 121. Although the Department has 
implemented this statutory requirement through its notices inviting 
applications, we believe it is appropriate to have a corresponding 
regulatory provision for the statutory requirement.
    Changes: We have added final Sec.  371.32(b), which provides that 
the Secretary may award a competitive preference to applications for 
the continuation of programs that have previously been funded under 
this program.

Stipends

    Comment: One commenter stated that tribal vocational rehabilitation 
programs should be able to pay a stipend for on-the-job training and 
work experiences as is done under the State VR program.
    Discussion: On-the-job training (OJT) and other work experiences 
(e.g. internships) are allowable vocational rehabilitation services for 
individuals under the State VR program (34 CFR 361.48(b)(6)) and the 
definition section of the AIVRS program regulations (final Sec.  
371.6(b)). A VR agency or AIVRS project may provide paid work 
experiences, such as OJT and internships, as a VR service so long as 
the agency determines that it is necessary for the individual to 
achieve an employment outcome. In all instances, the VR agency 
purchases goods or a service that benefit the consumer. Since the work 
experience is considered the goods or service, the VR agency 
``purchases'' it from the employer and reimbursement is provided to 
employers for these paid work experiences. This is typically done 
through a contract between the vocational rehabilitation program and an 
employer under which funds may be included that would assist the 
employer in providing compensation to the trainee.
    Changes: None.

What are the special requirements pertaining to the protection, use, 
and release of personal information? (Sec.  371.44)

    Comments: None.
    Discussion: We anticipate that other Federal and State agencies, 
and researchers will have an increased interest in using the data 
required to be collected by programs established under the Act, 
including the AIVRS program. Therefore, after further departmental 
review, we have strengthened the protection of the confidentiality of 
personal information collected by the AIVRS program by requiring in 
final Sec.  371.44 that Tribal Vocational Rehabilitation units enter 
into written agreements with any entity seeking access to this 
information for the purpose of audits, evaluations, research, or for 
other program purposes. This change is consistent with revisions to 
final 34 CFR 361.38 governing the protection of confidentiality of 
personal information collected by the VR program.
    Changes: We have revised final Sec.  371.44(a), (d), and (e)(1) by 
requiring that Tribal Vocational Rehabilitation units enter into 
written agreements with other organizations and entities receiving 
personal AIVRS program information during the conduct of audits, 
evaluations, research, and for other program purposes.

[[Page 55574]]

Rehabilitation National Activities Program, 34 CFR Part 373

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 20998 through 
20999 the major changes proposed to part 373 implementing the 
amendments to the Rehabilitation National Activities Program made by 
WIOA. These include: (1) A new name for the program--the Rehabilitation 
National Activities Program--that better describes the broad nature of 
the types of activities that may be funded under this authority; (2) as 
appropriate, the addition of a definition of ``vocational 
rehabilitation services'' and the replacement of the term 
``rehabilitation services'' with ``vocational rehabilitation 
services;'' (3) the addition of two new statutory priorities pertaining 
to transition from education to employment and competitive integrated 
employment; and (4) the addition of four priorities to address the 
technical assistance and training needs of State vocational 
rehabilitation agencies and their personnel.
    In addition to minor editorial and technical revisions, there is 
one difference between the NPRM and these final regulations. In final 
Sec.  373.4, we added a paragraph (3) to the definition of ``early 
intervention'' that lists individuals receiving disability benefits 
from an employer's disability insurance policy.
    Public Comment: In response to our invitation in the NPRM, four 
parties submitted comments on the proposed regulations amending the 
Rehabilitation National Activities Program (part 373). We set out our 
analysis by section.

Sec.  373.4 Definitions, Early Intervention

    Comment: One commenter noted that people with emerging disabilities 
or disabilities that have increased in severity are among those most at 
risk for loss of employment. For these people, entering onto an 
employer's disability insurance plan is often the first step to public 
disability benefits. The commenter therefore recommended that we add 
this population to the list of example populations in the definition of 
``early intervention'' in proposed Sec.  373.4 that may receive early 
intervention services.
    Discussion: We agree with the commenter. As the populations listed 
in the definition are illustrative and not exclusive, we believe it is 
appropriate to call attention to this at-risk population.
    Change: We add a new paragraph (3) to the definition of ``early 
intervention'' that lists individuals receiving disability benefits 
from an employer's disability insurance policy.

Sec.  373.4 Definitions, ``Individual With a Disability''

    Comment: One commenter suggested updating the definition of 
``Individual with a Disability'' to follow 2008 statutory changes in 
the Americans With Disabilities Act.
    Discussion: This definition is based upon the definition in section 
7 of the Act and thus cannot be changed to conform to a definition in 
another statute.
    Changes: None.

Protection and Advocacy of Individual Rights Program (PAIR), 34 CFR 
Part 381

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 20999 through 
21001 the major changes proposed to part 381 that would implement the 
amendments to the PAIR program made by WIOA and WIA. With regard to the 
statutory changes made to section 509 by WIA, we proposed adding the 
protection and advocacy system serving the American Indian Consortium 
as an entity eligible to receive a PAIR grant.
    With regard to statutory changes made to section 509 by WIOA, we 
proposed: (1) Clarifying that PAIR grantees have the same general 
authorities, including to access records and program income, as the 
protection and advocacy system established under the Developmental 
Disabilities Assistance and Bill of Rights Act of 2000; and (2) 
clarifying that the Secretary may award funds for the provision of 
training and technical assistance for PAIR grantees through a grant, 
contract, or cooperative agreement.
    There are no differences between the NPRM and these final 
regulations, except that, as a result of further Departmental review, 
we clarify in final Sec.  381.33(e) requirements governing the use of 
program income.
    Public Comment: In response to our invitation in the NPRM, three 
parties submitted comments on the proposed regulations amending the 
PAIR program (part 381). In general, these commenters support the 
proposed regulations. We provide an analysis of public comments by 
subject and section only for the regulation about which we received a 
request for clarification. In addition, we provide an explanation of 
the clarification in final Sec.  381.33(e) about the use of program 
income.

Access to Records (Sec.  381.10)

    Comments: A few commenters supported the proposed changes to this 
section that PAIR grantees have the same authority to access records as 
the protection and advocacy system established under the Developmental 
Disabilities Assistance and Bill of Rights Act of 2000. However, one 
commenter recommended further clarifying when PAIR grantees can 
exercise this access authority by including specific examples. The 
commenter noted that, while this access authority has been challenged 
in the States, PAIR grantees ultimately have been successful in 
exercising this authority.
    Discussion: We appreciate the comments supporting this regulation. 
We disagree with the comment requesting that we further clarify the 
circumstances in which PAIR grantees can exercise their authority to 
access records by including examples in the regulation. As stated in 
the NPRM, the change is technical in nature as this long-standing 
authority existed prior to enactment of WIA or WIOA.
    Therefore, we believe the proposed regulation was clear that PAIR 
grantees, as part of the protection and advocacy system, have the same 
authority to access records provided for under the Developmental 
Disabilities Assistance and Bill of Rights Act of 2000. For this 
reason, we believe these final regulations are consistent with the 
statute and no further change is warranted.
    Change: None.

Program Income (Sec.  381.33(e))

    Comments: None.
    Discussion: In further reviewing the interplay between Sec.  
381.33(e) and 2 CFR 200.305, the Department has determined additional 
clarification is necessary in final Sec.  381.33(e), particularly with 
regard to the use of available program income.
    There has been a long-standing government-wide requirement under 
the common rule implementing former OMB Circular A-102, and the former 
OMB guidance in Circular A-110, as codified by the Department at former 
34 CFR 80.21(f)(2) and 74.22(g), respectively, that non-Federal 
grantees must expend program income prior to drawing down Federal grant 
funds. The Uniform Guidance, codified at 2 CFR part 200, was adopted by 
the Department at 2 CFR part 3474 on December 19, 2014 (79 FR 76091) 
and applies to all new and continuing awards made after December 26, 
2014.
    The new 2 CFR 200.305 specifies the payment procedures that non-
Federal entities must use to draw down Federal funds; however, 2 CFR 
200.305(a), which applies to State agencies, does not address whether 
designated

[[Page 55575]]

agencies that are State agencies should expend available program income 
funds before drawing down Federal funds, as had been the long-standing 
government-wide requirement under OMB Circulars A-102 and A-110.
    This silence creates concern because 2 CFR 200.305(b)(5), which 
appears to apply to non-Federal entities other than States, requires 
that those entities expend available program income funds before 
requesting payments of Federal funds. While the silence in 2 CFR 
200.305(a) creates an unintended ambiguity, we do not believe that this 
ambiguity should be construed to change the prior rule and remove the 
requirement that State agencies must expend program income funds before 
requesting additional Federal cash. No such policy change was discussed 
in the preambles to either the OMB final guidance in 2 CFR part 200, 
which was published on December 26, 2013 (78 FR 78589), or in the 
Interim Final Guidance published on December 19, 2014 (79 FR 75867).
    Therefore, we believe it is essential that we resolve this 
unintended ambiguity here. To that end, we have amended Sec.  381.33(e) 
in these final regulations to make clear that all designated agencies, 
regardless of their organizational structure, must expend program 
income before drawing down Federal funds. In so doing, we have revised 
final Sec.  381.33(e)(2)(ii) to explicitly require PAIR grantees to 
expend available program income funds before requesting additional cash 
payments, as was the long-standing requirement under former 34 CFR 
74.22(g) and 80.21(f)(2).
    We believe this change is essential to protect the Federal interest 
by using program income to increase the funds devoted to the PAIR 
program and keeping to a minimum the interest costs to the Federal 
government of making grant funds available to the designated agencies. 
This change should not negatively affect designated agencies that are 
State agencies because this change merely maintains the status quo that 
existed under 34 CFR 80.21(f)(2).
    We also have revised final Sec.  381.33(e)(2) by requiring PAIR 
grantees to use program income only to supplement the PAIR grant. Upon 
closer examination of the grant formula set forth in the statute, we 
have concluded that the use of the deduction method would, in effect, 
result in a reduction of a PAIR's grant allotment. Absent specific 
statutory authority, such reductions would be inconsistent with the 
statute and general appropriations law principles. In reviewing the 
grantees' financial reports, we have found that very few, if any, 
designated agencies elect to use the deduction method. Instead, most, 
if not all, grantees elect to use the addition method, which is still 
permissible and, in fact, will be the only permissible use of program 
income under the PAIR program final regulations. We do not believe this 
change will negatively affect any grantee.
    Changes: We have revised final Sec.  381.33(e)(2) to permit 
grantees to use program income only to supplement their PAIR grant and 
removed all references to the deduction method. We have also added a 
new Sec.  381.33(e)(2)(ii) to make clear that all designated agencies 
must disburse program income prior to drawing down Federal funds or, as 
stated in 2 CFR 200.305(b)(5), before ``requesting additional cash 
payments.'' Finally, we have made other technical and conforming edits 
in final Sec.  381.33.

Rehabilitation Training Program, 34 CFR Part 385

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 21001 through 
21002 the major changes proposed to part 385 implementing the 
amendments to the Rehabilitation Training Program made by WIOA. These 
include: (1) Adding supported employment and economic and business 
development programs to the list of programs that may benefit 
individuals with disabilities; (2) emphasizing the importance of 
maintaining and upgrading the skills of personnel who provide supported 
employment services and customized employment services to individuals 
with the most significant disabilities, as well as personnel assisting 
individuals with disabilities whose employment outcome is self-
employment, business ownership, or telecommuting; (3) adding a 
definition of ``vocational rehabilitation services'' and replacing the 
term ``rehabilitation services'' with ``vocational rehabilitation 
services'' as appropriate; and (4) adding definitions of ``supported 
employment'' and ``assistive technology'' consistent with definitions 
in title I of the Act.
    Except for minor editorial and technical revisions, there are no 
differences between the NPRM and these final regulations.
    Public Comment: In response to our invitation in the NPRM, four 
parties submitted comments on the proposed regulations amending the 
Rehabilitation Training Program (part 385). We provide our analysis by 
subject.

General

    Comment: One commenter recommended a requirement that training 
program personnel consult with small business development centers. This 
commenter also recommended a requirement that training programs consult 
with workforce board business representatives about effective 
telecommuting and entrepreneurship practices in their area.
    Discussion: We agree that training personnel should consult with 
other professionals knowledgeable about small business development, 
since self-employment is an excellent employment option for some 
individuals with disabilities. For the same reason, we agree that 
consultation about telecommuting and entrepreneurship is appropriate. 
Nothing in the proposed regulations would preclude training programs or 
their personnel from consulting as the commenter recommends, but 
requiring this consultation is potentially burdensome and unnecessary.
    Changes: None.

Sec.  385.4 Definitions, ``Individual with a Disability''

    Comment: One commenter suggested updating the definition of 
``Individual with a Disability'' to align it with 2008 statutory 
changes in the Americans With Disabilities Act.
    Discussion: This definition is based upon the definition in section 
7 of the Act and thus cannot be changed to conform to a definition in 
another statute.
    Changes: None.

Rehabilitation Long-Term Training Program, 34 CFR Part 386

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 21002 through 
21006 the major changes proposed to part 386 implementing the 
amendments to the Rehabilitation Long-Term Training program made by 
WIOA, as well as those changes needed to update and improve the 
regulations. We proposed: (1) adding two areas to the training areas 
supported by this program (assisting and supporting individuals with 
disabilities pursuing self-employment, business ownership, and 
telecommuting; and supported employment services and customized 
employment services to individuals with the most significant 
disabilities); (2) reducing from 75 percent to 65 percent the required 
percentage of the total award that grantees must spend on financial 
assistance to scholars; (3) prohibiting scholars from concurrently

[[Page 55576]]

receiving financial assistance from multiple grants; and (4) requiring 
the grantee to document that the scholar will seek employment in the 
field of study in which the scholar was trained or where the field of 
study is directly relevant to the job functions being performed.
    We also proposed a number of changes to the exit processes that 
will help scholars be more aware of the requirements of their service 
obligation, including: (1) setting out the consequences for a grantee 
that has failed to request or maintain the required documentation for a 
scholar who does not meet the service obligation; (2) allowing some 
scholars to start satisfying the service obligation before completion 
of the program of study but to prohibit other scholars who do not 
complete the program of study from performing the service obligation; 
and (3) disallowing internships, practicums, or any other work-related 
requirement necessary to complete the educational program as qualifying 
employment for the service obligation.
    Finally, we proposed some changes regarding deferrals and 
exceptions. For an exception based on disability, the scholar must have 
a disability either that did not exist at the time the scholar entered 
the program or that has worsened since the scholar entered the program. 
The documentation of disability must be less than three months old. 
With regard to deferrals, the proposed changes included: (1) allowing 
for up to four years deferral for a member on active duty in the Armed 
Forces, an increase from the three years in prior regulations; and (2) 
restricting a deferral based on a scholar's pursuing higher education 
only to advanced education that is in the rehabilitation field.
    There are four differences between the NPRM and these final 
regulations.
     We clarify in final Sec.  386.20(b)(2)(iii) that the 
selection criterion applies only to those programs that require 
practica and field experiences as part of their curricula.
     To clarify allowable travel costs, we conform the language 
about student travel in final Sec.  386.32(d) to the language of 
student travel in the definition of ``scholarship'' in final Sec.  
386.4.
     In final Sec.  386.31(c), we clarify the prohibition on 
concurrent scholarships by setting out the grantee's obligation to make 
a good-faith effort to avoid awarding a scholarship to any scholar who 
is currently receiving another scholarship under this program.
     We further clarify the prohibition on concurrent 
scholarships by adding a new Sec.  386.40(a)(4) stating that scholars 
are prohibited from receiving concurrent scholarships under this 
program.
    Public Comment: In response to our invitation in the NPRM, four 
parties submitted comments on the proposed regulations amending the 
Rehabilitation Long-Term Training program (part 386). We organize our 
discussion by section number.

Sec.  386.20 Selection Criteria

    Comment: One commenter stated that the selection criterion in 
proposed Sec.  386.20(b)(2)(iii), evidence of focused practical and 
other field experiences, could not by its terms apply to short-term 
certificate programs that do not require practica or field experiences.
    Discussion: We agree that the language in Sec.  386.20(b)(2)(iii) 
is potentially unclear in this way.
    Change: We have revised final Sec.  386.20(b)(2)(iii) to state that 
evidence of focused practical and other field experiences is not 
required when those experiences are not part of the curricula of a 
short-term certificate program.

Sec.  386.31 Grant Funds

    Comment: One commenter raised concerns about the provision in 
proposed Sec.  386.31(c) that prohibits a scholar from receiving 
concurrent scholarships from multiple projects, noting that this could 
inadvertently bar students from certificate areas that could increase 
their employability. The prohibition could, for example, bar a scholar 
on summer break from a program leading to a master's degree from 
receiving a scholarship to participate in a certificate program.
    Discussion: The prohibition in Sec.  386.31(c) was intended to 
prevent the practice of funding scholars from multiple grants for the 
same academic term. This practice leads to complications in reporting 
and in accurately tracking whether the scholar is meeting the service 
obligation.
    The provision at final 386.31(c) does not prohibit a scholar from 
receiving a scholarship for a summer certificate program while that 
scholar is in a master's degree supported by a scholarship under this 
program, so long as the scholar is not also enrolled in the master's 
degree program during the summer.
    Changes: Because final Sec.  386.31(c) describes grantee 
responsibilities, we have reworded the provision to better reflect the 
intent behind it--that the grantee must make good faith efforts to 
ensure that concurrent scholarships under this program are not awarded 
to a scholar. In addition, in order to ensure that scholars understand 
their responsibilities, we have added a provision under final Sec.  
386.40(a)(4) that sets out the scholar's responsibility not to accept 
concurrent scholarships under this program and clarified that this 
prohibition applies to scholarships for the same academic term.

Sec.  386.32 Allowable Costs

    Comment: One commenter requested that limited travel to 
professional conferences be explicitly listed in Sec.  386.32 as an 
allowable cost. The commenter pointed out that, in the past, grantees 
have been able to support scholars in this way.
    Discussion: We agree that limited travel to professional 
conferences has been, and should continue to be, an allowable cost. 
Section 386.4 defines ``scholarship,'' in part, as an award of 
financial assistance to a scholar for training and includes student 
travel in conjunction with training assignments. Limited travel to 
professional conferences would generally be allowable under this 
description.
    Change: We modified final Sec.  386.32(d) to use this language and 
make clear that limited travel to professional conferences is an 
allowable cost.

Sec.  386.33 Requirements for Grantees

    Comment: One commenter stated that the requirement in proposed 
Sec.  386.33(c)(2), that a scholar's job functions be ``directly 
relevant'' to the field of study in which his or her training was 
received, is potentially ambiguous and difficult to apply. The 
commenter noted, for example, that many States do not have a job 
category of Rehabilitation Counselor for the Deaf. A person might 
graduate from a deafness training program but get a job as a generalist 
and still see deaf, hard of hearing, and general caseload customers. It 
is unclear if this job is ``directly relevant'' to the scholar's field 
of study.
    Discussion: We agree with the commenter that decisions about the 
relationship between a scholar's training and eventual employment are 
complex and that decisions about whether the employment qualifies to 
repay the service obligation need to be made case-by-case. The proposed 
Sec.  386.33 was our effort to address this issue. We believe this 
language provides the necessary flexibility for sometimes difficult 
case-by-case analyses. For example, an individual graduating from a 
program focused on rehabilitation of individuals who are deaf but who 
ultimately finds employment as a general VR counselor has job functions 
``directly relevant'' to his or her field of study. The individual

[[Page 55577]]

is providing services for which he or she was specifically trained, 
and, as a practical matter, it is unrealistic in this case to expect 
all consumers served to be deaf.
    Changes: None.

Sec.  386.43 Failure To Meet Terms and Conditions of the Scholarship 
Agreement

    Comment: One commenter sought clarification about calculating the 
date in which repayment status begins under proposed Sec.  
386.43(e)(2). The commenter referred to a situation in which the grace 
period has ended but a scholar finds qualifying employment only several 
months later, asking specifically whether the scholar enters repayment 
immediately upon expiration or whether it is possible to be granted an 
extension in order to complete the service obligation.
    Discussion: According to final Sec.  386.43(e)(2), a scholar enters 
into repayment status when the failure to enter into employment makes 
it impossible for that scholar to complete the employment obligation 
within the number of years required in final Sec.  386.40(a)(8). Given 
that a scholar who has not entered into qualifying employment at the 
time the grace period has ended cannot satisfy the requirements in 
final Sec.  386.40(a)(8), the scholar referenced above by the commenter 
would immediately be placed in repayment status once the grace period 
has ended. The Secretary has no explicit authority to grant an 
extension of time to this scholar based solely upon the failure to 
complete the service obligation by the time the grace period has ended. 
Section 386.41(c), however, allows the Secretary to grant a deferral of 
the repayment requirement under limited circumstances and based upon 
credible evidence submitted on behalf of the scholar. There is nothing 
in this provision that would prohibit the Secretary from considering 
the granting of a deferral of the repayment requirement for scholars 
that need only a limited amount of extra time to satisfy the service 
obligation.
    Changes: None.

Innovative Rehabilitation Training Program, 34 CFR Part 387

Summary of Changes

    In the preamble of the NPRM, we discussed on pages 21006 through 
21007 the major changes proposed to part 387 implementing the 
amendments to the Innovative Rehabilitation Training program made by 
WIOA. These include: (1) Adopting a new name for the program--
Innovative Rehabilitation Training--that better describes the nature of 
activities to be funded under this authority; (2) clarifying that the 
Secretary may award grants to develop new and improved methods of 
training not only for the rehabilitation personnel of State vocational 
rehabilitation agencies, but also for rehabilitation personnel of other 
public or non-profit rehabilitation service agencies or organizations; 
and (3) addressing new statutory language in section 101(a)(7) of the 
Act related to rehabilitation personnel having a 21st century 
understanding of the evolving labor force and the needs of individuals 
with disabilities so they can more effectively provide vocational 
rehabilitation services to individuals with disabilities.
    There are no differences between the NPRM and these final 
regulations.
    Public Comment: In response to our invitation in the NPRM, no 
parties submitted comments on the proposed regulations amending the 
Innovative Rehabilitation Training program (part 387).

Rehabilitation Short-Term Training Program, 34 CFR Part 390

Summary of Changes

    In the preamble of the NPRM, we discussed on page 21007 the major 
change proposed to part 390 needed to improve the Rehabilitation Short-
Term Training program. In the NPRM, we proposed to add an additional 
selection criterion for grant competitions under this program--evidence 
of training needs as identified through training needs assessment.
    There are no differences between the NPRM and these final 
regulations.
    Public Comment: In response to our invitation in the NPRM, no 
parties submitted comments on the proposed regulation amending the 
Rehabilitation Short-Term Training program (part 390).

Training of Interpreters for Individuals Who are Deaf or Hard of 
Hearing and Individuals Who are Deaf-Blind, 34 CFR Part 396

Summary of Proposed Changes

    In the preamble of the NPRM, we discussed on pages 21007 through 
21009 the major changes proposed in part 396 implementing the 
amendments to the Training of Interpreters for Individuals Who Are Deaf 
or Hard of Hearing and Individuals Who Are Deaf-Blind program, as well 
as changes needed to improve the program. These included: (1) Adding 
individuals who are hard of hearing to the individuals served by this 
program; (2) amending the regulations to ensure that the program 
accurately reflects the training needs of qualified interpreters in 
order to effectively meet the communication needs of individuals who 
are deaf or hard of hearing and individuals who are deaf-blind; (3) 
amending the definition of a qualified professional in order to ensure 
that the highest level of competency is incorporated into the training 
of interpreters; (4) adding selection criteria for the program to 
encourage evidence-based and promising practices; and (5) adding 
priorities for increasing the skill level of interpreters in unserved 
or underserved geographic areas, existing programs that have 
demonstrated their ability to raise the skill level of interpreters to 
meet the highest standards approved by certifying associations, and 
specialized topical training.
    There are a number of changes between the NRPM and these final 
regulations:
     In final Sec.  396.1(a), we modified the description of 
the interpreter training program to more accurately describe what 
interpreters for the deaf, hard of hearing, and deaf-blind do.
     In final Sec.  396.4(c), we modified the definitions of 
individual who is hard of hearing and individual who is deaf to remove 
phrases offensive to some.
     In Sec.  396.4(c), we added a definition of novice 
interpreter.
     In final Sec.  396.31(c), we clarified that the selection 
criterion applies to any curricula submitted by an applicant.
     In final Sec.  396.33(b), and with a conforming change in 
final Sec.  396.20(b), we added a priority for serving unserved or 
underserved deaf, hard of hearing, and deaf-blind populations that are 
not defined by geographic area.
    Public Comment: In response to our invitation in the NPRM, four 
parties submitted comments on the proposed regulations amending the 
Training of Interpreters for Individuals Who Are Deaf or Hard of 
Hearing and Individuals Who Are Deaf-Blind program (part 396). We 
organize our discussion by section and subject.

Sec.  396.1 Description of the Program

    Comment: One commenter stated that the description of the program 
in proposed Sec.  396.1(a) was not accurate. The commenter stated that 
the description of interpretation and transliteration is too narrow, 
involving only spoken language and limiting training activities to 
interpreters who can hear spoken language. Deaf interpreters, the 
commenter stated, are precluded from training described in this way.
    The commenter also stated that the term ``transliterate'' is not 
always the correct term when describing the

[[Page 55578]]

activity of conveying spoken language messages into tactile mode (or 
vice versa); rather, this is often interpretation.
    Discussion: We agree with the commenter that our proposed 
description was inadequate.
    Changes: We have changed the description of the program in final 
Sec.  396.1(a) to be more inclusive and to use the terms 
``transliterate'' and ``interpret'' more accurately.

Sec.  396.2 Eligibility

    Comment: One commenter stated that the types of institutions that 
can apply for grant funds to train interpreters under this program 
should be limited to bachelor's degree granting institutions, because 
an individual must have a bachelor's degree in order to sit for the 
national performance examination for sign language interpreters.
    Discussion: Entities eligible for grants under this program are set 
by the Act and reflected in Sec.  396.2.
    Changes: None.

Sec.  396.4 Definitions

Individual Who is Hard of Hearing

    Comment: One commenter recommended replacing the term ``hearing 
impairment'' in the definition of ``individual who is hard of hearing'' 
because it is offensive to some. The commenter proposed using ``deaf, 
hard of hearing and DeafBlind individual'' instead, because this 
language more accurately reflects language used by the deaf, hard of 
hearing, and DeafBlind communities.
    Discussion: We agree that we should try to avoid the use of 
language that some may find offensive.
    Changes: We have removed ``hearing impairment'' from the definition 
of ``individual who is hard of hearing'' in final Sec.  396.4(c). 
Rather than inserting the language the commenter proposed, however, we 
have streamlined the definition. We made similar changes in the 
definition of ``individual who is deaf'' in this section.
    However, the definition of ``individual who is deaf-blind,'' which 
also contains the phrase ``hearing impairment,'' is, in our experience, 
one that is more widely accepted. Therefore, we have not made changes 
to this definition.

Novice Interpreter

    Comment: One commenter noted that the NPRM contained no definition 
of ``novice interpreter,'' yet the term was defined in the August 3, 
2005, notice of final priority (70 FR 44834). The commenter expressed 
uncertainty whether the absence of the term in the NPRM meant that we 
were removing the 2005 definition and recommended that we include an 
updated definition of ``novice interpreter'' in the final rule. The 
commenter suggested an updated definition.
    Discussion: The omission of the definition of ``novice 
interpreter'' in the NPRM was an oversight. In this final rule, we have 
built upon the 2005 definition of ``novice interpreter,'' taking into 
consideration the comment we received on the NPRM. There, we proposed 
an amendment to the definition of ``qualified professional'' to be 
consistent with the final priority published in the Federal Register on 
September 1, 1999 (64 FR 48068), and to mean an individual who has (1) 
met existing certification or evaluation requirements equivalent to the 
highest standards approved by certifying associations; or (2) 
successfully demonstrated interpreting skills that reflect the highest 
standards approved by certifying associations through prior work 
experience.
    We proposed this change to ensure that the highest level of 
competency is incorporated into the training of interpreters in 
interpreter training programs funded by RSA. Since 2000, the Department 
has funded national and regional interpreter education centers that 
train qualified interpreters to meet the competencies equivalent to the 
highest standards approved by certifying associations. Thus, this 
standard has been in effect for 15 years, and we proposed to change the 
definition to reflect this reality.
    The updated definition of ``novice interpreter'' complements the 
update to the definition of ``qualified professional,'' and we are 
making the update to the definition of ``novice interpreter'' for the 
same reasons. This definition of ``novice interpreter'' is also 
consistent with the update suggested in the comment we received.
    Change: We have revised final Sec.  396.4(c) to include an updated 
definition of ``novice interpreter.''

Sec.  396.31 Selection Criteria

    Comment: One commenter pointed out that the selection criterion 
proposed in Sec.  396.31(c) says only that the Secretary will evaluate 
a proposed ``curriculum'' for the training of interpreters based upon 
evidence-based or promising practices when many curricula, in fact, 
could be and have been proposed.
    Discussion: We had no intention to suggest that only a single, 
universal curriculum existed or that applicants may propose only one 
curriculum in future competitions under this program.
    Change: We have modified the selection criterion to apply to ``any 
curricula.''

Sec.  396.33 Priorities

Unserved and Underserved Populations

    Comment: One commenter supported the priority in proposed Sec.  
396.33(b)(1) for increasing the skills of interpreters for the deaf, 
hard of hearing, or the deaf-blind in unserved or underserved 
geographic areas. The commenter expressed concern, however, that this 
section does not include a priority for these individuals in unserved 
and underserved populations, who may not be located in easily defined 
geographic areas. The commenter observed that there are growing 
segments of deaf, hard of hearing, and deaf-blind communities that will 
increasingly challenge the interpreting workforce, including but not 
limited to individuals considered ``Deaf+,'' individuals from minority 
and immigrant communities, individuals with cochlear implants, 
individuals pursuing high-level professional training and careers, and 
individuals who lose their hearing later in life and have limited 
communication skills.
    Discussion: We agree with the commenter that we should have a 
priority for training interpreters to serve individuals who are deaf, 
hard of hearing, or deaf-blind in both unserved and underserved 
populations and in unserved and underserved geographic areas.
    Changes: We have amended final Sec.  396.33(b)(1) to add a priority 
for serving unserved or underserved deaf, hard of hearing, or deaf-
blind populations that may not be limited to specific geographic areas. 
We have made a conforming change in final Sec.  396.20(b).

Bachelors' Degree, Accredited, Existing Programs

    Comment: One commenter urged RSA to include a priority for 
applications from postsecondary institutions that offer at least a 
bachelor's degree in interpreter education. The commenter also 
recommended an additional priority giving preference to programs that 
have achieved Commission on Collegiate Interpreter Education (CCIE) 
accreditation.
    Discussion: We created the priority for postsecondary institutions 
that offer at least a bachelors' degree in the August 3, 2005, notice 
of final priorities for the Interpreter Training Program (70 FR 44834). 
It is not necessary to recreate the priority here because the 2005 
priority

[[Page 55579]]

still exists and can be used in future competitions.
    Further, Sec.  396.33(b)(2) already encompasses the accreditation 
priority the commenter described. The phrase ``existing programs'' 
refers to any program, including those at postsecondary institutions 
that offer and have awarded at least a bachelor's degree in interpreter 
education. While we will not give preference to CCIE or other 
certifying organizations, the phrase ``highest standards approved by 
certifying associations'' already includes them.
    Changes: None.
    Comment: One commenter asked whether the term ``programs'' in 
proposed Sec.  396.33(b)(2) means either a pre-service or an in-service 
program.
    Discussion: The term ``programs'' in final Sec.  396.33(b)(2) 
refers both to pre-service and in-service programs.
    Changes: None.

Consumer Education

    Comment: One commenter expressed concern about the lack of mention 
of consumer education in proposed Sec.  396.33(b). The commenter 
indicated that this was a new area in the competitions for this program 
in 2005 and again in 2010, and the resulting deaf advocacy training has 
been important.
    Discussion: As the commenter indicated, interpreter training 
centers funded under this program have addressed consumer education 
over the past 10 years. We believe that promising practices and 
resources developed for consumer education, specifically those 
developed under final Sec.  396.33(b)(3)--specialized topical training 
based on the needs of individuals who are deaf or hard of hearing and 
individuals who are deaf-blind--have been particularly effective. We 
agree that deaf advocacy training has been an important focus area for 
the training of interpreters for individuals who are deaf, hard of 
hearing, and individuals who are deaf-blind, and we can continue the 
training without adding a priority here.
    Changes: None.

