[Federal Register Volume 81, Number 161 (Friday, August 19, 2016)]
[Rules and Regulations]
[Pages 55630-55789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15980]
[[Page 55629]]
Vol. 81
Friday,
No. 161
August 19, 2016
Part IV
Department of Education
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34 CFR Parts 361, 363, and 397
State Vocational Rehabilitation Services Program; State Supported
Employment Services Program; Limitations on Use of Subminimum Wage;
Final Rule
Federal Register / Vol. 81 , No. 161 / Friday, August 19, 2016 /
Rules and Regulations
[[Page 55630]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 361, 363, and 397
[ED-2015-OSERS-0001]
RIN 1820-AB70
State Vocational Rehabilitation Services Program; State Supported
Employment Services Program; Limitations on Use of Subminimum Wage
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the State
Vocational Rehabilitation Services program and the State Supported
Employment Services program to implement changes to the Rehabilitation
Act of 1973, as amended by the Workforce Innovation and Opportunity Act
(WIOA) signed into law on July 22, 2014. The Secretary also updates,
clarifies, and improves the prior regulations.
Finally, the Secretary issues new regulations regarding limitations
on the use of subminimum wages that are added by WIOA and under the
purview of the Department.
DATES: These regulations are effective on September 19, 2016, except
for amendatory instructions 2, 3, and 4 amending 34 CFR 361.10, 361.23,
and 361.40, which are effective October 18, 2016.
FOR FURTHER INFORMATION CONTACT: Ed Anthony, U.S. Department of
Education, 400 Maryland Avenue SW., Room 5086, Potomac Center Plaza
(PCP), Washington, DC 20202-2800. Telephone: (202) 245-7488 or by
email: [email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action: Individuals with disabilities
represent a vital and integral part of our society, and we are
committed to ensuring that individuals with disabilities have
opportunities to compete for and enjoy high quality employment in the
21st century global economy. Some individuals with disabilities face
particular barriers to employment in integrated settings that pays
competitive wages, provides opportunities for advancement, and leads to
economic self-sufficiency. Ensuring workers with disabilities have the
supports and the opportunities to acquire the skills that they need to
pursue in-demand jobs and careers is critical to growing our economy,
assuring that everyone who works hard is rewarded, and building a
strong middle class. To help achieve this priority for individuals with
disabilities, the Rehabilitation Act of 1973 (Act), as amended by the
Workforce Innovation and Opportunity Act (WIOA) (P.L. 113-128), signed
into law on July 22, 2014, seeks to empower individuals with
disabilities to maximize employment, economic self-sufficiency,
independence, and inclusion in and integration into society.
To implement the changes to the Act made by WIOA, the Secretary
amends the regulations governing the State Vocational Rehabilitation
Services program (VR program) (34 CFR part 361) and State Supported
Employment Services program (Supported Employment program) (34 CFR part
363), administered by the Rehabilitation Services Administration (RSA),
within the Office of Special Education and Rehabilitative Services. In
addition, the Secretary updates and clarifies prior regulations to
improve the operation of the program. Finally, the Secretary
promulgates regulations in new 34 CFR part 397 that implement the
limitations on the payment of subminimum wages to individuals with
disabilities in section 511 of the Act that fall under the purview of
the Secretary.
Summary of the Major Provisions of This Regulatory Action: We
summarize here those regulatory changes needed to implement the
amendments to the Act made by WIOA for each part in the order it
appears in the Code of Federal Regulations (CFR).
State Vocational Rehabilitation Services Program
WIOA makes significant changes to title I of the Act that affect
the VR program. First, WIOA strengthens the alignment of the VR program
with other core components of the workforce development system by
imposing requirements governing unified strategic planning, common
performance accountability measures, and the one-stop delivery system.
This alignment brings together entities responsible for administering
separate workforce and employment, educational, and other human
resource programs to collaborate in the creation of a seamless
customer-focused service delivery network that integrates service
delivery across programs, enhances access to the programs' services,
and improves long-term employment outcomes for individuals receiving
assistance. In so doing, WIOA places heightened emphasis on
coordination and collaboration at the Federal, State, and local levels
to ensure a streamlined and coordinated service delivery system for
job-seekers, including those with disabilities, and employers.
Therefore, the Departments of Education and Labor are issuing joint
final regulations to implement jointly administered activities under
title I of WIOA (e.g., those related to Unified or Combined State
Plans, performance accountability, and the one-stop delivery system),
applicable to the workforce development system's core programs (Adult,
Dislocated Worker, and Youth programs; Adult Education and Family
Literacy Act programs; Wagner-Peyser Employment Services program; and
the VR program). The joint final regulations, along with the Analysis
of Comments and Changes to those regulations, are set forth in a
separate regulatory action published elsewhere in this issue of the
Federal Register.
To implement WIOA's corresponding major changes to title I of the
Act, we:
Amend Sec. 361.10 to require that all assurances and
descriptive information previously submitted through the stand-alone VR
State Plan and supported employment supplement be submitted through the
VR services portion of the Unified or Combined State Plan under section
102 or section 103, respectively, of WIOA.
Clarify in Sec. 361.29 that States report to the
Secretary updates to the statewide needs assessment and goals and
priorities, estimates of the numbers of individuals with disabilities
served through the VR program and the costs of serving them, and
reports of progress on goals and priorities at such time and in such
manner determined by the Secretary to align the reporting of this
information with the submission of the Unified or Combined State Plans
and their modifications.
Clarify in Sec. 361.20 when designated State agencies
must conduct public hearings to obtain comment on substantive changes
to policies and procedures governing the VR program.
Remove Sec. 361.80 through Sec. 361.89 and replace with
Sec. 361.40 to cross-reference the joint regulations for the common
performance accountability measures for the core programs of the
workforce development system.
Provide a cross-reference in Sec. 361.23, regarding the
roles and responsibilities of the VR program in the one-stop delivery
system to the joint regulations implementing requirements for the one-
stop delivery system.
[[Page 55631]]
Second, the Act, as amended by WIOA, emphasizes the achievement of
competitive integrated employment. The foundation of the VR program is
the principle that individuals with disabilities, including those with
the most significant disabilities, are capable of achieving high
quality, competitive integrated employment when provided the necessary
services and supports. To increase the employment of individuals with
disabilities in the competitive integrated labor market, the workforce
system must provide individuals with disabilities opportunities to
participate in job-driven training and to pursue high quality
employment outcomes. The amendments to the Act--from the stated purpose
of the Act, to the expansion of services designed to maximize the
potential of individuals with disabilities, including those with the
most significant disabilities, to achieve competitive integrated
employment, and, finally, to the inclusion of limitations on the
payment of subminimum wages to individuals with disabilities--reinforce
the congressional intent that individuals with disabilities, with
appropriate supports and services, are able to achieve the same kinds
of competitive integrated employment as non-disabled individuals.
Consequently, we make extensive changes to part 361, including:
The inclusion of a new definition of ``competitive
integrated employment'' in Sec. 361.5(c)(9) that combines, clarifies,
and enhances the two separate definitions of ``competitive employment''
and ``integrated setting'' for the purpose of employment under the VR
program in prior Sec. 361.5(b)(11) and (b)(33)(ii).
The incorporation of the principle that individuals with
disabilities, including those with the most significant disabilities,
are capable of achieving high quality competitive integrated
employment, when provided the necessary services and support,
throughout part 361, from the statement of program purpose in Sec.
361.1 to the requirement in Sec. 361.46(a) that the individualized
plan for employment include a specific employment goal consistent with
the general goal of competitive integrated employment.
The revision of the definition of ``employment outcome''
in Sec. 361.5(c)(15) that specifically identifies customized
employment as an employment outcome under the VR program, and requires
that all employment outcomes achieved through the VR program be in
competitive integrated employment or supported employment, thereby
eliminating uncompensated outcomes, such as homemakers and unpaid
family workers, from the scope of the definition for purposes of the VR
program.
To assist designated State units (DSUs) to implement the change in
the definition of ``employment outcome'' and to ensure that individuals
with disabilities did not experience a disruption in services, the
Department proposed in the Notice of Proposed Rulemaking (NPRM)
published on April 16, 2015 (80 FR 21059), a transition period of six
months following the effective date of the final regulations, during
which period DSUs would complete the provision of vocational
rehabilitation services to, and close the service records of,
individuals pursuing uncompensated outcomes, such as homemakers and
unpaid family workers, in accordance with individualized plans for
employment that were approved prior to the effective date of these
final regulations. In consideration of the comments received, the
Secretary has extended the transition period in these final
regulations. DSUs may continue to provide services to individuals with
uncompensated employment goals on their individualized plans for
employment, approved prior to the effective date of these final
regulations, until June 30, 2017, unless a longer period of time is
required based on the needs of the individual with the disability as
determined by the vocational rehabilitation counselor and the
individual with a disability, as documented in the individual's service
record.
