[Federal Register Volume 60, Number 147 (Tuesday, August 1, 1995)]
[Rules and Regulations]
[Pages 39216-39223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18774]




[[Page 39215]]

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Part III





Department of Education





_______________________________________________________________________



34 CFR Part 366



_______________________________________________________________________



Centers for Independent Living; Final Rule

  Federal Register / Vol. 60, No. 147 / Tuesday, August 1, 1995 / Rules 
and Regulations   

[[Page 39216]]


DEPARTMENT OF EDUCATION

34 CFR Part 366

RIN 1820-AA81


Centers for Independent Living

AGENCY: Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations governing the Centers for 
Independent Living (CIL) program. These regulations are needed to 
establish indicators of minimum compliance with the evaluation 
standards for centers for independent living enacted in the 
Rehabilitation Act of 1973 (Act), as amended by the Rehabilitation Act 
Amendments of 1992 (1992 Amendments) and the Rehabilitation Act 
Amendments of 1993 (1993 Amendments).

EFFECTIVE DATE: These regulations take effect August 31, 1995.

FOR FURTHER INFORMATION CONTACT: John Nelson, U.S. Department of 
Education, 600 Independence Avenue, SW., Room 3326, Mary E. Switzer 
Building, Washington, DC 20202-2741. Telephone or TDD: (202) 205-9362.

SUPPLEMENTARY INFORMATION: The CIL program supports the planning for 
and establishing, conducting, administrating, assisting, and evaluating 
of centers. These regulations add a new subpart G to 34 CFR part 366, 
which contains the regulations governing the CIL program. Section 
725(b) of the Act establishes evaluation standards for centers. Section 
706(b) of the Act requires the Secretary to publish indicators of what 
constitutes minimum compliance with the evaluation standards. Subpart G 
incorporates these evaluation standards and compliance indicators into 
the program regulations.
    The CIL program is an important part of the National Education 
Goals. This program supports the National Education Goal that, by the 
year 2000, every adult American will be literate and will possess the 
knowledge and skills necessary to compete in a global economy and 
exercise the rights and responsibilities of citizenship.
    The Rehabilitation Act Amendments of 1986, Pub. L. 99-506, required 
that the Secretary publish indicators of what constitutes minimum 
compliance with the evaluation standards under section 711(e) of the 
Act, as it existed prior to the 1992 Amendments, Pub. L. 102-569. The 
Secretary published proposed compliance indicators in the Federal 
Register in an advance notice of proposed rulemaking (ANPRM) on July 
10, 1992. The Secretary received over 100 written comments during the 
comment period on the ANPRM, as well as 35 oral comments during a 
public meeting held on August 27, 1992. Following the publication of 
the ANPRM, the Secretary also solicited and received input from experts 
in the field concerning alternative approaches to the indicators.
    The major elements of six of the evaluation standards proposed by 
the U.S. Department of Education (Department) in the ANPRM were 
codified as part of the Act by the 1992 Amendments, which was enacted 
shortly after publication of the ANPRM. In addition, the 1992 
Amendments requires that the Secretary publish indicators of what 
constitutes minimum compliance with the evaluation standards under 
section 725(b) of the Act.
    On October 27, 1993, the Secretary published a notice of proposed 
rulemaking (NPRM) in the Federal Register (58 FR 57942) proposing to 
amend existing regulations for the CIL program by establishing 
indicators of minimum compliance with the new evaluation standards. On 
December 21, 1993 (58 FR 67383), the Secretary extended the comment 
period on the NPRM to coincide with the comment period on the proposed 
regulations implementing other changes to Title VII of the Act. The 
major issues related to the CIL program were discussed in the preamble 
to the NPRM.
    In general, the commenters agreed with the direction that the 
Department had taken. However, a significant number of the commenters 
were opposed to the bifurcated approach of demonstrating compliance 
with the evaluation standards through (1) Baseline requirements that 
had to be met by all centers and (2) a selection of various activities 
that centers could choose from to earn a minimum number of bonus 
points. Some commenters believed that this approach placed small 
centers at a disadvantage. Another commenter stated that this approach 
appeared to establish two sets of minimum standards without 
establishing one absolute minimum standard. The Secretary agrees that 
the indicators should be simplified by eliminating the requirement that 
centers engage in various activities within each of the indicators to 
earn a minimum number of bonus points to comply with the evaluation 
standards. Therefore, in response to these and other public comments, 
the final regulations delete the bonus point approach, including all of 
the bonus point activities. In addition, the final regulations include 
other changes to the NPRM made in response to public comment.
    The Secretary also is moving to 34 CFR part 366 two of the 
definitions that were proposed to be added to 34 CFR part 364 in the 
NPRM.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 99 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and of the changes in the regulations since publication of the 
NPRM follows. General comments are discussed first, followed by 
comments on specific sections of the regulations. Because the bonus 
point activities have been eliminated as part of the elimination of the 
bonus point approach, comments on each of these bonus point activities 
are not discussed. In addition, technical and other minor changes--and 
suggested changes the Secretary is not legally authorized to make under 
the applicable statutory authority--are not addressed.