Sec.  396.34--Cost Matching

    Comment: One commenter suggested that the requirement in proposed 
Sec.  396.34 that the grantee contribute to the cost of a project under 
this program in an amount satisfactory to the Secretary may conflict 
with 2 CFR 200.306. The commenter also indicated that having the 
Secretary determine the amount of the match at the time of the grant 
award may delay grant activity.
    Discussion: The matching amount will be specified in the notice 
inviting applications for the program competition published in the 
Federal Register and will occur prior to the submittal of the grant 
application and prior to the grant award. This provision, therefore, 
does not conflict with 2 CFR 200.306.
    Changes: None.

General Comments

    Comment: One commenter indicated that replacing the term ``skilled 
interpreter'' with ``qualified interpreter'' does not accomplish much 
since neither term is particularly precise.
    Discussion: We use ``qualified interpreter'' simply to conform part 
396 to section 302(f) of the Act.
    Changes: None.
    Comment: One commenter suggested changing the number of centers 
that receive funding under this program. Currently, five regional 
centers and one national center receive funding. The commenter 
suggested one national center, with three regional centers that focus 
on three areas: educating those individuals who are preparing 
interpreters, ensuring a strong language foundation in both American 
Sign Language and English for sign language interpreters, and 
developing a national interpreter education curriculum.
    Discussion: The proposed regulations do not address the structure 
of this program. When we run a competition to meet new and emerging 
needs of deaf consumers and the training of interpreters, we will 
publish a notice of proposed priority in the Federal Register and seek 
public comment about how to structure the program.
    Changes: None.

Regulations To Be Removed

    In the preamble of the NPRM, we discussed on page 21009 those 
regulations that we proposed to remove as required by WIOA, which 
deauthorized the Projects with Industry program (part 379), the State 
Vocational Rehabilitation Unit In-Service Training program (part 388), 
the Migrants and Seasonal Farmworkers program (Sec.  369.1(b)(3) and 
Sec.  369.2(c)), and the Recreation Programs for Individuals with 
Disabilities program (Sec.  369.1(b)(5) and Sec.  369.2(d)).
    We also proposed to remove, as duplicative or superseded, the 
balance of part 369 pertaining to three other kinds of vocational 
rehabilitation (VR) service projects: VR service projects for American 
Indians with disabilities, special projects and demonstrations for 
providing VR services to individuals with disabilities, and special 
projects and demonstrations for providing transitional rehabilitation 
services to youth with disabilities.
    We proposed to remove as outdated part 376 governing the Special 
Projects and Demonstrations for Providing Transitional Rehabilitation 
Services to Youth with Disabilities program and part 377 governing the 
Demonstration Projects to Increase Client Choice program.
    We proposed to remove as duplicative and outdated part 389 
governing the Rehabilitation Continuing Education programs.
    Because the Department's administration of grants under the State 
Vocational Rehabilitation Unit In-Service Training program and the 
Migrants and Seasonal Farmworkers Program will be complete on September 
30, 2016, we proposed to make the removal of part 369 and part 388 
effective on September 30, 2016.
    Comment: In response to our invitation in the NPRM, no parties 
submitted comments on the removal of any of these regulations.
    Discussion: Upon further review, the Department has determined that 
the remaining grant for the Migrants and Seasonal Farmworkers program 
can incorporate the pertinent provisions of Part 369 into its terms and 
conditions. Therefore, there is no need to delay the effective date for 
which part 369 will be removed because the terms and conditions will 
still apply to the one remaining grant after part 369 is removed. We 
have also determined that it makes more sense to make the removal of 
the part 388 regulations coincide with the start of the new fiscal 
year, rather than the end of the old fiscal year. Therefore, we have 
moved the removal date for part 388 forward one day to October 1, 2016.
    Changes: Part 369 will be removed when the final regulations take 
effect. Part 388 will be removed on October 1, 2016.

Regulatory Impact Analysis

Executive Order 12866

    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 
Office of Management and Budget (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

[[Page 55580]]

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 regulatory action is not 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 have also determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. 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. In assessing 
the potential costs and benefits--both quantitative and qualitative--of 
these regulations, we have determined that the benefits would justify 
the costs.

Part 367--Independent Living Services for Older Individuals Who Are 
Blind

    In general, unless expressly noted below, we do not estimate that 
changes to this part will result in any additional costs to grantees.

Subpart B--Training and Technical Assistance

    New Subpart B of Part 367 implements the WIOA amendment requiring 
the Department to reserve from 1.8 to 2 percent of appropriated funds 
for training and technical assistance to grantees. While this 
reservation will result in a reduction in funding available to 
grantees, we believe that these training and technical assistance 
projects will increase the efficiency of the program and provide 
substantial benefits to both grantees and the older individuals who are 
blind that they serve.
    To ensure that grantees receive the maximum amount of funds 
available for the provision of services to individuals, we will 
initially provide funding for training and technical assistance at the 
minimum allowable level of 1.8 percent. Prior to this regulation, 
grantees have been largely responsible for meeting the training needs 
of their program staff. This may have contributed to duplicative 
training and technical assistance efforts across grantees that could 
have easily been coordinated nationally. The coordination of these 
efforts by RSA will generate efficiencies across the entire program, 
thus providing more benefits to grantees than they would have realized 
if the funds had been directly provided to them.
    Based on the FY 2016 authorized appropriation of $33,317,000 for 
the OIB program under WIOA, the estimated set-aside is $599,706, 
calculated from the minimum percentage established by the Act. 
Therefore, if grantees were to receive no benefit from the training and 
technical assistance supported by the Department, the 56 grantees would 
experience a collective loss in benefits of $599,706. However, since 
the Department will sponsor training and technical assistance services 
directly for this group in the amount of $599,706, we expect there to 
be no net loss of benefits. Additionally, as noted above, the 
efficiencies realized by this centralization of training and technical 
assistance efforts may actually result in a net increase in benefits 
for grantees.

Subpart C--What are the application requirements under this part?

    Under this Subpart, we have removed the requirement for States to 
seek to incorporate into the State Plan for Independent Living (SPIL) 
any new methods and approaches relating to independent living services 
for older individuals who are blind. Incorporating this information 
into the SPIL required minimal time (approximately 15 minutes) every 
three years upon submission of the SPIL; therefore, any savings 
realized from this change will be negligible.

Subpart E--How does the Secretary award formula grants?

    Under Subpart E, we have clarified that OIB grantees are to inform 
the Secretary 45 days prior to the end of the fiscal year whether funds 
will be available for reallotment. We do not believe that this 
requirement will generate additional costs to grantees, as the change 
only provides a timeline for an action that is already occurring and 
does not, therefore, generate any new burden on grantees.

Part 370--Client Assistance Program

    WIOA requires that the set-aside for training and technical 
assistance for CAP take effect in any fiscal year in which the 
appropriation equals or exceeds $14,000,000. Section 112(e)(1)(F) of 
the Act, as amended by WIOA, requires the Secretary to reserve not less 
than 1.8 percent and not more than 2.2 percent of the CAP appropriation 
for this purpose. In FY 2016, the appropriation for CAP is $13,000,000, 
and so the set-aside for training and technical assistance would not 
take effect. An increase of 7.7 percent in the program's appropriation 
would be required before the set-aside would become effective. Thus, 
the set-aside will not have a substantial impact on the activities of 
grantees for some time. Assuming the Department sets aside a minimum of 
1.8 percent to ensure that grantees receive the maximum amount of funds 
available for

[[Page 55581]]

the provision of services to individuals when the appropriation reaches 
$14,000,000, the Department would be required to reserve $252,000 to 
provide training and technical assistance support to grantees. 
Additionally, as noted above in the discussion of costs and benefits 
associated with Part 367, we believe that the consolidation of training 
and technical assistance activities at the national level will 
ultimately yield net benefits to grantees greater than if those 
activities were coordinated locally.

Part 371--American Indian Vocational Rehabilitation Services Program

    New Subpart B of Part 371 implements the WIOA amendment requiring 
the Department to reserve from 1.8 to 2 percent of appropriated funds 
for training and technical assistance to grantees. While this 
reservation will result in a reduction in funding available to 
grantees, we believe that these training and technical assistance 
projects will increase the efficiency of the program and provide 
substantial benefits to both grantees and American Indians with 
disabilities.
    Based on the FY 2016 amount set aside by the Department from the 
State VR program for the AIVRS program (approximately $43,000,000), the 
estimated reservation of funds for training and technical assistance is 
$774,000. As noted above, since these funds are being used to provide 
services and support to grantees, we do not anticipate any net loss of 
benefit. However, if efficiencies are realized due to centralized 
coordination of these activities, grantees may experience a net gain in 
benefits.

Part 373--Rehabilitation National Activities Program

    We do not anticipate any changes to this section resulting in 
increased burden or costs for grantees.

Part 381- Protection and Advocacy for Individual Rights Program

    As it had in prior regulations, Sec.  381.20(a)(1) requires the 
Secretary, when the PAIR appropriation equals or exceeds $5,500,000, to 
set aside between 1.8 and 2.2 percent of these funds for training and 
technical assistance. The amendments made by WIOA simply clarify that 
the funding mechanism for the training and technical assistance may 
include a grant, contract, or cooperative agreement, all of which had 
been available to the Secretary previously. We amended Sec.  
381.20(a)(1) to clarify explicitly the availability of these funding 
mechanisms for training and technical assistance. Since the requirement 
to provide training and technical assistance was triggered in FY 1994, 
the Department has historically funded the training and technical 
assistance at the 1.8 percent level to ensure that grantees receive the 
maximum amount of funds available for the provision of services to 
individuals. Therefore, the revision to Sec.  381.20(a)(1) in these 
final regulations will have no impact on PAIR grantees since the 
amendment was primarily technical in nature.

Part 385--Rehabilitation Training

    We do not anticipate any changes to this section resulting in 
increased burden or costs for grantees.

Part 386--Rehabilitation Long-Term Training

    Except as detailed below, we do not anticipate changes to this 
section to result in increased burden or costs for grantees.

Sec.  386.31 (Funding Requirement)

    Section 386.31 requires that program grantees dedicate 65 percent 
to scholarships rather than 75 percent as required by prior 
regulations. This requirement will apply to both the federal award and 
the non-federal share. This change acknowledges the fact that grantees 
incur costs in administering these programs, particularly in terms of 
staff time needed to track scholar progress in completing their program 
of study and their service obligation. This decrease in the cost to 
grantees brought about by changes in Sec.  386.31 balances some of the 
increased costs created by changes made in other sections of the 
regulations. In FY 2014, the Department made approximately $17,075,000 
in new or continuation awards under the Rehabilitation Long-Term 
Training program. Assuming all grantees made the minimum match of 10 
percent of the project cost, the reduction in the scholarship 
requirement will free up approximately $1,897,000 in project funding to 
be used for activities other than scholarship support. While this does 
not represent any additional funding for grantees, it does represent 
additional flexibility provided by the regulation.

Sec.  386.33 (Disbursing Scholarships)

    Changes to this section require grantees to document that scholars 
will seek employment in the field of study in which the scholar was 
provided training or employment where it can be demonstrated that the 
field of study is directly relevant to the job functions being 
performed. Currently, grantees obtain sufficient documentation of other 
requirements that we do not believe this new requirement will represent 
a substantial burden on grantees. However, if we assume that obtaining 
this additional documentation will take, on average, 10 minutes per 
scholar, and using a wage rate of $17.69 (the mean hourly wage for 
office and administrative support staff at colleges, universities, and 
professional schools) and the 1,367 scholars receiving support in FY 
2014, we estimate this provision will cost $4,030.37.

Sec.  386.34 (Assurances)

    Changes to this section require grantees to annually obtain signed 
executed agreements with scholars containing the terms and conditions 
outlined in this section. It has been the Department's policy to 
encourage annual updating of scholar information; these regulations 
simply formalize this policy. As such, we estimate that these changes 
to the regulation will have little actual impact on grantees or 
scholars. However, if grantees were previously only collecting these 
agreements once per scholar rather than every year that support is 
received, there will be additional costs. Of all scholars reported in 
qualifying employment in FY 2014, 88.4 percent received support for 
more than one year. If we assumed that this change required an 
additional half hour of time each year beyond the first year of support 
to update their information with their program, and using an average 
wage rate of $17.69, we estimate an additional cost of $10,641 (given 
that we estimate that 1,203 of the 1,367 scholars receiving support in 
FY 2014 were multi-year scholars). We emphasize that this is an 
overestimate, as this change simply conforms the regulations to current 
practice.

Sec.  386.40 (Requirements for Scholars)

    In Sec.  386.40(a)(7), we clarify the type of employment a scholar 
must obtain to complete the service obligation in order to ensure that 
the funds used for scholarships will benefit individuals with 
disabilities served through the State vocational rehabilitation program 
and related agencies. This change largely reflects current policy and 
should not result in an increased burden on grantees or scholars. 
Changes to Sec.  386.40(b) establishes a new policy addressing when 
scholars may begin qualifying employment while Sec.  386.40(c) affirms 
the longstanding RSA practice that scholars who pursued coursework on a 
part-time basis should have their service obligations calculated on a 
full-time equivalent basis. As noted above, 88.4 percent of the 
scholars completing their service obligations in

[[Page 55582]]

FY 2014 received support for more than one year and would have been, 
therefore, eligible to benefit from the changes in Sec.  386.40(b). 
However, because the changes in Sec.  386.40(b) do not change the 
length of a scholar's service obligation and Sec.  386.40(c) simply 
codifies existing RSA practice, we do not estimate that these 
provisions will result in any net costs or savings. Finally, changes in 
Sec.  386.40(d) make scholars in repayment status responsible for any 
collection costs if they do not provide appropriate information to the 
grantee in a timely manner but provide that information after being 
placed in repayment status. In FY 2014, the Department referred 44 
scholars for repayment totaling $486,471. Assuming that collection 
costs total 3 percent of the balance of the repayment, we estimate 
total collection costs of $14,594. However, we note that collection 
costs, if the debts are referred to third-party collection agencies, 
can range as high as 30 percent. Nonetheless, if 5 percent of this 
repayment amount involved scholars who were referred to repayment based 
upon failing to provide the information in paragraph (a)(10) of this 
section and these scholars became eligible for a refund of any debts 
paid based upon the scholars subsequently providing the correct 
information, this additional requirement could save the Department 
$729.70 (using the assumption of a 3 percent collection cost) by making 
these scholars responsible for the collection costs. If we assume a 
higher rate of collection costs, the savings would be higher.

Sec.  386.41 (Granting Deferrals and Exceptions) and Sec.  386.42 
(Applying for Deferrals and Exceptions)

    Sections 386.41 and 386.42 contain stricter regulations around 
exceptions and deferrals, particularly for individuals with 
disabilities, in order to assure that individuals who benefit from 
scholarships funded by this program are more likely to complete their 
service obligation. While these changes may have impacts on the 
specific decisions made by scholars, they will not have a financial 
impact on the costs or benefits for grantees, and will likely increase 
the benefits to individuals with disabilities served by State VR 
agencies and related agencies by ensuring that training is aligned with 
practice and that a greater percentage of scholars complete their 
service obligations rather than just repaying the cost of their 
scholarships.

Part 387--Innovative Rehabilitation Training Program

    We do not anticipate any changes to this section resulting in 
increased burden or costs for grantees.

Part 390--Rehabilitation Short-Term Training Program

    Changes to Sec.  390.30 adds a selection criterion that the 
Secretary will review each application for evidence of training needs 
as identified through training needs assessments. While conducting a 
training needs assessment prior to application may result in increased 
costs for applicants, because the regulation simply adds this as one 
selection criterion among several and allows applicants to use needs 
assessments conducted by other entities, we do not anticipate that 
applicants will realize any actual increased costs associated with this 
provision.

Part 396--Training of Interpreters for Individuals Who Are Deaf or Hard 
of Hearing and Individuals Who Are Deaf-Blind

    Changes to Sec.  396.34 require grantees to provide matching funds 
to support projects in an amount determined by the Secretary at the 
time of the grant award. While this matching requirement did not 
previously exist in the regulations, it was a statutory requirement 
and, while the Department did not require grantees to document the 
match, we do not believe that any prior grantees did not contribute any 
funds to the project, either in cash or in kind. As such, we do not 
believe this provision will result in any increased costs for grantees.

Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control numbers assigned to the 
collections of information in these final regulations at the end of the 
affected sections of the regulations.

Intergovernmental Review

    These programs, except for the American Indian Vocational 
Rehabilitation Services Program, 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 the NPRM we requested comments on whether the proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available. We 
received no comments, and we do not believe that these final 
regulations would require transmission of this sort of information.

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. In the NPRM, we stated that the proposed regulations may 
have federalism implications and encouraged State and local elected 
officials to review and provide comments on the proposed regulations. 
We received no comments on this subject.
    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: 84.240A Protection 
and Advocacy of Individual Rights; 84.161A Client Assistance 
Program; 84.177B Independent Living Services for Older Individuals 
Who

[[Page 55583]]

Are Blind; 84.250J American Indian Vocational Rehabilitation 
Services; 84.128G Vocational Rehabilitation Service Projects for 
Migratory Agricultural Workers and Seasonal Farmworkers with 
Disabilities Program; 84.234 Projects With Industry; 84.128J 
Recreational Programs; and 84.265 State Vocational Rehabilitation 
Services Unit In Service Training)

List of Subjects

34 CFR Part 367

    Aged, Blind, Grant programs-education, Grant programs-social 
programs, Reporting and recordkeeping requirements, Vocational 
rehabilitation

34 CFR Part 369

    Grant programs-social programs, Reporting and recordkeeping 
requirements, Vocational rehabilitation

34 CFR Part 370

    Administrative practice and procedure, Grant programs-social 
programs, Reporting and recordkeeping requirements, Vocational 
rehabilitation

34 CFR Part 371

    Grant programs-Indians, Grant programs-social programs, Indians, 
Vocational rehabilitation

34 CFR Part 373

    Grant programs-education, Vocational rehabilitation

34 CFR Part 376

    Grant programs-social programs, Reporting and recordkeeping 
requirements, Vocational rehabilitation, Youth

34 CFR Part 377

    Grant programs-social programs, Reporting and recordkeeping 
requirements, Vocational rehabilitation

34 CFR Part 379

    Business and industry, Grant programs-social programs, Reporting 
and recordkeeping requirements, Vocational rehabilitation

34 CFR Part 381

    Grant programs-social programs, Reporting and recordkeeping 
requirements, Vocational rehabilitation

34 CFR Part 385

    Grant programs-education, Reporting and recordkeeping requirements, 
Vocational rehabilitation

34 CFR Part 386

    Grant programs-education, Reporting and recordkeeping requirements, 
Vocational rehabilitation

34 CFR Part 387

    Grant programs-education, Reporting and recordkeeping requirements, 
Vocational rehabilitation

34 CFR Part 388

    Grant programs-education, Reporting and recordkeeping requirements, 
Vocational rehabilitation

34 CFR Part 389

    Grant programs-education, Reporting and recordkeeping requirements, 
Vocational rehabilitation

34 CFR Part 390

    Grant programs-education, Reporting and recordkeeping requirements, 
Vocational rehabilitation

34 CFR Part 396

    Education of individuals with disabilities, Grant programs-
education, Individuals with disabilities, Reporting and recordkeeping 
requirements

    Dated: June 30, 2016.
John B. King, Jr.,
Secretary of Education.

    For the reasons discussed in the preamble, under the authority of 
section 503(f) of the Workforce Innovation and Opportunity Act (WIOA) 
(Pub. L. 113-128) and section 12(c) of the Rehabilitation Act of 1973, 
as amended by WIOA (29 U.S.C. 709(c)), the Secretary of Education 
amends chapter III of title 34 of the Code of Federal Regulations as 
follows:

0
1. Part 367 is revised to read as follows:

PART 367--INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS WHO ARE 
BLIND

Subpart A--General
Sec.
367.1 What is the independent living services for older individuals 
who are blind program?
367.2 Who is eligible for an award?
367.3 What activities may the Secretary fund?
367.4 What regulations apply?
367.5 What definitions apply?
Subpart B--Training and Technical Assistance
367.20 What are the requirements for funding training and technical 
assistance under this chapter?
367.21 How does the Secretary use these funds to provide training 
and technical assistance?
367.22 How does the Secretary make an award?
367.23 How does the Secretary determine funding priorities?
367.24 How does the Secretary evaluate an application?
Subpart C--What are the application requirements under this Part?
367.30 How does a designated State agency (DSA) apply for an award?
367.31 What assurances must a DSA include in its application?
Subpart D--How does the Secretary award discretionary grants?
367.40 Under what circumstances does the Secretary award 
discretionary grants to States?
367.41 How does the Secretary evaluate an application for a 
discretionary grant?
Subpart E--How does the Secretary award formula grants?
367.50 Under what circumstances does the Secretary award formula 
grants to States?
367.51 How are allotments made?
367.52 How does the Secretary reallot funds under this program?
Subpart F--What conditions must be met after an award?
367.60 When may a DSA make subawards or contracts?
367.61 What matching requirements apply?
367.62 What requirements apply if the State's non-Federal share is 
in cash?
367.63 What requirements apply if the State's non-Federal share is 
in kind?
367.64 What is the prohibition against a State's condition of an 
award of a sub-award or contract based on cash or in-kind 
contributions?
367.65 What is program income and how may it be used?
367.66 What requirements apply to the obligation of Federal funds 
and program income?
367.67 May an individual's ability to pay be considered in 
determining his or her participation in the costs of OIB services?
367.68 What notice must be given about the Client Assistance Program 
(CAP)?
367.69 What are the special requirements pertaining to the 
protection, use, and release of personal information?
367.70 What access to records must be provided?
367.71 What records must be maintained?

    Authority:  Sections 751-753 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 796j-796l, unless otherwise noted.

Subpart A--General


Sec.  367.1  What is the Independent Living Services for Older 
Individuals Who Are Blind program?

    This program supports projects that--
    (a) Provide any of the independent living (IL) services to older 
individuals who are blind that are described in Sec.  367.3(b);
    (b) Conduct activities that will improve or expand services for 
these individuals; and
    (c) Conduct activities to help improve public understanding of the 
challenges of these individuals.

[[Page 55584]]


(Authority: Section 752 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(a) and (d))

Sec.  367.2  Who is eligible for an award?

    Any designated State agency (DSA) is eligible for an award under 
this program if the DSA--
    (a) Is authorized to provide rehabilitation services to individuals 
who are blind; and
    (b) Submits to and obtains approval from the Secretary of an 
application that meets the requirements of section 752(h) of the Act 
and Sec. Sec.  367.30-367.31.

(Authority: Section 752(a)(2) and 752(h) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 796k(a)(2) and (h))

Sec.  367.3  What activities may the Secretary fund?

    (a) The DSA may use funds awarded under this part for the 
activities described in Sec.  367.1 and paragraph (b) of this section.
    (b) For purposes of Sec.  367.1(a), IL services for older 
individuals who are blind include--
    (1) Services to help correct blindness, such as--
    (i) Outreach services;
    (ii) Visual screening;
    (iii) Surgical or therapeutic treatment to prevent, correct, or 
modify disabling eye conditions; and
    (iv) Hospitalization related to these services;
    (2) The provision of eyeglasses and other visual aids;
    (3) The provision of services and equipment to assist an older 
individual who is blind to become more mobile and more self-sufficient;
    (4) Mobility training, Braille instruction, and other services and 
equipment to help an older individual who is blind adjust to blindness;
    (5) Guide services, reader services, and transportation;
    (6) Any other appropriate service designed to assist an older 
individual who is blind in coping with daily living activities, 
including supportive services and rehabilitation teaching services;
    (7) IL skills training, information and referral services, peer 
counseling, individual advocacy training, facilitating the transition 
from nursing homes and other institutions to home and community-based 
residences with the requisite supports and services, and providing 
assistance to older individuals who are blind who are at risk of 
entering institutions so that the individuals may remain in the 
community; and
    (8) Other IL services, as defined in Sec.  367.5.

(Authority: Section 752(d) and (e) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k (d) and (e))

Sec.  367.4  What regulations apply?

    The following regulations apply to the Independent Living Services 
for Older Individuals Who Are Blind program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs), with respect to grants 
under subpart B and D.
    (2) 34 CFR part 76 (State-Administered Programs), with respect to 
grants under subpart E.
    (3) 34 CFR part 77 (Definitions That Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (7) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485.
    (8) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted at 2 
CFR part 3474.
    (b) The regulations in this part 367.

(Authority: Sections 12(c) and 752 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 796k)

Sec.  367.5  What definitions apply?

    (a) The definitions of terms used in this part that are included in 
the regulations identified in Sec.  367.4 as applying to this program.
    (b) In addition, the following definitions also apply to this part:
    (1) Act means the Rehabilitation Act, as amended by WIOA.
    (2) Advocacy means pleading an individual's cause or speaking or 
writing in support of an individual. To the extent permitted by State 
law or the rules of the agency before which an individual is appearing, 
a non-lawyer may engage in advocacy on behalf of another individual. 
Advocacy may--
    (i) Involve representing an individual--
    (A) Before private entities or organizations, government agencies 
(whether State, local, or Federal), or in a court of law (whether State 
or Federal); or
    (B) In negotiations or mediation, in formal or informal 
administrative proceedings before government agencies (whether State, 
local, or Federal), or in legal proceedings in a court of law; and
    (ii) Be on behalf of--
    (A) A single individual, in which case it is individual advocacy;
    (B) A group or class of individuals, in which case it is systems 
(or systemic) advocacy; or
    (C) Oneself, in which case it is self advocacy.
    (3) Attendant care means a personal assistance service provided to 
an individual with significant disabilities in performing a variety of 
tasks required to meet essential personal needs in areas such as 
bathing, communicating, cooking, dressing, eating, homemaking, 
toileting, and transportation.
    (4) Contract means a legal instrument by which RSA in subpart B or 
the DSA receiving a grant under this part purchases property or 
services needed to carry out the program under this Part. The term as 
used in this part does not include a legal instrument, even if RSA or 
the DSA considers it a contract, when the substance of the transaction 
meets the definition of a Federal award or subaward.

(Authority: 20 U.S.C. 1221e-3)


    (5) Designated State Agency means the agency described in section 
101(a)(2)(A)(i) of the Rehabilitation Act as the sole State agency 
authorized to provide rehabilitation services to individuals who are 
blind and administer the OIB grant.
    (6) Independent living services for older individuals who are blind 
means those services listed in Sec.  367.3(b).
    (7) Legally authorized advocate or representative means an 
individual who is authorized under State law to act or advocate on 
behalf of another individual. Under certain circumstances, State law 
permits only an attorney, legal guardian, or individual with a power of 
attorney to act or advocate on behalf of another individual. In other 
circumstances, State law may permit other individuals to act or 
advocate on behalf of another individual.
    (8) Minority group means Alaska Natives, American Indians, Asians, 
Blacks (African Americans), Hispanics (Latinos), Native Hawaiians, and 
Pacific Islanders.
    (9) Older individual who is blind means an individual age fifty-
five or older whose severe visual impairment makes competitive 
employment extremely difficult to obtain but for whom IL goals are 
feasible.
    (10) Other IL services include:
    (i) Counseling services, including psychological, 
psychotherapeutic, and related services;
    (ii) Services related to securing housing or shelter, including 
services

[[Page 55585]]

related to community group living, that are supportive of the purposes 
of the Act, and adaptive housing services, including appropriate 
accommodations to and modifications of any space used to serve, or to 
be occupied by, older individuals who are blind;
    (iii) Rehabilitation technology;
    (iv) Services and training for older individuals who are blind who 
also have cognitive and sensory disabilities, including life skills 
training and interpreter services;
    (v) Personal assistance services, including attendant care and the 
training of personnel providing these services;
    (vi) Surveys, directories, and other activities to identify 
appropriate housing, recreation opportunities, and accessible 
transportation, and other support services;
    (vii) Consumer information programs on rehabilitation and IL 
services available under the Act, especially for minorities and other 
older individuals who are blind who have traditionally been unserved or 
underserved by programs under the Act;
    (viii) Education and training necessary for living in a community 
and participating in community activities;
    (ix) Supported living;
    (x) Transportation, including referral and assistance for 
transportation;
    (xi) Physical rehabilitation;
    (xii) Therapeutic treatment;
    (xiii) Provision of needed prostheses and other appliances and 
devices;
    (xiv) Individual and group social and recreational services;
    (xv) Services under other Federal, State, or local programs 
designed to provide resources, training, counseling, or other 
assistance of substantial benefit in enhancing the independence, 
productivity, and quality of life of older individuals who are blind;
    (xvi) Appropriate preventive services to decrease the need of older 
individuals who are blind who are assisted under the Act for similar 
services in the future;
    (xvii) Community awareness programs to enhance the understanding 
and integration into society of older individuals who are blind; and
    (xviii) Any other services that may be necessary to improve the 
ability of an older individual who is blind to function, continue 
functioning, or move toward functioning independently in the family or 
community or to continue in employment and that are not inconsistent 
with any other provisions of the Act.
    (11) Peer relationships mean relationships involving mutual support 
and assistance among individuals with significant disabilities who are 
actively pursuing IL goals.
    (12) Peer role models means individuals with significant 
disabilities whose achievements can serve as a positive example for 
other older individuals who are blind.
    (13) Personal assistance services means a range of IL services, 
provided by one or more persons, designed to assist an older individual 
who is blind to perform daily living activities on or off the job that 
the individual would typically perform if the individual was not blind. 
These IL services must be designed to increase the individual's control 
in life and ability to perform everyday activities on or off the job.
    (14) Service provider means--
    (i) The DSA that directly provides services authorized under Sec.  
367.3; or
    (ii) Any other entity that receives a subaward or contract from the 
DSA to provide services authorized under Sec.  367.3.
    (15) Significant disability means a severe physical, mental, 
cognitive, or sensory impairment that substantially limits an 
individual's ability to function independently in the family or 
community or to obtain, maintain, or advance in employment.
    (16) State means, except where otherwise specified in the Act, in 
addition to each of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the United 
States Virgin Islands, Guam, American Samoa, and the Commonwealth of 
the Northern Mariana Islands.
    (17) Subaward means a grant or a cooperative agreement provided by 
the DSA to a subrecipient for the subrecipient to carry out part of the 
Federal award received by the DSA under this part. It does not include 
payments to a contractor or payments to an individual that is a 
beneficiary of a program funded under this part. A subaward may be 
provided through any form of legal agreement, including an agreement 
that the DSA considers a contract.

(Authority: 20 U.S.C. 1221e-3)


    (18) Subrecipient means a non-Federal entity that receives a 
subaward from the DSA to carry out part of the program funded under 
this part; but does not include an individual that is a beneficiary of 
such program. A subrecipient may also be a recipient of other Federal 
awards directly from a Federal awarding agency.

(Authority: 20 U.S.C. 1221e-3)


    (19) Transportation means travel and related expenses that are 
necessary to enable an older individual who is blind to benefit from 
another IL service and travel and related expenses for an attendant or 
aide if the services of that attendant or aide are necessary to enable 
an older individual who is blind to benefit from that IL service.
    (20) Unserved and underserved groups or populations, with respect 
to groups or populations of older individuals who are blind in a State, 
include, but are not limited to, groups or populations of older 
individuals who are blind who--
    (i) Have cognitive and sensory impairments;
    (ii) Are members of racial and ethnic minority groups;
    (iii) Live in rural areas; or
    (iv) Have been identified by the DSA as unserved or underserved.

(Authority: Unless otherwise noted, Section 7 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 705)

Subpart B--Training and Technical Assistance


Sec.  367.20  What are the requirements for funding training and 
technical assistance under this chapter?

    For any fiscal year, beginning with fiscal year 2015, the Secretary 
shall first reserve not less than 1.8 percent and not more than 2 
percent of funds appropriated and made available to carry out this 
chapter to provide training and technical assistance to DSAs, or other 
providers of independent living services for older individuals who are 
blind, that are funded under this chapter for such fiscal year.

(Authority: Section 751A(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796j-1(a))

Sec.  367.21  How does the Secretary use these funds to provide 
training and technical assistance?

    (a) The Secretary uses these funds to provide training and 
technical assistance, either directly or through grants, contracts, or 
cooperative agreements with State and public or non-profit agencies and 
organizations and institutions of higher education that have the 
capacity to provide technical assistance and training in the provision 
of independent living services for older individuals who are blind.
    (b) An entity receiving assistance in accordance with paragraph (a) 
of this section shall provide training and technical assistance to DSAs 
or other service providers to assist them in improving the operation 
and performance of programs and services for older individuals who are 
blind resulting in their enhanced independence and self-sufficiency.