We also amend numerous other provisions throughout part 361 to
address the expansion of available services, requirements related to
the development of the individualized plan for employment, and order of
selection for services, all of which are intended to maximize the
potential for individuals with disabilities to prepare for, obtain,
retain, and advance in the same high quality jobs and high-demand
careers as persons without disabilities.
Third, WIOA emphasizes the provision of services to students and
youth with disabilities to ensure that they have meaningful
opportunities to receive the services, including training and other
supports, they need to achieve employment outcomes in competitive
integrated employment. The Act, as amended by WIOA, expands not only
the population of students with disabilities who may receive vocational
rehabilitation services but also the breadth of services that the VR
agencies may provide to youth and students with disabilities who are
transitioning from school to postsecondary education and employment. We
implement the emphasis on serving students and youth with disabilities
contained in the amendments to the Act made by WIOA in many regulatory
changes to part 361 by:
Including in Sec. 361.5(c)(51) and (c)(58), respectively,
new definitions of ``student with a disability'' and ``youth with a
disability.'' After further analysis of the comments received, the
Department has determined that the definition of ``student with a
disability'' applies to all students enrolled in educational programs,
including postsecondary education programs, so long as they satisfy the
age requirements set forth in final Sec. 361.5(c)(51). The definition
is also inclusive of secondary students who are homeschooled, as well
as students in other non-traditional secondary educational programs. We
have incorporated this broader interpretation of the definition in
final Sec. 361.5(c)(51), which we believe will increase the potential
for DSUs to maximize the use of funds reserved for the provision of
pre-employment transition services by increasing the number of students
who may receive these services.
Implementing in Sec. 361.48(a) the requirements of new
sections 110(d) and 113 of the Act requiring States to reserve at least
15 percent of their Federal allotment to provide and arrange for, in
coordination with local educational agencies, the provision of pre-
employment transition services to students with disabilities. We have
maintained our interpretation of ``potentially eligible,'' for purposes
of pre-employment transition services, as meaning all students with
disabilities, regardless of whether they have applied for or been
determined eligible for the VR program. The Department believes this is
the broadest legally supportable interpretation and is consistent with
the congressional intent.
Amending Sec. 361.29(a) to require that the comprehensive
statewide needs assessment include an assessment of the needs of
students and youth with disabilities for vocational rehabilitation
services, including the needs of students with disabilities for pre-
employment transition services.
Clarifying in Sec. 361.49 the technical assistance DSUs
may provide to educational agencies and permitting the provision of
transition services for the benefit of groups of students and youth
with disabilities.
Clarifying in Sec. 361.22(c) that nothing in this part is
to be construed as reducing the responsibility of the local educational
agencies or any other
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agencies under the Individuals with Disabilities Education Act (IDEA)
to provide or pay for transition services that are also considered to
be special education or related services under the IDEA necessary for
the provision of a free appropriate public education to students with
disabilities.
In addition to the preceding changes implementing the three major
goals of the Act, as amended by WIOA, we have made changes to the
regulations governing the comprehensive system of personnel development
and the fiscal administration of the VR program. In order for DSUs to
recruit qualified personnel to provide services to individuals with
disabilities, including students and youth with disabilities, and carry
out their responsibilities under the Act, we have made changes by:
Amending Sec. 361.18 governing the comprehensive system
of personnel development by establishing minimum educational and
experience requirements and eliminating the requirement to retrain
staff not meeting the DSU's personnel standard for qualified staff.
Revising proposed Sec. 361.18(c)(2)(ii) in these final
regulations to provide a more complete list of the skills and knowledge
needed to meet the needs of employers and individuals with disabilities
in the 21st century evolving labor market.
Finally, we make changes to part 361 to improve the fiscal
administration of the VR program by:
Clarifying in Sec. 361.5(b) the applicability to the VR
program of the definitions contained in 2 CFR part 200, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
and making numerous other conforming changes to align this part with 2
CFR part 200 to ensure consistency.
Adding a new paragraph (a)(3) to Sec. 361.65 requiring
the State to reserve not less than 15 percent of its allotment for the
provision of pre-employment transition services.
Amending Sec. 361.65(b)(2) to clarify that reallotment
occurs in the fiscal year the funds were appropriated and the funds may
be obligated or expended during the period of performance, provided
that matching requirements are met.
Adding a new paragraph (b)(3) to Sec. 361.65 establishing
the Secretary's authority to determine the criteria to be used to
reallot funds when the amount requested exceeds the amount of funds
available for reallotment.
Since publication of the NPRM, as a result of further Departmental
review, we clarify in Sec. 361.63 the requirements for the use of
program income.
State Supported Employment Services Program
Under the State Supported Employment Services program (Supported
Employment program) authorized under title VI of the Act (29 U.S.C.
795g et seq.), the Secretary provides grants to assist States in
developing and implementing collaborative programs with appropriate
entities to provide supported employment services for individuals with
the most significant disabilities, including youth with the most
significant disabilities, to enable them to achieve supported
employment outcomes in competitive integrated employment. Grants made
under the Supported Employment program supplement grants issued to
States under the VR program (34 CFR part 361).
WIOA makes several significant changes to title VI of the Act,
which governs the Supported Employment program. All of the amendments
to title VI are consistent with those made throughout the Act, namely
to maximize the potential of individuals with disabilities, especially
those with the most significant disabilities, to achieve competitive
integrated employment and to expand services for youth with the most
significant disabilities. We implement the changes made to the
Supported Employment program by WIOA in these final regulations by:
Requiring in Sec. 363.1 that supported employment be in
competitive integrated employment or, if not, in an integrated setting
in which the individual is working toward competitive integrated
employment on a short-term basis. As a result of comments received, we
revised the proposed short-term basis period to allow for an extension
of the six-month period for up to a total of 12 months based on the
needs of the individual, and the individual has demonstrated progress
toward competitive earnings based on information contained in the
service record.
Extending in Sec. 363.50(b)(1) the time from 18 months to
24 months for the provision of supported employment services.
Requiring in Sec. 363.22 a reservation of 50 percent of a
State's allotment under this part for the provision of supported
employment services, including extended services, to youth with the
most significant disabilities.
Requiring in Sec. 363.23 not less than a 10 percent match
for the amount of funds reserved to serve youth with the most
significant disabilities.
Reducing in Sec. 363.51 the amount of funds that may be
spent on administrative costs.
In response to comments received, we revised Sec. Sec. 363.53,
363.54, and 363.55 to clarify the requirements for the transition of
individuals with the most significant disabilities from supported
employment services to extended services, the achievement of a
supported employment outcome, and the closure of service records. We
have redesignated proposed Sec. 363.55 as final Sec. 363.56.
Limitations on the Use of Subminimum Wage
Section 511 of the Act, as added by WIOA, imposes requirements on
employers who hold special wage certificates under the Fair Labor
Standards Act (FLSA) that must be satisfied before the employers may
hire youth with disabilities at subminimum wages or continue to employ
individuals with disabilities of any age at the subminimum wage level.
Section 511 also establishes the roles and responsibilities of the DSUs
for the VR program and State and local educational agencies in
assisting individuals with disabilities, including youth with
disabilities, to maximize opportunities to achieve competitive
integrated employment through services provided by VR and local
educational agencies.
The addition of section 511 to the Act is consistent with all other
amendments to the Act made by WIOA. Throughout the Act, Congress
emphasizes that individuals with disabilities, including those with the
most significant disabilities, can achieve competitive integrated
employment if provided the necessary supports and services. The
limitations imposed by section 511 reinforce this belief by requiring
individuals with disabilities, including youth with disabilities, to
satisfy certain service-related requirements in order to start or
maintain, as applicable, subminimum wage employment. To implement the
requirements of section 511 that fall under the purview of the
Department, we are issuing new regulations in part 397, including:
Section 397.1, describing the purpose of this part and
Sec. 397.2 setting forth the Department's jurisdiction.
Section 397.10, requiring the DSU, in consultation with
the State educational agency, to develop a process that ensures
students and youth with disabilities receive documentation
demonstrating completion of the various activities required by section
511 of the Act, such as, to name a few, the receipt of transition
services under the IDEA
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and pre-employment transition services under section 113 of the Act, as
appropriate.
Sections 397.20 and 397.30, establishing the activities
that must be completed by youth with disabilities prior to obtaining
employment at subminimum wage and the documentation that the DSUs and
local educational agencies, as appropriate, must provide to demonstrate
completion of those activities, required by section 511(a)(2) of the
Act. These include completing pre-employment transition services in
final Sec. 361.48(a) and the determination of eligibility or
ineligibility for vocational rehabilitation services in final
Sec. Sec. 361.42 and 361.43.