General Comments

    Comments: One commenter expressed concern that the proposed 
regulations did not include or mention assistive technology services 
and devices. This commenter recommended that centers demonstrate how 
these services and devices are provided.
    Discussion: Although a center may provide assistive services and 
devices to a particular individual, assistive services and devices are 
not listed in the Act as a specific IL service that a center is 
required to provide. Therefore, the Secretary does not believe centers 
should be required to demonstrate that they have provided these 
services to achieve minimum compliance with the evaluation standards 
for the CIL program.
    Changes: None.
    Comments: Several commenters recommended that the regulations place 
more emphasis on advocacy activities and less on service delivery. In 
addition, some commenters recommended that the regulations place more 
emphasis on outcomes and less on process.
    Discussion: The Secretary believes that the final regulations 
properly reflect the emphasis on advocacy activities, service delivery, 
and outcomes found in the Act.
    Changes: None.
    Comments: None.
    Discussion: Since publication of the NPRM, the Secretary has 
amended 34 CFR 75.118(a) and deleted the requirement for applications 
for non-competing continuation awards. In the place of an application, 
an applicant for 

[[Page 39217]]
a continuation award needs to submit only a simple performance report. 
Changes: The Secretary has deleted all references to an application for 
a continuation award and substituted ``annual performance report'' in 
its place in these final regulations.

Definitions (Sec. 366.5)

    Comments: None.
    Discussion: Since publication of the NPRM, the Secretary has 
reviewed the final regulations for IL services programs (34 CFR part 
366) that were published in the Federal Register on August 15, 1994 (59 
FR 41880) and determined that a definitions section was inadvertently 
left out of part 366. This omission was the result of the separate 
publication of this subpart G, which included proposed definitions 
applicable only to part 366 but did not add a definitions section to 
part 366. Therefore, the Secretary is correcting this omission at this 
time.
    Changes: The Secretary is adding a new ``Sec. 366.5 What 
definitions apply to this program?'' to 34 CFR part 366 of the final 
regulations for IL services programs. In addition, the Secretary is 
redesignating current ``Sec. 366.5 How are program funds allotted?'' as 
Sec. 366.6.
    Comments: None.
    Discussion: Since publication of the NPRM, the Secretary has 
published final regulations for the IL services programs. See 59 FR 
41880-41912. The Secretary included definitions for the following terms 
in those final regulations: ``Individual with a significant 
disability,'' ``Minority group,'' ``Significant disability,'' and 
``Unserved and underserved groups or populations.'' Therefore, the 
Secretary does not believe it is necessary to repeat those definitions 
in these final regulations. In addition, the Secretary has determined 
that the proposed definitions of ``consumer,'' ``consumer service 
record,'' ``cross-disability peer counseling,'' ``information and 
referral services,'' ``independent living skills training,'' and ``peer 
counseling'' are unnecessary. The Secretary does not believe it is 
necessary or useful to establish definitions for these terms through 
regulations. The Secretary expects that States and centers will 
interpret these terms in a manner that will provide for the efficient 
and proper administration of this program. However, comments on 
requirements related to the terms ``decisionmaking position'' and 
``staff position'' indicate that definitions of these terms will assist 
centers in determining how to comply with these requirements.
    Changes: The Secretary has deleted the definitions of ``consumer,'' 
``consumer service record,'' ``cross-disability peer counseling,'' 
``information and referral services,'' ``independent living skills 
training,'' ``individual with a significant disability,'' ``minority 
group,'' ``peer counseling,'' ``significant disability,'' and 
``unserved or underserved'' from the final regulations.
    Comments: Several commenters suggested that the definition of 
``decisionmaking position'' be clarified.
    Discussion: The Secretary agrees that this definition should be 
clarified by removing the reference to first-line and second-line 
supervisors. The Secretary believes that any supervisor should be 
included in the definition of ``decisionmaking position.'' The 
Secretary also believes that this definition provides flexibility for 
centers to determine who exercises decisionmaking authority within a 
center.
    Changes: The Secretary has revised the definition of a 
``decisionmaking position'' to clarify that any position within a 
center that carries the authority to establish policy for the center is 
included within this definition.
    Comments: A few commenters recommended that the proposed definition 
of ``staff position'' be revised to conform with the definition of this 
term established by the U.S. Department of Labor (DOL). However, none 
of the commenters stated the DOL definition or identified where this 
definition can be found. One commenter suggested that decisionmakers be 
included in the definition of ``staff position'' because decisionmakers 
are also ``staff.''
    Discussion: Neither the Secretary nor DOL staff consulted by ED 
staff is aware of a DOL definition of ``staff position'' or 
``decisionmaking position.'' Although a definition exists for the term 
``employee'' in regulations implementing the Fair Labor Standards Act, 
the Secretary does not believe DOL's definition of ``employee'' is 
either helpful or necessary for purposes of this indicator. 
Nevertheless, nothing in the definition of ``staff position'' in the 
final regulations is inconsistent with DOL's definition of 
``employee.'' The Secretary does not agree that decisionmakers should 
be included as ``staff'' for purposes of this indicator because this 
would create an unnecessary overlap between the meaning of the terms 
``staff position'' and ``decisionmaking position.''
    Changes: None.
    Comments: Several commenters recommended additional definitions for 
the following terms: ``increasing and improving community options,'' 
``increasing and improving community capacity,'' ``self-help and self-
advocacy,'' and ``systems advocacy.''
    Discussion: The Secretary does not believe it is necessary or 
useful to establish definitions for these terms through regulations. 
The Secretary expects that States and centers will interpret these 
terms in a manner that will provide for the efficient and proper 
administration of this program.
    Changes: None.