[[Page 55586]]


(Authority: Section 751A(a) and (c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796j-1(a) and (c))

Sec.  367.22  How does the Secretary make an award?

    (a) To be eligible to receive a grant or enter into a contract or 
cooperative agreement under section 751A of the Act and this subpart, 
an applicant shall submit an application to the Secretary containing a 
proposal to provide training and technical assistance to DSAs or other 
service providers of IL services to older individuals who are blind and 
any additional information at the time and in the manner that the 
Secretary may require.
    (b) The Secretary shall provide for peer review of applications by 
panels that include persons who are not Federal or State government 
employees and who have experience in the provision of services to older 
individuals who are blind.

(Authority: Section 751A(a) and (c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796j-1(a) and (c))

Sec.  367.23   How does the Secretary determine funding priorities?

    The Secretary shall conduct a survey of DSAs that receive grants 
under section 752 regarding training and technical assistance needs in 
order to inform funding priorities for such training and technical 
assistance.

(Authority: Section 751A(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796j-1(b))

Sec.  367.24  How does the Secretary evaluate an application?

    (a) The Secretary evaluates each application for a grant, 
cooperative agreement or contract under this subpart on the basis of 
the selection criteria chosen from the general selection criteria found 
in EDGAR regulations at 34 CFR 75.210.
    (b) If using a contract to award funds under this subpart, the 
Secretary may conduct the application process and make the subsequent 
award in accordance with 34 CFR part 75.

(Authority: Section 751A of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796j-1(b), 20 U.S.C. 1221e-3, and 3474)

Subpart C--What Are the Application Requirements Under This Part?


Sec.  367.30  How does a designated State agency (DSA) apply for an 
award?

    To receive a grant under section 752(h) or a reallotment grant 
under section 752(i)(4) of the Act, a DSA must submit to and obtain 
approval from the Secretary of an application for assistance under this 
program at the time, in the form and manner, and containing the 
agreements, assurances, and information, that the Secretary determines 
to be necessary to carry out this program.

(Approved by the Office of Management and Budget under control 
number 1820-0660)


(Authority: Sections 752 (h) and (i)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k(h) and (i))

Sec.  367.31   What assurances must a DSA include in its application?

    An application for a grant under section 752(h) or a reallotment 
grant under section 752(i)(4) of the Act must contain an assurance 
that--
    (a) Grant funds will be expended only for the purposes described in 
Sec.  367.1;
    (b) With respect to the costs of the program to be carried out by 
the State pursuant to this part, the State will make available, 
directly or through donations from public or private entities, non-
Federal contributions toward these costs in an amount that is not less 
than $1 for each $9 of Federal funds provided in the grant;
    (c) At the end of each fiscal year, the DSA will prepare and submit 
to the Secretary a report, with respect to each project or program the 
DSA operates or administers under this part, whether directly or 
through a grant or contract, that contains information that the 
Secretary determines necessary for the proper and efficient 
administration of this program, including--
    (1) The number and demographics of older individuals who are blind, 
including older individuals who are blind from minority backgrounds, 
and are receiving services;
    (2) The types of services provided and the number of older 
individuals who are blind and are receiving each type of service;
    (3) The sources and amounts of funding for the operation of each 
project or program;
    (4) The amounts and percentages of resources committed to each type 
of service provided;
    (5) Data on actions taken to employ, and advance in employment, 
qualified--
    (i) Individuals with significant disabilities; and
    (ii) Older individuals with significant disabilities who are blind;
    (6) A comparison, if appropriate, of prior year activities with the 
activities of the most recent year; and
    (7) Any new methods and approaches relating to IL services for 
older individuals who are blind that are developed by projects funded 
under this part;
    (d) The DSA will--
    (1) Provide services that contribute to the maintenance of, or the 
increased independence of, older individuals who are blind; and
    (2) Engage in--
    (i) Capacity-building activities, including collaboration with 
other agencies and organizations;
    (ii) Activities to promote community awareness, involvement, and 
assistance; and
    (iii) Outreach efforts; and
    (e) The applicant has been designated by the State as the sole 
State agency authorized to provide rehabilitation services to 
individuals who are blind.

(Approved by the Office of Management and Budget under control 
numbers 1820-0660 and 1820-0608)


(Authority: Section 752(h) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(h))

Subpart D--How does the Secretary award discretionary grants?


Sec.  367.40  Under what circumstances does the Secretary award 
discretionary grants to States?

    (a) In the case of a fiscal year for which the amount appropriated 
under section 753 of the Act is less than $13,000,000, the Secretary 
awards discretionary grants under this part on a competitive basis to 
States in accordance with section 752(b) of the Act and EDGAR 
regulations at 34 CFR part 75 (Direct Grant Programs).
    (b) The Secretary awards noncompetitive continuation grants for a 
multi-year project to pay for the costs of activities for which a grant 
was awarded under this part--as long as the grantee satisfies the 
applicable requirements in this part, the terms of the grant, and 34 
CFR 75.250 through 75.253 (Approval of Multi-year Projects).
    (c) Subparts A, C, D, and F of this part govern the award of 
competitive grants under this part.

(Authority: Section 752(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(b); 20 U.S.C. 1221e-3 and 3474)

Sec.  367.41  How does the Secretary evaluate an application for a 
discretionary grant?

    (a) The Secretary evaluates an application for a discretionary 
grant based on the selection criteria chosen from the general selection 
criteria found in EDGAR regulations at 34 CFR 75.210.
    (b) In addition to the selection criteria, the Secretary considers 
the geographic distribution of projects in making an award.

(Authority: Section 752(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(b); 20 U.S.C. 1221e-3 and 3474)


[[Page 55587]]



Subpart E--How Does the Secretary Award Formula Grants?


Sec.  367.50  Under what circumstances does the Secretary award formula 
grants to States?

    (a) In the case of a fiscal year for which the amount appropriated 
under section 753 of the Act is equal to or greater than $13,000,000, 
grants under this part are made to States from allotments under section 
752(c)(2) of the Act.
    (b) Subparts A, C, E, and F of this part govern the award of 
formula grants under this part.

(Authority: Section 752(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(c))

Sec.  367.51  How are allotments made?

    (a) For purposes of making grants under section 752(c) of the Act 
and this subpart, the Secretary makes an allotment to each State in an 
amount determined in accordance with section 752(i) of the Act.
    (b) The Secretary makes a grant to a DSA in the amount of the 
allotment to the State under section 752(i) of the Act if the DSA 
submits to and obtains approval from the Secretary of an application 
for assistance under this program that meets the requirements of 
section 752(h) of the Act and Sec. Sec.  367.30 and 367.31.

(Approved by the Office of Management and Budget under control 
number 1820-0660)


(Authority: Section 752(c)(2) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(c)(2))

Sec.  367.52   How does the Secretary reallot funds under this program?

    (a) From the amounts specified in paragraph (b) of this section, 
the Secretary may make reallotment grants to States, as determined by 
the Secretary, whose population of older individuals who are blind has 
a substantial need for the services specified in section 752(d) of the 
Act and Sec.  367.3(b), relative to the populations in other States of 
older individuals who are blind.
    (b) The amounts referred to in paragraph (a) of this section are 
any amounts that are not paid to States under section 752(c)(2) of the 
Act and Sec.  367.51 as a result of--
    (1) The failure of a DSA to prepare, submit, and receive approval 
of an application under section 752(h) of the Act and in accordance 
with Sec. Sec.  367.30 and 367.31; or
    (2) Information received by the Secretary from the DSA that the DSA 
does not intend to expend the full amount of the State's allotment 
under section 752(c) of the Act and this subpart.
    (c) A reallotment grant to a State under paragraph (a) of this 
section is subject to the same conditions as grants made under section 
752(a) of the Act and this part.
    (d) Any funds made available to a State for any fiscal year 
pursuant to this section are regarded as an increase in the allotment 
of the State under Sec.  367.51 for that fiscal year only.
    (e) A State that does not intend to expend the full amount of its 
allotment must notify RSA at least 45 days prior to the end of the 
fiscal year that its grant, or a portion of it, is available for 
reallotment.

(Approved by the Office of Management and Budget under control 
number 1820-0660)


(Authority: Section 752(i)(4) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(i)(4))

Subpart F--What Conditions Must Be Met After an Award?


Sec.  367.60   When may a DSA make subawards or contracts?

    A DSA may operate or administer the program or projects under this 
part to carry out the purposes specified in Sec.  367.1, either 
directly or through--
    (a) Subawards to public or private nonprofit agencies or 
organizations; or
    (b) Contracts with individuals, entities, or organizations that are 
not public or private nonprofit agencies or organizations.

(Authority: Sections 752(g) and (h) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k(g) and (h)(2)(A))

Sec.  367.61  What matching requirements apply?

    Non-Federal contributions required by Sec.  367.31(b) must meet the 
requirements in 2 CFR 200.306 (Cost sharing or matching).

(Authority: Section 752(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(f))

Sec.  367.62  What requirements apply if the State's non-Federal share 
is in cash?

    (a) Expenditures that meet the non-Federal share requirements of 2 
CFR 200.306 may be used to meet the non-Federal share matching 
requirement. Expenditures used as non-Federal share must also meet the 
following requirements:
    (1) The expenditures are made with funds made available by 
appropriation directly to the DSA or with funds made available by 
allotment or transfer from any other unit of State or local government;
    (2) The expenditures are made with cash contributions from a donor 
that are deposited in the account of the DSA in accordance with State 
law for expenditure by, and at the sole discretion of, the DSA for 
activities authorized by Sec.  367.3; or
    (3) The expenditures are made with cash contributions from a donor 
that are earmarked for meeting the State's share for activities listed 
in Sec.  367.3;
    (b) Cash contributions are permissible under paragraph (a)(3) of 
this section only if the cash contributions are not used for 
expenditures that benefit or will benefit in any way the donor, an 
individual to whom the donor is related by blood or marriage or with 
whom the donor has a close personal relationship, or an individual, 
entity, or organization with whom the donor shares a financial 
interest.
    (c) The receipt of a subaward or contract under section 752(g) of 
the Act from the DSA is not considered a benefit to the donor of a cash 
contribution for purposes of paragraph (b) of this section if the 
subaward or contract was awarded under the State's regular competitive 
procedures. The State may not exempt the awarding of the subaward or 
contract from its regular competitive procedures.
    (d) For purposes of this section, a donor may be a private agency, 
a profit-making or nonprofit organization, or an individual.

(Authority: Section 752(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(f))

Sec.  367.63   What requirements apply if the State's non-Federal share 
is in kind?

    In-kind contributions may be--
    (a) Used to meet the matching requirement under section 752(f) of 
the Act if the in-kind contributions meet the requirements and are 
allowable under 2 CFR 200.306; and
    (b) Made to the program or project by the State or by a third party 
(i.e., an individual, entity, or organization, whether local, public, 
private, for profit, or nonprofit), including a third party that is a 
subrecipient or contractor that is receiving or will receive assistance 
under section 752(g) of the Rehabilitation Act.

(Authority: Section 752(f) and (g) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k(f) and (g))

Sec.  367.64  What is the prohibition against a State's condition of an 
award of a sub-award or contract based on cash or in-kind 
contributions?

    (a) A State may not condition the making of a subaward or contract 
under section 752(g) of the Act on the requirement that the applicant 
for the subaward or contract make a cash or in-

[[Page 55588]]

kind contribution of any particular amount or value to the State.
    (b) An individual, entity, or organization that is a subrecipient 
or contractor of the State, may not condition the award of a 
subcontract on the requirement that the applicant for the subcontract 
make a cash or in-kind contribution of any particular amount or value 
to the State or to the subrecipient or contractor of the State.

(Authority: Section 752(f) and (g) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k(f) and (g))

Sec.  367.65   What is program income and how may it be used?

    (a) Definition--Program income means gross income earned by the 
grantee, subrecipient, or contractor that is directly generated by a 
supported activity or earned as a result of the grant, subaward, or 
contract.
    (1) Program income received through the transfer of Social Security 
Administration program income from the State Vocational Rehabilitation 
Services program (Title I) in accordance with 34 CFR 361.63(c)(2) will 
be treated as program income received under this part.
    (2) Payments received by the State agency, subrecipients, or 
contractors from insurers, consumers, or other for IL services provided 
under the Independent Living Services for Older Individuals Who Are 
Blind program to defray part or all of the costs of services provided 
to individual consumers will be treated as program income received 
under this part.
    (b) Use of program income. (1) Program income, whenever earned, 
must be used for the provision of services authorized under Sec.  
367.3.
    (2) Program income must be added to the Federal Award in accordance 
with 2 CFR 200.307(e)(2).
    (3) Program income may not be used to meet the non-Federal share 
requirement under Sec.  367.31(b).

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  367.66   What requirements apply to the obligation of Federal 
funds and program income?

    (a) Except as provided in paragraph (b) of this section, any 
Federal funds, including reallotted funds, that are appropriated for a 
fiscal year to carry out a program under this part that are not 
obligated or expended by the DSA prior to the beginning of the 
succeeding fiscal year, and any program income received during a fiscal 
year that is not obligated or expended by the DSA prior to the 
beginning of the succeeding fiscal year in which the program income was 
received, remain available for obligation and expenditure by the DSA 
during that succeeding fiscal year.
    (b) Federal funds appropriated for a fiscal year under this part 
remain available for obligation in the succeeding fiscal year only to 
the extent that the DSA complied with its matching requirement by 
obligating, in accordance with 34 CFR 76.707, the non-Federal share in 
the fiscal year for which the funds were appropriated.
    (c) Program income is considered earned in the fiscal year in which 
it is received. Program income earned during the fiscal year must be 
disbursed during the time in which new obligations may be incurred to 
carry out the work authorized under the award, and prior to requesting 
additional cash payments.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  367.67   May an individual's ability to pay be considered in 
determining his or her participation in the costs of OIB services?

    (a) Participation of individuals in cost of services. (1) A State 
is neither required to charge nor prohibited from charging consumers 
for the cost of IL services provided under the Independent Living 
Services for Older Individuals Who Are Blind program;
    (2) If a State charges consumers or allows other service providers 
to charge for the cost of IL services provided under the Independent 
Living Services for Older Individuals Who Are Blind program, a State is 
neither required to nor prohibited from considering the ability of 
individual consumers to pay for the cost of these services in 
determining how much a particular consumer must contribute to the costs 
of a particular service.
    (b) State policies on cost of services. If a State chooses to 
charge or allow other service providers to charge consumers for the 
cost of IL services provided under the Independent Living Services for 
Older Individuals Who Are Blind program and if a State chooses to 
consider and allow other service providers to consider the ability of 
individual consumers to pay for the cost of IL services provided under 
the Independent Living Services for Older Individual Who Are Blind 
program, the State must maintain policies that--
    (1) Specify the type of IL services for which costs may be charged 
and the type of IL services for which a financial need test may be 
applied;
    (2) Explain the method for determining the amount charged for the 
IL services and how any financial need test will be applied;
    (3) Ensure costs are charged uniformly so that all individuals are 
treated equally;
    (4) Ensure that if costs are charged or financial need is 
considered, the consumer's required participation is not so high that 
it effectively denies the individual a necessary service;
    (5) Require documentation of an individual's participation in the 
cost of any IL services provided, including the determination of an 
individual's financial need; and
    (6) Provide that individuals who have been determined eligible for 
Social Security benefits under Titles II and XVI of the Social Security 
Act may not be charged any cost to receive IL services under this 
program.
    (c) Policies on consumer financial participation. If a State 
permits other service providers to charge the costs of IL services 
provided under the Independent Living Services for Older Individuals 
Who Are Blind program, or chooses to allow other service providers to 
consider the ability of individual consumers to contribute to the cost 
of IL services provided through the Independent Living Services for 
Older Individuals Who Are Blind program, the State must require that 
such service providers comply with the State's written policies 
regarding consumer financial participation in the cost of IL services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c)).

Sec.  367.68   What notice must be given about the Client Assistance 
Program (CAP)?

    The DSA and all other service providers under this part shall use 
formats that are accessible to notify individuals seeking or receiving 
services under this part about--
    (a) The availability of CAP authorized by section 112 of the Act;
    (b) The purposes of the services provided under the CAP; and
    (c) How to contact the CAP.

(Authority: Section 20 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 717)

Sec.  367.69   What are the special requirements pertaining to the 
protection, use, and release of personal information?

    (a) General provisions. The DSA and all other service providers 
under this part shall adopt and implement policies and procedures to 
safeguard the confidentiality of all personal information, including 
photographs and lists of names. These policies and procedures must 
assure that--
    (1) Specific safeguards protect current and stored personal 
information, including a requirement that data only

[[Page 55589]]

be released when governed by a written agreement between the DSA and 
other service providers and the receiving entity under paragraphs (d) 
and (e)(1) of this section, which addresses the requirements in this 
section;
    (2) All applicants for, or recipients of, services under this part 
and, as appropriate, those individuals' legally authorized 
representatives, service providers, cooperating agencies, and 
interested persons are informed of the confidentiality of personal 
information and the conditions for gaining access to and releasing this 
information;
    (3) All applicants or their legally authorized representatives are 
informed about the service provider's need to collect personal 
information and the policies governing its use, including--
    (i) Identification of the authority under which information is 
collected;
    (ii) Explanation of the principal purposes for which the service 
provider intends to use or release the information;
    (iii) Explanation of whether providing requested information to the 
service provider is mandatory or voluntary and the effects to the 
individual of not providing requested information;
    (iv) Identification of those situations in which the service 
provider requires or does not require informed written consent of the 
individual or his or her legally authorized representative before 
information may be released; and
    (v) Identification of other agencies to which information is 
routinely released;
    (4) Persons who do not speak, listen, read, or write English 
proficiently or who rely on alternative modes of communication must be 
provided an explanation of service provider policies and procedures 
affecting personal information through methods that can be meaningfully 
understood by them;
    (5) At least the same protections are provided to individuals 
served under this part as provided by State laws and regulations; and
    (6) Access to records is governed by rules established by the 
service provider and any fees charged for copies of records are 
reasonable and cover only extraordinary costs of duplication or making 
extensive searches.
    (b) Service provider use. All personal information in the 
possession of the service provider may be used only for the purposes 
directly connected with the provision of services under this part and 
the administration of the program under which services are provided 
under this part. Information containing identifiable personal 
information may not be shared with advisory or other bodies that do not 
have official responsibility for the provision of services under this 
part or the administration of the program under which services are 
provided under this part. In the provision of services under this part 
or the administration of the program under which services are provided 
under this part, the service provider may obtain personal information 
from other 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 recipients of services under this part. (1) Except 
as provided in paragraphs (c)(2) and (3) of this section, if requested 
in writing by a recipient of services under this part, the service 
provider shall release all information in that individual's record of 
services to the individual or the individual's legally authorized 
representative in a timely manner.
    (2) Medical, psychological, or other information that the service 
provider determines may be harmful to the individual may not be 
released directly to the individual, but must be provided through a 
qualified medical or psychological professional or the individual's 
legally authorized 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.
    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or individual 
engaged in audit, evaluation, or research activities only for purposes 
directly connected with the administration of a program under this 
part, or for purposes that would significantly improve the quality of 
life for individuals served under this part and only if, in accordance 
with a written agreement, 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 personally identifying 
information without the informed written consent of the involved 
individual or the individual's legally authorized representative.
    (e) Release to other programs or authorities. (1) Upon receiving 
the informed written consent of the individual or, if appropriate, the 
individual's legally authorized representative, the service provider 
may release personal information to another agency or organization, in 
accordance with a written agreement, for the latter's program purposes 
only to the extent that the information may be released to the involved 
individual and only to the extent that the other agency or organization 
demonstrates that the information requested is necessary for the proper 
administration of its program.
    (2) Medical or psychological information may be released pursuant 
to paragraph (e)(1) of this section if the other agency or organization 
assures the service provider 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 service provider shall release personal information if 
required by Federal laws or regulations.
    (4) The service provider shall release personal information in 
response to investigations in connection with law enforcement, fraud, 
or abuse, unless expressly prohibited by Federal or State laws or 
regulations, and in response to judicial order.
    (5) The service provider also may release personal information to 
protect the individual or others if the individual poses a threat to 
his or her safety or to the safety of others.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  367.70   What access to records must be provided?

    For the purpose of conducting audits, examinations, and compliance 
reviews, the DSA and all other service providers shall provide access 
to the Secretary and the Comptroller General, or any of their duly 
authorized representatives, to--
    (a) The records maintained under this part;
    (b) Any other books, documents, papers, and records of the 
recipients that are pertinent to the financial assistance received 
under this part; and
    (c) All individual case records or files or consumer service 
records of individuals served under this part, including names, 
addresses, photographs, and records of evaluation included in those 
individual case records or files or consumer service records.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))


[[Page 55590]]




Sec.  367.71   What records must be maintained?

    The DSA and all other service providers shall maintain--
    (a) Records that fully disclose and document--
    (1) The amount and disposition by the recipient of that financial 
assistance;
    (2) The total cost of the project or undertaking in connection with 
which the financial assistance is given or used;
    (3) The amount of that portion of the cost of the project or 
undertaking supplied by other sources; and
    (4) Compliance with the requirements of this part; and
    (b) Other records that the Secretary determines to be appropriate 
to facilitate an effective audit.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

PART 369 [REMOVED AND RESERVED]

0
2. Part 369 is removed and reserved.

0
3. Part 370 is revised to read as follows:

PART 370--CLIENT ASSISTANCE PROGRAM

Subpart A--General
Sec.
370.1 What is the Client Assistance Program (CAP)?
370.2 Who is eligible for an award?
370.3 Who is eligible for services and information under the CAP?
370.4 What kinds of activities may the Secretary fund?
370.5 What regulations apply?
370.6 What definitions apply?
370.7 What shall the designated agency do to make its services 
accessible?
Subpart B--What Requirements Apply to Redesignation?
370.10 When do the requirements for redesignation apply?
370.11 What requirements apply to a notice of proposed 
redesignation?
370.12 How does a designated agency preserve its right to appeal a 
redesignation?
370.13 What are the requirements for a decision to redesignate?
370.14 How does a designated agency appeal a written decision to 
redesignate?
370.15 What must the Governor of a State do upon receipt of a copy 
of a designated agency's written appeal to the Secretary?
370.16 How does the Secretary review an appeal of a redesignation?
370.17 When does a redesignation become effective?
Subpart C--What Are the Requirements for Requesting a Grant?
370.20 What must be included in a request for a grant?
Subpart D--How Does the Secretary Allocate and Reallocate Funds to a 
State?
370.30 How does the Secretary allocate funds?
370.31 How does the Secretary reallocate funds?
Subpart E--What Post-Award Conditions Must Be Met by a Designated 
Agency?
370.40 What are allowable costs?
370.41 What conflict of interest provision applies to employees of a 
designated agency?
370.42 What access must the CAP be afforded to policymaking and 
administrative personnel?
370.43 What requirement applies to the use of mediation procedures?
370.44 What reporting requirement applies to each designated agency?
370.45 What limitation applies to the pursuit of legal remedies?
370.46 What consultation requirement applies to a Governor of a 
State?
370.47 What is program income and how may it be used?
370.48 When must grant funds and program income be obligated?
370.49 What are the special requirements pertaining to the 
protection, use, and release of personal information?

    Authority:  Section 112 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732, unless otherwise noted.

Subpart A--General


Sec.  370.1  What is the Client Assistance Program (CAP)?

    The purpose of this program is to establish and carry out CAPs 
that--
    (a) Advise and inform clients and client-applicants of all services 
and benefits available to them through programs authorized under the 
Rehabilitation Act of 1973, as amended (Act), including activities 
carried out under sections 113 and 511;
    (b) Assist and advocate for clients and client-applicants in their 
relationships with projects, programs, and community rehabilitation 
programs providing services under the Act; and
    (c) Inform individuals with disabilities in the State, especially 
individuals with disabilities who have traditionally been unserved or 
underserved by vocational rehabilitation programs, of the services and 
benefits available to them under the Act and under title I of the 
Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12111 et 
seq.).

(Authority: Section 112(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(a))

Sec.  370.2   Who is eligible for an award?

    (a)(1) Any State, through its Governor, and the protection and 
advocacy system serving the American Indian Consortium are eligible for 
an award under this part if the State or eligible protection and 
advocacy system submits, and receives approval of, an application in 
accordance with Sec.  370.20.
    (2) For purposes of this part, the terms--
    (i) ``American Indian Consortium'' has the meaning given the term 
in section 102 of the Developmental Disabilities Assistance and Bill of 
Rights Act of 2000 (DD Act) (42 U.S.C. 15002); and
    (ii) ``Protection and advocacy system'' means a protection and 
advocacy system established under subtitle C of title I of the DD Act 
(42 U.S.C. 15041 et seq.).
    (b) Notwithstanding the protection and advocacy system serving the 
American Indian Consortium, the Governor of each State shall designate 
a public or private agency to conduct the State's CAP under this part.
    (c) Except as provided in paragraph (d) of this section, the 
Governor shall designate an agency that is independent of any agency 
that provides treatment, services, or rehabilitation to individuals 
under the Act.
    (d) The Governor may, in the initial designation, designate an 
agency that provides treatment, services, or rehabilitation to 
individuals with disabilities under the Act if, at any time before 
February 22, 1984, there was an agency in the State that both--
    (1) Was a grantee under section 112 of the Act by serving as a 
client assistance agency and directly carrying out a CAP; and
    (2) Was, at the same time, a grantee under any other provision of 
the Act.
    (e) An agency designated by the Governor of a State to conduct the 
State's CAP or the protection and advocacy system serving the American 
Indian Consortium under this part may not make a subaward to or enter 
into a contract with an agency that provides services under this Act 
either to carry out the CAP or to provide services under the CAP.
    (f) A designated agency, including the protection and advocacy 
system serving the American Indian Consortium, that contracts to 
provide CAP services with another entity or individual remains 
responsible for--
    (1) The conduct of a CAP that meets all of the requirements of this 
part;
    (2) Ensuring that the entity or individual expends CAP funds in 
accordance with--
    (i) The regulations in this part; and
    (ii) The regulations at 2 CFR part 200 applicable to the designated 
agency identified in paragraph (b) or the protection and advocacy 
system serving the American Indian Consortium, as

[[Page 55591]]

described in paragraph (a) of this section; and
    (3) The direct day-to-day supervision of the CAP services being 
carried out by the contractor. This day-to-day supervision must include 
the direct supervision of the individuals who are employed or used by 
the contractor to provide CAP services.

(Authority: Sections 12(c) and 112(a), (c)(1)(A), and (e)(1)(E) of 
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 
732(a), (c)(1)(A), and (e)(1)(E))

Sec.  370.3  Who is eligible for services and information under the 
CAP?

    (a) Any client or client-applicant is eligible for the services 
described in Sec.  370.4.
    (b) Any individual with a disability is eligible to receive 
information on the services and benefits available to individuals with 
disabilities under the Act and title I of the ADA.

(Authority: Section 112(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(a))

Sec.  370.4  What kinds of activities may the Secretary fund?

    (a) Funds made available under this part must be used for 
activities consistent with the purposes of this program, including--
    (1) Advising and informing clients, client-applicants, and 
individuals with disabilities in the State, especially individuals with 
disabilities who have traditionally been unserved or underserved by 
vocational rehabilitation programs, of--
    (i) All services and benefits available to them through programs 
authorized under the Act; and
    (ii) Their rights in connection with those services and benefits;
    (2) Informing individuals with disabilities in the State, 
especially individuals with disabilities who have traditionally been 
unserved or underserved by vocational rehabilitation programs, of the 
services and benefits available to them under title I of the ADA;
    (3) Upon the request of the client or client-applicant, assisting 
and advocating on behalf of the client or client-applicant in his or 
her relationship with projects, programs, and community rehabilitation 
programs that provide services under the Act by engaging in individual 
or systemic advocacy and pursuing, or assisting and advocating on 
behalf of the client or client-applicant to pursue, legal, 
administrative, and other available remedies, if necessary--
    (i) To ensure the protection of the rights of a client or client-
applicant under the Act; and
    (ii) To facilitate access by individuals with disabilities, 
including students and youth with disabilities who are making the 
transition from school programs, to services funded under the Act; and
    (4) Providing information to the public concerning the CAP.
    (b) In providing assistance and advocacy services under this part 
with respect to services under title I of the Act, a designated agency 
may provide assistance and advocacy services to a client or client-
applicant to facilitate the individual's employment, including 
assistance and advocacy services with respect to the individual's 
claims under title I of the ADA, if those claims under title I of the 
ADA are directly related to services under title I of the Act that the 
individual is receiving or seeking.

(Authority: Sections 12(c) and 112(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(a))

Sec.  370.5   What regulations apply?

    The following regulations apply to the expenditure of funds and the 
administration of the program under this part:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs) for purposes of an award 
made under Sec.  370.30(d)(1) when the CAP appropriation equals or 
exceeds $14,000,000.
    (2) 34 CFR part 76 (State-Administered Programs) applies to the 
State and, if the designated agency is a State or local government 
agency, to the designated agency, except for--
    (i) Section 76.103;
    (ii) Sections 76.125 through 76.137;
    (iii) Sections 76.300 through 76.401;
    (iv) Section 76.708;
    (v) Section 76.734; and
    (vi) Section 76.740.
    (3) 34 CFR part 77 (Definitions That Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement) 
applies to both the State and the designated agency, whether or not the 
designated agency is the actual recipient of the CAP grant. As the 
entity that eventually, if not directly, receives the CAP grant funds, 
the designated agency is considered a recipient for purposes of Part 
81.
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (b) Other regulations as follows:
    (1) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485.
    (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted at 2 
CFR part 3474.
    (c) The regulations in this part 370.

    Note to Sec.  370.5: Any funds made available to a State under 
this program that are transferred by a State to a designated agency 
do not make a subaward as that term is defined in 2 CFR 200.330. The 
designated agency is not, therefore, in these circumstances a 
subrecipient, as that term is defined in 2 CFR 200.330.


(Authority: Sections 12(c) and 112 of the Rehabilitation Act, as 
amended; 29 U.S.C. 709(c) and 732)

Sec.  370.6   What definitions apply?

    (a) Definitions in EDGAR at 34 CFR part 77.
    (b) Definitions in 2 CFR part 200, subpart A.
    (c) Other definitions. The following definitions also apply to this 
part:
    Act means the Rehabilitation Act of 1973, as amended.
    Advocacy means pleading an individual's cause or speaking or 
writing in support of an individual. Advocacy may be formal, as in the 
case of a lawyer representing an individual in a court of law or in 
formal administrative proceedings before government agencies (whether 
tribal, State, local, or Federal). Advocacy also may be informal, as in 
the case of a lawyer or non-lawyer representing an individual in 
negotiations, mediation, or informal administrative proceedings before 
government agencies (whether tribal, State, local, or Federal), or as 
in the case of a lawyer or non-lawyer representing an individual's 
cause before private entities or organizations, or government agencies 
(whether tribal, State, local, or Federal). Advocacy may be on behalf 
of--
    (1) A single individual, in which case it is individual advocacy;
    (2) More than one individual or a group of individuals, in which 
case it is systems (or systemic) advocacy, but systems or systemic 
advocacy, for the purposes of this part, does not include class 
actions, or
    (3) Oneself, in which case it is self advocacy.
    American Indian Consortium means that entity described in Sec.  
370.2(a).
    Class action means a formal legal suit on behalf of a group or 
class of individuals filed in a Federal or State court that meets the 
requirements for a ``class action'' under Federal or State law. 
``Systems (or systemic) advocacy'' that does not include filing a 
formal class action in a Federal or State court

[[Page 55592]]

is not considered a class action for purposes of this part.
    Client or client-applicant means an individual receiving or seeking 
services under the Act, respectively.
    Designated agency means the agency designated by the Governor under 
Sec.  370.2 or the protection and advocacy system serving the American 
Indian Consortium that is conducting a CAP under this part.
    Mediation means the act or process of using an independent third 
party to act as a mediator, intermediary, or conciliator to settle 
differences or disputes between persons or parties. The third party who 
acts as a mediator, intermediary, or conciliator may not be any entity 
or individual who is connected in any way with the eligible system or 
the agency, entity, or individual with whom the individual with a 
disability has a dispute. Mediation may involve the use of professional 
mediators or any other independent third party mutually agreed to by 
the parties to the dispute.
    Protection and Advocacy System has the meaning set forth at Sec.  
370.2(a).
    Services under the Act means vocational rehabilitation, independent 
living, supported employment, and other similar rehabilitation services 
provided under the Act. For purposes of the CAP, the term ``services 
under the Act'' does not include activities carried out under the 
protection and advocacy program authorized by section 509 of the Act 
(i.e., the Protection and Advocacy of Individual Rights (PAIR) program, 
34 CFR part 381).
    State means, in addition to each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, The United States Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands, except for purposes of 
the allotments under Sec.  370.30, in which case ``State'' does not 
mean or include Guam, American Samoa, the United States Virgin Islands, 
and the Commonwealth of the Northern Mariana Islands.