Section 397.40, establishing the documentation that DSUs
must provide to individuals with disabilities of any age who are
employed at a subminimum wage upon the completion of certain
information and career counseling-related services, as required by
section 511(c) of the Act.
Section 397.31, prohibiting a local educational agency or
a State educational agency from entering into a contract with an entity
that employs individuals at subminimum wages for the purpose of
operating a program under which a youth with a disability is engaged in
work compensated at a subminimum wage.
Section 397.50 authorizing a DSU to review individual
documentation, required by this part, for all individuals with
disabilities who are employed at the subminimum wage level, that is
maintained by employers who hold special wage certificates under the
FLSA.
In response to comments received, we made revisions to the final
regulations to specify that intervals for providing career counseling
and information and referral services to individuals of any age
employed by section 14(c) entities will be calculated based upon the
date the individual becomes known to the DSU starting July 22, 2016.
Additionally, we included a time frame in the final regulations of 45
days but, in the case of extenuating circumstances, no later than 90
days, for the DSU to provide documentation of completed activities to
individuals with disabilities. We also added provisions that establish
minimal information that must be contained in the documentation
required by part 397, as well as other administrative requirements
related to the documentation process. Finally, we determined that
section 14(c) entities have a potential financial interest in providing
some of the services and activities required in the final regulations.
Consequently, we inserted language prohibiting the use of these
entities in providing these required services or activities, stating
that a contractor may not be an entity holding a special wage
certificate under section 14(c) of the FLSA and that a DSU's
contractor, for the purpose of conducting the review of documentation
authorized under the final regulations, may not be an entity holding a
special wage certificate under section 14(c) of the FLSA.
We fully explain the regulations described in this Executive
Summary, along with all other significant changes to parts 361, 363,
and 397 following the publication of the NPRM, in the Analysis of
Comments and Changes section of this preamble.
Costs and Benefits: The potential costs associated with this
regulatory action are those resulting from statutory requirements and
those we have determined as necessary for administering the
Department's programs and activities. Further information related to
costs and benefits may be found in the Regulatory Impact Analysis
section later in this preamble.
Public Comment: In response to our invitation in the NPRM, more
than 1,100 parties submitted comments on the proposed regulations
amending the VR program (part 361), amending the Supported Employment
program (part 363), and adding part 397 implementing the new provisions
in section 511 of the Act, as amended by WIOA. We discuss substantive
issues within each part, by section or subject. Generally, we do not
address technical and other minor changes.
Analysis of Comments and Changes:
Part 361 State Vocational Rehabilitation Services Program
Following a description of the organizational changes to part 361
in these final regulations, we present the Analysis of Comments and
Changes in three sections. In section A, we discuss provisions in part
361 that apply generally to the administration of the VR program and to
the provision of vocational rehabilitation services to individuals with
disabilities. In section B, we discuss provisions related to the
transition of students and youth with disabilities from school to
postsecondary education and employment. Finally, in section C, we
discuss the fiscal administration of the VR program.
Due to extensive changes, we published the entire part 361 in the
NPRM, which included conforming and technical changes. We did not
propose substantive changes to all sections of this part. Thus, we did
not intend to make all regulations within this part available for
public comment. Consequently, we do not address the comments we
received on the following sections: Sec. Sec. 361.5(c)(18),
361.5(c)(24), 361.5(c)(27), 361.5(c)(28), 361.5(c)(29), 361.5(c)(30),
361.5(c)(34), 361.5(c)(40), 361.5(c)(43), 361.5(c)(57), 361.47, 361.52,
361.56, and 361.57. Finally, we generally do not discuss differences
between the NPRM and these final regulations that are technical or
conforming in nature.
Organizational Changes
Although the regulations maintain subparts A, B, and C of part 361,
we make organizational changes to other subparts within this part.
First, we incorporate new subparts D, E, and F, where we place the
three subparts discussed in a separate, but related, regulatory action
(the joint regulations issued by the Departments of Education and Labor
implementing jointly administered requirements governing all six core
programs of the workforce development system, including the VR program,
contained in title I of WIOA) published elsewhere in this issue of the
Federal Register. Please see that regulatory action for more
information about how these subparts are incorporated into part 361.
Second, we remove prior Sec. Sec. 361.80 through 361.89, since the VR
program-specific standards and indicators are no longer applicable.
Finally, we eliminate Appendix A to prior part 361--Questions and
Responses. The Department intends to issue guidance on various areas
covered in the final regulations, including some that had been covered
by prior Appendix A, in the near future.
A. Provisions of General Applicability
Section A includes the Analysis of Comments and Changes to the
regulations in subparts A and B of part 361 that pertain to the
administration of the VR program generally and to the provision of
vocational rehabilitation services to individuals with disabilities of
any age. The analysis is presented by topical headings relevant to
sections of the regulations in the order they appear in part 361 as
listed. We discuss some of these same regulations in section B of the
Analysis of Comments and Changes as they relate specifically to the
transition of students and youth with disabilities from school to post-
school activities, including final Sec. Sec. 361.24, 361.46,
361.48(b), and 361.49.
Topical Headings
Purpose (Sec. 361.1)
Authorized Activities (Sec. 361.3)
[[Page 55634]]
Applicable Regulations (Sec. 361.4)
Training on 2 CFR part 200 Requirements
Third-Party In-Kind Contributions
Applicable Definitions (Sec. 361.5)
Administrative Cost (Sec. 361.5(c)(2))
Supervisory Personnel
Travel Costs
Depreciation
Infrastructure Costs for the Workforce Development System and
Capital Expenditures
Assessment for Determining Eligibility and Vocational Rehabilitation
Needs (Sec. 361.5(c)(5))
Competitive Integrated Employment (Sec. 361.5(c)(9))
Competitive Integrated Employment
Subminimum Wage and Sheltered Employment
Public Benefits
Full- and Part-Time Employment
Minimum Wage Rates
Customary Wages
Comparable Training, Skills, and Experience
Self-Employment
Documentation of Competitive Earnings
Subsistence Occupations
Integrated Location--General
Typically Found in the Community
Level of Interaction Among Individuals With and Without
Disabilities
Work Unit
Interaction During Performance of Job Duties
Opportunities for Advancement
Construction of a Facility for a Public or Nonprofit Community
Rehabilitation Program (Sec. 361.5(c)(10))
Customized Employment (Sec. 361.5(c)(11))
Employment Outcome (Sec. 361.5(c)(15))
Statutory Basis
Informed Choice
Legitimacy of Homemaker Outcomes
Availability of Services
Disproportionate Impact
Resources for Service Provision
Feasibility Studies
Transition Period
Indian; American Indian; Indian American; Indian Tribe (Sec.
361.5(c)(25))
Informed Choice
Supported Employment Definitions
Transition-Related Definitions
Submission, Approval, and Disapproval of the State Plan (Sec.
361.10)
Content and Submission of the VR Services Portion of the Unified
or Combined State Plan
Time Estimated for Submission
Alignment of Program and Fiscal Years
Other Comments
Requirements for a State Rehabilitation Council (Sec. 361.17)
Establishment of a State Rehabilitation Council
Additional Members
Terms of Appointment
Coordination With One-Stop Centers
Comprehensive System of Personnel Development (Sec. 361.18)
Data Report for Comprehensive System of Personnel Development (Sec.
361.18(a))
Applicability of Educational and Experiential Requirements to
Vocational Rehabilitation Counselors (Sec. 361.18(c)(1))
Applicability of Standards to Other Personnel
De-Professionalization and Diminution of Vocational
Rehabilitation Counseling
State Job Classification Minimum Qualifications
Additional or Substitute Qualifications
Interplay Between National or State-Approved Certification or
Licensure Standards and Minimal Educational and Experiential
Requirements
Succession Planning
Re-Training of Staff Not Meeting Personnel Standards
Standards of Personnel Development--Other Comparable Requirements
(Sec. 361.18(c)(1))
Meaning of ``A 21st Century Understanding of the Evolving Labor
Force and the Needs of Individuals with Disabilities''
Staff Development (Sec. 361.18(d))
Training Areas for Staff Development
Public Participation Requirements (Sec. 361.20)
Public Hearings for Changes in an Order of Selection
Public Meetings of the State Rehabilitation Council
Substantive and Administrative Changes
Public Comment Through Electronic Means
Requirements Related to the Statewide Workforce Development System
(Sec. 361.23)
Cooperation and Coordination With Other Entities (Sec. 361.24)
General
Cooperation and Collaboration With Other Agencies and Entities
Non-Educational Agencies
Federal Agreements
Guidance on the Braiding of Funds
Requirements for Training
Notification of the Client Assistance Program
Requirements for Third-Party Cooperative Arrangements (Sec. 361.28)
In-Kind Contributions
Students Who Are Eligible or Potentially Eligible for Services
Statewide Assessment; Annual Estimates; Annual State Goals and
Priorities; Strategies; and Reports of Progress (Sec. 361.29)
Comprehensive Statewide Needs Assessment
Annual Estimates and Reports of Progress
Provision of Training and Services for Employers (Sec. 361.32)
Innovation and Expansion Activities (Sec. 361.35)
Resource Plans for Statewide Independent Living Councils
Innovative Approaches With Components of the Workforce
Development System
Ability To Serve All Eligible Individuals; Order of Selection for
Services (Sec. 361.36)
Individuals Who Require Specific Services and Equipment To
Maintain Employment
Information and Referral
Monitoring by the State Rehabilitation Council
Order of Selection Criteria
Prohibited Factors
Pre-Employment Transition Services
Information and Referral Programs (Sec. 361.37)
Benefits Planning
Referral Options
Follow-Up
Independent Living Services
Protection, Use, and Release of Personal Information (Sec. 361.38)
Reports; Evaluation Standards and Performance Indicators (Sec.