Multi-State Centers (Sec. 366.62)

    Comments: Several commenters recommended that centers serving more 
than one State or region and receiving funds from multiple sources be 
reviewed for compliance with the evaluation standards as a single 
center.
    Discussion: The Secretary agrees with the commenters. The 
regulations are silent on this issue and neither require nor permit the 
Department to conduct separate reviews of a center for each grant that 
the center receives from the Department. The Secretary believes section 
706(c)(1) of the Act provides sufficient guidance on the Secretary's 
responsibility to conduct on-site compliance reviews of centers and 
does not believe it is necessary to regulate further on this issue.
    Changes: None.

Staff Positions (Sec. 366.63(a)(1))

    Comments: A few commenters agreed with the exclusion of personal 
care assistants, readers, and interpreters from the determination of a 
center's compliance with the requirement that more than 50 percent of a 
center's decisionmaking and staff positions be filled by individuals 
with disabilities. These commenters recommended adding van drivers to 
the list of those persons to be excluded from this determination. A 
couple of commenters disagreed with the exclusion of personal care 
assistants, readers, and interpreters from this determination.
    Discussion: The Secretary believes that a center should have the 
option of excluding drivers, as well as interpreters, personal 
assistants, and readers, from the determination of a center's 
compliance with this provision.
    Changes: The Secretary has added drivers to Sec. 366.63(a)(1)(ii) 
of the final regulations and given a center the option of excluding 
drivers, interpreters, personal assistants, and readers from the 
determination of the center's compliance with this requirement.
    Comments: Several commenters did not understand or disagreed with 
the proposed use of total number of hours worked by paid employees to 
determine a center's compliance with the requirement that more than 50 
percent 

[[Page 39218]]
of a center's decisionmaking and staff positions must be filled by 
individuals with disabilities. One commenter stated that this approach 
would be burdensome and would require unnecessary reporting and 
recordkeeping. A couple of commenters suggested that only ``positions'' 
be considered to determine compliance with this requirement and that 
the positions must be based on 40 full-time equivalent (FTE) hours per 
week. Another commenter questioned whether the total number of hours 
worked will be determined using expected or actual number of hours 
worked.
    Discussion: The Secretary does not agree that this requirement is 
burdensome or will require unnecessary reporting and recordkeeping. 
Centers already are required to maintain records of the number of hours 
their paid employees work each week. Using the number of hours worked 
to determine compliance with the greater than 50 percent staffing 
requirement would not require additional recordkeeping. In addition, 
the Secretary believes that overtime hours should be excluded from this 
determination because extra hours worked by individual employees could 
produce a distorted representation of a center's work force. Also, 
centers with equal numbers of staff who are individuals with 
significant disabilities and who are not individuals with significant 
disabilities might simply assign overtime to their staff who are 
individuals with significant disabilities to comply with the greater 
than 50 percent staffing requirement. Excluding overtime will simplify 
the calculation that a center needs to make to comply with this 
requirement.
    Finally, the Secretary believes that only those hours for which an 
employee is compensated should be considered to determine compliance 
with the greater than 50 percent staffing requirement because of the 
difficulty in determining the number of extra hours an employee may 
have worked for which the employee was not compensated.
    Changes: The Secretary has revised Sec. 366.63(a)(1)(iii) to 
exclude overtime from the determination of a center's compliance with 
this requirement. In addition, the Secretary has revised this provision 
to include only those hours for which an employee is actually paid in 
determining a center's compliance with this requirement.
    Comments: Several commenters disagreed with the proposed use of the 
three-month period preceding the application date to determine a 
center's compliance with the requirement that more than 50 percent of a 
center's decisionmaking and staff positions must be filled by 
individuals with disabilities. Several commenters recommended that the 
relevant period be the six-month period preceding the application date 
because data collected during the six-month period preceding the end of 
the project year would be more reliable. A couple of commenters 
suggested that the relevant period be the 12-month period preceding the 
application date.
    Discussion: The Secretary agrees with the commenters that the 
three-month period is too short and that the six-month period preceding 
the end of the reporting period is the least burdensome timeframe for a 
center to gather information concerning its paid employees. The 
Secretary also agrees that data collected during the six-month period 
preceding the end of the project year will be more reliable than the 
three-month period proposed in the NPRM.
    In addition, the NPRM was published before the Department 
eliminated the need for grantees to submit applications for non-
competing continuation awards. Grantees are now required only to submit 
an annual performance report that demonstrates their compliance with 
statutory and regulatory requirements and the terms of the grant award. 
The final regulations reflect this change by eliminating any reference 
to continuation applications and referring instead to annual 
performance reports.
    Changes: The Secretary has changed the period of consideration in 
Sec. 366.63(a)(1)(iii) of the final regulations from the three-month 
period preceding the date the center submits its continuation 
application to the last six months of the period covered by the 
center's most recent annual performance report.
    Comments: A couple of commenters recommended that individuals who 
are on family or maternity leave be counted during the three-month 
period preceding the application date to determine a center's 
compliance with the 50 percent requirement.
    Discussion: The Secretary agrees that an individual who is on 
unpaid family or maternity leave during any or all of the six-month 
period should be included in this determination. Compliance with the 50 
percent requirement should not be affected just because an employee of 
a center is on unpaid family or maternity leave during this six-month 
period. In making its determination, a center will use the number of 
weekly hours worked by an employee prior to going on unpaid family or 
maternity leave.
    Changes: The Secretary has added language to Sec. 366.63(a)(1)(iii) 
to permit a center to include employees on unpaid family or maternity 
leave for determining its compliance with the 50 percent requirement. A 
center must include in this determination its employees who are on 
unpaid family or maternity leave during the six-month period.