(Authority: Sections 7(34), 12(c), and 112 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(34), 709(c), and 732)

Sec.  370.7   What shall the designated agency do to make its services 
accessible?

    The designated agency shall provide, as appropriate, the CAP 
services described in Sec.  370.4 in formats that are accessible to 
clients or client-applicants who seek or receive CAP services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Subpart B--What Requirements Apply to Redesignation?


Sec.  370.10   When do the requirements for redesignation apply?

    (a) The Governor shall redesignate the designated agency for 
carrying out the CAP to an agency that is independent of any agency 
that provides treatment, services, or rehabilitation to individuals 
under the Act if, after August 7, 1998--
    (1) The designated State agency undergoes any change in the 
organizational structure of the agency that results in one or more new 
State agencies or departments, or results in the merger with one or 
more other State agencies or departments, and
    (2) The designated State agency contains an office or unit 
conducting the CAP.
    (3) For purposes of paragraph (a) of this section, the designated 
State agency has the meaning given to that term at 34 CFR 361.5(c)(12) 
and described at 34 CFR 361.13.
    (b) The Governor may not redesignate the agency designated pursuant 
to section 112(c) of the Act and Sec.  370.2(b) without good cause and 
without complying with the requirements of Sec. Sec.  370.10 through 
370.17.
    (c) For purposes of Sec. Sec.  370.10 through 370.17, a 
``redesignation of'' or ``to redesignate'' a designated agency means 
any change in or transfer of the designation of an agency previously 
designated by the Governor to conduct the State's CAP to a new or 
different agency, unit, or organization, including--
    (1) A decision by a designated agency to cancel its existing 
contract with another entity with which it has previously contracted to 
carry out and operate all or part of its responsibilities under the CAP 
(including providing advisory, assistance, or advocacy services to 
eligible clients and client-applicants); or
    (2) A decision by a designated agency not to renew its existing 
contract with another entity with which it has previously contracted. 
Therefore, an agency that is carrying out a State's CAP under a 
contract with a designated agency is considered a designated agency for 
purposes of Sec. Sec.  370.10 through 370.17.
    (d) For purposes of paragraph (b) of this section, a designated 
agency that does not renew a contract for CAP services because it is 
following State procurement laws that require contracts to be awarded 
through a competitive bidding process is presumed to have good cause 
for not renewing an existing contract. However, this presumption may be 
rebutted.
    (e) If State procurement laws require a designated agency to award 
a contract through a competitive bidding process, the designated agency 
must hold public hearings on the request for proposal before awarding 
the new contract.

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.11   What requirements apply to a notice of proposed 
redesignation?

    (a) Prior to any redesignation of the agency that conducts the CAP, 
the Governor shall give written notice of the proposed redesignation to 
the designated agency, the State Rehabilitation Council (SRC), and the 
State Independent Living Council (SILC) and publish a public notice of 
the Governor's intention to redesignate. Both the notice to the 
designated agency, the SRC, and the SILC and the public notice must 
include, at a minimum, the following:
    (1) The Federal requirements for the CAP (section 112 of the Act).
    (2) The goals and function of the CAP.
    (3) The name of the current designated agency.
    (4) A description of the current CAP and how it is administered.
    (5) The reason or reasons for proposing the redesignation, 
including why the Governor believes good cause exists for the proposed 
redesignation.
    (6) The effective date of the proposed redesignation.
    (7) The name of the agency the Governor proposes to administer the 
CAP.
    (8) A description of the system that the redesignated (i.e., new) 
agency would administer.
    (b) The notice to the designated agency must--
    (1) Be given at least 30 days in advance of the Governor's written 
decision to redesignate; and
    (2) Advise the designated agency that it has at least 30 days from 
receipt of the notice of proposed redesignation to respond to the 
Governor and that the response must be in writing.
    (c) The notice of proposed redesignation must be published in a 
place and manner that provides the SRC, the SILC, individuals with 
disabilities or their representatives, and the public with at least 30 
days to submit oral or written comments to the Governor.
    (d) Following public notice, public hearings concerning the 
proposed redesignation must be conducted in an accessible format that 
provides individuals with disabilities or their representatives an 
opportunity for comment. The Governor shall maintain

[[Page 55593]]

a written public record of these hearings.
    (e) The Governor shall fully consider any public comments before 
issuing a written decision to redesignate.

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.12   How does a designated agency preserve its right to 
appeal a redesignation?

    (a) To preserve its right to appeal a Governor's written decision 
to redesignate (see Sec.  370.13), a designated agency must respond in 
writing to the Governor within 30 days after it receives the Governor's 
notice of proposed redesignation.
    (b) The designated agency shall send its response to the Governor 
by registered or certified mail, return receipt requested, or other 
means that provides a record that the Governor received the designated 
agency's response.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.13   What are the requirements for a decision to redesignate?

    (a) If, after complying with the requirements of Sec.  370.11, the 
Governor decides to redesignate the designated agency, the Governor 
shall provide to the designated agency a written decision to 
redesignate that includes the rationale for the redesignation. The 
Governor shall send the written decision to redesignate to the 
designated agency by registered or certified mail, return receipt 
requested, or other means that provides a record that the designated 
agency received the Governor's written decision to redesignate.
    (b) If the designated agency submitted to the Governor a timely 
response to the Governor's notice of proposed redesignation, the 
Governor shall inform the designated agency that it has at least 15 
days from receipt of the Governor's written decision to redesignate to 
file a formal written appeal with the Secretary.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.14   How does a designated agency appeal a written decision 
to redesignate?

    (a) A designated agency may appeal to the Secretary a Governor's 
written decision to redesignate only if the designated agency submitted 
to the Governor a timely written response to the Governor's notice of 
proposed redesignation in accordance with Sec.  370.12.
    (b) To appeal to the Secretary a Governor's written decision to 
redesignate, a designated agency shall file a formal written appeal 
with the Secretary within 15 days after the designated agency's receipt 
of the Governor's written decision to redesignate. The date of filing 
of the designated agency's written appeal with the Secretary will be 
determined in a manner consistent with the requirements of 34 CFR 
81.12.
    (c) If the designated agency files a written appeal with the 
Secretary, the designated agency shall send a separate copy of this 
appeal to the Governor by registered or certified mail, return receipt 
requested, or other means that provides a record that the Governor 
received a copy of the designated agency's appeal to the Secretary.
    (d) The designated agency's written appeal to the Secretary must 
state why the Governor has not met the burden of showing that good 
cause for the redesignation exists or has not met the procedural 
requirements under Sec. Sec.  370.11 and 370.13.
    (e) The designated agency's written appeal must be accompanied by 
the designated agency's written response to the Governor's notice of 
proposed redesignation and may be accompanied by any other written 
submissions or documentation the designated agency wishes the Secretary 
to consider.
    (f) As part of its submissions under this section, the designated 
agency may request an informal meeting with the Secretary at which 
representatives of both parties will have an opportunity to present 
their views on the issues raised in the appeal.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.15   What must the Governor of a State do upon receipt of a 
copy of a designated agency's written appeal to the Secretary?

    (a) If the designated agency files a formal written appeal in 
accordance with Sec.  370.14, the Governor shall, within 15 days of 
receipt of the designated agency's appeal, submit to the Secretary 
copies of the following:
    (1) The written notice of proposed redesignation sent to the 
designated agency.
    (2) The public notice of proposed redesignation.
    (3) Transcripts of all public hearings held on the proposed 
redesignation.
    (4) Written comments received by the Governor in response to the 
public notice of proposed redesignation.
    (5) The Governor's written decision to redesignate, including the 
rationale for the decision.
    (6) Any other written documentation or submissions the Governor 
wishes the Secretary to consider.
    (7) Any other information requested by the Secretary.
    (b) As part of the submissions under this section, the Governor may 
request an informal meeting with the Secretary at which representatives 
of both parties will have an opportunity to present their views on the 
issues raised in the appeal.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.16   How does the Secretary review an appeal of a 
redesignation?

    (a) If either party requests a meeting under Sec.  370.14(f) or 
Sec.  370.15(b), the meeting is to be held within 30 days of the 
submissions by the Governor under Sec.  370.15, unless both parties 
agree to waive this requirement. The Secretary promptly notifies the 
parties of the date and place of the meeting.
    (b) Within 30 days of the informal meeting permitted under 
paragraph (a) of this section or, if neither party has requested an 
informal meeting, within 60 days of the submissions required from the 
Governor under Sec.  370.15, the Secretary issues to the parties a 
final written decision on whether the redesignation was for good cause.
    (c) The Secretary reviews a Governor's decision based on the record 
submitted under Sec. Sec.  370.14 and 370.15 and any other relevant 
submissions of other interested parties. The Secretary may affirm or, 
if the Secretary finds that the redesignation is not for good cause, 
remand for further findings or reverse a Governor's redesignation.
    (d) The Secretary sends copies of the decision to the parties by 
registered or certified mail, return receipt requested, or other means 
that provide a record of receipt by both parties.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Sec.  370.17   When does a redesignation become effective?

    A redesignation does not take effect for at least 15 days following 
the

[[Page 55594]]

designated agency's receipt of the Governor's written decision to 
redesignate or, if the designated agency appeals, for at least 5 days 
after the Secretary has affirmed the Governor's written decision to 
redesignate.

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))

Subpart C--What are the Requirements for Requesting a Grant?


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

    (a) Each State and the protection and advocacy system serving the 
American Indian Consortium seeking assistance under this part shall 
submit to the Secretary, in writing, at the time and in the manner 
determined by the Secretary to be appropriate, an application that 
includes, at a minimum--
    (1) The name of the designated agency; and
    (2) An assurance that the designated agency meets the independence 
requirement of section 112(c)(1)(A) of the Act and Sec.  370.2(c), or 
that the State is exempted from that requirement under section 
112(c)(1)(A) of the Act and Sec.  370.2(d).
    (b)(1) Each State and the protection and advocacy system serving 
the American Indian Consortium also shall submit to the Secretary an 
assurance that the designated agency has the authority to pursue legal, 
administrative, and other appropriate remedies to ensure the protection 
of the rights of clients or client-applicants within the State or 
American Indian Consortium.
    (2) The authority to pursue remedies described in paragraph (b)(1) 
of this section must include the authority to pursue those remedies 
against the State vocational rehabilitation agency and other 
appropriate State agencies. The designated agency meets this 
requirement if it has the authority to pursue those remedies either on 
its own behalf or by obtaining necessary services, such as legal 
representation, from outside sources.
    (c) Each State and the protection and advocacy system serving the 
American Indian Consortium also shall submit to the Secretary 
assurances that--
    (1) All entities conducting, administering, operating, or carrying 
out programs within the State that provide services under the Act to 
individuals with disabilities in the State will advise all clients and 
client-applicants of the existence of the CAP, the services provided 
under the program, and how to contact the designated agency;
    (2) The designated agency will meet each of the requirements in 
this part; and
    (3) The designated agency will provide the Secretary with the 
annual report required by section 112(g)(4) of the Act and Sec.  
370.44.
    (d) To allow a designated agency to receive direct payment of funds 
under this part, a State or the protection and advocacy system serving 
the American Indian Consortium must provide to the Secretary, as part 
of its application for assistance, an assurance that direct payment to 
the designated agency is not prohibited by or inconsistent with State 
or tribal law, regulation, or policy.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(b) and (f) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(b) and (f))

Subpart D--How Does the Secretary Allocate and Reallocate Funds to 
a State?


Sec.  370.30   How does the Secretary allocate funds?

    (a) After reserving funds required under paragraphs (c) and (d) of 
this section, the Secretary shall allot the remainder of the sums 
appropriated for each fiscal year under this section among the States 
on the basis of relative population of each State, except that no such 
entity shall receive less than $50,000.
    (b) The Secretary allocates $30,000 each, unless the provisions of 
section 112(e)(1)(D) of the Act are applicable, to American Samoa, 
Guam, the Virgin Islands, and the Commonwealth of Northern Mariana 
Islands.
    (c) The Secretary shall reserve funds, from the amount appropriated 
to carry out this part, to make a grant to the protection and advocacy 
system serving the American Indian Consortium to provide services in 
accordance with this part. The amount of the grant to the protection 
and advocacy system serving the American Indian Consortium shall be the 
same amount as is provided to a territory under paragraph (b) of this 
section.
    (d)(1) For any fiscal year for which the amount appropriated equals 
or exceeds $14,000,000, the Secretary may reserve not less than 1.8 
percent and not more than 2.2 percent of such amount to provide a grant 
for training and technical assistance for the programs established 
under this part.
    (2) All training and technical assistance shall be coordinated with 
activities provided under 34 CFR 381.22.
    (3) The Secretary shall make a grant pursuant to paragraph (d)(1) 
of this section to an entity that has experience in or knowledge 
related to the provision of services authorized under this part.
    (4) An entity receiving a grant under paragraph (d)(1) of this 
section shall provide training and technical assistance to the 
designated agencies or entities carrying out the CAP to assist them in 
improving the provision of services authorized under this part and the 
administration of the program.
    (e)(1) Unless prohibited or otherwise provided by State or tribal 
law, regulation, or policy, the Secretary pays to the designated 
agency, from the State allotment under paragraph (a), (b), or (c) of 
this section, the amount specified in the State's or the eligible 
protection and advocacy system's approved request. Because the 
designated agency, including the protection and advocacy system serving 
the American Indian Consortium, is the eventual, if not the direct, 
recipient of the CAP funds, 34 CFR part 81 and 2 CFR part 200 apply to 
the designated agency, whether or not the designated agency is the 
actual recipient of the CAP grant.
    (2) Notwithstanding the grant made to the protection and advocacy 
system serving the American Indian Consortium under paragraph (c) of 
this section, the State remains the grantee for purposes of 34 CFR part 
76 and 2 CFR part 200 because it is the State that submits an 
application for and receives the CAP grant. In addition, both the State 
and the designated agency are considered recipients for purposes of 34 
CFR part 81.

(Authority: Sections 12(c) and 112(b) and (e) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 732(b) and (e))

Sec.  370.31   How does the Secretary reallocate funds?

    (a) The Secretary reallocates funds in accordance with section 
112(e)(2) of the Act.
    (b) A designated agency shall inform the Secretary at least 45 days 
before the end of the fiscal year for which CAP funds were received 
whether the designated agency is making available for reallotment any 
of those CAP funds that it will be unable to obligate in that fiscal 
year or the succeeding fiscal year.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c), 19, and 112(e)(2) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 716, and 732(e)(2))


[[Page 55595]]



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


Sec.  370.40  What are allowable costs?

    (a) The designated agency, including the eligible protection and 
advocacy system serving the American Indian Consortium, shall apply the 
regulations at 2 CFR part 200.
    (b) Consistent with the program activities listed in Sec.  370.4, 
the cost of travel in connection with the provision to a client or 
client-applicant of assistance under this program is allowable, in 
accordance with 2 CFR part 200. The cost of travel includes the cost of 
travel for an attendant if the attendant must accompany the client or 
client-applicant.
    (c)(1) The State and the designated agency are accountable, both 
jointly and severally, to the Secretary for the proper use of funds 
made available under this part. However, the Secretary may choose to 
recover funds under the procedures in 34 CFR part 81 from either the 
State or the designated agency, or both, depending on the circumstances 
of each case.
    (2) For purposes of the grant made under this part to the 
protection and advocacy system serving the American Indian Consortium, 
such entity will be solely accountable to the Secretary for the proper 
use of funds made available under this part. If the Secretary 
determines it necessary, the Secretary may recover funds from the 
protection and advocacy system serving the American Indian Consortium 
pursuant to the procedures in 34 CFR part 81.

(Authority: Sections 12(c) and 112(c)(3) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 732(c)(3))

Sec.  370.41   What conflict of interest provision applies to employees 
of a designated agency?

    (a) Except as permitted by paragraph (b) of this section, an 
employee of a designated agency, or of an entity or individual under 
contract with a designated agency, who carries out any CAP duties or 
responsibilities, while so employed, may not--
    (1) Serve concurrently as a staff member of, consultant to, or in 
any other capacity within, any other rehabilitation project, program, 
or community rehabilitation program receiving assistance under the Act 
in the State; or
    (2) Provide any services under the Act, other than CAP and PAIR 
services.
    (b) An employee of a designated agency under contract with a 
designated agency, may--
    (1) Receive a traineeship under section 302 of the Act;
    (2) Provide services under the PAIR program;
    (3) Represent the CAP on any board or council (such as the SRC) if 
CAP representation on the board or council is specifically permitted or 
mandated by the Act; and
    (4) Consult with policymaking and administrative personnel in State 
and local rehabilitation programs, projects, and community 
rehabilitation programs, if consultation with the designated agency is 
specifically permitted or mandated by the Act.

(Authority: Sections 12(c) and 112(g)(1) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 732(g)(1))

Sec.  370.42   What access must the CAP be afforded to policymaking and 
administrative personnel?

    The CAP must be afforded reasonable access to policymaking and 
administrative personnel in State and local rehabilitation programs, 
projects, and community rehabilitation programs. One way in which the 
CAP may be provided that access would be to include the director of the 
designated agency among the individuals to be consulted on matters of 
general policy development and implementation, as required by section 
101(a)(16) of the Act.

(Authority: Sections 12(c), 101(a)(16), and 112(g)(2) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 
721(a)(16), and 732(g)(2))

Sec.  370.43   What requirement applies to the use of mediation 
procedures?

    (a) Each designated agency shall implement procedures designed to 
ensure that, to the maximum extent possible, good faith negotiations 
and mediation procedures are used before resorting to formal 
administrative or legal remedies. In designing these procedures, the 
designated agency may take into account its level of resources.
    (b) For purposes of this section, mediation may involve the use of 
professional mediators, other independent third parties mutually agreed 
to by the parties to the dispute, or an employee of the designated 
agency who--
    (1) Is not assigned to advocate for or otherwise represent or is 
not involved with advocating for or otherwise representing the client 
or client-applicant who is a party to the mediation; and
    (2) Has not previously advocated for or otherwise represented or 
been involved with advocating for or otherwise representing that same 
client or client-applicant.

(Authority: Section 112(g)(3) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(g)(3))

Sec.  370.44   What reporting requirement applies to each designated 
agency?

    In addition to the program and fiscal reporting requirements in 34 
CFR 76.720 and 2 CFR 200.327 that are applicable to this program, each 
designated agency shall submit to the Secretary, no later than 90 days 
after the end of each fiscal year, an annual report on the operation of 
its CAP during the previous year, including a summary of the work done 
and the uniform statistical tabulation of all cases handled by the 
program. The annual report must contain information on--
    (a) The number of requests received by the designated agency for 
information on services and benefits under the Act and title I of the 
ADA;
    (b) The number of referrals to other agencies made by the 
designated agency and the reason or reasons for those referrals;
    (c) The number of requests for advocacy services received by the 
designated agency from clients or client-applicants;
    (d) The number of requests for advocacy services from clients or 
client-applicants that the designated agency was unable to serve;
    (e) The reasons that the designated agency was unable to serve all 
of the requests for advocacy services from clients or client-
applicants; and
    (f) Any other information that the Secretary may require.

(Approved by the Office of Management and Budget under control 
number 1820-0520)


(Authority: Sections 12(c) and 112(g)(4) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 732(g)(4))

Sec.  370.45   What limitation applies to the pursuit of legal 
remedies?

    A designated agency may not bring any class action in carrying out 
its responsibilities under this part.

(Authority: Section 112(d) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(d))

Sec.  370.46   What consultation requirement applies to a Governor of a 
State?

    In designating a client assistance agency under Sec.  370.2, 
redesignating a client assistance agency under Sec.  370.10, and 
carrying out the other provisions of this part, the Governor shall 
consult with the director of the State vocational rehabilitation agency 
(or, in States with both a general agency and an agency for the blind, 
the directors of both agencies), the head of the developmental 
disability protection and

[[Page 55596]]

advocacy agency, and representatives of professional and consumer 
organizations serving individuals with disabilities in the State.

(Authority: Section 112(c)(2) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(c)(2))

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

    (a) Definition. (1) Consistent with 2 CFR 200.80 and for purposes 
of this part, program income means gross income earned by the 
designated agency that is directly generated by an activity supported 
under this part.
    (2) Funds received through the transfer of Social Security 
Administration payments from the designated State unit, as defined in 
34 CFR 361.5(c)(13), in accordance with 34 CFR 361.63(c)(2) will be 
treated as program income received under this part.
    (b) Use of program income. (1) Program income, whenever earned or 
received, must be used for the provision of services authorized under 
Sec.  370.4.
    (2)(i) The designated agency must use program income to supplement 
Federal funds that support program activities that are subject to this 
part. See, for example 2 CFR 200.307(e)(2).
    (ii) Notwithstanding 2 CFR 200.305(a) and consistent with 2 CFR 
200.305(b)(5), and to the extent that program income funds are 
available, a designated agency, regardless of whether it is a State 
agency, must disburse those funds (including repayments to a revolving 
fund), rebates, refunds, contract settlements, audit recoveries, and 
interest earned on such funds before requesting additional funds from 
the Department.

(Authority: Sections 12(c) and 108 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 728; and 20 U.S.C. 3474);

Sec.  370.48   When must grant funds and program income be obligated?

    Any Federal funds, including reallotted funds, that are 
appropriated for a fiscal year to carry out the activities under this 
part that are not obligated or expended by the designated agency prior 
to the beginning of the succeeding fiscal year, and any program income 
received during a fiscal year that is not obligated or expended by the 
designated agency prior to the beginning of the succeeding fiscal year 
in which the program income was received, remain available for 
obligation and expenditure by the designated agency during that 
succeeding fiscal year in accordance with section 19 of the Act.

(Authority: Sections 12(c) and 19 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 716)

Sec.  370.49   What are the special requirements pertaining to the 
protection, use, and release of personal information?

    (a) All personal information about individuals served by any 
designated agency under this part, including lists of names, addresses, 
photographs, and records of evaluation, must be held strictly 
confidential.
    (b) The designated agency's use of information and records 
concerning individuals must be limited only to purposes directly 
connected with the CAP, including program evaluation activities. Except 
as provided in paragraphs (c) and (e) of this section, this information 
may not be disclosed, directly or indirectly, other than in the 
administration of the CAP, unless the consent of the individual to whom 
the information applies, or his or her parent, legal guardian, or other 
legally authorized representative or advocate (including the 
individual's advocate from the designated agency), has been obtained in 
writing. A designated agency may not produce any report, evaluation, or 
study that reveals any personally identifying information without the 
written consent of the individual or his or her representative.
    (c) Except as limited in paragraphs (d) and (e) of this section, 
the Secretary or other Federal or State officials responsible for 
enforcing legal requirements are to have complete access to all--
    (1) Records of the designated agency that receives funds under this 
program; and
    (2) All individual case records of clients served under this part 
without the consent of the client.
    (d) For purposes of conducting any periodic audit, preparing or 
producing any report, or conducting any evaluation of the performance 
of the CAP established or assisted under this part, the Secretary does 
not require the designated agency to disclose the identity of, or any 
other personally identifiable information related to, any individual 
requesting assistance under the CAP.
    (e) Notwithstanding paragraph (d) of this section and consistent 
with paragraph (f) of this section, a designated agency shall disclose 
to the Secretary, if the Secretary so requests, the identity of, or any 
other personally identifiable information (i.e., name, address, 
telephone number, social security number, or any other official code or 
number by which an individual may be readily identified) related to, 
any individual requesting assistance under the CAP if--
    (1) An audit, evaluation, monitoring review, State plan assurance 
review, or other investigation produces reliable evidence that there is 
probable cause to believe that the designated agency has violated its 
legislative mandate or misused Federal funds; or
    (2) The Secretary determines that this information may reasonably 
lead to further evidence that is directly related to alleged misconduct 
of the designated agency.
    (f) In addition to the protection afforded by paragraph (d) of this 
section, the right of a person or designated agency not to produce 
documents or disclose information to the Secretary is governed by the 
common law of privileges, as interpreted by the courts of the United 
States.

(Authority: Sections 12(c) and 112(g)(4) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 732(g)(4))


0
4. Part 371 is revised to read as follows:

PART 371--AMERICAN INDIAN VOCATIONAL REHABILITATION SERVICES

Subpart A--General
Sec.
371.1 What is the American Indian Vocational Rehabilitation Services 
program?
371.2 Who is eligible for assistance under this program?
371.3 What types of projects are authorized under this program?
371.4 What is the length of the project period under this program?
371.5 What regulations apply to this program?
371.6 What definitions apply to this program?
Subpart B--Training and Technical Assistance
371.10 What are the requirements for funding training and technical 
assistance under this subpart?
371.11 How does the Secretary use these funds to provide training 
and technical assistance?
371.12 How does the Secretary make an award?
371.13 How does the Secretary determine funding priorities?
371.14 How does the Secretary evaluate an application?
Subpart C--How Does One Apply for a Grant?
371.20 What are the application procedures for this program?
371.21 What are the special application requirements related to the 
projects funded under this part?
Subpart D--How Does the Secretary Make a Grant?
371.31 How are grants awarded?

[[Page 55597]]

371.32 What other factors does the Secretary consider in reviewing 
an application?
Subpart E--What Conditions Apply to a Grantee Under this Program?
371.40 What are the matching requirements?
371.41 What are allowable costs?
371.42 How are services to be administered under this program?
371.43 What other special conditions apply to this program?
371.44 What are the special requirements pertaining to the 
protection, use, and release of personal information?
371.45 What notice must be given about the Client Assistance Program 
(CAP)?

    Authority:  Sections 12(c) and 121 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741, unless otherwise noted.

Subpart A--General


Sec.  371.1  What is the American Indian Vocational Rehabilitation 
Services program?

    This program is designed to provide vocational rehabilitation 
services, including culturally appropriate services, to American 
Indians with disabilities who reside on or near Federal or State 
reservations, consistent with such eligible individual's strengths, 
resources, priorities, concerns, abilities, capabilities, interests, 
and informed choice, so that such individual may prepare for, and 
engage in, high-quality employment that will increase opportunities for 
economic self-sufficiency.

(Authority: Section 121(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 741(a))

Sec.  371.2   Who is eligible for assistance under this program?

    (a) Applications may be made only by Indian tribes and consortia of 
those Indian tribes located on Federal and State reservations.
    (1) The applicant for the grant must be
    (i) The governing body of an Indian tribe, either on behalf the 
Indian tribe or on behalf of a consortium of Indian tribes; or
    (ii) A tribal organization that is a separate legal organization 
from an Indian tribe.
    (2) In order to receive a grant under this section, a tribal 
organization that is not a governing body of an Indian tribe must:
    (i) Have as one of its functions the vocational rehabilitation of 
American Indians with disabilities; and
    (ii) Have the approval of the tribe to be served by such 
organization.
    (3) If a grant is made to the governing body of an Indian tribe, 
either on its own behalf or on behalf of a consortium, or to a tribal 
organization to perform services benefiting more than one Indian tribe, 
the approval of each such Indian tribe shall be a prerequisite to the 
making of such a grant.
    (b) Applications for awards under Subpart B may be made by State, 
local or tribal governments, non-profit organizations, or institutions 
of higher education.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(a))

Sec.  371.3   What types of projects are authorized under this program?

    The American Indian Vocational Rehabilitation Services program 
provides financial assistance for the establishment and operation of 
tribal vocational rehabilitation services programs for American Indians 
with disabilities who reside on or near Federal or State reservations.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 
1973, as amended Act, 29 U.S.C. 709(c) and 741(a))

Sec.  371.4   What is the length of the project period under this 
program?

    The Secretary approves a project period of up to sixty months.

(Authority: Sections 12(c) and 121(b)(3) of the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 709(c) and 121(b)(3))

Sec.  371.5  What regulations apply to this program?

    The following regulations apply to this program--
    (a) The regulations in this part 371.
    (b) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485;
    (c) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.
    (d) 34 CFR part 75 Direct Grant Programs
    (e) 34 CFR part 77 Definitions that Apply to Department Regulations
    (f) 34 CFR part 81 General Education Provisions Act--Enforcement
    (g) 34 CFR part 82 New Restrictions on Lobbying
    (h) 34 CFR part 84 Governmentwide Requirements for Drug-Free 
Workplace

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  371.6   What definitions apply to this program?

    (a) The definitions of terms included in the applicable regulations 
listed in Sec.  371.5;
    (b) The following definitions also apply to this program--
    Act means the Rehabilitation Act of 1973, as amended.
    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 an 
approved plan or the approved grant application; 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 for employment of the eligible individual;
    (B) Uses as a primary source of information, to the maximum extent 
possible and appropriate and in 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 an approved plan or the approved grant 
application 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

[[Page 55598]]

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 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))


    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--
    (i) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management;
    (ii) Testing, fitting, or training in the use of prosthetic and 
orthotic devices;
    (iii) Recreational therapy;
    (iv) Physical and occupational therapy;
    (v) Speech, language, and hearing therapy;
    (vi) Psychiatric, psychological, and social services, including 
positive behavior management;
    (vii) Assessment for determining eligibility and vocational 
rehabilitation needs;
    (viii) Rehabilitation technology;
    (ix) Job development, placement, and retention services;
    (x) Evaluation or control of specific disabilities;
    (xi) Orientation and mobility services for individuals who are 
blind;
    (xii) Extended employment;
    (xiii) Psychosocial rehabilitation services;
    (xiv) Supported employment services and extended services;
    (xv) Customized employment;
    (xvi) Services to family members if necessary to enable the 
applicant or eligible individual to achieve an employment outcome;
    (xvii) Personal assistance services; or
    (xviii) Services similar to the services described in paragraphs 
(i) through (xvii) of this definition.

(Authority: Sections 7(4) and 12(c) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 705(4) and 709(c))


    Comparable services and benefits means--
    (i) 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; and
    (C) Commensurate to the services that the individual would 
otherwise receive from the Tribal Vocational Rehabilitation unit.
    (ii) For the purposes of this definition, comparable benefits do 
not include awards and scholarships based on merit.

(Authority: Sections 12(c) and 101(a)(8)(A) of the Rehabilitation 
Act of 1973, as amended, 29 U.S.C. 709(c) and 721(a)(8)(A))


    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 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--
    (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
    (C) 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))


    Consortium means two or more eligible governing bodies of Indian 
tribes that apply for an award under this program by either:
    (i) Designating one governing body to apply for the grant; or
    (ii) Establishing and designating a tribal organization to apply 
for a grant.

(Authority: Sections 12(c) and 121 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(a))


    Customized employment means competitive integrated employment, for 
an individual with a significant disability, that is based on an 
individualized determination of the unique strengths, needs, and 
interests of the individual with a significant disability, is designed 
to meet the specific abilities of the individual with a significant 
disability and the business needs of the employer, and is carried out 
through flexible strategies, such as--
    (i) Job exploration by the individual;
    (ii) Working with an employer to facilitate placement, including--
    (A) Customizing a job description based on current employer needs 
or on previously unidentified and unmet employer needs; and
    (B) 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;

[[Page 55599]]

    (iii) Using a professional representative chosen by the individual, 
or if elected self-representation, to work with an employer to 
facilitate placement; and
    (iv) Providing services and supports at the job location.

(Authority: Sections 7(7) and 12(c) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 705(7) and 709(c))


    Eligible individual means an applicant for vocational 
rehabilitation services who meets the eligibility requirements of 
Section 102(a)(1) of the Act.

(Authority: Sections 7(20)(A), 12(c), and 102(a)(1) of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 705(20)(A), 
709(c), and 722)


    Employment outcome means, with respect to an individual, entering, 
advancing in or retaining full-time or, if appropriate, part-time 
competitive integrated employment (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) and 12(c) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 705(11), and 709(c))


    Family member for purposes of receiving vocational rehabilitation 
services 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))


    Governing bodies of Indian tribes means those duly elected or 
appointed representatives of an Indian tribe or of an Alaskan native 
village. These representatives must have the authority to enter into 
contracts, agreements, and grants on behalf of their constituency.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(a))


    Indian; American Indian; Indian American; Indian tribe means---
    (i) Indian, American Indian, and Indian American mean an individual 
who is a member of an Indian tribe and includes a Native and a 
descendant of a Native, as such terms are defined in subsections (b) 
and (r) of section 3 of the Alaska Native Claims Settlement Act (43 
U.S.C. 1602).
    (ii) 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(l) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450(b)(l)) and 
this section.