361.40)
Pre-Employment Transition Services
Standards and Indicators
Program Year
Performance Accountability Regulations
Cumulative Caseload Report (RSA-113)
States With Two VR Agencies
Reporting Burden
RSA-911 Case Service Report
Assessment for Determining Eligibility and Priority for Services
(Sec. 361.42)
Advancing in Employment and Other Eligibility Criteria
Substantial Impediment to Employment
Prohibited Factors
Residency
Compliance Threshold
Entities Holding Special Wage Certificates
Extended Evaluation and Trial Work Experiences
Development of the Individualized Plan for Employment (Sec. 361.45)
Time Frame for Developing the Individualized Plan for Employment
Options for Developing the Individualized Plan for Employment
Data for Preparing the Individualized Plan for Employment
Content of the Individualized Plan for Employment (Sec. 361.46)
Scope of Vocational Rehabilitation Services for Individuals With
Disabilities
Services for Individuals Who Have Applied or Been Determined
Eligible for Vocational Rehabilitation Services (Sec. 361.48(b))
Advanced Training
Other Services
Scope of Vocational Rehabilitation Services for Groups of
Individuals With Disabilities (Sec. 361.49(a))
Establishment, Development, or Improvement of Community
Rehabilitation Programs
Technical Assistance to Businesses
Establishment, Development, or Improvement of Assistive
Technology Programs
Advanced Training
Comparable Services and Benefits (Sec. 361.53)
Accommodations and Auxiliary Aids and Services
Pre-Employment Transition Services and Personally Prescribed
Devices
Interagency Agreements
Semi-Annual and Annual Review of Individuals in Extended Employment
and Other Employment Under Special Certificate Provisions of the
Fair Labor Standards Act (Sec. 361.55)
Effective Date
Who is subject to the requirements?
Documentation
Costs of Conducting the Reviews
Informed Choice
Retroactive Reviews
Cross-Reference With 34 CFR 397.40
Individuals With a Record of Service
[[Page 55635]]
Purpose (Sec. 361.1)
Comments: A few commenters supported the replacement of the term
``gainful employment'' with the term ``competitive integrated
employment'' and the inclusion of the term ``economic self-
sufficiency'' in proposed Sec. 361.1. In addition, many commenters
sought clarification of the term ``economic self-sufficiency'' as used
in this regulation and requested that we define it in Sec. 361.5(c).
Of these commenters, most suggested that the term ``economic self-
sufficiency'' may deter individuals with disabilities who are receiving
public benefits from applying for vocational rehabilitation services.
Additionally, some commenters suggested that DSUs may use economic
self-sufficiency to determine that individuals with disabilities who
wish to maintain their public benefits are ineligible for vocational
rehabilitation services. Some commenters indicated that individuals
with intellectual or developmental disabilities may never achieve
earnings, through competitive integrated employment, sufficient to
cease receiving public benefits. Two commenters viewed ``economic self-
sufficiency'' as a criterion within both the definitions of
``employment outcome'' and ``competitive integrated employment,'' and
requested that we identify criteria that DSUs may use to determine when
individuals achieve this level of employment and are rehabilitated
enough to no longer need vocational rehabilitation services.
Discussion: We appreciate comments supporting inclusion of the
terms ``competitive integrated employment'' and ``economic self-
sufficiency'' in final Sec. 361.1. We agree that inclusion of these
terms in the regulation reflects the spirit of the Act in general, and
is consistent with specific amendments to section 100(a) of the Act
made by WIOA. While we understand commenters' requests for a definition
of ``economic self-sufficiency,'' the Act, as amended by WIOA, does not
define the term. We believe that the use of the term in final Sec.
361.1(b) is consistent with its common understanding and refers to the
situation in which an individual can support him- or herself
financially with minimal or no reliance on public benefits or
assistance from other persons. Therefore, we do not define the term
``economic self-sufficiency.'' In addition, use of the term ``economic
self-sufficiency'' in section 100(a)(2)(B) of the Act, as amended by
WIOA, and in final Sec. 361.1(b) does not require the individual to
achieve economic self-sufficiency--either as a prerequisite for receipt
of services or as an outcome resulting from vocational rehabilitation
services provided. Rather, the term as used in the Act, as amended by
WIOA, and in these final regulations merely requires that the
vocational rehabilitation services provided to an individual be
consistent with the individual's strengths, resources, priorities,
concerns, abilities, capabilities, interests, informed choice, and
economic self-sufficiency. Vocational rehabilitation services ideally
should assist an individual to achieve a competitive integrated
employment outcome that will enable the individual to become
economically self-sufficient, but there is no requirement in either the
Act or these final regulations that an individual achieve economic
self-sufficiency or a specific level of financial independence.
Section 102(a) of the Act, as amended by WIOA, does not include
economic self-sufficiency among the eligibility criteria. Inclusion of
the term in final Sec. 361.1(b) does not alter the eligibility
criteria for the program in final Sec. 361.42(a)(1). We encourage DSUs
to conduct outreach to individuals with disabilities and service
providers to clarify any misperception that the use of this term
implies that individuals with disabilities may no longer receive
vocational rehabilitation services for the purpose of achieving an
employment outcome in competitive integrated employment or supported
employment if they wish to maintain their public benefits. We also
encourage DSUs to provide vocational counseling and guidance and
benefits planning services to these individuals to assist them in
better understanding the impact of participation in the VR program and
employment on their public benefits.
Economic self-sufficiency is not a component of the definitions of
``competitive integrated employment'' and ``employment outcome'' in
sections 7(5) and 7(11), respectively, of the Act, as amended by WIOA.
We disagree that the implementing regulations for the definitions of
these terms in final Sec. Sec. 361.5(c)(9) and 361.5(c)(15) should be
revised to incorporate criteria related to the achievement of economic
self-sufficiency as suggested by the commenter. We believe the wages
and benefits criteria, especially as contained in the definition for
``competitive integrated employment'' in final Sec. 361.5(c)(9), are
consistent with those set forth in the statutory definition in section
7(5) of the Act.
Changes: None.
Authorized Activities (Sec. 361.3)
Comments: None.
Discussion: Upon further review of Sec. 361.3, we have determined
a change is needed to clarify that the use of VR program funds to pay
for the infrastructure costs of the one-stop delivery system
established by title I of WIOA is an authorized activity under the VR
program. Section 121(h) of title I of WIOA requires one-stop partners,
including the VR program, to pay a proportional share of the one-stop
system's infrastructure costs. These costs satisfy the definition of
``administrative costs'' in final Sec. 361.5(c)(2) because such
expenditures constitute operating and maintenance costs, which are
permissible administrative costs under the VR program. We have revised
final Sec. 361.3(b) to specify that one-stop infrastructure costs are
considered administrative costs under the VR services portion of the
Unified or Combined State Plan and, therefore, are authorized
activities under the VR program. In making this change, we ensure
consistency with final Sec. 361.5(c)(2)(viii), as well as jointly
administered requirements governing the one-stop delivery system
contained in joint regulations published elsewhere in this issue of the
Federal Register.
Changes: We have revised final Sec. 361.3(b) to specify that the
use of VR program funds to pay for one-stop system infrastructure costs
is an authorized activity of the program as an administrative cost.
Applicable Regulations (Sec. 361.4)
Training on 2 CFR Part 200 Requirements
Comments: Two commenters requested the Department provide training
on 2 CFR part 200 requirements, focusing on definitions and general
applicability.
Discussion: The Department has conducted a number of Webinars and
developed technical assistance materials to assist grantees in
implementing 2 CFR part 200 requirements and will continue to do so as
needed. The Department maintains a technical assistance Web page for
grantees regarding the requirements set forth in 2 CFR part 200, which
may be accessed at www.ed.gov. The Department will consider future
Webinars, as appropriate.