Self-Help and Self-Advocacy

    Comments: None.
    Discussion: Pursuant to the NPRM, a center would have been required 
to provide evidence that it established written policies for promoting 
self-help and self-advocacy among individuals with significant 
disabilities. Since publication of the NPRM, the Secretary has reviewed 
this section and determined that whether or not a center has written 
policies is unimportant if the center actually promotes self-help and 
self-advocacy among individuals with significant disabilities.
    Changes: The Secretary has deleted the requirement for written 
policies from the final regulations.

Development of Peer Relationships and Peer Role Models 
(Sec. 366.63(3)(iii))

    Comments: One commenter stated that the use of individuals with 
significant disabilities as instructors is more effective than written 
policies and procedures.
    Discussion: The Secretary agrees that written policies are 
unimportant if the center actually promotes the development of peer 
relationships and peer role models among individuals with significant 
disabilities. However, the Secretary also believes that the development 
of peer relationships and peer role models among individuals with 
significant disabilities can be accomplished in a variety of ways and 
does not believe it is necessary to require a center to use individuals 
with significant disabilities as instructors to meet this requirement.
    Changes: The Secretary has deleted the requirement for written 
policies from the final regulations.

Equal Access (Sec. 366.63(a)(4)) and Provision of Services on a Cross-
Disability Basis (Sec. 366.63(b)(1))

    Comments: Some commenters recommended that the proposed regulations 
be clarified to permit centers to provide services or programs that are 
targeted or limited to persons with a single type of disability (e.g., 
individuals who are blind or deaf).
    Discussion: The 1992 Amendments require that centers receiving 
funds under Title VII of the Act provide IL services to individuals 
with significant disabilities without regard to the type or 

[[Page 39219]]
types of specific significant disabilities of the individuals or groups 
of individuals. Under the final regulations, a center must provide the 
IL core services to individuals with significant disabilities in a 
manner that is neither targeted nor limited to a particular type of 
significant disability. In addition, a center may not limit the 
provision of any other IL service that could be provided to individuals 
with a variety of significant disabilities to individuals with a 
particular type of significant disability. For example: A center may 
not limit the provision of personal assistance services to individuals 
who are blind. However, a center may limit the provision of Braille 
instruction to individuals who are blind. The availability of an IL 
service (other than the IL core services) may be limited to individuals 
with a particular type of significant disability only if that IL 
service is unique to the significant disability of the individuals to 
be served.
    Whether a center may target individuals with a particular type of 
significant disability for a particular type of IL service is a 
different question. If a center has identified individuals with a 
particular type of significant disability as an ``unserved or 
underserved group or population'' pursuant to the definition in 34 CFR 
364.4(b), the center may target this unserved or underserved group or 
population for any IL service, including the IL core services. However, 
the center may not limit the IL services it provides to only this group 
or population of individuals with a particular type of significant 
disability.
    Changes: The Secretary has added language to Sec. 366.63(b)(1) of 
the final regulations that allows a center to restrict the availability 
of an IL service (other than the IL core services) to individuals with 
a particular type of significant disability if the IL service (other 
than the IL core services) is unique to that significant disability of 
the individuals to be served.
    Comments: One commenter recommended that the proposed regulations 
include an assurance that centers conduct affirmative action programs 
to hire members of minority groups. This commenter believes that 
Federal laws generally require recipients of Federal funds to conduct 
affirmative action programs to hire members of minority groups, even 
though the commenter did not identify any specific statute.
    Discussion: Although section 725(c)(5) of the Act requires that an 
applicant for funds under Part C of Chapter 1 of Title VII of the Act 
take affirmative action to employ and advance in employment qualified 
individuals with significant disabilities, nothing in Title VII 
requires centers receiving funds under Part C of Chapter 1 of Title VII 
of the Act to take affirmative action to employ and advance in 
employment qualified minorities.
    Changes: None.
    Comments: One commenter recommended that a center's written 
policies and materials be available in alternative formats as a means 
of providing equal access to individuals with disabilities.
    Discussion: The Secretary agrees that a center should make 
available, as appropriate, all of its written policies and materials in 
alternative formats for effective communication. In addition, the 
Secretary believes that, as appropriate, a center should make its IL 
services available in alternative formats. For example, if a center 
provides a list of available housing units that are accessible to 
individuals with significant disabilities as part of its information 
and referral services, then the center should make this list available, 
as appropriate, either orally, in Braille, or on tape, if the written 
form of the list prevents effective communication with an individual 
requesting the list.
    Changes: The Secretary has added a new Sec. 366.63(a)(5) to the 
final regulations that requires a center to make available, as 
appropriate, all of its written policies and materials in alternative 
formats for effective communication. In addition, this new provision 
requires a center to make available, as appropriate, its IL services in 
alternative formats.