(Authority: Section 7(19) of the Rehabilitation Act of 1973, as 
amended, 29 U.S.C. 705(19))


    Individual with a disability means--
    In general any 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))


    Individual with a significant disability means--
    In general 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, 
intellectual disability, mental illness, multiple sclerosis, muscular 
dystrophy, musculo-skeletal disorders, neurological disorders 
(including stroke and epilepsy), spinal cord conditions (including 
paraplegia and quadriplegia), sickle cell anemia, specific learning 
disability, end-stage renal disease, or another disability or 
combination of disabilities determined on the basis of an assessment 
for determining eligibility and vocational rehabilitation needs to 
cause comparable substantial functional limitation.

(Authority: Section 7(21) of the Rehabilitation Act of 1973, as 
amended, 29 U.S.C. 705(21))


    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))


    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.

    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

[[Page 55600]]

personnel that are qualified in accordance with State licensure laws;
    (ix) Podiatry;
    (x) Physical therapy;
    (xi) Occupational therapy;
    (xii) Speech or hearing therapy;
    (xiii) Mental health services;
    (xiv) Treatment of either acute or chronic medical complications 
and emergencies that are associated with or arise out of the provision 
of physical and mental restoration services, or that are inherent in 
the condition under treatment;
    (xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial 
kidneys, and supplies; and
    (xvi) Other medical or medically related rehabilitation services.
    (xvii) Services reflecting the cultural background of the American 
Indian being served, including treatment provided by native healing 
practitioners in accordance with 34 CFR 371.41(a)(2).

(Authority: Sections 12(c), 103(a)(6), and 121(b)(1)(B) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 723(a)(6), 
and 741(b)(1)(B))


    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 or 
developmental 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))


    Post-employment services means one or more of the services 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)(18) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c)) and 723(a)(18))



    Note to definition of post-employment services. 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 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.

    Representatives of the Tribal Vocational Rehabilitation program 
means, consistent with 34 CFR 371.21(b), those individuals specifically 
responsible for determining eligibility, the nature and scope of 
vocational rehabilitation services, and the provision of those 
services.

(Authority: Sections 12(c) and 121(b)(1)(D) of the Rehabilitation 
Act of 1973, as amended, 29 U.S.C. 709(c) and 741(b)(1)(D))


    Reservation means a Federal or State Indian reservation, public 
domain Indian allotment, former Indian reservation in Oklahoma, land 
held by incorporated Native groups, regional corporations and village 
corporations under the provisions of the Alaska Native Claims 
Settlement Act; 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: Sections 12(c) and 121(e) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(e))


    Subsistence means a form of self-employment in which individuals 
produce, using culturally relevant and traditional methods, goods or 
services that are predominantly consumed by their own household or used 
for noncommercial customary trade or barter and that constitute an 
important basis for the worker's livelihood.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))


    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))


    Supported employment--(i) Supported employment means 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--
    (A) 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
    (B) 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 Tribal Vocational 
Rehabilitation Unit, in order to perform this work.
    (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 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:
    (A) Within six months of achieving a supported employment outcome; 
or
    (B) Within a period not to exceed 12 months from the achievement of 
the supported employment outcome, if a longer period is necessary based 
on the needs of the individual, and the individual has demonstrated 
progress toward competitive earnings based on information contained in 
the service record.

[[Page 55601]]


(Authority: Sections 7(38) and 12(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(38) and 709(c))


    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 Tribal Vocational Rehabilitation 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) and 12(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(39) and 709(c))


    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, competitive integrated employment, 
supported employment, continuing and adult education, adult services, 
independent living, or community participation;
    (ii) Based upon the individual student's or youth's needs, taking 
into account the student's or youth'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;
    (iv) That promotes or facilitates the achievement of the employment 
outcome identified in the student's or youth's individualized plan for 
employment; and
    (v) That includes outreach to and engagement of the parents, or, as 
appropriate, the representative of such a student or youth with a 
disability.

(Authority: Sections 12(c), 103(a)(15), and (b)(7) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 
723(a)(15), and (b)(7))


    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))


    Tribal organization means the recognized governing body of any 
Indian tribe or any legally established organization of Indians which 
is controlled, sanctioned, or chartered by such governing body or which 
is democratically elected by the adult members of the Indian community 
to be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities.

(Authority: Sections 7(19) and 12(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(19) and 709(c); Section 4 of the 
Indian Self-Determination and Education Assistance Act, 25 U.S.C. 
450(b))


    Tribal Vocational Rehabilitation program means the unit designated 
by the governing bodies of an Indian Tribe, or consortia of governing 
bodies, to implement and administer the grant under this program in 
accordance with the purpose of the grant and all applicable 
programmatic and fiscal requirements.

(Authority: Sections 12(c) and 121(b)(1) of the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 709(c) and 741(b)(1))


    Vocational Rehabilitation Services for Individuals means any 
services described in an individualized plan for employment necessary 
to assist an individual with a disability in preparing for, securing, 
retaining, advancing in or regaining an employment outcome that is 
consistent with the unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice of the 
individual, including, but not limited to--
    (i) An assessment for determining eligibility, priority for 
services, and vocational rehabilitation needs by qualified personnel, 
including, if appropriate, an assessment by personnel skilled in 
rehabilitation technology.
    (ii) Vocational rehabilitation counseling and guidance, including 
information and support services to assist an individual in exercising 
informed choice.
    (iii) Referral and other services necessary to assist applicants 
and eligible individuals to secure needed services from other agencies 
and to advise those individuals about client assistance programs 
established under 34 CFR part 370.
    (iv) Physical and mental restoration services, to the extent that 
financial support is not readily available from a source other than the 
Tribal Vocational Rehabilitation unit (such as through health insurance 
or a comparable service or benefit).
    (v) Vocational and other training services, including personal and 
vocational adjustment training, advanced training (particularly 
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 Tribal Vocational 
Rehabilitation unit and the individual to secure grant assistance in 
whole or in part from other sources to pay for that training.
    (vi) Maintenance.
    (vii) Transportation in connection with the provision of any 
vocational rehabilitation service.
    (viii) Vocational rehabilitation services to family members of an 
applicant or eligible individual if necessary to enable the applicant 
or eligible individual to achieve an employment outcome.
    (ix) 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.
    (x) Reader services, rehabilitation teaching services, and 
orientation and mobility services for individuals who are blind.
    (xi) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-
along services.
    (xii) Supported employment services.
    (xiii) Personal assistance services.
    (xiv) Post-employment services.
    (xv) Occupational licenses, tools, equipment, initial stocks, and 
supplies.

[[Page 55602]]

    (xvi) Rehabilitation technology, including vehicular modification, 
telecommunications, sensory, and other technological aids and devices.
    (xvii) 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.
    (xviii) Technical assistance and other consultation services to 
conduct market analyses, develop business plans, and otherwise provide 
resources to eligible individuals who are pursuing self-employment or 
telecommuting or establishing a small business operation as an 
employment outcome.
    (xix) Customized employment.
    (x) Other goods and services determined necessary for the 
individual with a disability to achieve an employment outcome.
    Vocational Rehabilitation Services for Groups of Individuals 
provided for the benefit of groups of individuals with disabilities--
    (i) May be provided by the Tribal Vocational Rehabilitation Unit 
and may include the following:
    (A) In the case of any small business enterprise operated by 
individuals with significant disabilities under the supervision of the 
Tribal Vocational Rehabilitation unit, management services and 
supervision provided by the Tribal Vocational Rehabilitation unit, 
along with the acquisition by the Tribal Vocational Rehabilitation unit 
of vending facilities or other equipment and initial stocks and 
supplies in accordance with the following requirements:
    (1) 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.
    (2) Initial stocks and supplies include those items necessary to 
the establishment of a new business enterprise during the initial 
establishment period, which may not exceed 6 months.
    (3) Costs of establishing a small business enterprise may include 
operational costs during the initial establishment period, which may 
not exceed six months.
    (4) If the Tribal Vocational Rehabilitation unit provides for these 
services, it must ensure that only individuals with significant 
disabilities will be selected to participate in this supervised 
program.
    (5) If the Tribal Vocational Rehabilitation unit provides for these 
services and chooses to set aside funds from the proceeds of the 
operation of the small business enterprises, the Tribal Vocational 
Rehabilitation 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.
    (B) The establishment, development, or improvement of a 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 community 
rehabilitation facility. Examples of ``special circumstances'' include 
the destruction by natural disaster of the only available center 
serving an area or a Tribal Vocational Rehabilitation unit 
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.
    (C) 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.
    (D) Special services to provide nonvisual access to information for 
individuals who are blind, including the use of telecommunications, 
Braille, sound recordings, or other appropriate 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.
    (E) Technical assistance to businesses that are seeking to employ 
individuals with disabilities.
    (F) Consultation and technical assistance services to assist State 
educational agencies and local educational agencies, and, where 
appropriate, Tribal Educational agencies, in planning for the 
transition of students with disabilities from school to postsecondary 
life, including employment.
    (G) Transition services to youth with disabilities and students 
with disabilities, 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 Tribal Vocational Rehabilitation unit 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 a 
goal in an individualized plan for employment (IPE). 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.
    (H) 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 and employers.
    (I) 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:
    (1) Such eligibility;
    (2) Previous completion of a bachelor's degree program at an 
institution of higher education or scheduled completion of such degree 
program prior to matriculating in the program for which the individual 
proposes to use the support; and
    (3) 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,

[[Page 55603]]

a master of business administration degree, or a doctor of medicine 
degree, except that--
    (i) No training provided at an institution of higher education 
shall be paid for with funds under this program unless maximum efforts 
have been made by the Tribal Vocational Rehabilitation unit and the 
individual to secure grant assistance, in whole or in part, from other 
sources to pay for such training; and
    (ii) Nothing in this paragraph prevents any Tribal Vocational 
Rehabilitation unit from providing similar support to individuals with 
disabilities pursuant to their approved IPEs who are eligible to 
receive support under this program and who are not served under this 
paragraph.
    (ii) If the Tribal Vocational Rehabilitation Unit provides for 
vocational rehabilitation services for groups of individuals it must --
    (A) 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
    (B) 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) and 103(a) and (b) of the Rehabilitation 
Act of 1973, as amended, 29 U.S.C. 709(c) and 723(a) and (b))

Subpart B--Training and Technical Assistance


Sec.  371.10   What are the requirements for funding training and 
technical assistance under this subpart?

    The Secretary shall first reserve not less than 1.8 percent and not 
more than 2 percent of funds appropriated and made available to carry 
out this program to provide training and technical assistance to the 
governing bodies of Indian tribes and consortia of those governing 
bodies awarded a grant under this program.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(c))

Sec.  371.11   How does the Secretary use these funds to provide 
training and technical assistance?

    (a) The Secretary uses these funds to make grants to, or enter into 
contracts or other cooperative agreements with, entities that have 
staff with experience in the operation of vocational rehabilitation 
services programs under this part.
    (b) An entity receiving assistance in accordance with paragraph (a) 
of this section shall provide training and technical assistance with 
respect to developing, conducting, administering, and evaluating tribal 
vocational rehabilitation programs funded under this part.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(c))

Sec.  371.12   How does the Secretary make an award?

    (a) To be eligible to receive a grant or enter into a contract or 
cooperative agreement under section 121(c) of the Act and this subpart, 
an applicant shall submit an application to the Secretary at such time, 
in such manner, and containing a proposal to provide such training and 
technical assistance, and any additional information as the Secretary 
may require.
    (b) The Secretary shall provide for peer review of applications by 
panels that include persons who are not Federal or State government 
employees and who have experience in the operation of vocational 
rehabilitation services programs under this part.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(c))

Sec.  371.13   How does the Secretary determine funding priorities?

    The Secretary shall conduct a survey of the governing bodies of 
Indian tribes funded under this part regarding training and technical 
assistance needs in order to determine funding priorities for such 
training and technical assistance.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(c))

Sec.  371.14   How does the Secretary evaluate an application?

    (a) The Secretary evaluates each application for a grant, 
cooperative agreement or contract under this subpart on the basis of 
the selection criteria chosen from the general selection criteria found 
in EDGAR regulations at 34 CFR 75.210.
    (b) The Secretary may award a competitive preference consistent 
with 34 CFR 75.102(c)(2) to applications that include as project 
personnel in a substantive role, individuals that have been employed as 
a project director or VR counselor by a Tribal Vocational 
Rehabilitation unit funded under this part.
    (c) If using a contract to award funds under this subpart, the 
Secretary may conduct the application process and make the subsequent 
award in accordance with 34 CFR part 75.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(c))


Subpart C--How Does One Apply for a Grant?


Sec.  371.20   What are the application procedures for this program?

    (a) In the development of an application, the applicant is required 
to consult with the designated State unit (DSU) for the state 
vocational rehabilitation program in the State or States in which 
vocational rehabilitation services are to be provided.
    (b) The procedures for the review and comment by the DSU or the 
DSUs of the State or States in which vocational rehabilitation services 
are to be provided on applications submitted from within the State that 
the DSU or DSUs serve are in 34 CFR 75.155-75.159.

(Authority: Sections 12(c) and 121(b)(1)(C) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(C))


Sec.  371.21   What are the special application requirements related to 
the projects funded under this part?

    Each applicant under this program must provide evidence that--
    (a) Effort will be made to provide a broad scope of vocational 
rehabilitation services in a manner and at a level of quality at least 
comparable to those services provided by the designated State unit.

(Authority: Sections 12(c) and 121(b)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(B))


    (b) All decisions affecting eligibility for vocational 
rehabilitation services, the nature and scope of available vocational 
rehabilitation services and the provision of such services will be made 
by a representative of the tribal vocational rehabilitation program 
funded through this grant and such decisions will not be delegated to 
another agency or individual.

(Authority: Sections 12(c) and 121(b)(1)(D) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(D))


    (c) Priority in the delivery of vocational rehabilitation services 
will be given to those American Indians with disabilities who are the 
most significantly disabled.

(Authority: Sections 12(c) and 101(a)(5) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(5))



[[Page 55604]]


    (d) An order of selection of individuals with disabilities to be 
served under the program will be specified if services cannot be 
provided to all eligible American Indians with disabilities who apply.

(Authority: Sections 12(c) and 101(a)(5) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709 (c) and 721(a)(5))


    (e) All vocational rehabilitation services will be provided 
according to an individualized plan for employment which has been 
developed jointly by the representative of the tribal vocational 
rehabilitation program and each American Indian with disabilities being 
served.

(Authority: Sections 12(c) and 101(a)(9) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 721 (a)(9))


    (f) American Indians with disabilities living on or near Federal or 
State reservations where tribal vocational rehabilitation service 
programs are being carried out under this part will have an opportunity 
to participate in matters of general policy development and 
implementation affecting vocational rehabilitation service delivery by 
the tribal vocational rehabilitation program.

(Authority: Sections 12(c) and 101(a)(16) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(16))


    (g) Cooperative working arrangements will be developed with the 
DSU, or DSUs, as appropriate, which are providing vocational 
rehabilitation services to other individuals with disabilities who 
reside in the State or States being served.

(Authority: Sections 12(c) and 101(a)(11)(F) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(11)(F))


    (h) Any comparable services and benefits available to American 
Indians with disabilities under any other program, which might meet in 
whole or in part the cost of any vocational rehabilitation service, 
will be fully considered in the provision of vocational rehabilitation 
services.

(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))


    (i) Any American Indian with disabilities who is an applicant or 
recipient of services, and who is dissatisfied with a determination 
made by a representative of the tribal vocational rehabilitation 
program and files a request for a review, will be afforded a review 
under procedures developed by the grantee comparable to those under the 
provisions of section 102(c)(1)-(5) and (7) of the Act.

(Authority: Sections 12(c) and 102(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 722(c)(1)-(5) and (7))


    (j) The tribal vocational rehabilitation program funded under this 
part must assure that any facility used in connection with the delivery 
of vocational rehabilitation services meets facility and 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.

(Authority: Sections 12(c) and 101(a)(6)(C) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(6)(C))


    (k) The tribal vocational rehabilitation program funded under this 
part must ensure that providers of vocational rehabilitation services 
are able to communicate in the native language of, or by using an 
appropriate mode of communication with, applicants and eligible 
individuals who have limited English proficiency, unless it is clearly 
not feasible to do so.

(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))


Subpart D--How Does the Secretary Make a Grant?


Sec.  371.31  How are grants awarded?

    To the extent that funds have been appropriated under this program, 
the Secretary approves all applications which meet acceptable standards 
of program quality. If any application is not approved because of 
deficiencies in proposed program standards, the Secretary provides 
technical assistance to the applicant Indian tribe with respect to any 
areas of the proposal which were judged to be deficient.

(Authority: Sections 12(c) and 121(b)(1)(A) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(A))

Sec.  371.32   What other factors does the Secretary consider in 
reviewing an application?

    (a) In addition to the selection criteria used in accordance with 
the procedures in 34 CFR part 75, the Secretary, in making an award 
under this program, considers the past performance of the applicant in 
carrying out similar activities under previously awarded grants, as 
indicated by such factors as compliance with grant conditions, 
soundness of programmatic and financial management practices and 
attainment of established project objectives.
    (b) The Secretary may award a competitive preference consistent 
with 34 CFR 75.102(c)(2) to applications for the continuation of 
programs which have been funded under this program.

(Authority: Sections 12(c), 121(b)(1)(A), and 121(b)(4) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 
741(b)(1)(A)), and 741(b)(4).

Subpart E--What Conditions Apply to a Grantee Under this Program?


Sec.  371.40   What are the matching requirements?

    (a) Federal share Except as provided in paragraph (c) of this 
section, the Federal share may not be more than 90 percent of the total 
cost of the project.
    (b) Non-Federal share The non-Federal share of the cost of the 
project may be in cash or in kind, fairly valued pursuant to match 
requirements in 2 CFR 200.306.
    (c) Waiver of non-Federal share In order to carry out the purposes 
of the program, the Secretary may waive the non-Federal share 
requirement, in part or in whole, only if the applicant demonstrates 
that it does not have sufficient resources to contribute the non-
Federal share of the cost of the project.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(a))

Sec.  371.41   What are allowable costs?

    (a) In addition to those allowable cost established in 2 CFR 
200.400--200.475, the following items are allowable costs under this 
program--
    (1) Expenditures for the provision of vocational rehabilitation 
services and for the administration, including staff development, of a 
program of vocational rehabilitation services.
    (2) Expenditures for services reflecting the cultural background of 
the American Indians being served, including treatment provided by 
native healing practitioners who are recognized as such by the tribal 
vocational rehabilitation program when the services are necessary to 
assist an individual with disabilities to achieve his or her vocational 
rehabilitation objective.
    (b) Expenditures may not be made under this program to cover the 
costs of providing vocational rehabilitation services to individuals 
with disabilities not residing on or near Federal or State 
reservations.

(Authority: Sections 12(c) and 121(a) and (b)(1) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 741(a) 
and (b)(1))


[[Page 55605]]




Sec.  371.42   How are services to be administered under this program?

    (a) Directly or by contract. A grantee under this part may provide 
the vocational rehabilitation services directly or it may contract or 
otherwise enter into an agreement with a DSU, a community 
rehabilitation program, or another agency to assist in the 
implementation of the tribal vocational rehabilitation program.
    (b) Inter-tribal agreement. A grantee under this part may enter 
into an inter-tribal arrangement with governing bodies of other Indian 
tribes for carrying out a project that serves more than one Indian 
tribe.
    (c) Comparable services. To the maximum extent feasible, services 
provided by a grantee under this part must be comparable to vocational 
rehabilitation services provided under the State vocational 
rehabilitation program to other individuals with disabilities residing 
in the State.

(Authority: Sections 12(c) and 121(b)(1)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(B))

Sec.  371.43   What other special conditions apply to this program?

    (a) Any American Indian with disabilities who is eligible for 
services under this program but who wishes to be provided services by 
the DSU must be referred to the DSU for such services.

(Authority: Sec. 12(c) and 121(b)(3) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(3))


    (b) Preference in employment in connection with the provision of 
vocational rehabilitation services under this section must be given to 
American Indians, with a special priority being given to American 
Indians with disabilities.

(Authority: Sections 12(c) and 121(b)(2) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(2))


    (c) The provisions of sections 5, 6, 7, and 102(a) of the Indian 
Self-Determination and Education Assistance Act also apply under this 
program (25 U.S.C. 450c, 450d, 450e, and 450f(a)). These provisions 
relate to grant reporting and audit requirements, maintenance of 
records, access to records, availability of required reports and 
information to Indian people served or represented, repayment of 
unexpended Federal funds, criminal activities involving grants, 
penalties, wage and labor standards, preference requirements for 
American Indians in the conduct and administration of the grant, and 
requirements affecting requests of tribal organizations to enter into 
contracts. For purposes of applying these requirements to this program, 
the Secretary carries out those responsibilities assigned to the 
Secretary of Interior.

(Authority: Sec. 12(c) and 121(b)(2) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C 709(c) and 741(b)(2))


    (d) The Tribal Vocational Rehabilitation unit must develop and 
maintain written policies regarding the provision of vocational 
rehabilitation services that ensure that the provision of services is 
based on the vocational rehabilitation needs of each individual as 
identified in that individual's IPE 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:
    (1) Off-reservation services. (i) The Tribal Vocational 
Rehabilitation unit may establish a preference for on- or near-
reservation services, provided that the preference does not effectively 
deny an individual a necessary service. If the individual chooses an 
equivalent off-reservation service at a higher cost than an available 
on- or near-reservation service, the Tribal Vocational Rehabilitation 
unit is not responsible for those costs in excess of the cost of the 
on- or near-reservation service, if either service would meet the 
individual's rehabilitation needs.
    (ii) The Tribal Vocational Rehabilitation unit may not establish 
policies that effectively prohibit the provision of off-reservation 
services.
    (2) Payment for services (i) The Tribal Vocational Rehabilitation 
unit must establish and maintain written policies to govern the rates 
of payment for all purchased vocational rehabilitation services.
    (ii) The Tribal Vocational Rehabilitation unit may establish a fee 
schedule designed to ensure the program pays a reasonable cost for each 
service, as long as the fee schedule--
    (A) Is not so low as effectively to deny an individual a necessary 
service; and
    (B) permits exceptions so that individual needs can be addressed.
    (C) The Tribal Vocational Rehabilitation unit may not place 
absolute dollar limits on the amount it will pay for specific service 
categories or on the total services provided to an individual.
    (3) Duration of services (i) The Tribal Vocational Rehabilitation 
unit may establish reasonable time periods for the provision of 
services provided that the time periods--
    (A) Are not so short as effectively to deny an individual a 
necessary service; and
    (B) Permit exceptions so that individual needs can be addressed.
    (ii) The Tribal Vocational Rehabilitation unit may not place 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 the basis of that individual's needs 
and reflected in that individual's individualized plan for employment.
    (4) Authorization of services. The Tribal Vocational Rehabilitation 
unit must establish policies related to the timely authorization of 
services.

(Authority: Sections 12(c) and 121(b) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 709(c) and 741(b))


    (e) Informed choice. Each individual who is an applicant for or 
eligible to receive vocational rehabilitation services must be afforded 
the opportunity to exercise informed choice throughout the vocational 
rehabilitation process carried out under programs funded under this 
part. The Tribal Vocational Rehabilitation unit must develop and 
maintain written policies and procedures that require it--
    (1) To inform each applicant and eligible individual, 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) To assist applicants and eligible individuals in exercising 
informed choice in decisions related to the provision of assessment 
services;
    (3) To develop and implement 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) To provide or assist eligible individuals in acquiring 
information that enables them to exercise informed choice in the 
development of their IPEs and selection of--
    (i) The employment outcome;
    (ii) The specific vocational rehabilitation services needed to 
achieve the employment outcome;
    (iii) The entity that will provide the services;
    (iv) The employment setting and the settings in which the services 
will be provided; and

[[Page 55606]]

    (v) The methods available for procuring the services; and
    (5) To ensure that the availability and scope of informed choice is 
consistent with the obligations of the Tribal Vocational Rehabilitation 
unit.
    (6) 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 IPE, the Tribal 
Vocational Rehabilitation 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--
    (i) Cost, accessibility, and duration of potential services;
    (ii) Consumer satisfaction with those services to the extent that 
information relating to consumer satisfaction is available;
    (iii) Qualifications of potential service providers;
    (iv) Types of services offered by the potential providers;
    (v) Degree to which services are provided in integrated settings; 
and
    (vi) Outcomes achieved by individuals working with service 
providers, to the extent that such information is available.
    (7) 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 Tribal 
Vocational Rehabilitation unit may use, but is not limited to, the 
following methods or sources of information:
    (i) Lists of services and service providers.
    (ii) Periodic consumer satisfaction surveys and reports.
    (iii) Referrals to other consumers, consumer groups, or disability 
advisory councils qualified to discuss the services or service 
providers.
    (iv) Relevant accreditation, certification, or other information 
relating to the qualifications of service providers.
    (v) Opportunities for individuals to visit or experience various 
work and service provider settings.

(Approved by the Office of Management and Budget under control 
number 1820-0500)


(Authority: Sections 12(c), 102(b)(2)(B), and 102(d) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 
722(b)(2)(B), and 722(d))

Sec.  371.44  What are the special requirements pertaining to the 
protection, use, and release of personal information?

    (a) General provisions. (1) The Tribal Vocational Rehabilitation 
unit must adopt 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, including a requirement that data only be 
released when governed by a written agreement between the Tribal 
Vocational Rehabilitation unit and receiving entity under paragraphs 
(d) and (e)(1) of this section, which addresses the requirements in 
this section;
    (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 Tribal Vocational Rehabilitation 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 Tribal 
Vocational Rehabilitation unit intends to use or release the 
information;
    (C) Explanation of whether providing requested information to the 
Tribal Vocational Rehabilitation unit is mandatory or voluntary and the 
effects of not providing requested information;
    (D) Identification of those situations in which the Tribal 
Vocational Rehabilitation 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 the Tribal Vocational Rehabilitation unit's 
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 Tribal Vocational Rehabilitation 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) Tribal Vocational Rehabilitation Program Use. All personal 
information in the possession of the Tribal Vocational Rehabilitation 
unit must be used only for the purposes directly connected with the 
administration of the Tribal Vocational Rehabilitation program. 
Information containing identifiable personal information may not be 
shared with advisory or other bodies or other tribal agencies that do 
not have official responsibility for administration of the program. In 
the administration of the program, the Tribal Vocational Rehabilitation 
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 (3) of this section, if requested in 
writing by an applicant or eligible individual, the Tribal Vocational 
Rehabilitation 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 Tribal 
Vocational Rehabilitation 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

[[Page 55607]]

that the Tribal Vocational Rehabilitation unit amend the information. 
If the information is not amended, the request for an amendment must be 
documented in the record of services.
    (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 tribal vocational 
rehabilitation program or for purposes that would significantly improve 
the quality of life for applicants and eligible individuals and only 
if, in accordance with a written agreement, 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 Tribal Vocational Rehabilitation unit 
may release personal information to another agency or organization, in 
accordance with a written agreement, 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 Tribal Vocational 
Rehabilitation unit determines may be harmful to the individual may be 
released if the other agency or organization assures the Tribal 
Vocational Rehabilitation 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 Tribal Vocational Rehabilitation unit must release personal 
information if required by Federal law or regulations.
    (4) The Tribal Vocational Rehabilitation 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 Tribal Vocational Rehabilitation 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 121(b)(1) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(b)(1))

Sec.  371.45   What notice must be given about the Client Assistance 
Program (CAP)?

    The Tribal Vocational Rehabilitation unit shall use formats that 
are accessible to notify individuals seeking or receiving services 
under this part, or as appropriate, the parents, family members, 
guardians, advocates, or authorized representatives of those 
individuals, about--
    (a) The availability of CAP authorized by section 112 of the Act;
    (b) The purposes of the services provided under the CAP; and
    (c) How to contact the CAP.

(Authority: Section 20 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 717)


0
5. Part 373 is revised to read as follows:

PART 373--REHABILITATION NATIONAL ACTIVITIES PROGRAM

Subpart A--General
Sec.
373.1 What is the purpose of the Rehabilitation National Activities 
program?
373.2 Who is eligible for assistance?
373.3 What regulations apply?
373.4 What definitions apply?
373.5 Who is eligible to receive services and to benefit from 
activities conducted by eligible entities?
373.6 What types of projects may be funded?
373.7 What are the priorities and other factors and requirements for 
competitions?
Subpart B--How Does the Secretary Make a Grant?
373.10 What selection criteria does the Secretary use?
373.11 What other factors does the Secretary consider when making a 
grant?
Subpart C--What Conditions Must Be Met By a Grantee?
373.20 What are the matching requirements?
373.21 What are the reporting requirements under this part?
373.22 What are the limitations on indirect costs?
373.23 What additional requirements must be met?
373.24 What are the special requirements pertaining to the 
protection, use, and release of personal information?

    Authority: Section 303(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 773(b), unless otherwise noted.

Subpart A--General


Sec.  373.1  What is the purpose of the Rehabilitation National 
Activities program?

    The purpose of this program is to provide competitive grants, 
including cooperative agreements, to, or enter into contracts with, 
eligible entities to expand and improve the provision of vocational 
rehabilitation and other services authorized under the Rehabilitation 
Act of 1973, as amended (Act), or to further the purposes and policies 
in sections 2(b) and (c) of the Act by supporting activities that 
increase the provision, extent, availability, scope, and quality of 
rehabilitation services under the Act, including related research and 
evaluation activities.

(Authority: Sections 2(b) and (c), 7(40), 12(c), and 303(b) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 701(b) and (c), 
705(40), 709(c), and 773(b))

Sec.  373.2   Who is eligible for assistance?

    (a) The following types of organizations are eligible for 
assistance under this program:
    (1) State vocational rehabilitation agencies.
    (2) Community rehabilitation programs.
    (3) Indian tribes or tribal organizations.
    (4) Other public or nonprofit agencies or organizations, including 
institutions of higher education.
    (5) For-profit organizations, if the Secretary considers them to be 
appropriate.
    (6) Consortia that meet the requirements of 34 CFR 75.128 and 
75.129.
    (7) Other organizations identified by the Secretary and published 
in the Federal Register.
    (b) In competitions held under this program, the Secretary may 
limit competitions to one or more types of these organizations.

(Authority: Sections 12(c) and 303(b)(2) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 773(b)(2))

Sec.  373.3   What regulations apply?

    The following regulations apply to this program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs).

[[Page 55608]]

    (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) 35 CFR part 82 (New Restrictions on Lobbying).
    (6) 34 CFR part 84 (Governmentwide Requirements for Drug-Free 
Workplace (Financial Assistance).
    (7) 34 CFR part 86 (Drug and Alcohol Abuse Prevention).
    (8) 34 CFR part 97 (Protection of Human Subjects).
    (9) 34 CFR part 98 (Student Rights in Research, Experimental 
Programs, and Testing.
    (10) 34 CFR part 99 (Family Educational Rights and Privacy).
    (b) The regulations in this part 373.
    (c) The regulations in 48 CFR part 31 (Contracts Cost Principles 
and Procedures).
    (d)(1) 2 CFR part 180 (Nonprocurement Debarment and Suspension), as 
adopted at 2 CFR part 3485; and
    (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.

(Authority: Sections 12(c) and 303(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c)) and 773(b)

Sec.  373.4  What definitions apply?

    The following definitions apply to this part:
    Act means the Rehabilitation Act of 1973, as amended.

(Authority: 29 U.S.C. 701 et seq.)


    Competitive integrated employment is defined in 34 CFR 361.5(c)(9).

(Authority: Section 7(5) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(5))


    Early intervention means a service delivery or model demonstration 
program for adults with disabilities designed to begin the 
rehabilitation services as soon as possible after the onset or 
identification of actually or potentially disabling conditions. The 
populations served may include, but are not limited to, the following:
    (1) Individuals with chronic and progressive diseases that may 
become more disabling, such as multiple sclerosis, progressive visual 
disabilities, or HIV.
    (2) Individuals in the acute stages of injury or illness, 
including, but not limited to, diabetes, traumatic brain injury, 
stroke, burns, or amputation.
    (3) Individuals receiving an employer's short-term or long-term 
disability insurance benefits.

(Authority: Sections 12(c) and 303(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 773(b))


    Employment outcome is defined in 34 CFR 361.5.

(Authority: Section 7(11) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(11))


    Individual with a disability is defined as follows:
    (1) For an individual who will receive rehabilitation services 
under this part, an individual with a disability means an individual--
    (i) Who has a physical or mental impairment which, for that 
individual, constitutes or results in a substantial impediment to 
employment; and
    (ii) Who can benefit in terms of an employment outcome from 
vocational rehabilitation services.
    (2) For all other purposes of this part, an individual with a 
disability 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.
    (3) For purposes of paragraph (2) of this definition, projects that 
carry out services or activities pertaining to Title V of the Act must 
also meet the requirements for ``an individual with a disability'' in 
section 7(20)(c) through (e) of the Act, as applicable.