Changes: None.
Third-Party In-Kind Contributions
Comments: None.
Discussion: As specified under final Sec. 361.60(b)(2), third-
party in-kind contributions may not be used to meet the non-Federal
share for match
[[Page 55636]]
purposes under the VR program. This prohibition against the use of
third-party in-kind contributions under the VR program has been in
place since 1997. Upon further Departmental review regarding this long-
standing prohibition, we have determined it necessary to revise final
Sec. 361.4(d). In so doing, the Secretary clarifies that 2 CFR
200.306(b), which allows third party in-kind contributions to be used
as part of a non-Federal entity's cost sharing or matching when such
contributions meet certain criteria, does not apply to the VR program.
The Secretary believes this technical change will eliminate any
confusion expressed by commenters in relation to final Sec.
361.60(b)(2).
Changes: We have amended the applicable regulations in final Sec.
361.4(d) to specify that 2 CFR 200.306(b), as it pertains to the
acceptance of third-party in-kind contributions, is not applicable to
the VR program.
Applicable Definitions (Sec. 361.5)
Administrative Cost (Sec. 361.5(c)(2))
Supervisory Personnel
Comments: One commenter recommended that we consider costs for
local level supervisors who do not perform counseling duties, but who
directly supervise counselors, to be direct service costs rather than
administrative costs.
Discussion: We disagree with the recommendation to consider the
costs for local level supervisors who do not perform counseling duties,
but who directly supervise counselors, to be direct service costs,
rather than ``administrative costs.'' Final Sec. 361.5(c)(2)(xi)
specifies that administrative salaries constitute ``administrative
costs.'' Administrative salaries are those personnel costs paid to
individuals who are not providing direct services to VR program
applicants and consumers, and may include clerical and managerial
salaries. Therefore, we consider costs for supervisors who do not
provide direct services to be administrative costs in support of
vocational rehabilitation services, rather than costs for the actual
provision of such services.
Changes: None.
Travel Costs
Comments: Two commenters indicated that the instructions for
completing the Annual Vocational Rehabilitation Program/Cost Report
(RSA-2) in Policy Directive (PD) 14-02 requiring DSUs to report staff
travel costs as ``administrative costs'' appear to conflict with
proposed Sec. 361.5(c)(2)(xii), which specifically excludes travel
costs related to the provision of services from ``administrative
costs.''
One commenter recommended we clarify that grantees may consider
travel costs incurred in the provision of vocational rehabilitation
services as a service-related cost, rather than an administrative cost.
Specifically, the commenter requested that the final regulations
clarify that travel costs incurred in the provision of pre-employment
transition services may be paid from the funds reserved for that
purpose. This commenter also suggested that the Department update
reporting instructions accordingly.
Discussion: We appreciate the commenters' observation that the
definition of ``administrative costs'' in proposed Sec.
361.5(c)(2)(xii) appears to conflict with the instructions for
completing the RSA-2 with regard to staff travel costs. The Department
will review and update previously issued guidance as necessary to
ensure consistency with these final regulations.
We agree that travel costs incurred directly as a result of
providing vocational rehabilitation services constitute service-related
costs, not ``administrative costs'' for purposes of the VR program.
Therefore, DSUs may pay for travel costs incurred as a direct result of
providing pre-employment transition services to students with
disabilities, including travel to individualized education program
meetings, from the funds reserved for the provision of those services.
Travel costs incurred as a result of providing other vocational
rehabilitation services to students with disabilities may not be paid
from the funds reserved for the provision of pre-employment transition
services because such travel would be beyond the scope of section 113
of the Act, as amended by WIOA, and final Sec. 361.48(a). While travel
costs incurred as a result of providing other vocational rehabilitation
services to students with disabilities who have been determined
eligible for vocational rehabilitation services may not be paid from
the funds reserved for the provision of pre-employment transition
services, they still would be service-related, not administrative,
costs. Staff travel costs incurred for other purposes, such as
attending regional meetings or trainings, satisfy the definition of
``administrative costs'' and must be reported as such on the RSA-2.
DSUs must have an established system of internal controls sufficient to
record and track administrative expenditures associated with authorized
activities so they can be distinguished from authorized service-related
costs. In this way, DSUs are able to satisfy accounting and reporting
requirements set forth in final Sec. 361.12 and Uniform Guidance on
financial management in 2 CFR 200.302.
Changes: None.
Depreciation
Comments: One commenter requested that we clarify whether DSUs must
classify depreciation for administrative facilities as administrative
costs.
Discussion: Final Sec. 361.5(c)(2) provides several examples of
administrative costs; however, the examples provided are not
exhaustive. DSUs must treat depreciation in accordance with the Uniform
Guidance requirements, as set forth in 2 CFR 200.436, and report it
accordingly. Therefore, DSUs must report depreciation for facilities
used for the administration of the VR program as administrative costs.
Changes: None.
Infrastructure Costs for the Workforce Development System and Capital
Expenditures
Comments: None.
Discussion: After further analysis of proposed Sec. 361.5(c)(2),
we made a technical change in final Sec. 361.5(c)(2)(viii) to specify
that costs to support the infrastructure of the one-stop delivery
system established under title I of WIOA are ``administrative costs''
for purposes of the VR program. Section 121(h) of WIOA requires one-
stop partners, including the VR program, to pay a proportional share of
the one-stop system's infrastructure costs. We believe these costs
satisfy the definition of ``administrative costs'' in final Sec.
361.5(c)(2)(viii) because these expenditures constitute operational and
maintenance costs. We have revised final Sec. 361.5(c)(2)(viii) to
specify operational and maintenance costs, for purposes of the
definition of ``administrative costs'' under the VR program, include
one-stop system infrastructure costs. This technical change ensures
consistency with final Sec. 361.3(b) and the jointly administered
requirements governing the one-stop system, as set forth in the joint
regulations published elsewhere in this issue of the Federal Register.
Additionally, we made a change to final Sec. 361.5(c)(2)(viii) to
conform to the Uniform Guidance in 2 CFR part 200. In accordance with 2
CFR 200.439(b)(3), capital expenditures for improvements to land,
buildings, or equipment which materially increase their value or useful
life are unallowable as a direct cost, except with the prior written
approval of the Department. Therefore, we have revised final Sec.
361.5(c)(2)(viii) to delete a clause that had excluded capital
[[Page 55637]]
expenditures from the definition of ``administrative costs'' for
purposes of the VR program. Pursuant to this change, DSUs must treat
capital expenditures as ``administrative costs'' for purposes of the VR
program. This technical change enables grantees to report these costs
more accurately as an administrative cost on the RSA-2 VR Program Cost
Report.
Changes: We have revised final Sec. 361.5(c)(2)(viii) to specify
that the definition of ``administrative costs'' includes those costs
associated with operating and maintaining the infrastructure of the
one-stop system.
In addition, we have deleted the reference to ``not including
capital expenditures as defined in 2 CFR 200.13'' from final Sec.
361.5(c)(2)(viii).
Assessment for Determining Eligibility and Vocational Rehabilitation
Needs (Sec. 361.5(c)(5))
Comments: A few commenters supported the definition of ``assessment
for determining eligibility and vocational rehabilitation needs'' in
proposed Sec. 361.5(c)(5). Some commenters disagreed with the
requirement in the definition that, if additional data are needed to
determine the employment outcome and the vocational rehabilitation
services to be included in the individualized plan for employment, the
DSU can conduct a comprehensive assessment that, in part, relies to the
maximum extent possible on information obtained from experiences in
integrated employment and other settings in the community. Another
commenter requested clarification as to whether the use of information
obtained from prior experiences within integrated employment settings
or other integrated community settings could include internships or
other unpaid work experiences.
Discussion: We appreciate the support for proposed Sec.
361.5(c)(5), as well as the concerns and requests for clarification.
Section 7(2)(B)(v) of the Act, as amended by WIOA, and final Sec.
361.5(c)(5)(ii)(E) allow a DSU, when conducting the comprehensive
assessment to determine the vocational rehabilitation needs and
employment outcome for inclusion in the individualized plan for
employment, to rely, in part, on the applicant's participation in
integrated employment settings to the maximum extent possible. However,
neither the Act nor the final regulations require that the individual
be paid during these experiences. Therefore, section 7(2) of the Act
and final Sec. 361.5(c)(5)(ii) do not prohibit DSUs from using unpaid
internships or work experiences during the assessment process. We
received other comments concerning a perceived conflict between this
definition and proposed Sec. 361.42(c)(2), which prohibits a DSU from
considering an individual's work history when determining an
applicant's eligibility for vocational rehabilitation services, and
contracting with community rehabilitation programs that hold subminimum
wage certificates issued by the Department of Labor under section 14(c)
of the FLSA when conducting assessments. We address these comments in
the Analysis of Comments and Changes of the Assessment for Determining
Eligibility and Priority for Services section.