Cross-Disability (Sec. 366.63(b))

    Comments: One commenter recommended that a center be able to comply 
with the cross-disability requirement by demonstrating a fairly even 
distribution of services across a simple majority of the Federal 
disability reporting categories.
    Discussion: The Secretary agrees that a center that demonstrates a 
fairly even distribution of services across a simple majority of the 
Federal disability reporting categories is presumed to be in compliance 
with the cross-disability requirement, if no evidence exists that the 
center has denied eligibility for an IL service to any individual with 
a significant disability based on the type of the individual's 
disability. Because other evidence may exist that a center is not in 
compliance with this requirement, the Secretary does not believe it is 
appropriate to create an irrebuttable presumption of compliance.
    Changes: None.
    Comments: One commenter recommended that the proposed regulations 
be clarified to ensure that all of the core services are available to 
an individual regardless of the individual's disability. Another 
commenter recommended that the proposed regulations be revised to 
prevent a center from relying on an individual's secondary disability 
to comply with the cross-disability requirement. Another commenter 
recommended that centers maintain a tracking system to ensure that all 
individuals in need of IL services are served by the center.
    Discussion: The Secretary agrees that the language in the proposed 
regulations should be clarified to ensure that all of the core services 
are available to an individual regardless of the individual's 
disability and to prevent a center from relying on an individual's 
disability (whether ``secondary'' or otherwise) to comply with the 
cross-disability requirement. By forbidding a center from targeting or 
limiting the IL core services based on an individual's type of 
significant disability, the classification of an individual's 
significant disability as ``primary'' or ``secondary'' will be 
irrelevant for purposes of providing the IL core services and for 
complying with the cross-disability requirement.
    In addition, the Secretary believes that the reporting requirements 
and recordkeeping requirements are adequate to prevent discrimination 
on the basis of type of disability and to ensure that centers provide 
the IL core services to individuals with a broad range of disabilities. 
Therefore, the Secretary does not agree that these regulations should 
require centers to maintain a tracking system as suggested by the 
commenter.
    Changes: The Secretary has added language to Sec. 366.63(b)(3) of 
the final regulations to clarify that a center may not target or limit 
the IL core services to any individual or group of individuals with 
significant disabilities based on the type of significant disability of 
the individual or group of individuals.

IL Goals (Sec. 366.63(c))

    Comments: One commenter recommended that centers be required to 
achieve a 25 percent success rate on the IL goals identified by 
consumers. Another commenter stated that the attempt to achieve an IL 
goal is as important as achieving it.
    Discussion: The Secretary does not believe it is appropriate to 
establish a percentage that centers must attain for the achievement of 
IL goals developed 

[[Page 39220]]
by consumers. The populations served by different centers may vary so 
widely that a reasonable percentage for one center may be unrealistic 
for another center.
    Changes: None.
    Comments: A few commenters stated that requiring a center to 
measure or track the achievement of IL goals by consumers is 
inappropriate or may be nearly impossible.
    Discussion: Any measurement of the achievement of IL goals would 
require uniformity to be meaningful. However, IL goals and how they are 
achieved is not uniform. Therefore, the Secretary agrees that requiring 
a center to measure the achievement of IL goals by a consumer is 
inappropriate. However, the Secretary believes that maintaining records 
of the IL goals that consumers believe they have achieved is 
appropriate and feasible, both for the consumer and the center.
    Changes: The Secretary has deleted the requirement that a center 
measure the achievement of IL goals by consumers but has specified that 
consumer service records meet the requirements of 34 CFR 364.53. 
Section 364.53 includes the requirements that a consumer service record 
include (1) the IL goals or objectives established and achieved by the 
consumer; and (2) either an IL plan or a waiver signed by the consumer 
that an IL plan is unnecessary.
    Comments: None.
    Discussion: Pursuant to the NPRM, a center was required to 
facilitate the development and achievement of IL goals selected by 
individuals with significant disabilities who request assistance from 
the center. Since publication of the NPRM, the Secretary has reviewed 
this section and determined that compliance with this standard can best 
be accomplished by requiring a center to assess consumer satisfaction 
with the center's services and policies in facilitating consumers' 
achievement of IL goals. In addition, the Secretary believes compliance 
will be further insured by requiring a center to provide this 
information to its governing board and the appropriate SILC. Finally, 
the Secretary believes that notifying consumers of their right to 
develop or waive the development of an IL plan (ILP) also is important 
to insure compliance with this standard.
    Changes: The Secretary has added a requirement to the final 
regulations that a center (1) assess consumer satisfaction with the 
center's services and policies in facilitating consumers' achievement 
of IL goals and provide this information to its governing board and the 
appropriate SILC; and (2) notify all consumers of their right to 
develop or waive the development of an ILP.
    Comments: A few commenters recommended that any reporting 
requirements be limited in scope and suggested that a consumer service 
record not be required for ``casual services.'' A couple of commenters 
suggested that an ``intake sheet'' be sufficient as a case service 
record. Another commenter recommended that a case service record 
include only the consumer's application form and any notes by the 
center staff member who works with the consumer.
    Discussion: The information that must be included in a consumer 
service record is described in 34 CFR 364.53. The Secretary believes 
that this information is necessary for the proper and efficient 
administration of this program. An ``intake sheet'' or an application 
form and notes made by the center's staff member who works with the 
consumer are sufficient if they include the information required by 34 
CFR 364.53.
    Changes: The Secretary has added language to the definition of 
consumer service record in the final regulations to clarify that a 
consumer service record must meet the requirements of 34 CFR 364.53.