(Authority: Section 7(20) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(20))


    Individual with a significant disability means an individual--
    (1) 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;
    (2) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (3) 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, intellectual disability, respiratory or 
pulmonary dysfunction, mental illness, multiple sclerosis, muscular 
dystrophy, musculo-skeletal disorders, neurological disorders 
(including stroke and epilepsy), paraplegia, quadriplegia and other 
spinal cord conditions, sickle-cell anemia, specific learning 
disabilities, 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))


    Informed choice means the provision of activities whereby 
individuals with disabilities served by projects under this part have 
the opportunity to be active, full partners in the rehabilitation 
process, making meaningful and informed choices as follows:
    (1) During assessments of eligibility and vocational rehabilitation 
needs.
    (2) In the selection of employment outcomes, services needed to 
achieve the outcomes, entities providing these services, and the 
methods used to secure these services.

(Authority: Sections 2(c) and 12(c) of the Act 29 U.S.C. 701(c) and 
709(c))


    Rehabilitation services means services, including vocational, 
medical, social, and psychological rehabilitation services and other 
services under the Rehabilitation Act, provided to individuals with 
disabilities in performing functions necessary in preparing for, 
securing, retaining, or regaining an employment or independent living 
outcome.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))


    Substantial impediment to employment means that a physical or 
mental impairment (in light of attendant medical, psychological, 
vocational, educational, and other related factors) hinders an 
individual from preparing for, entering into, engaging in, or retaining 
employment consistent with the individual's abilities and capabilities.

(Authority: Section 7(20)(A) and 12(c) of the Act 29; U.S.C. 
705(20)(A) and 709(c))


    Supported employment is defined in 34 CFR 361.5(c)(53).

(Authority: Section 7(38) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(38))


    Vocational Rehabilitation Services means services provided to an 
individual with a disability in preparing for, securing, retaining, or 
regaining an employment outcome that is consistent with the strengths, 
resources, priorities, concerns, abilities, capabilities, interests, 
and informed choice of the individual. Vocational Rehabilitation

[[Page 55609]]

Services for an individual with a disability may include--
    (1) An assessment for determining eligibility and vocational 
rehabilitation needs by qualified personnel, including, if appropriate, 
an assessment by personnel skilled in rehabilitation technology;
    (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;
    (4) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-
along services;
    (5) Vocational and other training services, including the provision 
of personal and vocational adjustment services, books, tools, and other 
training materials;
    (6) Diagnosis and treatment of physical and mental impairments;
    (7) Maintenance for additional costs incurred while the individual 
is receiving services;
    (8) Transportation;
    (9) On-the-job or other related personal assistance services;
    (10) Interpreter and reader services;
    (11) Rehabilitation teaching services, and orientation and mobility 
services;
    (12) Occupational licenses, tools, equipment, and initial stocks 
and supplies;
    (13) Technical assistance and other consultation services to 
conduct market analysis, develop business plans, and otherwise provide 
resources to eligible individuals who are pursuing self-employment or 
telecommuting or establishing a small business operation as an 
employment outcome;
    (14) Rehabilitation technology, including telecommunications, 
sensory, and other technological aids and devices;
    (15) Transition services for individuals with disabilities that 
facilitate the achievement of employment outcomes;
    (16) Supported employment services;
    (17) Services to the family of an individual with a disability 
necessary to assist the individual to achieve an employment outcome;
    (18) Post-employment services necessary to assist an individual 
with a disability to retain, regain, or advance in employment; and
    (19) Expansion of employment opportunities for individuals with 
disabilities, which includes, but is not limited to--
    (i) Self-employment, business ownership, and entreprenuership;
    (ii) Non-traditional jobs, professional employment, and work 
settings;
    (iii) Collaborating with employers, Economic Development Councils, 
and others in creating new jobs and career advancement options in local 
job markets through the use of job restructuring and other methods; and
    (iv) Other services as identified by the Secretary and published in 
the Federal Register.

(Authority: Section 7(40) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(40))


    Youth or Young adults with disabilities means individuals with 
disabilities who are between the ages of 14 and 24 inclusive when 
entering the program.

(Authority: Section 7(42) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(42)


(Authority: Sections 7(40), 12(c), and 103(a) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 705(40), 709(c) and 723(a))

Sec.  373.5  Who is eligible to receive services and to benefit from 
activities conducted by eligible entities?

    (a)(1) For projects that provide rehabilitation services or 
activities to expand and improve the provision of rehabilitation 
services and other services authorized under Titles I, III, and VI of 
the Act, individuals are eligible who meet the definition in paragraph 
(a) of an ``individual with a disability'' as stated in Sec.  373.4.
    (2) For projects that provide independent living services or 
activities, individuals are eligible who meet the definition in 
paragraph (b) of an ``individual with a disability'' as stated in Sec.  
373.4.
    (3) For projects that provide other services or activities that 
further the purposes of the Act, individuals are eligible who meet the 
definition in paragraph (b) of an ``individual with a disability'' as 
stated in Sec.  373.4.
    (b) By publishing a notice in the Federal Register, the Secretary 
may identify individuals determined to be eligible under one or more of 
the provisions in paragraph (a) of this section.

(Authority: Sections 12(c), 103(a), and 303(b) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 723(a), and 773(b))

Sec.  373.6   What types of projects may be funded?

    The Secretary may fund the following types of projects under this 
program:
    (a) Special projects of service delivery.
    (b) Model demonstration.
    (c) Technical assistance.
    (d) Systems change.
    (e) Special studies, research, or evaluations.
    (f) Dissemination and utilization.

(Authority: Sections 12(c) and 303(b)(4) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 773(b)(4))

Sec.  373.7  What are the priorities and other factors and requirements 
for competitions?

    (a) In announcing competitions for grants and contracts, the 
Secretary gives priority consideration to--
    (1) Initiatives focused on improving transition from education, 
including postsecondary education, to employment, particularly in 
competitive integrated employment, for youth who are individuals with 
significant disabilities.
    (2) Supported employment, including community-based supported 
employment programs to meet the needs of individuals with the most 
significant disabilities or to provide technical assistance to States 
and community organizations to improve and expand the provision of 
supported employment services.
    (3) Increasing competitive integrated employment for individuals 
with significant disabilities.
    (b) In announcing competitions for grants and contracts, the 
Secretary may also identify one or more of the following as 
priorities--
    (1) Expansion of employment opportunities for individuals with 
disabilities, as authorized in paragraph(s) of the definition of 
``vocational rehabilitation services'' as stated in Sec.  373.4.
    (2) System change projects to promote meaningful access of 
individuals with disabilities to employment-related services under 
subtitle B of title I of the Workforce Innovation and Opportunity Act 
and under other Federal laws.
    (3) Innovative methods of promoting achievement of high-quality 
employment outcomes.
    (4) The demonstration of the effectiveness of early intervention 
activities in improving employment outcomes.
    (5) Projects to find alternative methods of providing affordable 
transportation services to individuals with disabilities.
    (6) Technical assistance to designated State units and their 
personnel in working with employers to identify competitive integrated 
employment opportunities and career exploration opportunities in order 
to facilitate the provision of vocational rehabilitation services and 
transition services for youth with disabilities and students with 
disabilities.

[[Page 55610]]

    (7) Consultation, training and technical assistance to businesses 
that have hired or are interested in hiring individuals with 
disabilities.
    (8) Technical assistance and training to designated State units and 
their personnel on 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.
    (9) Technical assistance to State vocational rehabilitation 
agencies or State vocational rehabilitation units to improve management 
practices that will improve the provision of vocational rehabilitation 
services and increase competitive employment outcomes for individuals 
with disabilities.
    (10) Other projects that will expand and improve the provision, 
extent, availability, scope, and quality of rehabilitation and other 
services under the Act or that further the purpose and policy of the 
Act as stated in sections 2(b) and (c) of the Act.
    (c) In announcing competitions of grants and contract the Secretary 
may limit the priorities listed in paragraphs (a) and (b) of this 
section to address one or more of the following factors:
    (1) Age ranges.
    (2) Types of disabilities.
    (3) Types of services.
    (4) Models of service delivery.
    (5) Stages of the vocational rehabilitation process;
    (6) Unserved and underserved populations.
    (7) Unserved and underserved geographical areas.
    (8) Individuals with significant disabilities.
    (9) Low-incidence disability populations.
    (10) Individuals residing in federally designated Empowerment Zones 
and Enterprise Communities.
    (d) The Secretary may require that an applicant certify that the 
project does not include building upon or expanding activities that 
have previously been conducted or funded, for that applicant or in that 
service area.
    (e) The Secretary may require that the project widely disseminate 
the methods of vocational rehabilitation service delivery or model 
proven to be effective, so that they may be adapted, replicated, or 
purchased under fee-for-service arrangements by State vocational 
rehabilitation agencies and other disability organizations in the 
project's targeted service area or other locations.

(Authority: Sections 12(c), 101(a)(7)(B)(ii) and (11)(E), 103(b)(5), 
108a, and 303(b)(5) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c), 721(a)(7)(B)(ii) and (11)(E), 723(b)(5), 728a, and 
773(b)(5))

Subpart B--How Does the Secretary Make a Grant?


Sec.  373.10   What selection criteria does the Secretary use?

    The Secretary publishes in the Federal Register or includes in the 
application package the selection criteria for each competition under 
this program. To evaluate the applications for new grants under this 
program, the Secretary may use the following:
    (a) Selection criteria established under 34 CFR 75.209.
    (b) Selection criteria in 34 CFR 75.210.
    (c) Any combination of selection criteria from paragraphs (a) and 
(b) of this section.

(Authority: Sections 12(c) and 103(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a))

Sec.  373.11   What other factors does the Secretary consider when 
making a grant?

    (a) The Secretary funds only those applications submitted in 
response to competitions announced in the Federal Register.
    (b) The Secretary may consider the past performance of the 
applicant in carrying out activities under previously awarded grants.
    (c) The Secretary awards bonus points if identified and published 
in the Federal Register for specific competitions.

(Authority: Sections 12(c) and 103(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a))

Subpart C--What Conditions Must Be Met By a Grantee?


Sec.  373.20  What are the matching requirements?

    The Secretary may make grants to pay all or part of the cost of 
activities covered under this program. If the Secretary determines that 
the grantee is required to pay part of the costs, the amount of grantee 
participation is specified in the application notice, and the Secretary 
will not require grantee participation to be more than 10 percent of 
the total cost of the project.

(Authority: Sections 12(c) and 303(b)(1) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 773(b)(1))

Sec.  373.21  What are the reporting requirements under this part?

    (a) In addition to the program and fiscal reporting requirements in 
34 CFR 75.720 and 2 CFR 200.327 that are applicable to projects funded 
under this program, the Secretary may require that recipients of grants 
under this part submit information determined by the Secretary to be 
necessary to measure project outcomes and performance, including any 
data needed to comply with the Government Performance and Results Act.
    (b) Specific reporting requirements for competitions will be 
identified by the Secretary and published in the Federal Register.

(Authority: Sections 12(c), 303(b)(2)(B), and 306 of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 
773(b)(2)(B), and 776)

Sec.  373.22   What are the limitations on indirect costs?

    (a) Indirect cost reimbursement for grants under this program is 
limited to the recipient's actual indirect costs, as determined by its 
negotiated indirect cost rate agreement, or 10 percent of the total 
direct cost base, whichever amount is less.
    (b) Indirect costs in excess of the 10 percent limit may be used to 
satisfy matching or cost-sharing requirements.
    (c) The 10 percent limit does not apply to federally recognized 
Indian tribal governments and their tribal representatives.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  373.23   What additional requirements must be met?

    (a) Each grantee must do the following:
    (1) Ensure equal access and treatment for eligible project 
participants who are members of groups that have traditionally been 
underrepresented based on race, color, national origin, gender, age, or 
disabilities.
    (2) Encourage applications for employment from persons who are 
members of groups that have traditionally been underrepresented based 
on race, color, national origin, gender, age, or disabilities.
    (3) Advise individuals with disabilities who are applicants for or 
recipients of the services, or the applicants' representatives or the 
individuals' representatives, of the availability and purposes of the 
Client Assistance Program, including information on means of seeking 
assistance under that program.
    (4) Provide, through a careful appraisal and study, an assessment 
and evaluation of the project that indicates the significance or worth 
of processes, methodologies, and practices implemented by the project.
    (b) A grantee may not make a subgrant under this part. However, a 
grantee may

[[Page 55611]]

contract for supplies, equipment, and other services, in accordance 
with 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.

(Authority: Sections 12(c) and 303(b)(2)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 773(b)(2)(B))

Sec.  373.24   What are the special requirements pertaining to the 
protection, use, and release of personal information?

    (a) All personal information about individuals served by any 
project under this part, including lists of names, addresses, 
photographs, and records of evaluation, must be confidential.
    (b) The use of information and records concerning individuals must 
be limited only to purposes directly connected with the project, 
including project reporting and evaluation activities. This information 
may not be disclosed, directly or indirectly, other than in the 
administration of the project unless the consent of the agency 
providing the information and the individual to whom the information 
applies, or his or her representative, has been obtained in writing. 
The Secretary or other Federal officials responsible for enforcing 
legal requirements have access to this information without written 
consent being obtained. The final products of the project may not 
reveal any personal identifying information without written consent of 
the individual or his or her representative.

(Authority: Sections 12(c) and 303(b)(2)(B) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), and 773(b)(2)(B))

PART 376 [REMOVED AND RESERVED]

0
6. Part 376 is removed and reserved.

PART 377 [REMOVED AND RESERVED]

0
7. Part 377 is removed and reserved.

PART 379 [REMOVED AND RESERVED]

0
8. Part 379 is removed and reserved.
0
9. Part 381 is revised to read as follows:

PART 381--PROTECTION AND ADVOCACY OF INDIVIDUAL RIGHTS

Subpart A--General
Sec.
381.1 What is the Protection and Advocacy of Individual Rights 
program?
381.2 Who is eligible for an award?
381.3 What activities may the Secretary fund?
381.4 What regulations apply?
381.5 What definitions apply?
Subpart B--How Does One Apply for an Award?
381.10 What are the application requirements?
Subpart C--How Does the Secretary Make an Award?
381.20 How does the Secretary evaluate an application?
381.22 How does the Secretary allocate funds under this program?
Subpart D--What Conditions Must Be Met After an Award?
381.30 How are services to be administered?
381.31 What are the requirements pertaining to the protection, use, 
and release of personal information?
381.32 What are the reporting requirements under this part?
381.33 What are the requirements related to the use of funds 
provided under this part?

    Authority: Section 509 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 794e, unless otherwise noted.

Subpart A--General


Sec.  381.1  What is the Protection and Advocacy of Individual Rights 
program?

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

(Authority: Section 509(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 794e(a))

Sec.  381.2  Who is eligible for an award?

    (a)(1) A protection and advocacy system that is established under 
part C of title I of the Developmental Disabilities Assistance and Bill 
of Rights Act of 2000 (DD Act), 42 U.S.C. 15041 et seq., and that meets 
the requirements of Sec.  381.10 is eligible to apply for a grant award 
under this part.
    (2)(i) For any fiscal year in which the appropriation to carry out 
the activities of this part equals or exceeds $10,500,000, the eligible 
system serving the American Indian Consortium is eligible to apply for 
a grant award under this part.
    (ii) For purposes of this part, an eligible system is defined at 
Sec.  381.5(c).
    (iii) For purposes of this part, the American Indian Consortium 
means a consortium established as described in section 102 of the DD 
Act (42 U.S.C. 15002).
    (b) In any fiscal year in which the amount appropriated to carry 
out this part is less than $5,500,000, a protection and advocacy system 
from any State or from Guam, American Samoa, the United States Virgin 
Islands, or the Commonwealth of the Northern Mariana Islands, may apply 
for a grant under the Protection and Advocacy of Individual Rights 
(PAIR) program to plan for, develop outreach strategies for, and carry 
out a protection and advocacy program authorized under this part.
    (c) In any fiscal year in which the amount appropriated to carry 
out this part is equal to or greater than $5,500,000, an eligible 
system from any State and from any of the jurisdictions named in 
paragraph (b) of this section may apply to receive the amount allotted 
pursuant to section 509(c)-(e) of the Act.

(Authority: Section 509(b), (c), and (m) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 794e(b), (c), and (m))

Sec.  381.3  What activities may the Secretary fund?

    (a) Funds made available under this part must be used for the 
following activities:
    (1) Establishing a system to protect, and advocate for, the rights 
of individuals with disabilities.
    (2) Pursuing legal, administrative, and other appropriate remedies 
or approaches to ensure the protection of, and advocacy for, the rights 
of eligible individuals with disabilities within the State or the 
American Indian Consortium.
    (3) Providing information on and making referrals to programs and 
services addressing the needs of individuals with disabilities in the 
State or American Indian Consortium, including individuals with 
disabilities who are exiting from school programs.
    (4) Coordinating the protection and advocacy program provided 
through an eligible system with the advocacy programs under--
    (i) Section 112 of the Act (the Client Assistance Program (CAP));
    (ii) The Older Americans Act of 1965 (the State long-term care 
ombudsman program) (42 U.S.C. 3001 et seq.);
    (iii) Part C of the DD Act; and
    (iv) The Protection and Advocacy for Individuals with Mental 
Illness Act of 2000 (PAIMI) (42 U.S.C. 10801-10807).
    (5) Developing a statement of objectives and priorities on an 
annual basis and a plan for achieving these objectives and priorities.
    (6) Providing to the public, including individuals with 
disabilities and, as appropriate, their representatives, an opportunity 
to comment on the objectives and priorities described in Sec.  
381.10(a)(6).
    (7) Establishing a grievance procedure for clients or prospective 
clients of the eligible system to ensure that individuals with 
disabilities are afforded equal access to the services of the eligible 
system.

[[Page 55612]]

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

(Authority: Sections 12(c) and 509(f) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 794e(f)).

Sec.  381.4   What regulations apply?

    The following regulations apply to the PAIR program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs) for purposes of an award 
made under Sec.  Sec.  381.20 or 381.22(a)(1).
    (2) 34 CFR part 76 (State-Administered Programs), if the 
appropriation for the PAIR program is equal to or greater than 
$5,500,000 and the eligible system is a State or local government 
agency, except for--
    (i) Section 76.103;
    (ii) Sections 76.125 through 76.137;
    (iii) Sections 76.300 through 76.401;
    (iv) Section 76.704;
    (v) Section 76.734; and
    (vi) Section 76.740.
    (3) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (b) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485.
    (c) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted at 2 
CFR part 3474.
    (d) The regulations in this part 381.

(Authority: Sections 12(c) and 509 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 794e)

Sec.  381.5  What definitions apply?

    (a) Definitions in EDGAR at 34 CFR part 77.
    (b) Definitions in 2 CFR part 200 subpart A.
    (c) Other definitions. The following definitions also apply to this 
part:
    Act means the Rehabilitation Act of 1973, as amended.
    Advocacy means pleading an individual's cause or speaking or 
writing in support of an individual. Advocacy may be formal, as in the 
case of a lawyer representing an individual in a court of law or in 
formal administrative proceedings before government agencies (whether 
tribal, State, local, or Federal). Advocacy also may be informal, as in 
the case of a lawyer or non-lawyer representing an individual in 
negotiations, mediation, or informal administrative proceedings before 
government agencies (whether tribal, State, local, or Federal), or as 
in the case of a lawyer or non-lawyer representing an individual's 
cause before private entities or organizations, or government agencies 
(whether tribal, State, local, or Federal). Advocacy may be on behalf 
of--
    (i) A single individual, in which case it is individual advocacy;
    (ii) More than one individual or a group or class of individuals, 
in which case it is systems (or systemic) advocacy; or
    (iii) Oneself, in which case it is self advocacy.
    Eligible individual with a disability means an individual who--
    (i) Needs protection and advocacy services that are beyond the 
scope of services authorized to be provided by the CAP under section 
112 of the Act; and
    (ii) Is ineligible for--
    (A) Protection and advocacy programs under part C of the DD Act; 
and
    (B) Protection and advocacy programs under the PAIMI.
    Eligible system means a protection and advocacy system that is 
established under part C of the DD Act and that meets the requirements 
of Sec.  381.10.
    Mediation means the act or process of using an independent third 
party to act as a mediator, intermediary, or conciliator to settle 
differences or disputes between persons or parties. The third party who 
acts as a mediator, intermediary, or conciliator must not be any entity 
or individual who is connected in any way with the eligible system or 
the agency, entity, or individual with whom the individual with a 
disability has a dispute. Mediation may involve the use of professional 
mediators or any other independent third party mutually agreed to by 
the parties to the dispute.
    State means, in addition to each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the United States Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands, except for purposes of 
sections 509(c)(3)(B) and (c)(4) of the Act, in which case State does 
not mean or include Guam, American Samoa, the United States Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands.

(Authority: Sections 7(34), 12(c), and 509 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(34), 709(c) and 794e)

Subpart B--How Does One Apply for an Award?


Sec.  381.10   What are the application requirements?

    (a) Regardless of the amount of funds appropriated for the PAIR 
program in a fiscal year, an eligible system shall submit to the 
Secretary an application for assistance under this part at the time and 
in the form and manner determined by the Secretary that contains all 
information that the Secretary determines necessary, including 
assurances that the eligible system will--
    (1) Have in effect a system to protect, and advocate for, the 
rights of eligible individuals with disabilities;
    (2) Have the same general authorities, including the authority to 
access records and program income, as in part C of title I of the DD 
Act;
    (3) Have the authority to pursue legal, administrative, and other 
appropriate remedies or approaches to ensure the protection of, and 
advocacy for, the rights of eligible individuals with disabilities 
within the State and the American Indian Consortium;
    (4) Provide information on and make referrals to programs and 
services addressing the needs of individuals with disabilities in the 
State and the American Indian Consortium, including individuals with 
disabilities who are exiting from school programs;
    (5) Develop a statement of objectives and priorities on an annual 
basis and a plan for achieving these objectives and priorities;
    (6) Provide to the public, including individuals with disabilities 
and, as appropriate, their representatives, an opportunity to comment 
on the objectives and priorities established by, and activities of, the 
eligible system including--
    (i) The objectives and priorities for the activities of the 
eligible system for each year and the rationale for the establishment 
of those objectives and priorities; and
    (ii) The coordination of the PAIR program provided through eligible 
systems with the advocacy programs under--
    (A) Section 112 of the Act (CAP);
    (B) The Older Americans Act of 1965 (the State long-term care 
ombudsman program);
    (C) Part C of the DD Act; and
    (D) The PAIMI;
    (7) Establish a grievance procedure for clients or prospective 
clients of the

[[Page 55613]]

eligible system to ensure that individuals with disabilities are 
afforded equal access to the services of the eligible system;
    (8) Use funds made available under this part to supplement and not 
supplant the non-Federal funds that would otherwise be made available 
for the purpose for which Federal funds are provided; and
    (9) Implement procedures designed to ensure that, to the maximum 
extent possible, mediation (and other alternative dispute resolution) 
procedures, which include good faith negotiation, are used before 
resorting to formal administrative or legal remedies.
    (b) To receive direct payment of funds under this part, an eligible 
system must provide to the Secretary, as part of its application for 
assistance, an assurance that direct payment is not prohibited by or 
inconsistent with tribal or State law, regulation, or policy.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c) and 509(f) and (g)(1) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 794e(f) 
and (g)(1))

Subpart C--How Does the Secretary Make an Award?


Sec.  381.20  How does the Secretary evaluate an application?

    In any fiscal year in which the amount appropriated for the PAIR 
program is less than $5,500,000, the Secretary evaluates applications 
under the procedures in 34 CFR part 75.

(Authority: Sections 12(c) and 509(b) and (f) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 794e(b) and (f))

Sec.  381.22  How does the Secretary allocate funds under this program?

    (a) In any fiscal year in which the amount appropriated for this 
program is equal to or greater than $5,500,000--
    (1) The Secretary sets aside not less than 1.8 percent but not more 
than 2.2 percent of the amount appropriated to provide a grant, 
contract, or cooperative agreement for training and technical 
assistance to eligible systems carrying out activities under this part.
    (2) After the reservation required by paragraph (a)(1) of this 
section, the Secretary makes allotments from the remainder of the 
amount appropriated in accordance with section 509(c)(2)-(d) of the 
Act.
    (b) Notwithstanding any other provision of law, in any fiscal year 
in which the amount appropriated for this program is equal to or 
greater than $5,500,000, the Secretary pays directly to an eligible 
system that submits an application that meets the requirements of Sec.  
381.10 the amount of the allotment to the State pursuant to section 509 
of the Act, unless the State provides otherwise.
    (c) For any fiscal year in which the amount appropriated to carry 
out this program equals or exceeds $10,500,000, the Secretary shall 
reserve a portion, and use the portion to make a grant for the eligible 
system serving the American Indian Consortium. The Secretary shall make 
the grant in an amount of not less than $50,000 for the fiscal year.
    (d) Reallotment:
    (1) For any fiscal year in which the amount appropriated to carry 
out this program equals or exceeds $5,500,000 and if the Secretary 
determines that any amount of an allotment to an eligible system within 
a State will not be expended by such system in carrying out the 
provisions of this part, the Secretary shall make such amount available 
to one or more of the eligible systems that the Secretary determines 
will be able to use additional amounts during such year for carrying 
out this part.
    (2) Any reallotment amount made available to an eligible system for 
any fiscal year shall, for the purposes of this section, be regarded as 
an increase in the eligible system's allotment under this part for that 
fiscal year.

(Authority: Sections 12(c) and 509(c)-(e) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 794e(c)-(e))

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


Sec.  381.30   How are services to be administered?

    (a) Each eligible system shall carry out the protection and 
advocacy program authorized under this part.
    (b) An eligible system may not award a grant or make a subaward to 
another entity to carry out, in whole or in part, the protection and 
advocacy program authorized under this part.
    (c) An eligible system may contract with another agency, entity, or 
individual to carry out the PAIR program in whole or in part, but only 
if the agency, entity, or individual with whom the eligible system has 
contracted--
    (1) Does not provide services under the Act or does not provide 
treatment, services, or habilitation to persons with disabilities; and
    (2) Is independent of, and not connected financially or through a 
board of directors to, an entity or individual that provides services 
under the Act or that provides treatment, services, or habilitation to 
persons with disabilities.
    (d) For purposes of paragraph (c) of this section, ``services under 
the Act'' and ``treatment, services, or habilitation'' does not include 
client assistance services under CAP, protection and advocacy services 
authorized under the protection and advocacy programs under part C of 
the DD Act and the PAIMI, or any other protection and advocacy 
services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

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

    (a) All personal information about individuals served by any 
eligible system under this part, including lists of names, addresses, 
photographs, and records of evaluation, must be held confidential.
    (b) The eligible system's use of information and records concerning 
individuals must be limited only to purposes directly connected with 
the protection and advocacy program, including program evaluation 
activities. Except as provided in paragraph (c) of this section, an 
eligible system may not disclose personal information about an 
individual, directly or indirectly, other than in the administration of 
the protection and advocacy program, unless the consent of the 
individual to whom the information applies, or his or her guardian, 
parent, or other authorized representative or advocate (including the 
individual's advocate from the eligible system), has been obtained in 
writing. An eligible system may not produce any report, evaluation, or 
study that reveals any personally identifying information without the 
written consent of the individual or his or her representative.
    (c) Except as limited in paragraph (d) of this section, the 
Secretary or other Federal or State officials responsible for enforcing 
legal requirements must be given complete access to all--
    (1) Records of the eligible system receiving funds under this 
program; and
    (2) All individual case records of clients served under this part 
without the consent of the client.
    (d)(1) The privilege of a person or eligible system not to produce 
documents or provide information pursuant to paragraph (c) of this 
section is governed by the principles of common law as interpreted by 
the courts of the United States, except that, for purposes of any 
periodic audit, report, or evaluation of the performance of the 
eligible system established or

[[Page 55614]]

assisted under this part, the Secretary does not require the eligible 
system to disclose the identity of, or any other personally 
identifiable information related to, any individual requesting 
assistance under the PAIR program.
    (2) However, notwithstanding paragraph (d)(1) of this section, if 
an audit, monitoring review, State plan assurance review, evaluation, 
or other investigation has already produced independent and reliable 
evidence that there is probable cause to believe that the eligible 
system has violated its legislative mandate or misused Federal funds, 
the eligible system shall disclose, if the Secretary so requests, the 
identity of, or any other personally identifiable information (i.e., 
name, address, telephone number, social security number, or other 
official code or number by which an individual may be readily 
identified) related to, any individual requesting assistance under the 
PAIR program, in accordance with the principles of common law as 
interpreted by the courts of the United States.

(Authority: Sections 12(c) and 509(h) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 794e(h))

Sec.  381.32   What are the reporting requirements under this part?

    Each eligible system shall provide to the Secretary, no later than 
90 days after the end of each fiscal year, an annual report that 
includes information on the following:
    (a) The types of services and activities undertaken by the eligible 
system and how these services and activities addressed the objectives 
and priorities developed pursuant to Sec.  381.10(a)(6).
    (b) The total number of individuals, by race, color, national 
origin, gender, age, and disabling condition, who requested services 
from the eligible system and the total number of individuals, by race, 
color, national origin, gender, age, and disabling condition, who were 
served by the eligible system.
    (c) The types of disabilities represented by individuals served by 
the eligible system.
    (d) The types of issues being addressed on behalf of individuals 
served by the eligible system.
    (e) Any other information that the Secretary may require.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c), 13, and 509(k) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c), 710, and 794e(k))

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

    (a) Funds made available under this part must be used to supplement 
and not supplant the non-Federal funds that would otherwise be made 
available for the purpose for which Federal funds are provided under 
this part.
    (b) In any State in which an eligible system is located within a 
State agency, that State or State agency may not use more than five 
percent of any allotment for the costs of administration of the 
eligible system supported under this part. For purposes of this 
paragraph, ``costs of administration'' include, but are not limited to, 
administrative salaries (including salaries for clerical and support 
staff), supplies, depreciation, the cost of operating and maintaining 
facilities, equipment, and grounds (e.g., rental of office space or 
equipment, telephone, postage, maintenance agreements), and other 
similar types of costs that may be incurred by the State or State 
agency to administer the eligible system.
    (c) Funds paid to an eligible system within a State for a fiscal 
year, including reallotment funds, to carry out this program that are 
not expended or obligated prior to the end of that fiscal year remain 
available to the eligible system within a State for obligation during 
the succeeding fiscal year in accordance with sections 19 and 509(g) of 
the Act.
    (d) For determining when an eligible system makes an obligation for 
various kinds of property or services, 34 CFR 75.707 and 76.707, as 
appropriate, apply to this program. If the appropriation for the PAIR 
program is less than $5,500,000, Sec.  75.707 applies. If the 
appropriation for the PAIR program is equal to or greater than 
$5,500,000, Sec.  76.707 applies. An eligible system is considered a 
State for purposes of Sec.  76.707.
    (e) Program income:
    (1) Consistent with 2 CFR 200.80 and for purposes of this part, 
program income means gross income earned by the designated agency that 
is directly generated by an activity supported under this part.
    (2)(i) The designated agency must use program income to supplement 
Federal funds that support program activities that are subject to this 
part. See, for example 2 CFR 200.307(e)(2).
    (ii) Notwithstanding 2 CFR 200.305(a) and consistent with 2 CFR 
200.305(b)(5), and to the extent that program income funds are 
available, all designated agencies, regardless of whether they are a 
State agency, must disburse those funds (including repayments to a 
revolving fund), rebates, refunds, contract settlements, audit 
recoveries, and interest earned on such funds before requesting 
additional funds from the Department.
    (3) Any program income received during a fiscal year that is not 
obligated or expended prior to the beginning of the succeeding fiscal 
year in which the program income was received, remain available for 
obligation and expenditure by the grantee during that succeeding fiscal 
year.