Changes: None.
Competitive Integrated Employment (Sec. 361.5(c)(9))
Competitive Integrated Employment
The overarching principle of the Act, as amended by WIOA, that
individuals with disabilities are capable of achieving full integration
into all aspects of life, including employment, is most evident in the
definition of ``competitive integrated employment'' in section 7(5) of
the Act and the interweaving of the term throughout the many provisions
of the statute. Because of its central importance to the purpose of the
VR program, we received extensive comments on the definition in
proposed Sec. 361.5(c)(9), expressing both strong support for, and
opposition to, the proposed definition. The vast majority of public
comment on the definition focused on the criteria that an employment
location must satisfy if it is to be considered integrated. Some
commenters expressed support for the definition in general, and the
criteria for an integrated location specifically, for several reasons,
including the definition's specificity that the commenters believe will
ensure individuals with disabilities are working in integrated
employment settings, and the impact the definition can have in
curtailing the low expectations for individuals with disabilities who
are relegated to segregated employment with little opportunity for
advancement. However, many commenters opposed the definition,
expressing concern that it would restrict or eliminate subminimum wage
and sheltered employment for individuals with disabilities, or limit
the ability of these individuals to choose among these options. We
appreciate the support for the definition, and discuss the detailed
comments in opposition to, and requests for clarification of, the
proposed definition under the topical headings that follow.
Subminimum Wage and Sheltered Employment
Comments: Many commenters urged us to protect or not to eliminate
the payment of subminimum wages to individuals with disabilities and
sheltered employment. One of these commenters stated that not all
individuals can be paid minimum wages, and that the employment must be
profitable for both parties. Similarly, another commenter stated that
if entities holding subminimum wage certificates were forced to pay
less productive individuals with disabilities minimum wages, they would
lose business to companies overseas. Likewise, some commenters stated
that sheltered employment is needed to protect individuals with
intellectual disabilities and other significant disabilities from
abuse. A few commenters expressed their concern that the integrated
location criteria of the definition devalue the employment of
individuals with disabilities who cannot work in these settings.
Many commenters opposed the definition because it would limit an
individual's choice of subminimum wage and sheltered employment
options. Some of these commenters asked that we create an exception
from the criteria for individuals who choose to work in a segregated or
sheltered setting if all other criteria regarding competitive earnings
and opportunities for advancement are satisfied.
Discussion: We acknowledge that many commenters on part 361 in
general, and the definition of ``competitive integrated employment''
specifically, are concerned that these final regulations will eliminate
or restrict the ability of individuals with disabilities, particularly
those with the most significant disabilities, to be paid subminimum
wages by entities holding certificates issued by the Department of
Labor under section 14(c) of the FLSA, as well as sheltered employment.
Although we recognize the concerns expressed by these commenters, we
emphasize that the definition of ``competitive integrated employment''
and its use throughout final part 361 are intended to ensure that all
individuals with disabilities served through the VR program are
provided every opportunity to achieve employment with earnings
comparable to those paid to individuals without disabilities in a
setting that allows them to interact with individuals who do not have
disabilities. Nonetheless, nothing in title I of the Act, as amended by
WIOA, or the
[[Page 55638]]
regulations in final part 361 affects the FLSA in any manner. Later in
this Analysis of Comments and Changes, we address limitations on the
use of subminimum wage in section 511 of the Act and final 34 CFR part
397. In addition, the definition ``competitive integrated employment''
in final Sec. 361.5(c)(9) does not prohibit or eliminate sheltered
employment. As explained in final regulations published on January 21,
2001, we agree that extended employment programs have traditionally
served as a safety net for individuals with significant disabilities
who cannot perform work in an integrated setting in the community or
who choose to work only among their disabled peers (66 FR 7250). The
Secretary does not devalue the dignity or the worth of extended
employment programs or the individuals who work in those settings.
Rather, the definition of ``competitive integrated employment''
reflects the heightened emphasis throughout the Act, as amended by
WIOA, that individuals with disabilities, including those with the most
significant disabilities, can achieve employment in the community and
economic self-sufficiency if provided appropriate services and
supports. Because DSUs have been unable to assist individuals with
disabilities to obtain sheltered employment through the VR program
since October 2001, the vast majority of individuals have accessed
sheltered employment through other sources or on their own initiative.
Therefore, the Secretary believes the definition in final Sec.
361.5(c)(9) will not affect the availability of sheltered employment
for individuals who choose this form of employment, or for whom it is a
legitimate and necessary option.
Furthermore, while the Act, as amended by WIOA, places a premium on
the ability of individuals with disabilities to exercise informed
choice throughout the vocational rehabilitation process, we do not
agree that the final regulations in part 361 generally and the
definition specifically are inconsistent with that emphasis. In fact,
an individual with a disability may pursue any form of employment he or
she chooses. However, if the individual wishes to receive vocational
rehabilitation services, he or she must intend to achieve an
``employment outcome,'' which is defined in final Sec. 361.5(c)(15)
for purposes of the VR program as employment in competitive integrated
employment or supported employment. If the individual chooses to pursue
work that does not satisfy the definition of ``employment outcome'' for
purposes of the VR program, such as sheltered employment, the
individual must seek services from another agency or provider. In such
circumstances, these final regulations require the DSU to refer that
individual to local extended employment providers or other Federal,
State, or local programs (e.g., community rehabilitation programs,
State Use programs, and centers for independent living) that can meet
the individual's needs. The referral requirements in final Sec. 361.37
also ensure that individuals receive sufficient information concerning
the scope of the VR program and opportunities for individuals with
disabilities to pursue competitive integrated employment. This
information enables individuals to make a fully informed choice
regarding whether to pursue competitive integrated employment through
the VR program or subminimum wage and extended employment through other
sources.
The Secretary believes these final regulations ensure that the VR
program promotes to the maximum extent possible opportunities for
individuals with disabilities, particularly those with significant
disabilities, to pursue competitive integrated employment options.
Moreover, final Sec. 361.52 requires each DSU to preserve individual
choice in the manner in which the Act intends for individuals who
choose to pursue employment outcomes within the scope of the VR
program.
Finally, section 7(5) of the Act, as amended by WIOA, does not
permit an exception to the definition's requirements for individuals
who choose subminimum wage and or sheltered employment. In fact, such
an exception would be inconsistent with the plain meaning of the
criteria contained in the statutory definition in section 7(5) of the
Act. Therefore, we lack the statutory authority to create such an
exception in final Sec. 361.5(c)(9).
Changes: None.
Public Benefits
Comments: One commenter requested that we clarify the effect of the
definition of ``competitive integrated employment'' on the eligibility
of individuals with disabilities for Social Security benefits. One
commenter expressed concern that the criteria would cause individuals
to lose needed benefits provided through Medicaid and other sources.
Discussion: We recognize that some individuals are reluctant to
pursue employment through the VR program due to their perceptions of
the negative impact employment may have on the public benefits,
including Medicaid and other sources, on which they rely for financial
and medical support. To enable individuals with disabilities to better
understand the effects of employment on Social Security and other
benefits and make well-informed decisions about the employment goals
that best suit their needs, section 102(b)(2) of the Act, as amended by
WIOA, and final Sec. 361.45(c)(2) require DSUs to provide benefits
planning information, including information about work incentives
provided through the Social Security Administration (SSA), to these
individuals during the process for developing the individualized plan
for employment. For further information, see the Development of the
Individualized Plan for Employment section later in this Analysis of
Comments and Changes.
Changes: None.
Full- and Part-Time Employment
Comments: A few commenters requested that we define or clarify the
terms ``full-time'' and ``part-time'' employment as they are used in
the definition of ``competitive integrated employment.'' These
commenters asked whether there is a minimum number of hours that an
individual must work for the employment to satisfy the requirements of
the definition, as well as the definition of an ``employment outcome.''
A few commenters expressed concern that on-call or temporary employment
is not within the scope of the definition because it is not considered
full- or part-time scheduled employment. They stated that many entry-
level individuals are employed in on-call positions and that permitting
this form of employment could enable individuals with intellectual
disabilities to maintain employment.
Discussion: The reference to full- and part-time work in the
definitions for the terms ``employment outcome'' and ``competitive
integrated employment,'' for purposes of the VR program, is not new.