Community Options and Community Capacity (Sec. 366.63(d))

    Comments: One commenter stated that this indicator is meaningless 
without further explanation and definitions of the required activities. 
Another commenter recommended that these regulations require more 
specific measures of compliance. Another commenter recommended that the 
term ``community advocacy,'' which is used in this provision, be 
defined. Another commenter stated that clarification is needed on what 
constitutes a center's service area.
    Discussion: The Secretary does not believe it is necessary to 
define further the activities that a center must carry out to comply 
with this indicator. The Secretary believes that each center should 
have flexibility in defining these activities within the context of its 
own operating environment and service area. The Secretary also expects 
that each center will define its own service area and describe the area 
it expects to serve in its application for funding under this program. 
Finally, the Secretary believes that the term ``community advocacy'' is 
encompassed by the term ``systems (or systemic) advocacy,'' which is 
defined in 34 CFR 364.4(b) of the IL regulations. The IL regulations 
were published on August 15, 1994 (59 FR 41880).
    Changes: None.
    Comments: A few commenters recommended that centers not be 
responsible for removing community barriers or for serving as a 
catalyst for change in the community. One of these commenters 
recommended that centers not be evaluated on how well the community 
responds to the needs of individuals with disabilities.
    Discussion: Nothing in the proposed regulations required a center 
to remove community barriers or to serve as a catalyst for change in 
the community. Furthermore, nothing in the proposed regulations 
provided that centers would be evaluated on how well the community 
responds to the needs of individuals with disabilities. However, to the 
extent that a center engages in systems advocacy, the Secretary fully 
expects that a center will engage in activities that are designed to 
accomplish these goals.
    Changes: None.
    Comments: One commenter recommended that a center's compliance with 
the community options and community capacity indicator not be based 
solely on the center's activities within its service area.
    Discussion: Although a center may engage in advocacy or other 
activities that may have an impact outside of its service area, the 
Secretary believes that a center's performance under its Title VII 
grant must be assessed in terms of the beneficiaries the grant was 
intended to serve, i.e., the individuals within the center's service 
area.
    Changes: None.
    Comments: One commenter recommended that centers be required to 
provide annual community accessibility updates to help centers develop 
strategies for prioritizing the removal of identified community 
barriers and to document the results of activities that have been 
completed to remove those barriers.
    Discussion: The Secretary does not believe that centers should be 
required to develop strategies for prioritizing the removal of 
identified community barriers. The Secretary believes it is sufficient 
for a center to comply with the requirements already established for 
this indicator.
    Changes: None.
    Comments: One commenter recommended that outreach materials be 
provided in accessible formats.
    Discussion: The Secretary believes that new Sec. 366.63(a)(5) will 
ensure that a center will provide outreach materials in accessible 
formats.
    Changes: None. 

[[Page 39221]]


IL Services (Sec. 366.63(e))

    Comments: One commenter stated that cross-disability counseling is 
not a valid service because the commenter believes that ``peer'' means 
a person with a similar disability.
    Discussion: The Secretary disagrees that ``peer counseling'' is 
limited to counseling by an individual with a disability that is 
similar to the disability of the consumer. The Secretary believes that 
an individual with a significant disability may engage in peer 
counseling for another individual with a significant disability, 
regardless of the types of significant disabilities of the two 
individuals.
    Changes: None.

Resource Development (Sec. 366.63(f))

    Comments: One commenter recommended that a center be rewarded only 
for specific activities that result in increased funding and that 
automatic State appropriations not be included in determining the 
success of a center's fundraising activities.
    Discussion: The Secretary encourages States to participate in the 
funding of centers. Therefore, the Secretary believes it is appropriate 
to include State funds in determining the success of a center's 
fundraising activities.
    Changes: None.

Executive Order 12866

    These final regulations have been reviewed in accordance with 
Executive Order 12866. Under the terms of the order the Secretary has 
assessed the potential costs and benefits of this regulatory action.
    The potential costs associated with the final regulations are those 
resulting from statutory requirements and those determined by the 
Secretary to be necessary for administering this program effectively 
and efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these regulations, the Secretary has determined 
that the benefits of the regulations justify the costs.
    The Secretary has also determined that this regulatory action does 
not unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Paperwork Reduction Act of 1980

    Sections 366.62 and 366.63 contain information collection 
requirements. As required by the Paperwork Reduction Act of 1980, the 
Department of Education submitted a copy of these sections to the 
Office of Management and Budget (OMB) for its review. (44 U.S.C. 
3504(h)).
    States and centers are eligible to apply for grants under these 
regulations. The Department needs and uses the information to make 
grants. Annual public reporting burden for this collection of 
information is estimated to average 40 hours per response for 200 
respondents, including the time for gathering and maintaining the data 
needed and for completing and reviewing the collection of information.

Intergovernmental Review

    These programs are subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. The objective of the 
Executive order is to foster an intergovernmental partnership and a 
strengthened federalism by relying on processes developed by State and 
local governments for coordination and review of proposed Federal 
financial assistance.
    In accordance with the order, this document is intended to provide 
early notification of the Department's specific plans and actions for 
this program.

Assessment of Educational Impact

    In the notice of proposed rulemaking, the Secretary requested 
comments on whether the proposed regulations would require transmission 
of information that is being gathered by or is available from any other 
agency or authority of the United States.
    Based on the response to the proposed regulations and on its own 
review, the Department has determined that the regulations in this 
document do not require transmission of information that is being 
gathered by or is available from any other agency or authority of the 
United States.

List of Subjects in 34 CFR Part 366

    Education, Grant programs--social programs, Vocational 
rehabilitation, Recordkeeping and reporting requirements.

(Catalog of Federal Domestic Assistance Number 84.132--Centers for 
Independent Living)

    Dated: July 26, 1995.
Richard W. Riley,
Secretary of Education.

    The Secretary amends Part 366 of Title 34 of the Code of Federal 
Regulations as follows:

PART 366--CENTERS FOR INDEPENDENT LIVING

    1. The authority citation for part 366 is revised to read as 
follows:

    Authority: 29 U.S.C. 796d-1(b) and 796f-796f-6, unless otherwise 
noted.