(Authority: Sections 12(c), 19, and 509(f)(7), (g), and (i) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 716, and 
794e(f)(7), (g), and (i); and 20 U.S.C. 3474)



0
10. Part 385 is revised to read as follows:

PART 385--REHABILITATION TRAINING

Subpart A--General
Sec.
385.1 What is the Rehabilitation Training program?
385.2 Who is eligible for assistance under these programs?
385.3 What regulations apply to these programs?
385.4 What definitions apply to these programs?
Subpart B [Reserved]
Subpart C--How Does One Apply for a Grant?
385.20 What are the application procedures for these programs?
Subpart D--How Does the Secretary Make a Grant?
385.30 [Reserved]
385.31 How does the Secretary evaluate an application?
385.33 What other factors does the Secretary consider in reviewing 
an application?
Subpart E--What Conditions Must Be Met by a Grantee?
385.40 What are the requirements pertaining to the membership of a 
project advisory committee?
385.41 What are the requirements affecting the collection of data 
from designated State agencies?
385.42 What are the requirements affecting the dissemination of 
training materials?
385.43 What requirements apply to the training of rehabilitation 
counselors and other rehabilitation personnel?
385.44 What requirement applies to the training of individuals with 
disabilities?
385.45 What additional application requirements apply to the 
training of individuals for rehabilitation careers?
385.46 What limitations apply to the rate of pay for experts or 
consultants appointed or serving under contract under the 
Rehabilitation Training program?

    Authority:  Sections 12(c), 301, and 302 of the Rehabilitation 
Act of 1973, as amended;

[[Page 55615]]

29 U.S.C. 709(c), 771 and 772, unless otherwise noted.

Subpart A--General


Sec.  385.1   What is the Rehabilitation Training program?

    (a) Purpose. The Rehabilitation Training program is designed to--
    (1) Ensure that skilled personnel are available to provide 
rehabilitation services to individuals with disabilities through 
vocational, medical, social, and psychological rehabilitation programs 
(including supported employment programs), through economic and 
business development programs, through independent living services 
programs, and through client assistance programs;
    (2) Maintain and upgrade basic skills and knowledge of personnel 
employed, including personnel specifically trained to deliver 
rehabilitation services, including supported employment services and 
customized employment services, to individuals with the most 
significant disabilities, and personnel specifically trained to deliver 
services to individuals with disabilities whose employment outcome is 
self-employment, business ownership, or telecommuting, to provide 
state-of-the-art service delivery and rehabilitation technology 
services; and
    (3) Provide training and information to individuals with 
disabilities, the parents, families, guardians, advocates, and 
authorized representatives of the individuals, and other appropriate 
parties to develop the skills necessary for individuals with 
disabilities to access the rehabilitation system and to become active 
decision makers in the vocational rehabilitation process.
    (b) The Secretary awards grants and contracts on a competitive 
basis to pay part of the costs of projects for training, traineeships 
or scholarships, and related activities, including the provision of 
technical assistance, to assist in increasing the numbers of qualified 
personnel trained in providing vocational rehabilitation services and 
other services provided under the Act, to individuals with 
disabilities. Financial assistance is provided through multiple 
training programs, including:
    (1) Rehabilitation Long-Term Training (34 CFR part 386).
    (2) Innovative Rehabilitation Training (34 CFR part 387).
    (3) Rehabilitation Short-Term Training (34 CFR part 390).
    (4) Training of Interpreters for Individuals Who Are Deaf and Hard 
of Hearing and Individuals Who Are Deaf-Blind (34 CFR part 396).

(Authority: Sections 12(c), 301 and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), 771 and 772)

Sec.  385.2  Who is eligible for assistance under these programs?

    States and public or private nonprofit agencies and organizations, 
including Indian tribes and institutions of higher education, are 
eligible for assistance under the Rehabilitation Training program.

(Authority: Sections 7(19), 301, and 302 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(19), 771 and 772)

Sec.  385.3  What regulations apply to these programs?

    The following regulations apply to the Rehabilitation Training 
program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant 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).
    (6) 34 CFR part 84 (Governmentwide Requirements for Drug-Free 
Workplace (Financial Assistance).
    (7) 34 CFR part 86 (Drug-Free Schools and Campuses).
    (8) 34 CFR part 97 (Protection of Human Subjects).
    (9) 34 CFR part 98 (Student Rights in Research, Experimental 
Programs, and Testing.
    (10) 34 CFR part 99 (Family Educational Rights and Privacy).
    (b) The regulations in this part 385.
    (c) [Reserved]
    (d)(1) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485; and
    (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 711(c) and 772)

Sec.  385.4   What definitions apply to these programs?

    (a) The following definitions in 34 CFR part 77 apply to the 
programs under the Rehabilitation Training Program--

Applicant
Application
Award
Budget Period
Department
EDGAR
Grantee
Nonprofit
Private
Project
Project Period
Public
Secretary

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))


    (b) The following definitions also apply to programs under the 
Rehabilitation Training program:
    Act means the Rehabilitation Act of 1973, as amended (29 U.S.C. 701 
et seq.).
    Assistive technology means technology designed to be utilized in an 
assistive technology device or assistive technology service.
    Assistive technology device means any item, piece of equipment, or 
product system, whether acquired commercially off the shelf, modified, 
or customized, that is used to increase, maintain, or improve 
functional capabilities of individuals with disabilities.
    Assistive technology service means any service that directly 
assists an individual with a disability in the selection, acquisition, 
or use of an assistive technology device. The term includes--
    (i) The evaluation of the needs of an individual with a disability, 
including a functional evaluation of the individual in the individual's 
customary environment;
    (ii) Purchasing, leasing, or otherwise providing for the 
acquisition of assistive technology devices by individuals with 
disabilities;
    (iii) Selecting, designing, fitting, customizing, adapting, 
applying, maintaining, repairing, or replacing of assistive technology 
devices;
    (iv) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (v) Training or technical assistance for an individual with 
disabilities, or, if appropriate, the family of an individual with 
disabilities;
    (vi) Training or technical assistance for professionals (including 
individuals providing education and rehabilitation services), 
employers, or other individuals who provide services to, employ, or are 
otherwise substantially involved in the major life functions of 
individuals with disabilities; and

[[Page 55616]]

    (vii) A service consisting of expanding the availability of access 
to technology, including electronic and information technology, to 
individuals with disabilities.
    Community rehabilitation program means a program that provides 
directly or facilitates the provision of vocational rehabilitation 
services to individuals with disabilities, and that provides, singly or 
in combination, for an individual with a disability to enable the 
individual to maximize opportunities for employment, including career 
advancement--
    (i) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management;
    (ii) Testing, fitting, or training in the use of prosthetic and 
orthotic devices;
    (iii) Recreational therapy;
    (iv) Physical and occupational therapy;
    (v) Speech, language, and hearing therapy;
    (vi) Psychiatric, psychological, and social services, including 
positive behavior management;
    (vii) Assessment for determining eligibility and vocational 
rehabilitation needs;
    (viii) Rehabilitation technology;
    (ix) Job development, placement, and retention services;
    (x) Evaluation or control of specific disabilities;
    (xi) Orientation and mobility services for individuals who are 
blind;
    (xii) Extended employment;
    (xiii) Psychosocial rehabilitation services;
    (xiv) Supported employment services and extended services;
    (xv) Services to family members when necessary to the vocational 
rehabilitation of the individual;
    (xvi) Personal assistance services; or
    (xvii) Services similar to the services described in paragraphs (i) 
through (xvi) of this definition.
    Designated State agency means an agency designated under section 
7(8) and 101(a)(2)(A) of the Act.
    Designated State unit means
    (i) Any State agency unit required under section 7(8) and 
101(a)(2)(B) of the Act, or
    (ii) In cases in which no State agency unit is required, the State 
agency described in section 101(a)(2)(B)(ii) of the Act.
    Independent living core services means--
    (i) Information and referral services;
    (ii) Independent living skills training;
    (iii) Peer counseling, including cross-disability peer counseling; 
and
    (iv) Individual and systems advocacy.
    Independent living services includes--
    (i) Independent living core services; and
    (ii)(A) Counseling services, including psychological, 
psychotherapeutic, and related services;
    (B) Services related to securing housing or shelter, including 
services related to community group living, and supportive of the 
purposes of this Act and of the titles of this Act, and adaptive 
housing services (including appropriate accommodations to and 
modifications of any space used to serve, or occupied by, individuals 
with disabilities);
    (C) Rehabilitation technology;
    (D) Mobility training;
    (E) Services and training for individuals with cognitive and 
sensory disabilities, including life skills training, and interpreter 
and reader services;
    (F) Personal assistance services, including attendant care and the 
training of personnel providing these services;
    (G) Surveys, directories, and other activities to identify 
appropriate housing, recreation opportunities, and accessible 
transportation, and other support services;
    (H) Consumer information programs on rehabilitation and independent 
living services available under this Act, especially for minorities and 
other individuals with disabilities who have traditionally been 
unserved or underserved by programs under this Act;
    (I) Education and training necessary for living in the community 
and participating in community activities;
    (J) Supported living;
    (K) Transportation, including referral and assistance for 
transportation;
    (L) Physical rehabilitation;
    (M) Therapeutic treatment;
    (N) Provision of needed prostheses and other appliances and 
devices;
    (O) Individual and group social and recreational services;
    (P) Training to develop skills specifically designed for youths who 
are individuals with disabilities to promote self-awareness and esteem, 
develop advocacy and self-empowerment skills, and explore career 
options;
    (Q) Services for children;
    (R) Services under other Federal, State, or local programs designed 
to provide resources, training, counseling, or other assistance of 
substantial benefit in enhancing the independence, productivity, and 
quality of life of individuals with disabilities;
    (S) Appropriate preventive services to decrease the need of 
individuals assisted under this Act for similar services in the future;
    (T) Community awareness programs to enhance the understanding and 
integration of individuals with disabilities; and
    (U) Such other services as may be necessary and not inconsistent 
with the provisions of this Act.
    Individual with a disability means any individual who--
    (i) Has a physical or mental impairment, which for that individual 
constitutes or results in a substantial impediment to employment;
    (ii) Can benefit in terms of an employment outcome from vocational 
rehabilitation services provided pursuant to title I, III, or VI of the 
Rehabilitation Act of 1973, as amended; and
    (iii) Has a disability as defined in section 7(20)(B) of the Act.
    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, intellectual disability, respiratory or 
pulmonary dysfunction, mental illness, multiple sclerosis, muscular 
dystrophy, musculo-skeletal disorders, neurological disorders 
(including stroke and epilepsy), paraplegia, quadriplegia and other 
spinal cord conditions, sickle-cell anemia, specific learning 
disabilities, 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.
    Institution of higher education has the meaning given the term in 
section 101(a) of the Higher Education Act (20 U.S.C. 1001(a)).
    Personal assistance services means a range of services provided by 
one or more persons designed to assist an individual with a disability 
to perform daily living activities on or off the job that the 
individual would typically perform if the individual did not have a 
disability. The services shall be designed to increase the individual's

[[Page 55617]]

control in life and ability to perform everyday activities on or off 
the job.
    Qualified personnel. (i) For designated State agencies or 
designated State units, means personnel who have met standards that are 
consistent with existing national or State approved or recognized 
certification, licensing, registration, or other comparable 
requirements that apply to the area in which such personnel are 
providing vocational rehabilitation services.
    (ii) For other than designated State agencies or designated State 
units, means personnel who have met existing State certification or 
licensure requirements, or, in the absence of State requirements, have 
met professionally accepted requirements established by national 
certification boards.
    Rehabilitation services means services, including vocational, 
medical, social, and psychological rehabilitation services and other 
services under the Rehabilitation Act, provided to individuals with 
disabilities in performing functions necessary in preparing for, 
securing, retaining, or regaining an employment or independent living 
outcome.
    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.
    State includes, in addition to each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the United States Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands.
    Stipend means financial assistance on behalf of individuals in 
support of their training, as opposed to salary payment for services 
provided within the project.
    Supported employment means competitive integrated employment, 
including customized employment, or employment in an integrated work 
setting in which individuals are working on a short-term basis toward 
competitive integrated employment, that is individualized and 
customized consistent with the strengths, abilities, interests, and 
informed choice of the individuals involved, for individuals with the 
most severe disabilities--
    (i)(A) For whom competitive integrated employment has not 
traditionally occurred; or
    (B) For whom competitive employment has been interrupted or 
intermittent as a result of a severe disability; and
    (ii) Who, because of the nature and severity of their disability, 
need intensive supported employment services from the designated State 
unit and extended services after transition in order to perform the 
work involved.
    Supported employment services means ongoing support services, 
including customized employment, and other appropriate services needed 
to support and maintain an individual with most severe disability in 
supported employment, that are--
    (i) Provided singly or in combination and are organized and made 
available in such a way as to assist an eligible individual in entering 
or maintaining integrated, competitive employment;
    (ii) Based on a determination of the needs of an eligible 
individual, as specified in an individualized written rehabilitation 
program; and
    (iii) Provided by the designated State unit for a period of time 
not more than 24 months, unless under special circumstances the 
eligible individual and the rehabilitation counselor or coordinator 
jointly agree to extend the time in order to achieve the rehabilitation 
objectives identified in the individualized plan for employment.
    Vocational rehabilitation services means services provided to an 
individual with a disability in preparing for, securing, retaining, or 
regaining an employment outcome that is consistent with the strengths, 
resources, priorities, concerns, abilities, capabilities, interests, 
and informed choice of the individual, and services provided for the 
benefit of groups of individuals with disabilities. Vocational 
Rehabilitation Services for an individual with a disability may 
include--
    (i) An assessment for determining eligibility and vocational 
rehabilitation needs by qualified personnel, including, if appropriate, 
an assessment by personnel skilled in rehabilitation technology;
    (ii) Counseling and guidance, including information and support 
services to assist an individual in exercising informed choice;
    (iii) Referral and other services to secure needed services from 
other agencies;
    (iv) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-
along services;
    (v) Vocational and other training services, including the provision 
of personal and vocational adjustment services, books, tools, and other 
training materials;
    (vi) Diagnosis and treatment of physical and mental impairments;
    (vii) Maintenance for additional costs incurred while the 
individual is receiving services;
    (viii) Transportation;
    (ix) On-the-job or other related personal assistance services;
    (x) Interpreter and reader services;
    (xi) Rehabilitation teaching services, and orientation and mobility 
services;
    (xii) Occupational licenses, tools, equipment, and initial stocks 
and supplies;
    (xiii) Technical assistance and other consultation services to 
conduct market analysis, develop business plans, and otherwise provide 
resources to eligible individuals who are pursuing self-employment or 
telecommuting or establishing a small business operation as an 
employment outcome;
    (xiv) Rehabilitation technology, including telecommunications, 
sensory, and other technological aids and devices;
    (xv) Transition services for individuals with disabilities that 
facilitate the achievement of employment outcomes;
    (xvi) Supported employment services;
    (xvii) Services to the family of an individual with a disability 
necessary to assist the individual to achieve an employment outcome;
    (xviii) Post-employment services necessary to assist an individual 
with a disability to retain, regain, or advance in employment; and
    (xix) Expansion of employment opportunities for individuals with 
disabilities, which includes, but is not limited to--
    (A) Self-employment, business ownership, and entrepreneurship;
    (B) Non-traditional jobs, professional employment, and work 
settings;
    (C) Collaborating with employers, Economic Development Councils, 
and others in creating new jobs and career advancement options in local 
job markets through the use of job restructuring and other methods; and
    (D) Other services as identified by the Secretary and published in 
the Federal Register.

(Authority: Sections 7(40), 12(c), and 101(a)(7) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(40), 709(c), 
and 721(a)(7))


[[Page 55618]]



Subpart B [Reserved]

Subpart C--How Does One Apply for a Grant?


Sec.  385.20  What are the application procedures for these programs?

    The Secretary gives the designated State agency an opportunity to 
review and comment on applications submitted from within the State that 
it serves. The procedures to be followed by the applicant and the State 
are in 34 CFR 75.155 through 75.159.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Subpart D--How Does the Secretary Make a Grant?


Sec.  385.30   [Reserved]


Sec.  385.31   How does the Secretary evaluate an application?

    (a) The Secretary evaluates applications under the procedures in 34 
CFR part 75.
    (b) The Secretary evaluates each application using selection 
criteria identified in parts 386, 387, and 390, as appropriate.
    (c) In addition to the selection criteria described in paragraph 
(b) of this section, the Secretary evaluates each application using--
    (1) Selection criteria in 34 CFR 75.210;
    (2) Selection criteria established under 34 CFR 75.209; or
    (3) A combination of selection criteria established under 34 CFR 
75.209 and selection criteria in 34 CFR 75.210.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Sec.  385.33   What other factors does the Secretary consider in 
reviewing an application?

    In addition to the selection criteria listed in Sec.  75.210 and 
parts 386, 387, and 390, the Secretary, in making awards under this 
program, considers such factors as--
    (a) The geographical distribution of projects in each 
Rehabilitation Training Program category throughout the country; and
    (b) The past performance of the applicant in carrying out similar 
training activities under previously awarded grants, as indicated by 
such factors as compliance with grant conditions, soundness of 
programmatic and financial management practices and attainment of 
established project objectives.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(b))

Subpart E--What Conditions Must Be Met by a Grantee?


Sec.  385.40   What are the requirements pertaining to the membership 
of a project advisory committee?

    If a project establishes an advisory committee, its membership must 
include individuals with disabilities or parents, family members, 
guardians, advocates, or other authorized representatives of the 
individuals; members of minority groups; trainees; and providers of 
vocational rehabilitation and independent living rehabilitation 
services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  385.41   What are the requirements affecting the collection of 
data from designated State agencies?

    If the collection of data is necessary from individuals with 
disabilities being served by two or more designated State agencies or 
from employees of two or more of these agencies, the project director 
must submit requests for the data to appropriate representatives of the 
affected agencies, as determined by the Secretary. This requirement 
also applies to employed project staff and individuals enrolled in 
courses of study supported under these programs.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  385.42  What are the requirements affecting the dissemination of 
training materials?

    A set of any training materials developed under the Rehabilitation 
Training Program must be submitted to any information clearinghouse 
designated by the Secretary.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  385.43   What requirements apply to the training of 
rehabilitation counselors and other rehabilitation personnel?

    Any grantee who provides training of rehabilitation counselors or 
other rehabilitation personnel must train those counselors and 
personnel on the services provided under this Act, and, in particular, 
services provided in accordance with amendments made to the 
Rehabilitation Act by the Workforce Innovation and Opportunity Act of 
2014. The grantee must also furnish training to these counselors and 
personnel regarding applications of rehabilitation technology in 
vocational rehabilitation services, the applicability of section 504 of 
this Act, title I of the Americans with Disabilities Act of 1990, and 
the provisions of titles II and XVI of the Social Security Act that are 
related to work incentives for individuals with disabilities.

(Authority: Sections 12(c), 101(a), and 302 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 721(a) and 772)

Sec.  385.44   What requirement applies to the training of individuals 
with disabilities?

    Any grantee or contractor who provides training shall give due 
regard to the training of individuals with disabilities as part of its 
effort to increase the number of qualified personnel available to 
provide rehabilitation services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c)

Sec.  385.45   What additional application requirements apply to the 
training of individuals for rehabilitation careers?

    (a) All applicants for a grant or contract to provide training 
shall demonstrate how the training they plan to provide will prepare 
rehabilitation professionals to address the needs of individuals with 
disabilities from minority backgrounds.
    (b) All applicants for a grant shall include a detailed description 
of strategies that will be utilized to recruit and train persons so as 
to reflect the diverse populations of the United States, as part of the 
effort to increase the number of individuals with disabilities, 
individuals who are members of minority groups, who are available to 
provide rehabilitation services.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 21(a) and (b) and 302 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 718(a) and (b) and 772)

Sec.  385.46   What limitations apply to the rate of pay for experts or 
consultants appointed or serving under contract under the 
Rehabilitation Training program?

    An expert or consultant appointed or serving under contract 
pursuant to this section shall be compensated at a rate subject to 
approval of the Commissioner which shall not exceed the daily 
equivalent of the rate of pay for level 4 of the Senior Executive 
Service Schedule under section 5382 of title 5, United States Code. 
Such an expert or consultant may be allowed travel and transportation 
expenses in accordance with section 5703 of title 5, United States 
Code.

[[Page 55619]]


(Authority: Section 302(b)(3) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(b)(3))


0
11. Part 386 is revised to read as follows:

PART 386--REHABILITATION TRAINING: REHABILITATION LONG-TERM 
TRAINING

Subpart A--General
Sec.
386.1 What is the Rehabilitation Long-Term Training program?
386.2 Who is eligible for an award?
386.3 What regulations apply?
386.4 What definitions apply?
Subpart B [Reserved]
Subpart C--How Does the Secretary Make an Award?
386.20 What additional selection criteria are used under this 
program?
386.21 What are the application procedures for these programs?
Subpart D--What Conditions Must Be Met After an Award?
386.30 What are the matching requirements?
386.31 What are the requirements for directing grant funds?
386.32 What are allowable costs?
386.33 What are the requirements for grantees in disbursing 
scholarships?
386.34 What assurances must be provided by a grantee that intends to 
provide scholarships?
386.35 What information must be provided by a grantee that is an 
institution of higher education to assist designated State agencies?
386.36 What is a grantee's liability for failing to provide accurate 
and complete scholar information to the Department?
Subpart E--What Conditions Must Be Met by a Scholar?
386.40 What are the requirements for scholars?
386.41 Under what circumstances does the Secretary grant a deferral 
or exception to performance or repayment under a scholarship 
agreement?
386.42 What must a scholar do to obtain an exception or a deferral 
to performance or repayment under a scholarship agreement?
386.43 What are the consequences of a scholar's failure to meet the 
terms and conditions of a scholarship agreement?

    Authority:  Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772, unless otherwise noted.

Subpart A--General


Sec.  386.1   What is the Rehabilitation Long-Term Training program?

    (a) The Rehabilitation Long-Term Training program provides 
financial assistance for--
    (1) Projects that provide basic or advanced training leading to an 
academic degree in one of those fields of study identified in paragraph 
(b) of this section;
    (2) Projects that provide a specified series of courses or program 
of study leading to award of a certificate in one of those fields of 
study identified in paragraph (b) of this section; and
    (3) Projects that provide support for medical residents enrolled in 
residency training programs in the specialty of physical medicine and 
rehabilitation.
    (b) The Rehabilitation Long-Term Training program is designed to 
provide academic training that leads to an academic degree or academic 
certificate in areas of personnel shortages identified by the Secretary 
and published in a notice in the Federal Register. These areas may 
include--
    (1) Assisting and supporting individuals with disabilities pursuing 
self-employment, business ownership, and telecommuting;
    (2) Vocational rehabilitation counseling;
    (3) Rehabilitation technology, including training on its use, 
applications, and benefits;
    (4) Rehabilitation medicine;
    (5) Rehabilitation nursing;
    (6) Rehabilitation social work;
    (7) Rehabilitation psychiatry;
    (8) Rehabilitation psychology;
    (9) Rehabilitation dentistry;
    (10) Physical therapy;
    (11) Occupational therapy;
    (12) Speech pathology and audiology;
    (13) Physical education;
    (14) Therapeutic recreation;
    (15) Community rehabilitation program personnel;
    (16) Prosthetics and orthotics;
    (17) Rehabilitation of individuals who are blind or visually 
impaired, including rehabilitation teaching and orientation and 
mobility;
    (18) Rehabilitation of individuals who are deaf or hard of hearing;
    (19) Rehabilitation of individuals who are mentally ill;
    (20) Undergraduate education in the rehabilitation services;
    (21) Independent living;
    (22) Client assistance;
    (23) Administration of community rehabilitation programs;
    (24) Rehabilitation administration;
    (25) Vocational evaluation and work adjustment;
    (26) Services to individuals with specific disabilities or specific 
impediments to rehabilitation, including individuals who are members of 
populations that are unserved or underserved by programs under this 
Act;
    (27) Job development and job placement services to individuals with 
disabilities;
    (28) Supported employment services and customized employment 
services for individuals with the most significant disabilities;
    (29) Specialized services for individuals with significant 
disabilities;
    (30) Other fields contributing to the rehabilitation of individuals 
with disabilities.

(Authority: Sections 12 and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709 and 772)

Sec.  386.2   Who is eligible for an award?

    Those agencies and organizations eligible for assistance under this 
program are described in 34 CFR 385.2.

(Authority: Section 302(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(a))

Sec.  386.3  What regulations apply?

    The following regulations apply to the Rehabilitation Training: 
Rehabilitation Long-Term Training program:
    (a) The regulations in this part 386.
    (b) The regulations in 34 CFR part 385.

(Authority: Section 302(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(a))

Sec.  386.4  What definitions apply?

    The following definitions apply to this program:
    (a) Definitions in 34 CFR 385.4.
    (b) Other definitions. The following definitions also apply to this 
part:
    Academic year means a full-time course of study--
    (i) Taken for a period totaling at least nine months; or
    (ii) Taken for the equivalent of at least two semesters, two 
trimesters, or three quarters.
    Certificate means a recognized educational credential awarded by a 
grantee under this part that attests to the completion of a specified 
series of courses or program of study.
    Professional corporation or professional practice means--
    (i) A professional service corporation or practice formed by one or 
more individuals duly authorized to render the same professional 
service, for the purpose of rendering that service; and
    (ii) The corporation or practice and its members are subject to the 
same supervision by appropriate State regulatory agencies as individual 
practitioners.
    Related agency means--
    (i) An American Indian rehabilitation program; or
    (ii) Any of the following agencies that provide services to 
individuals with disabilities under an agreement or other arrangement 
with a designated State

[[Page 55620]]

agency in the area of specialty for which training is provided:
    (A) A Federal, State, or local agency.
    (B) A nonprofit organization.
    (C) A professional corporation or professional practice group.
    Scholar means an individual who is enrolled in a certificate or 
degree granting course of study in one of the areas listed in Sec.  
386.1(b) and who receives scholarship assistance under this part.
    Scholarship means an award of financial assistance to a scholar for 
training and includes all disbursements or credits for student 
stipends, tuition and fees, books and supplies, and student travel in 
conjunction with training assignments.
    State vocational rehabilitation agency means the designated State 
agency as defined in 34 CFR 361.5(c)(13).

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Subpart B [Reserved]

Subpart C--How Does the Secretary Make an Award?


Sec.  386.20  What additional selection criteria are used under this 
program?

    In addition to the criteria in 34 CFR 385.31(c), the Secretary uses 
the following additional selection criteria to evaluate an application:
    (a) Relevance to State-Federal vocational rehabilitation service 
program. (1) The Secretary reviews each application for information 
that shows that the proposed project appropriately relates to the 
mission of the State-Federal vocational rehabilitation service program.
    (2) The Secretary looks for information that shows that the project 
can be expected either--
    (i) To increase the supply of trained personnel available to State 
and other public or nonprofit agencies involved in the rehabilitation 
of individuals with disabilities through degree or certificate granting 
programs; or
    (ii) To improve the skills and quality of professional personnel in 
the rehabilitation field in which the training is to be provided 
through the granting of a degree or certificate.
    (b) Nature and scope of curriculum. (1) The Secretary reviews each 
application for information that demonstrates the adequacy of the 
proposed curriculum.
    (2) The Secretary looks for information that shows--
    (i) The scope and nature of the coursework reflect content that can 
be expected to enable the achievement of the established project 
objectives;
    (ii) The curriculum and teaching methods provide for an integration 
of theory and practice relevant to the educational objectives of the 
program;
    (iii) For programs whose curricula require them, there is evidence 
of educationally focused practical and other field experiences in 
settings that ensure student involvement in the provision of vocational 
rehabilitation, supported employment, customized employment, pre-
employment transition services, transition services, or independent 
living rehabilitation services to individuals with disabilities, 
especially individuals with significant disabilities;
    (iv) The coursework includes student exposure to vocational 
rehabilitation, supported employment, customized employment, employer 
engagement, and independent living rehabilitation processes, concepts, 
programs, and services; and
    (v) If applicable, there is evidence of current professional 
accreditation by the designated accrediting agency in the professional 
field in which grant support is being requested.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772)

Sec.  386.21   What are the application procedures for these programs?

    (a) Application. No grant shall be awarded or contract entered into 
under the Rehabilitation Long-Term Training program unless the 
applicant has submitted to the Secretary an application at such time, 
in such form, in accordance with such procedures identified by the 
Secretary and, and including such information as the Secretary may 
require, including--
    (1) A description of how the designated State unit or units will 
participate in the project to be funded under the grant or contract, 
including, as appropriate, participation on advisory committees, as 
practicum sites, in curriculum development, and in other ways so as to 
build closer relationships between the applicant and the designated 
State unit and to encourage students to pursue careers in public 
vocational rehabilitation programs;
    (2) The identification of potential employers that provide 
employment that meets the requirements in Sec.  386.33(c); and
    (3) An assurance that data on the employment of graduates or 
trainees who participate in the project is accurate.
    (b) The Secretary gives the designated State agency an opportunity 
to review and comment on applications submitted from within the State 
that it serves. The procedures to be followed by the applicant and the 
State are in 34 CFR 75.155-75.159.

(Authority: Sections 12(c) and 302(b)(2) and (d) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 
772(b)(2) and (d))

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


Sec.  386.30  What are the matching requirements?

    The grantee is required to contribute at least ten percent of the 
total cost of a project under this program. However, if the grantee can 
demonstrate that it has insufficient resources to contribute the entire 
match but that it can fulfill all other requirements for receiving an 
award, the Secretary may waive part of the non-Federal share of the 
cost of the project after negotiations with Department staff.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Sec.  386.31   What are the requirements for directing grant funds?

    (a) A grantee must use at least 65 percent of the total cost of a 
project under this program for scholarships as defined in Sec.  386.4.
    (b) The Secretary may waive the requirement in (a) and award grants 
that use less than 65 percent of the total cost of the project for 
scholarships based upon the unique nature of the project, such as the 
establishment of a new training program or long-term training in an 
emerging field that does not award degrees or certificates.
    (c) Before providing a scholarship to a scholar, a grantee must 
make good faith efforts to determine that the scholar is not 
concurrently receiving more than one scholarship under this program for 
the same academic term.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Sec.  386.32   What are allowable costs?

    In addition to those allowable costs established in the Education 
Department General Administrative Regulations in 34 CFR 75.530 through 
75.562, the following items are allowable under long-term training 
projects:
    (a) Student stipends.
    (b) Tuition and fees.
    (c) Books and supplies.
    (d) Student travel in conjunction with training assignments.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)


[[Page 55621]]




Sec.  386.33   What are the requirements for grantees in disbursing 
scholarships?

    Before disbursement of scholarship assistance to an individual, a 
grantee--
    (a)(1) Must obtain documentation that the individual is--
    (i) A U.S. citizen or national; or
    (ii) A permanent resident of the Commonwealth of Puerto Rico, the 
United States Virgin Islands, Guam, American Samoa, or the Commonwealth 
of the Northern Mariana Islands;
    (2) Must confirm from documentation issued to the individual by the 
U.S. Department of Homeland Security that he or she--
    (i) Is a lawful permanent resident of the United States; or
    (ii) Is in the United States for other than a temporary purpose 
with the intention of becoming a citizen or permanent resident; and
    (b) Must confirm that the applicant has expressed interest in a 
career in clinical practice, administration, supervision, teaching, or 
research in the vocational rehabilitation, supported employment, or 
independent living rehabilitation of individuals with disabilities, 
especially individuals with significant disabilities;
    (c) Must obtain documentation, as described in Sec.  386.40(a)(7), 
that the individual expects to seek and maintain employment in a 
designated State agency or in a related agency as defined in Sec.  
386.4 where
    (1) The employment is in the field of study in which the training 
was received or
    (2) Where the job functions are directly relevant to the field of 
study in which the training was received.
    (d) Must ensure that the scholarship, when added to the amount of 
financial aid the scholar receives for the same academic year under 
title IV of the Higher Education Act, does not exceed the scholar's 
cost of attendance;
    (e) Must limit scholarship assistance to no more than four academic 
years, unless the grantee provides an extension consistent with the 
institution's accommodations under section 504 of the Act; and
    (f) Must obtain a Certification of Eligibility for Federal 
Assistance from each scholar as prescribed in 34 CFR 75.60, 75.61, and 
75.62.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(b))

Sec.  386.34   What assurances must be provided by a grantee that 
intends to provide scholarships?