The definition for ``employment outcome'' has remained consistent since
the 1992 Amendments to the Act and the 1997 VR program regulations (62
FR 6334 (Feb. 11, 1997)). Although ``competitive integrated
employment'' is a new term in the Act, as amended by WIOA, and these
final regulations, the term and its definition are consistent with that
for ``competitive employment'' in prior Sec. 361.5(b)(11), which dates
back to the 1997 VR program regulations. Because these definitions have
existed for approximately 20 years without substantial change, we do
not believe it necessary to define ``full-time'' or ``part-time'' in
final part 361. ``Full-time'' and
[[Page 55639]]
``part-time'' have their common meanings and may vary across sectors of
the economy. Generally, individuals are considered to be employed full-
time if they work 40 hours per week. However, it is not uncommon for
full-time employees to work fewer hours, such as 35 hours per week,
depending on the terms of employment established by the employer.
``Part-time'' employment is employment for any number of hours less
than that of full-time employment for the particular work performed.
Nowhere in the statutory definitions of ``competitive integrated
employment'' or ``employment outcome,'' or any other provision of the
Act, as amended by WIOA, is a minimum number of hours that an
individual must work for the employment to be considered full- or part-
time specified, and we decline to do so in these final regulations,
relying on the terms' common understanding. Finally, we clarify in this
discussion that the definitions of ``competitive integrated
employment'' and ``employment outcome,'' as set forth in the Act and
these final regulations, do not require that the individual's
employment be regularly scheduled, as suggested by the commenter. Thus,
DSUs may assist individuals to obtain temporary or on-call employment
so long as all the criteria of the definitions are satisfied.
Changes: None.
Minimum Wage Rates
Comments: Some commenters expressed strong support for the
competitive earnings criteria in proposed Sec. 361.5(c)(9)(i). We also
received comments recommending changes to the criteria or requesting
clarification. One commenter stated that the requirement that the
individual's wages equal or exceed the higher of the Federal, or
applicable State or local minimum wage rates adds unnecessary
complexity to the vocational rehabilitation process. This commenter
recommended that we apply a single standard of the Federal minimum wage
rate to all employment outcomes achieved through the VR program, or
that we apply the minimum wage rate in effect in the place of the
individual's employment, and not the individual's place of residence.
Discussion: We appreciate the strong support for the competitive
earnings criteria and respond here to the requests for clarification.
We disagree with the request to avoid complexity by using only the
Federal minimum wage as the measure of competitive earnings. Section
7(5)(A)(i)(I)(aa) of the Act, as amended by WIOA, requires that the
individual's earnings equal or exceed the Federal, State, or applicable
local minimum wage rate, whichever is higher, for the employment to
satisfy the definition of ``competitive integrated employment.'' Final
Sec. 361.5(c)(9)(i)(A) mirrors the statutory definition in this
respect. Given the specific statutory requirement, we lack the
statutory authority to restrict this requirement in the final
regulation. In addition, the definition focuses on the wages paid by
the employer, who is subject to the minimum wage laws applicable to the
place of employment. Consequently, we agree with the commenter that the
determination of whether the individual's earnings satisfy the
definition's criteria should be based on the minimum wage rate
applicable to the individual's place of employment, and not his or her
place of residence.
Changes: We have revised final Sec. 361.5(c)(9)(i)(A) to clarify
that the applicable State and local minimum wage laws are those that
apply to the place of employment.
Customary Wages
Comments: One commenter recommended that we revise the definition
to emphasize that the intent of the law and the regulations is to
ensure that wages and benefits paid to individuals with disabilities
are comparable to the prevailing wage and benefits of individuals
without disabilities.
Discussion: Section 7(5)(A)(i)(I)(bb) of the Act, as amended by
WIOA, and final Sec. 361.5(c)(9)(i)(B) require that the individual
with the disability be compensated at a rate comparable to the
customary rate paid by the employer for the same or similar work
performed by individuals without disabilities for the employment to be
considered competitive integrated employment. The Secretary emphasizes
that this provision in both the Act and the final regulations mirrors
the definition of ``competitive employment'' in prior Sec.
361.5(b)(11)(ii) (see 66 FR 4379 (Jan. 17, 2001)), which formed the
basis for the definition in the Act. We also note that the commenter's
recommendation would not limit the criterion to the wages paid by the
employer, as do the statutory and final regulatory definition, but
would appear to extend the criterion to the prevailing wages paid to
individuals without disabilities in similar positions generally. For
these reasons the recommendation is not consistent with the criterion
in the statutory definition and, thus, we do not have the authority to
expand the regulatory definition in final Sec. 361.5(c)(9)(i)(B) as
the commenter suggests.
Changes: None.
Comparable Training, Skills, and Experience
Comments: Two commenters requested that we clarify the meaning of
``comparable training, skills, and experience'' as used in the
definition, and how this concept could be quantified.
Discussion: Section 7(5)(A)(i)(I)(bb) of the Act, as amended by
WIOA, and final Sec. 361.5(c)(9)(i)(B) require the DSU to take into
account the training, experience, and level of skills possessed by
employees without disabilities in similar positions when determining
whether the earnings of the individual with a disability are
comparable. We do not believe that it is possible to quantify this
comparison. Instead, the determination is based on the vocational
rehabilitation counselor's knowledge of the training, skills, and
experience needed to perform the job generally and required by the
employer specifically. In this way, the DSU can ensure that the
individual with the disability is compensated in a manner comparable to
that of employees without disabilities in all critical respects, and is
not paid at a lower rate simply on the basis of his or her disability.
Changes: None.
Self-Employment
Comments: One commenter noted the proposed definition recognizes
that individuals, with or without disabilities, in self-employment may
not receive an income from the business equal to or exceeding
applicable minimum wage rates, particularly in the early stages of
operation. The commenter requested clarification regarding the reason
the definition proscribes an individual with a disability in self-
employment from what other successful entrepreneurs have the option to
practice. Another commenter asked if individuals who achieve self-
employment are included in the calculations of the performance
accountability measures assessing employment in the second and fourth
quarters after exit from the VR program, since their employment and
wages are not captured in Unemployment Insurance wage systems.
Discussion: We want to clarify that section 7(5)(A)(i)(II) of the
Act, as amended by WIOA, and final Sec. 361.5(c)(9)(i)(C) do not
prevent, as the commenter indicates, an individual with a disability
who is self-employed from receiving earnings comparable to those
achieved by individuals without disabilities in similar occupations. As
explained in the preamble to the NPRM, the statutory and regulatory
definitions
[[Page 55640]]
recognize that individuals with disabilities, as well as individuals
without disabilities, may experience difficulty in generating
sufficient income from their self-employment ventures, that will enable
them to achieve earnings equal to or exceeding the applicable minimum
wage rate, especially in the early stages of the business operations.
Thus, final Sec. 361.5(c)(9)(i)(C) provides that a self-employed
individual with a disability in the start-up phase of a business
venture who is making less than the applicable minimum wage can meet
the definition of ``competitive integrated employment.''
Furthermore, individuals who receive services through the VR
program to assist with the achievement of self-employment outcomes are
considered ``participants'' as that term is defined under the joint
final regulations implementing the jointly administered performance
accountability system requirements of section 116 of title I of WIOA,
published elsewhere in this issue of the Federal Register, and must be
taken into account when calculating a DSU's performance on those
measures. Since the employment status and earnings of self-employed
individuals are not captured through the unemployment insurance wage
system, a DSU may use supplemental wage information to obtain the data
necessary for the calculation of its performance. For further
information concerning the definition of ``participant'' for purposes
of the performance accountability measures under section 116 of WIOA
and the data needed to calculate these measures, particularly data
related to supplemental information when quarterly wage records are not
available, see the analysis of comments on the joint performance final
regulations published elsewhere in this issue of the Federal Register.
Changes: None.
Documentation of Competitive Earnings
Comments: One commenter asked what documentation a DSU is required
to use when verifying the criteria for competitive earnings, including
that the wages are equal to, or exceed, the applicable wage rate for
the locality; that the individual's wages and benefits are comparable
to those earned by individuals without disabilities in similar
positions and who possess the same level of training, skills, and
experience; that the individual has the same opportunities for
advancement as do persons without disabilities in similar positions;
and the income level of an individual who has achieved self-employment.
Discussion: Final Sec. 361.47(a)(9) requires the DSU to maintain a
record of services for each individual served through the VR program
that includes documentation verifying if the individual has achieved
competitive integrated employment, including whether the individual has
obtained employment with competitive earnings. Final Sec. 361.47(b)
does not prescribe the necessary documentation, but directs the DSU, in
consultation with the State Rehabilitation Council, to determine the
type of documentation needed to meet the requirements of Sec.
361.47(a). However, examples of documentation that a DSU may use
include, as appropriate for the type of employment, unemployment
insurance wage records, tax returns, earnings statements from the
employer, and self-reported information.
Changes: None.