Sec. 366.6  [Redesignated from Sec. 366.5]

    2. Section 366.5 is redesignated as Sec. 366.6.
    3. A new Sec. 366.5 is added to read as follows:


Sec. 366.5  What definitions apply to this program?

    Decisionmaking position means the executive director, any 
supervisory position, and any other policymaking position within the 
center.
    Staff position means a paid non-contract position within the center 
that is not included within the definition of a ``decisionmaking 
position.''

(Authority: 29 U.S.C. 796a(a))

    4. Part 366 is amended by adding a new Subpart G consisting of 
Secs. 366.60 through 366.63 to read as follows:

Subpart G--Evaluation Standards and Compliance Indicators

Sec.
366.60  What are project evaluation standards?
366.61  What are the compliance indicators?
366.62  What are the requirements for continuation funding?
366.63  What evidence must a center present to demonstrate that it 
is in minimum compliance with the evaluation standards?

Subpart G--Evaluation Standards and Compliance Indicators


Sec. 366.60  What are the project evaluation standards?

    To be eligible to receive funds under this part, an applicant must 
agree to comply with the following evaluation standards:
    (a) Evaluation standard 1--Philosophy. The center shall promote and 
practice the IL philosophy of--
    (1) Consumer control of the center regarding decisionmaking, 
service delivery, management, and establishment of the policy and 
direction of the center;
    (2) Self-help and self-advocacy;
    (3) Development of peer relationships and peer role models;
    (4) Equal access of individuals with significant disabilities to 
all of the center's services, programs, activities, resources, and 
facilities, whether publicly or privately funded, without regard to the 
type of significant disability of the individual; and
    (5) Promoting equal access of individuals with significant 
disabilities to all services, programs, activities, resources, and 
facilities in society, whether public or private, and regardless of 
funding source, on the same basis that access is provided to other 
individuals with disabilities and to individuals without disabilities. 

[[Page 39222]]

    (b) Evaluation standard 2--Provision of services. (1) The center 
shall provide IL services to individuals with a range of significant 
disabilities.
    (2) The center shall provide IL services on a cross-disability 
basis (i.e., for individuals with all different types of significant 
disabilities, including individuals with significant disabilities who 
are members of populations that are unserved or underserved by programs 
under Title VII of this Act).
    (3) The center shall determine eligibility for IL services. The 
center may not base eligibility on the presence of any one specific 
significant disability.
    (c) Evaluation standard 3--Independent living goals. The center 
shall facilitate the development and achievement of IL goals selected 
by individuals with significant disabilities who seek assistance in the 
development and achievement of IL goals from the center.
    (d) Evaluation standard 4--Community options. The center shall 
conduct activities to increase the availability and improve the quality 
of community options for IL to facilitate the development and 
achievement of IL goals by individuals with significant disabilities.
    (e) Evaluation standard 5--Independent living core services. The 
center shall provide IL core services and, as appropriate, a 
combination of any other IL services specified in section 7(30)(B) of 
the Act.
    (f) Evaluation standard 6--Activities to increase community 
capacity. The center shall conduct activities to increase the capacity 
of communities within the service area of the center to meet the needs 
of individuals with significant disabilities.
    (g) Evaluation standard 7--Resource development activities. The 
center shall conduct resource development activities to obtain funding 
from sources other than Chapter 1 of Title VII of the Act.

(Authority: 29 U.S.C. 796f-4)


Sec. 366.61  What are the compliance indicators?

    (a) The compliance indicators establish the activities that a 
center shall carry out to demonstrate minimum compliance with the 
evaluation standards in Sec. 366.60.
    (b) If a center fails to satisfy any one of the indicators, the 
center is out of compliance with the evaluation standards.

(Authority: 20 U.S.C. 796d-1(b))


Sec. 366.62  What are the requirements for continuation funding?

    (a) To be eligible to receive a continuation award for the third or 
any subsequent year of a grant, a center shall--
    (1) Have complied fully during the previous project year with all 
of the terms and conditions of its grant;
    (2) Provide adequate evidence in its most recent annual performance 
report that the center is in minimum compliance with the evaluation 
standards in Sec. 366.60 (Cross-reference: See Secs. 366.50 (h) and (i) 
and 34 CFR 75.118(a)); and
    (3) Meet the requirements in this Part 366.
    (b) If a recipient receives funding for more than one center, each 
individual center that receives a continuation award shall meet the 
requirements of paragraph (a) of this section.

(Approved by the Office of Management and Budget under control 
number 1820-0606.)

(Authority: 29 U.S.C. 711(c), 796d-1(b), 796e, and 796f-4)


Sec. 366.63  What evidence must a center present to demonstrate that it 
is in minimum compliance with the evaluation standards?