    A grantee under this part that intends to grant scholarships for 
any academic year must provide the following assurances before an award 
is made:
    (a) Requirement for agreement. No individual will be provided a 
scholarship without entering into a written agreement containing the 
terms and conditions required by this section. An individual will sign 
and date the agreement prior to the initial disbursement of scholarship 
funds to the individual for payment of the individual's expenses. An 
agreement must be executed between the grantee and scholar for each 
subsequent year that scholarship funds are disbursed and must contain 
the terms and conditions required by this section.
    (b) Disclosure to applicants. The terms and conditions of the 
agreement between the grantee and a scholar will be fully disclosed in 
the application for scholarship.
    (c) Form and terms of agreement. Prior to granting each year of a 
scholarship, the grantee will require each scholar to enter into a 
signed written agreement in which the scholar agrees to the terms and 
conditions set forth in Sec.  386.40. This agreement must be in the 
form and contain any additional terms and conditions that the Secretary 
may require.
    (d) Executed agreement. The grantee will provide an original signed 
executed payback agreement upon request to the Secretary.
    (e) Standards for satisfactory progress. The grantee will 
establish, publish, and apply reasonable standards for measuring 
whether a scholar is maintaining satisfactory progress in the scholar's 
course of study. The Secretary considers an institution's standards to 
be reasonable if the standards--
    (1) Conform with the standards of satisfactory progress of the 
nationally recognized accrediting agency that accredits the 
institution's program of study, if the institution's program of study 
is accredited by such an agency, and if the agency has those standards;
    (2) For a scholar enrolled in an eligible program who is to receive 
assistance under the Rehabilitation Act, are the same as or stricter 
than the institution's standards for a student enrolled in the same 
academic program who is not receiving assistance under the 
Rehabilitation Act; and
    (3) Include the following elements:
    (i) Grades, work projects completed, or comparable factors that are 
measurable against a norm.
    (ii) A maximum timeframe in which the scholar must complete the 
scholar's educational objective, degree, or certificate.
    (iii) Consistent application of standards to all scholars within 
categories of students; e.g., full-time, part-time, undergraduates, 
graduate students, and students attending programs established by the 
institution.
    (iv) Specific policies defining the effect of course incompletes, 
withdrawals, repetitions, and noncredit remedial courses on 
satisfactory progress.
    (v) Specific procedures for appeal of a determination that a 
scholar is not making satisfactory progress and for reinstatement of 
aid.
    (f) Exit certification. (1) At the time of exit from the program, 
the grantee will provide the following information to the scholar:
    (i) The name of the institution and the number of the Federal grant 
that provided the scholarship.
    (ii) the total amount of scholarship assistance received subject to 
Sec.  386.40(a)(7).
    (iii) The scholar's field of study and the obligation of the 
scholar to perform the service obligation with employment that meets 
the requirements in Sec.  386.40(a)(7)(i).
    (iv) The number of years the scholar needs to work to satisfy the 
work requirements in Sec.  386.40(a)(7)(ii).
    (v) The time period during which the scholar must satisfy the work 
requirements in Sec.  386.40(a)(8).
    (vi) As applicable, all other obligations of the scholar in Sec.  
386.40.
    (2) Upon receipt of this information from the grantee, the scholar 
must provide written and signed certification to the grantee that the 
information is correct.
    (g) Tracking system. The grantee has established policies and 
procedures to determine compliance of the scholar with the terms of the 
signed payback agreement. In order to determine whether a scholar has 
met the terms and conditions set forth in Sec.  386.40, the tracking 
system must include for each employment position maintained by the 
scholar--
    (1) Documentation of the employer's name, address, dates of the 
scholar's employment, name of supervisor, position title, a description 
of the duties the scholar performed, and whether the employment is 
full- or part-time;
    (2) Documentation of how the employment meets the requirements in 
Sec.  386.40(a)(7); and
    (3) In the event a grantee is experiencing difficulty locating a 
scholar, documentation that the grantee has checked with existing 
tracking systems operated by alumni organizations.
    (h) Reports. The grantee will make annual reports to the Secretary, 
unless more frequent reporting is required by

[[Page 55622]]

the Secretary, that are necessary to carry out the Secretary's 
functions under this part.
    (i) Repayment status. The grantee will immediately report to the 
Secretary whenever a scholar has entered repayment status under Sec.  
386.43(e) and provide all necessary documentation in support thereof.
    (j) Records. The grantee will maintain accurate and complete 
records as outlined in paragraphs (g) and (h) of this section for a 
period of time not less than one year beyond the date that all scholars 
provided financial assistance under the grant--
    (1) Have completed their service obligation or
    (2) Have entered into repayment status pursuant to Sec.  386.43(e).

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(b))

Sec.  386.35   What information must be provided by a grantee that is 
an institution of higher education to assist designated State agencies?

    A grantee that is an institution of higher education provided 
assistance under this part must cooperate with the following requests 
for information from a designated State agency:
    (a) Information required by section 101(a)(7) of the Act which may 
include, but is not limited to--
    (1) The number of students enrolled by the grantee in 
rehabilitation training programs; and
    (2) The number of rehabilitation professionals trained by the 
grantee who graduated with certification or licensure, or with 
credentials to qualify for certification or licensure, during the past 
year.
    (b) Information on the availability of rehabilitation courses 
leading to certification or licensure, or the credentials to qualify 
for certification or licensure, to assist State agencies in the 
planning of a program of staff development for all classes of positions 
that are involved in the administration and operation of the State 
vocational rehabilitation program.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Sec.  386.36  What is a grantee's liability for failing to provide 
accurate and complete scholar information to the Department?

    The Department may recover, in whole or in part, from the grantee 
the debt amount and any collection costs described in Sec. Sec.  
386.40(d) and 386.43, if the Department:
    (a) Is unable to collect, or improperly collected, some or all of 
these amounts or costs from a scholar and
    (b) Determines that the grantee failed to provide to the Department 
accurate and complete documentation described in Sec.  386.34.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Subpart E--What Conditions Must Be Met by a Scholar?


Sec.  386.40   What are the requirements for scholars?

    (a) A scholar must--
    (1) Be enrolled in a course of study leading to a certificate or 
degree in one of the fields designated in Sec.  386.1(b);
    (2) Receive the training at the educational institution or agency 
designated in the scholarship;
    (3) Not accept payment of educational allowances from any other 
entity if that allowance conflicts with the scholar's obligation under 
section 302 of the Act and this part;
    (4) Not receive concurrent scholarships for the same academic term 
from more than one project under this program;
    (5) Enter into a signed written agreement with the grantee, prior 
to the receipt of scholarship funds, as required in Sec.  386.34(c);
    (6) Maintain satisfactory progress toward the certificate or degree 
as determined by the grantee;
    (7) Upon exiting the training program under paragraph (a)(1) of 
this section, subsequently maintain employment on a full- or part-time 
basis subject to the provisions in paragraph (b) of this section--
    (i)(A) In a State vocational rehabilitation agency or related 
agency as defined in Sec.  386.4; and
    (B)(1) In the field of study for which training was received, or
    (2) Where the field of study is directly relevant to the job 
functions performed; and
    (ii) For a period of at least the full-time equivalent of two years 
for every academic year for which assistance under this section was 
received subject to the provisions in paragraph (c) of this section for 
part-time coursework;
    (8) Complete the service obligation within a period, beginning 
after the recipient exits the training program for which the 
scholarship was awarded, of not more than the sum of the number of 
years in the period described in paragraph (a)(7)(ii) of this section 
and two additional years;
    (9) Repay all or part of any scholarship received, plus interest, 
if the individual does not fulfill the requirements of this section, 
except as provided for in Sec.  386.41 for exceptions and deferrals; 
and
    (10) Provide the grantee all requested information necessary for 
the grantee to meet the exit certification requirements in Sec.  
386.34(f) and, as necessary, thereafter for any changes necessary for 
the grantee to monitor the scholar's service obligation under this 
section.
    (b)(1) The period of qualifying employment that meets the 
requirements of paragraph (a)(7) of this section may begin--
    (i) For courses of study of at least one year, only subsequent to 
the completion of one academic year of the training for which the 
scholarship assistance was received.
    (ii) For courses of study of less than one year, only upon 
completion of the training for which the scholarship assistance was 
received.
    (2) The work completed as part of an internship, practicum, or any 
other work-related requirement necessary to complete the educational 
program is not considered qualifying employment.
    (c) If the scholar is pursuing coursework on a part-time basis, the 
service obligation for these part-time courses is based on the 
equivalent total of actual academic years of training received.
    (d) If a scholar fails to provide the information in paragraph 
(a)(10) of this section or otherwise maintain contact with the grantee 
pursuant to the terms of the signed payback agreement and enters into 
repayment status pursuant to Sec.  386.43, the scholar will be held 
responsible for any costs assessed in the collection process under that 
section even if that information is subsequently provided.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(b))

Sec.  386.41   Under what circumstances does the Secretary grant a 
deferral or exception to performance or repayment under a scholarship 
agreement?

    Based upon sufficient evidence to substantiate the grounds as 
detailed in Sec.  386.42, a repayment exception to or deferral of the 
requirements of Sec.  386.40(a)(7) may be granted, in whole or in part, 
by the Secretary as follows:
    (a) Repayment is not required if the scholar--
    (1) Is unable to continue the course of study or perform the work 
obligation because of a permanent disability that meets one of the 
following conditions:

[[Page 55623]]

    (i) The disability had not been diagnosed at the time the scholar 
signed the agreement in Sec.  386.34(c); or
    (ii) The disability did not prevent the scholar from performing the 
requirements of the course of study or the work obligation at the time 
the scholar signed the agreement in Sec.  386.34(c) but subsequently 
worsened; or
    (2) Has died.
    (b) Repayment of a scholarship may be deferred during the time the 
scholar is--
    (1) Engaging in a full-time course of study in the field of 
rehabilitation at an institution of higher education;
    (2) Serving on active duty as a member of the armed services of the 
United States for a period not in excess of four years;
    (3) Serving as a volunteer under the Peace Corps Act;
    (4) Serving as a full-time volunteer under title I of the Domestic 
Volunteer Service Act of 1973;
    (5) Experiencing a temporary disability that affects the scholar's 
ability to continue the course of study or perform the work obligation, 
for a period not to exceed three years; or
    (c) Under limited circumstances as determined by the Secretary and 
based upon credible evidence submitted on behalf of the scholar, the 
Secretary may grant an exception to, or deferral of, the requirement to 
repay a scholarship in instances not specified in this section. These 
instances could include, but are not limited to, the care of a disabled 
spouse, partner, or child or the need to accompany a spouse or partner 
on active duty in the Armed Forces.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(b))

Sec.  386.42   What must a scholar do to obtain an exception or a 
deferral to performance or repayment under a scholarship agreement?

    To obtain an exception or a deferral to performance or repayment 
under a scholarship agreement under Sec.  386.41, a scholar must 
provide the following:
    (a) Written application. A written application must be made to the 
Secretary to request a deferral or an exception to performance or 
repayment of a scholarship.
    (b) Documentation. Sufficient documentation must be provided to 
substantiate the grounds for all deferrals or exceptions, including the 
following, as appropriate.
    (1) Documentation necessary to substantiate an exception under 
Sec.  386.41(a)(1) or a deferral under Sec.  386.41(b)(5) must include 
a letter from a qualified physician or other medical professional, on 
official stationery, attesting how the disability affects the scholar 
in completing the course of study or performing the work obligation. 
The documentation must be less than three months old and include the 
scholar's diagnosis and prognosis and ability to complete the course of 
study or work with accommodations.
    (2) Documentation to substantiate an exception under Sec.  
386.41(a)(2) must include a death certificate or other evidence 
conclusive under State law.
    (3) Documentation necessary to substantiate a deferral or exception 
under 386.41(c) based upon the disability of a spouse, partner, or 
child must meet the criteria, as relevant, in paragraph (b)(1) of this 
section.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Sec.  386.43  What are the consequences of a scholar's failure to meet 
the terms and conditions of a scholarship agreement?

    In the event of a failure to meet the terms and conditions of a 
scholarship agreement or to obtain a deferral or an exception as 
provided in Sec.  386.41, the scholar must repay all or part of the 
scholarship as follows:
    (a) Amount. The amount of the scholarship to be repaid is 
proportional to the employment obligation not completed.
    (b) Interest rate. The Secretary charges the scholar interest on 
the unpaid balance owed in accordance with 31 U.S.C. 3717.
    (c) Interest accrual. (1) Interest on the unpaid balance accrues 
from the date the scholar is determined to have entered repayment 
status under paragraph (e) of this section.
    (2) Any accrued interest is capitalized at the time the scholar's 
repayment schedule is established.
    (3) No interest is charged for the period of time during which 
repayment has been deferred under Sec.  386.41.
    (d) Collection costs. Under the authority of 31 U.S.C. 3717, the 
Secretary may impose reasonable collection costs.
    (e) Repayment status. A scholar enters repayment status on the 
first day of the first calendar month after the earliest of the 
following dates, as applicable:
    (1) The date the scholar informs the Secretary he or she does not 
plan to fulfill the employment obligation under the agreement.
    (2) Any date when the scholar's failure to begin or maintain 
employment makes it impossible for that individual to complete the 
employment obligation within the number of years required in Sec.  
386.40(a)(8).
    (f) Amounts and frequency of payment. The scholar shall make 
payments to the Secretary that cover principal, interest, and 
collection costs according to a schedule established by the Secretary.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(b))



0
12. Part 387 is revised to read as follows:

PART 387--INNOVATIVE REHABILITATION TRAINING

Subpart A--General
Sec.
387.1 What is the Innovative Rehabilitation Training program?
387.2 Who is eligible for assistance under this program?
387.3 What regulations apply to this program?
387.4 What definitions apply to this program?
387.5 What types of projects are authorized under this program?
Subpart B--[Reserved]
Subpart C--[Reserved]
Subpart D--How Does the Secretary Make a Grant?
387.30 What additional selection criteria are used under this 
program?
Subpart E--What Conditions Must Be Met by a Grantee?
387.40 What are the matching requirements?
387.41 What are allowable costs?

    Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), and 772, unless otherwise noted.

Subpart A--General


Sec.  387.1   What is the Innovative Rehabilitation Training program?

    This program is designed--
    (a) To develop new types of training programs for rehabilitation 
personnel and to demonstrate the effectiveness of these new types of 
training programs for rehabilitation personnel in providing 
rehabilitation services to individuals with disabilities;
    (b) To develop new and improved methods of training rehabilitation 
personnel so that there may be a more effective delivery of 
rehabilitation services to individuals with disabilities by designated 
State rehabilitation agencies and designated State rehabilitation units 
or other public or non-profit rehabilitation service agencies or 
organizations; and

[[Page 55624]]

    (c) To develop new innovative training programs for vocational 
rehabilitation professionals and paraprofessionals to have a 21st 
century understanding of the evolving labor force and the needs of 
individuals with disabilities so they can more effectively provide 
vocational rehabilitation services to individuals with disabilities.

(Authority: Sections 12(c), 121(a)(7), and 302 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(7), and 772)

Sec.  387.2  Who is eligible for assistance under this program?

    Those agencies and organizations eligible for assistance under this 
program are described in 34 CFR 385.2.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772)

Sec.  387.3  What regulations apply to this program?

    (a) 34 CFR part 385 (Rehabilitation Training); and
    (b) The regulations in this part 387.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Sec.  387.4   What definitions apply to this program?

    The definitions in 34 CFR part 385 apply to this program.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772))

Sec.  387.5   What types of projects are authorized under this program?

    The Innovative Rehabilitation Training Program supports time-
limited pilot projects through which new types of rehabilitation 
workers may be trained or through which innovative methods of training 
rehabilitation personnel may be demonstrated.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772))

Subpart B--[Reserved]

Subpart C--[Reserved]

Subpart D--How Does the Secretary Make a Grant?


Sec.  387.30   What additional selection criteria are used under this 
program?

    In addition to the criteria in 34 CFR 385.31(c), the Secretary uses 
the following additional selection criteria to evaluate an application:
    (a) Relevance to State-Federal rehabilitation service program. (1) 
The Secretary reviews each application for information that shows that 
the proposed project appropriately relates to the mission of the State-
Federal rehabilitation service program.
    (2) The Secretary looks for information that shows that the project 
can be expected either--
    (i) To increase the supply of trained personnel available to public 
and private agencies involved in the rehabilitation of individuals with 
disabilities; or
    (ii) To maintain and improve the skills and quality of 
rehabilitation personnel.
    (b) Nature and scope of curriculum. (1) The Secretary reviews each 
application for information that demonstrates the adequacy and scope of 
the proposed curriculum.
    (2) The Secretary looks for information that shows that--
    (i) The scope and nature of the training content can be expected to 
enable the achievement of the established project objectives of the 
training project;
    (ii) The curriculum and teaching methods provide for an integration 
of theory and practice relevant to the educational objectives of the 
program;
    (iii) There is evidence of educationally focused practicum or other 
field experiences in settings that assure student involvement in the 
provision of vocational rehabilitation or independent living 
rehabilitation services to individuals with disabilities, especially 
individuals with significant disabilities; and
    (iv) The didactic coursework includes student exposure to 
vocational rehabilitation processes, concepts, programs, and services.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Subpart E--What Conditions Must Be Met by a Grantee?


Sec.  387.40  What are the matching requirements?

    A grantee must contribute to the cost of a project under this 
program in an amount satisfactory to the Secretary. The part of the 
costs to be borne by the grantee is determined by the Secretary at the 
time of the grant award.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

Sec.  387.41  What are allowable costs?

    In addition to those allowable costs established under 34 CFR 
75.530-75.562, the following items are allowable under Innovative 
Rehabilitation training projects--
    (a) Student stipends;
    (b) Tuition and fees; and
    (c) Student travel in conjunction with training assignments.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772)

PART 388--[REMOVED AND RESERVED]

0
13. Effective October 1, 2016, part 388 is removed and reserved.

PART 389--[REMOVED AND RESERVED]

0
14. Part 389 is removed and reserved.

0
15. Part 390 is revised to read as follows:

PART 390--REHABILITATION SHORT-TERM TRAINING

Subpart A--General
Sec.
390.1 What is the Rehabilitation Short-Term Training program?
390.2 Who is eligible for assistance under this program?
390.3 What regulations apply to this program?
390.4 What definitions apply to this program?
Subpart B--What Kinds of Projects Does the Department of Education 
Assist Under This Program?
390.10 What types of projects are authorized under this program?
Subpart C--[Reserved]
Subpart D--How Does the Secretary Make a Grant?
390.30 What additional selection criterion is used under this 
program?
Subpart E--What Conditions Must Be Met by a Grantee?
390.40 What are the matching requirements?
390.41 What are allowable costs?

    Authority: Sections 12(a) and (c) and 302 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(a) and (c) and 772, unless 
otherwise noted.

Subpart A--General


Sec.  390.1  What is the Rehabilitation Short-Term Training program?

    This program is designed for the support of special seminars, 
institutes, workshops, and other short-term courses in technical 
matters relating to the vocational, medical, social, and psychological 
rehabilitation programs, independent living services programs, and 
client assistance programs.

(Authority: Sections 12(a)(2) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(a)(2) and 772)


[[Page 55625]]




Sec.  390.2   Who is eligible for assistance under this program?

    Those agencies and organizations eligible for assistance under this 
program are described in 34 CFR 385.2.

(Authority: Section 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772)

Sec.  390.3   What regulations apply to this program?

    (a) 34 CFR part 385 (Rehabilitation Training); and
    (b) The regulations in this part 390.

(Authority: Section 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772)

Sec.  390.4  What definitions apply to this program?

    The definitions in 34 CFR part 385 apply to this program.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c)

Subpart B--What Kinds of Projects Does the Department of Education 
Assist Under This Program?


Sec.  390.10   What types of projects are authorized under this 
program?

    (a) Projects under this program are designed to provide short-term 
training and technical instruction in areas of special significance to 
the vocational, medical, social, and psychological rehabilitation 
programs, supported employment programs, independent living services 
programs, and client assistance programs.
    (b) Short-term training projects may be of regional or national 
scope.
    (c) Conferences and meetings in which training is not the primary 
focus may not be supported under this program.

(Authority: Section 12(a)(2) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(a)(2) and 772)

Subpart C--[Reserved]

Subpart D--How Does the Secretary Make a Grant?


Sec.  390.30  What additional selection criterion is used under this 
program?

    In addition to the criteria in 34 CFR 385.31(c), the Secretary uses 
the following additional selection criterion to evaluate an 
application:
    (a) Relevance to State-Federal rehabilitation service program. (1) 
The Secretary reviews each application for information that shows that 
the proposed project appropriately relates to the mission of the State-
Federal rehabilitation service programs.
    (2) The Secretary looks for information that shows that the 
proposed project can be expected to improve the skills and competence 
of--
    (i) Personnel engaged in the administration or delivery of 
rehabilitation services; and
    (ii) Others with an interest in the delivery of rehabilitation 
services.
    (b) Evidence of training needs. The Secretary reviews each 
application for evidence of training needs as identified through 
training needs assessment conducted by the applicant or by designated 
State agencies or designated State units or any other public and 
private nonprofit rehabilitation service agencies or organizations that 
provide rehabilitation services and other services authorized under the 
Act, whose personnel will receive the training.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c))

Subpart E--What Conditions Must Be Met by a Grantee?


Sec.  390.40  What are the matching requirements?

    A grantee must contribute to the cost of a project under this 
program in an amount satisfactory to the Secretary. The part of the 
costs to be borne by the grantee is determined by the Secretary at the 
time of the award.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772)

Sec.  390.41  What are allowable costs?

    (a) In addition to those allowable costs established in 34 CFR 
75.530-75.562, the following items are allowable under short-term 
training projects:
    (1) Trainee per diem costs;
    (2) Trainee travel in connection with a training course;
    (3) Trainee registration fees; and
    (4) Special accommodations for trainees with handicaps.
    (b) The preparation of training materials may not be supported 
under a short-term training grant unless the materials are essential 
for the conduct of the seminar, institute, workshop or other short 
course for which the grant support has been provided.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772)


0
16. Part 396 is revised to read as follows:

PART 396--TRAINING OF INTERPRETERS FOR INDIVIDUALS WHO ARE DEAF OR 
HARD OF HEARING AND INDIVIDUALS WHO ARE DEAF-BLIND

Subpart A--General
Sec.
396.1 What is the Training of Interpreters for Individuals Who Are 
Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind program?
396.2 Who is eligible for an award?
396.3 What regulations apply?
396.4 What definitions apply?
396.5 What activities may the Secretary fund?
Subpart B--[Reserved]
Subpart C--How Does One Apply for an Award?
396.20 What must be included in an application?
Subpart D--How Does the Secretary Make an Award?
396.30 How does the Secretary evaluate an application?
396.31 What additional selection criteria are used under this 
program?
396.32 What additional factors does the Secretary consider in making 
awards?
396.33 What priorities does the Secretary apply in making awards?
396.34 What are the matching requirements?

    Authority:  Sections 12(c) and 302(a) and (f) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 772(a) 
and (f), unless otherwise noted.

Subpart A--General


Sec.  396.1  What is the Training of Interpreters for Individuals Who 
Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind program?

    The Training of Interpreters for Individuals Who Are Deaf or Hard 
of Hearing and Individuals Who Are Deaf-Blind program is designed to 
establish interpreter training programs or to provide financial 
assistance for ongoing interpreter programs to train a sufficient 
number of qualified interpreters throughout the country in order to 
meet the communication needs of individuals who are deaf or hard of 
hearing and individuals who are deaf-blind by--
    (a) Training interpreters to effectively interpret and 
transliterate between spoken language and sign language and to 
transliterate between spoken language and oral or tactile modes of 
communication;
    (b) Ensuring the maintenance of the interpreting skills of 
qualified interpreters; and
    (c) Providing opportunities for interpreters to raise their skill 
level competence in order to meet the highest

[[Page 55626]]

standards approved by certifying associations.

(Authority: Sections 12(c) and 302(a) and (f) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 772(a) and (f))

Sec.  396.2   Who is eligible for an award?

    Public and private nonprofit agencies and organizations, including 
institutions of higher education, are eligible for assistance under 
this program.

(Authority: Section 302(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(f))

Sec.  396.3   What regulations apply?

    The following regulations apply to the Training of Interpreters for 
Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are 
Deaf-Blind program:
    (a) 34 CFR part 385 (Rehabilitation Training), sections--
    (1) 385.3(a) and (d);
    (2) 385.40 through 385.46; and
    (b) The regulations under this part 396.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(f))

Sec.  396.4  What definitions apply?

    (a) Definitions in EDGAR. The following terms defined in 34 CFR 
77.1 apply to this part:

Applicant
Application
Award
Equipment
Grant
Nonprofit
Private
Project
Public
Secretary
Supplies

    (b) Definitions in the rehabilitation training regulations. The 
following terms defined in 34 CFR 385.4(b) apply to this part:
    Individual With a Disability
    Institution of Higher Education
    (c) Other definitions. The following definitions also apply to this 
part:
    Existing program that has demonstrated its capacity for providing 
interpreter training services means an established program with--
    (i) A record of training qualified interpreters who are serving the 
deaf, hard of hearing, and deaf-blind communities; and
    (ii) An established curriculum that uses evidence-based practices 
in the training of interpreters and promising practices when evidence-
based practices are not available.
    Individual who is deaf means an individual who, in order to 
communicate, depends primarily upon visual modes, such as sign 
language, speech reading, and gestures, or reading and writing.
    Individual who is deaf-blind means an individual--
    (i)(A) Who has a central visual acuity of 20/200 or less in the 
better eye with corrective lenses, or a field defect such that the 
peripheral diameter of visual field subtends an angular distance no 
greater than 20 degrees, or a progressive visual loss having a 
prognosis leading to one or both of these conditions;
    (B) Who has a chronic hearing impairment so severe that most speech 
cannot be understood with optimum amplification, or a progressive 
hearing loss having a prognosis leading to this condition; and
    (C) For whom the combination of impairments described in paragraphs 
(i)(A) and (B) of this definition causes extreme difficulty in 
attaining independence in daily life activities, achieving psychosocial 
adjustment, or obtaining a vocation;
    (ii) Who, despite the inability to be measured accurately for 
hearing and vision loss due to cognitive or behavioral constraints, or 
both, can be determined through functional and performance assessment 
to have severe hearing and visual disabilities that cause extreme 
difficulty in attaining independence in daily life activities, 
achieving psychosocial adjustment, or obtaining vocational objectives; 
or
    (iii) Who meets any other requirements that the Secretary may 
prescribe.
    Individual who is hard of hearing means an individual who, in order 
to communicate, needs to supplement auditory information by depending 
primarily upon visual modes, such as sign language, speech reading, and 
gestures, or reading and writing.
    Interpreter for individuals who are deaf or hard of hearing means a 
qualified professional who uses sign language skills, cued speech, or 
oral interpreting skills, as appropriate to the needs of individuals 
who are deaf or hard of hearing, to facilitate communication between 
individuals who are deaf or hard of hearing and other individuals.
    Interpreter for individuals who are deaf-blind means a qualified 
professional who uses tactile or other manual language or 
fingerspelling modes, as appropriate to the needs of individuals who 
are deaf-blind, to facilitate communication between individuals who are 
deaf-blind and other individuals.
    Novice Interpreter means an interpreter who has graduated from an 
interpreter education program or enters the field through an alternate 
pathway, is at the start of his or her professional career with some 
level of proficiency in American Sign Language, and is working toward 
becoming a qualified professional.
    Qualified professional means an individual who has--
    (i) Met existing certification or evaluation requirements 
equivalent to the highest standards approved by certifying 
associations; and
    (ii) Successfully demonstrated interpreting skills that reflect the 
highest standards approved by certifying associations through prior 
work experience.
    Related agency means--
    (i) An American Indian rehabilitation program; or
    (ii) Any of the following agencies that provide services to 
individuals with disabilities under an agreement or other arrangement 
with a designated State agency in the area of specialty for which 
training is provided:
    (A) A Federal, State, or local agency.
    (B) A nonprofit organization.
    (C) A professional corporation or professional practice group.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 
1973, as amended and Section 206 of Pub. L. 98-221; 29 U.S.C. 709(c) 
and 772(f) and 29 U.S.C 1905)

Sec.  396.5   What activities may the Secretary fund?

    The Secretary may award grants to public or private nonprofit 
agencies or organizations, including institutions of higher educations, 
to provide assistance for establishment of interpreter training 
programs or for projects that provide training in interpreting skills 
for persons preparing to serve, and persons who are already serving, as 
interpreters for individuals who are deaf or hard of hearing, and as 
interpreters for individuals who are deaf-blind in public and private 
agencies, schools, and other service-providing institutions.

(Authority: Section 302(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(f))

Subpart B--[Reserved]

Subpart C--How Does One Apply for an Award?


Sec.  396.20   What must be included in an application?

    Each applicant shall include in the application--
    (a) A description of the manner in which the proposed interpreter 
training program will be developed and operated during the five-year 
period following the award of the grant;

[[Page 55627]]

    (b) A description of the communication needs for training 
interpreters for the population(s) or in the geographical area(s) to be 
served by the project;
    (c) A description of the applicant's capacity or potential for 
providing training of interpreters for individuals who are deaf or hard 
of hearing and interpreters for individuals who are deaf-blind that is 
evidence-based, and based on promising practices when evidence-based 
practices are not available;
    (d) An assurance that any interpreter trained or retrained under 
this program shall meet those standards of competency for a qualified 
professional, that the Secretary may establish;
    (e) An assurance that the project shall cooperate or coordinate its 
activities, as appropriate, with the activities of other projects 
funded under this program;
    (f) The descriptions required in 34 CFR 385.45 with regard to the 
training of individuals with disabilities, including those from 
minority groups, for rehabilitation careers; and
    (g) Such other information as the Secretary may require.

(Approved by the Office of Management and Budget under control 
number 1820-0018)


(Authority: Sections 12(c), 21(c), and 302(f) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 718(c), and 772(f))

Subpart D--How Does the Secretary Make an Award?


Sec.  396.30  How does the Secretary evaluate an application?

    (a) The Secretary evaluates applications under the procedures in 34 
CFR part 75.
    (b) The Secretary evaluates each application using selection 
criteria in Sec.  396.31.
    (c) In addition to the selection criteria described in paragraph 
(b) of this section, the Secretary evaluates each application using--
    (1) Selection criteria in 34 CFR 75.210;
    (2) Selection criteria established under 34 CFR 75.209; or
    (3) A combination of selection criteria established under 34 CFR 
75.209 and selection criteria in 34 CFR 75.210.

(Authority: Section 302(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(f))

Sec.  396.31   What additional selection criteria are used under this 
program?

    In addition to the criteria in 34 CFR 396.30(c), the Secretary uses 
the following additional selection criterion to evaluate an 
application. The Secretary reviews each application to determine the 
extent to which--
    (a) The proposed interpreter training project was developed in 
consultation with State Vocational Rehabilitation agencies and their 
related agencies and consumers;
    (b) The training is appropriate to the needs of both individuals 
who are deaf or hard of hearing and individuals who are deaf-blind and 
to the needs of public and private agencies that provide services to 
either individuals who are deaf or hard of hearing or individuals who 
are deaf-blind in the geographical area to be served by the training 
project;
    (c) Any curricula for the training of interpreters includes 
evidence-based practices and promising practices when evidence-based 
practices are not available;
    (d) There is a working relationship between the interpreter 
training project and State Vocational Rehabilitation agencies and their 
related agencies, and consumers; and
    (e) There are opportunities for individuals who are deaf or hard of 
hearing and individuals who are deaf-blind to provide input regarding 
the design and management of the training project.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(f))

Sec.  396.32  What additional factors does the Secretary consider in 
making awards?

    In addition to the selection criteria listed in Sec.  396.31 and 34 
CFR 75.210, the Secretary, in making awards under this part, considers 
the geographical distribution of projects throughout the country, as 
appropriate, in order to best carry out the purposes of this program. 
To accomplish this, the Secretary may in any fiscal year make awards of 
regional or national scope.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(f))

Sec.  396.33   What priorities does the Secretary apply in making 
awards?

    (a) The Secretary, in making awards under this part, gives priority 
to public or private nonprofit agencies or organizations, including 
institutions of higher education, with existing programs that have 
demonstrated their capacity for providing interpreter training.
    (b) In announcing competitions for grants and contracts, the 
Secretary may give priority consideration to--
    (1) Increasing the skill level of interpreters for individuals who 
are deaf or hard of hearing and individuals who are deaf-blind in 
unserved or underserved populations or in unserved or underserved 
geographic areas;
    (2) Existing programs that have demonstrated their capacity for 
providing interpreter training services that raise the skill level of 
interpreters in order to meet the highest standards approved by 
certifying associations; and
    (3) Specialized topical training based on the communication needs 
of individuals who are deaf or hard of hearing and individuals who are 
deaf-blind.

(Authority: Sections 12(c) and 302(f)(1)(C) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 772(f)(1)(C))

Sec.  396.34  What are the matching requirements?

    A grantee must contribute to the cost of a project under this 
program in an amount satisfactory to the Secretary. The part of the 
costs to be borne by the grantee is determined by the Secretary at the 
time of the grant award.

(Authority: Section 12(c) and 302(f) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(f))


[FR Doc. 2016-16046 Filed 8-8-16; 11:15 am]
 BILLING CODE 4000-01-P