    (a) Compliance indicator 1--Philosophy.
    (1) Consumer control.
    (i) The center shall provide evidence in its most recent annual 
performance report that--
    (A) Individuals with significant disabilities constitute more than 
50 percent of the center's governing board; and
    (B) Individuals with disabilities constitute more than 50 percent 
of the center's--
    (1) Employees in decisionmaking positions; and
    (2) Employees in staff positions.
    (ii) A center may exclude personal assistants, readers, drivers, 
and interpreters employed by the center from the requirement in 
paragraph (a)(1)(B) of this section.
    (iii) The determination that over 50 percent of a center's 
employees in decisionmaking and staff positions are individuals with 
disabilities must be based on the total number of hours (excluding any 
overtime) for which employees are actually paid during the last six-
month period covered by the center's most recent annual performance 
report. However, a center must include in this determination its 
employees who are on unpaid family or maternity leave during this six-
month period.
    (2) Self-help and self-advocacy. The center shall provide evidence 
in its most recent annual performance report that it promotes self-help 
and self-advocacy among individuals with significant disabilities 
(e.g., by conducting activities to train individuals with significant 
disabilities in self-advocacy).
    (3) Development of peer relationships and peer role models. The 
center shall provide evidence in its most recent annual performance 
report that it promotes the development of peer relationships and peer 
role models among individuals with significant disabilities (e.g., by 
using individuals with significant disabilities who have achieved IL 
goals [whether the goals were achieved independently or through 
assistance and services provided by a center] as instructors [volunteer 
or paid] in its training programs or as peer counselors).
    (4) Equal access. The center shall provide evidence in its most 
recent annual performance report that it--
    (i) Ensures equal access of individuals with significant 
disabilities, including communication and physical access, to the 
center's services, programs, activities, resources, and facilities, 
whether publicly or privately funded. Equal access, for purposes of 
this paragraph, means that the same access is provided to any 
individual with a significant disability regardless of the individual's 
type of significant disability.
    (ii) Advocates for and conducts activities that promote the equal 
access to all services, programs, activities, resources, and facilities 
in society, whether public or private, and regardless of funding 
source, for individuals with significant disabilities. Equal access, 
for purposes of this paragraph, means that the same access provided to 
individuals without disabilities is provided in the center's service 
area to individuals with significant disabilities.
    (5) Alternative formats. To ensure that a center complies with 
Sec. 366.63(a)(4) and for effective communication, a center shall make 
available in alternative formats, as appropriate, all of its written 
policies and materials and IL services.
    (b) Compliance indicator 2--Provision of services on a cross-
disability basis. The center shall provide evidence in its most recent 
annual performance report that it--
    (1) Provides IL services to eligible individuals or groups of 
individuals without restrictions based on the particular type or types 
of significant disability of an individual or group of individuals, 
unless the restricted IL service (other than the IL core services) is 
unique to the significant disability of the individuals to be served;
    (2) Provides IL services to individuals with a diversity of 
significant disabilities and individuals who are members of populations 
that are 

[[Page 39223]]
unserved or underserved by programs under Title VII of the Act; and
    (3) Provides IL core services to individuals with significant 
disabilities in a manner that is neither targeted nor limited to a 
particular type of significant disability.
    (c) Compliance indicator 3--Independent living goals. (1) The 
center shall provide evidence in its most recent annual performance 
report that it--
    (i) Maintains a consumer service record that meets the requirements 
of 34 CFR 364.53 for each consumer;
    (ii) Facilitates the development and achievement of IL goals 
selected by individuals with significant disabilities who request 
assistance from the center;
    (iii) Provides opportunities for consumers to express satisfaction 
with the center's services and policies in facilitating their 
achievement of IL goals and provides any results to its governing board 
and the appropriate SILC; and
    (iv) Notifies all consumers of their right to develop or waive the 
development of an IL plan (ILP).
    (2) The center shall provide evidence in its most recent annual 
performance report that the center maintains records on--
    (i) The IL goals that consumers receiving services at the center 
believe they have achieved;
    (ii) The number of ILPs developed by consumers receiving services 
at the center; and
    (iii) The number of waivers signed by consumers receiving services 
at the center stating that an ILP is unnecessary.
    (d) Compliance indicator 4--Community options and community 
capacity. The center shall provide evidence in its most recent annual 
performance report that, during the project year covered by the 
center's most recent annual performance report, the center promoted the 
increased availability and improved quality of community-based programs 
that serve individuals with significant disabilities and promoted the 
removal of any existing architectural, attitudinal, communication, 
environmental, or other type of barrier that prevents the full 
integration of these individuals into society. This evidence must 
demonstrate that the center performed at least one activity in each of 
the following categories:
    (1) Community advocacy.
    (2) Technical assistance to the community on making services, 
programs, activities, resources, and facilities in society accessible 
to individuals with significant disabilities.
    (3) Public information and education.
    (4) Aggressive outreach to members of populations of individuals 
with significant disabilities that are unserved or underserved by 
programs under Title VII of the Act in the center's service area.
    (5) Collaboration with service providers, other agencies, and 
organizations that could assist in improving the options available for 
individuals with significant disabilities to avail themselves of the 
services, programs, activities, resources, and facilities in the 
center's service area.
    (e) Compliance indicator 5--IL core services and other IL services. 
The center shall provide evidence in its most recent annual performance 
report that it provides--
    (1) Information and referral services to all individuals who 
request this type of assistance or services from the center in formats 
accessible to the individual requesting these services; and
    (2) As appropriate in response to requests from individuals with 
significant disabilities who are eligible for IL services from the 
center, the following services:
    (i) IL skills training.
    (ii) Peer counseling (including cross-disability peer counseling).
    (iii) Individual and systems advocacy.
    (iv) A combination, as appropriate, of any two or more of the IL 
services defined in section 7(30)(B) of the Act.
    (f) Compliance indicator 6--Resource development activities. The 
center shall provide evidence in its most recent annual performance 
report that it has conducted resource development activities within the 
period covered by the performance report to obtain funding from sources 
other than Chapter 1 of Title VII of the Act.

(Approved by the Office of Management and Budget under control 
number 1820-0606.)

(Authority: 29 U.S.C. 711(c), 796d-1(b), and 796f-4)

[FR Doc. 95-18774 Filed 7-31-95; 8:45 am]
BILLING CODE 4000-01-P