Subsistence Occupations
Comments: Some commenters responded to the statement in the NPRM's
preamble indicating that we interpret subsistence employment as a form
of self-employment common to cultures of many American Indian tribes,
or to the definition of ``subsistence'' under 34 CFR part 371 governing
the American Indian Vocational Rehabilitation Services (AIVRS) program
(see NPRM, Workforce Innovation and Opportunity Act, Miscellaneous
Program Changes, 80 FR 20988, 20994-20998 (April 16, 2015)). Several
commenters asked whether the interpretation of the self-employment
criteria within the definition of ``competitive integrated employment''
in proposed Sec. 361.5(c)(9) that includes subsistence activities is
limited to individuals served through the AIVRS program under 34 CFR
part 371 or to American Indians and Alaska Natives. Of these, one
commenter noted that subsistence activities are not only culturally
relevant for American Indians and Alaska Natives, but that they are
also vital to many individuals who live in rural areas with limited
competitive employment options. One commenter requested that we clarify
the meaning of ``culturally appropriate'' as used in the definition of
``subsistence'' and the preamble to the NPRM by providing examples.
Another commenter asked what limits would be placed on hobbies as self-
employment outcomes if subsistence outcomes were available to all
individuals served through the VR program. In addition, several
commenters requested that we revise the definition of ``employment
outcome'' for purposes of the VR program to include within its scope
subsistence activities.
Discussion: In the NPRM covering amendments made by WIOA to the
miscellaneous programs authorized by the Act, the Secretary proposed a
definition of ``subsistence'' in 34 CFR 371.6 for purposes of the AIVRS
program (80 FR 20988, 20995). Under that definition, ``subsistence''
means 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. To
ensure consistency in the interpretation of the definition of
``competitive integrated employment'' for the purposes of the VR
program and the AIVRS program, and in light of the definition of
``subsistence'' in final 34 CFR 371.6, the Secretary stated in the
preamble to the NPRM to the VR regulations that the Department
interprets subsistence employment as a form of self-employment common
to cultures of many American Indian tribes. The Secretary believes that
consistency in interpretation and implementation of the regulations
governing the VR and AIVRS programs is essential given the large number
of American Indians and Alaska Natives with disabilities who are
eligible for services from both programs, some of whom may be served by
the programs sequentially or even simultaneously.
The Secretary does not intend the statement in the NPRM covering
the proposed regulations in part 361, or the inclusion of the
definition of ``subsistence'' only in 34 CFR 371.6, to limit the
provision of services designed to assist individuals to achieve
subsistence occupations to those served through the AIVRS program. DSUs
may assist American Indians and Alaska Natives served through the VR
program to achieve subsistence occupations as a form of self-employment
under the limited circumstances set forth in the definition in 34 CFR
371.6, which the Department applies in the same manner to the VR
program.
While the Secretary believes that, as the statement in the NPRM
indicates, subsistence occupations are most culturally relevant to
American Indian and Alaska Native tribes, the Secretary recognizes that
they may also be culturally relevant to other small groups of
individuals who may traditionally engage in these occupations, such as
those in the outlying areas. Thus, DSUs may find it appropriate to
assist individuals from cultures other than American Indian and Alaska
Native tribes to achieve self-employment in
[[Page 55641]]
subsistence occupations that meet the definition of 34 CFR 371.6.
However, because the definition of ``subsistence'' in 34 CFR 371.6
requires that the subsistence occupation be culturally relevant to the
individual, the Secretary declines to extend the applicability of
subsistence occupations to other individuals with disabilities served
through the VR and AIVRS programs solely on the basis of their location
in rural areas.
Examples of subsistence occupations that are culturally relevant to
American Indians or Alaska Natives 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 Alaska 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 final 34 CFR 371.6 requires that the activity constitute an
important basis of the individual's livelihood, DSUs cannot provide
vocational rehabilitation services to individuals to enable them to
engage in mere hobbies that do not serve this same purpose.
Finally, the definition of ``employment outcome'' in final Sec.
361.5(c)(15) encompasses all forms of competitive integrated
employment, including 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 include a specific
reference to subsistence.
Changes: None.
Integrated Location--General
Comments: As stated in the introduction to this section, the
majority of commenters who commented on the definition of ``competitive
integrated employment'' focused on the integrated location component of
the definition in proposed Sec. 361.5(c)(9)(ii), which requires that
the individual perform work in a location that meets two distinct
criteria. The location must be a setting: (1) Typically found in the
community; and (2) 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 the employee) to the same extent that employees who are not
individuals with disabilities and who are in comparable positions
interact with these persons.
Of the commenters who strongly supported the criteria, several
requested that we make additional changes to this particular component
of the definition by: (1) Adding language that the criteria should not
be used to exclude individuals from the VR program due to concerns
about their ability to meet the standard, and emphasizing that
individuals with disabilities, including those with the most
significant disabilities, are capable of achieving high quality
competitive integrated employment when provided the necessary skills
and supports; (2) specifically excluding from the scope of the
definition employment in businesses owned by community rehabilitation
providers, group or enclave settings, affirmative industries, social
enterprises, or any other form of non-traditional work unit; and (3)
changing the term ``competitive integrated employment'' to
``competitive integrated individualized employment'' to be clear that
employment through the VR program is individualized.
Many of the commenters who opposed the integrated location criteria
in proposed Sec. 361.5(c)(9)(ii) requested that we replace them with
those in the statutory definition because they believe that: (1) Some
of the proposed criteria are not mandated by WIOA; (2) some of the
proposed criteria are too strict and would result in the loss of
employment opportunities that pay good wages and benefits; and (3) the
statutory language would maintain work options and choice for
consumers.
Some commenters inquired about the impact of the definition on the
employment, by community rehabilitation programs, of individuals with
disabilities, particularly those who are blind and visually impaired,
in managerial and other positions. These commenters stated that
employment in these positions was in an integrated location under prior
guidance issued by the Department, specifically technical assistance
circular 06-01 entitled ``Factors State Vocational Rehabilitation
Agencies Should Consider When Determining Whether a Job Position Within
a Community Rehabilitation Program is Deemed to be in an Integrated
Setting for Purposes of the Vocational Rehabilitation Program'' and
dated November 21, 2005. One commenter requested that we clarify
whether the employment of individuals with disabilities in call centers
operated by community rehabilitation providers occurs in an integrated
location.
Another commenter requested that we clarify the impact of the
criteria on employment in the business enterprise (vending) program for
individuals who are blind under the Randolph-Sheppard Act, as well as
State industries programs for the blind.
Discussion: We appreciate the strong support for Sec.
361.5(c)(9)(ii). We also recognize those comments opposing, and
requesting clarification of, the criteria. Before addressing the
specific comments, the Secretary believes, as stated in the NPRM, that
the definition of ``competitive integrated employment'' in section 7(5)
of the Act, as amended by WIOA, for the most part incorporates the
definition of ``integrated setting'' in prior Sec. 361.5(b)(33)(ii).
Therefore, the substance of the definitions of ``competitive integrated
employment'' in final Sec. 361.5(c)(9)(ii) and ``integrated setting''
in final Sec. 361.5(c)(32)(ii), for purposes of the VR program, with
respect to the integrated nature of the employment location is familiar
to DSUs and does not diverge from prior regulations, long-standing
Department policy, practice, and the heightened emphasis on competitive
integrated employment throughout the Act, as amended by WIOA.
The Secretary believes that final Sec. 361.5(c)(9)(ii) and the
explanation in the following paragraphs provide sufficient guidance to
enable DSUs to determine whether a particular work location satisfies
the definition of ``competitive integrated employment.'' The Secretary
does not believe it necessary to revise the definition by adding
language emphasizing that individuals with disabilities, including
those with the most significant disabilities, are capable of achieving
high quality competitive integrated employment when provided the
necessary services and supports. This principle is clearly expressed in
final Sec. 361.1 describing the purpose of the VR program, thereby
forming the foundation for all provisions of final part 361, including
the definition of ``competitive integrated employment.'' Therefore,
there is no need to restate the principle in the definition.
We do not believe that it is possible to identify all types of non-
integrated employment settings in the definition, as the specific
exclusion of one type of non-integrated employment setting from the
definition could result in a misperception that settings not mentioned
are within the scope of the
[[Page 55642]]
definition. Instead, we explain in the following paragraphs the
application of the integrated location criteria to these types of work
settings. When the criteria are properly applied by DSUs, group and
enclave employment settings operated by businesses formed for the
purpose of employing individuals with disabilities will not satisfy the
definition of ``competitive integrated employment.'' Therefore, the
Secretary disagrees with the recommendation to add language to the
definition expressly excluding from the scope of the definition
employment in businesses owned by community rehabilitation providers,
group and enclave settings, affirmative industries, social enterprises,
and other forms of non-traditional work settings.
In addition, we disagree with the recommendation to change the term
``competitive integrated employment'' to ``competitive integrated
individualized employment.'' Section 7(5) of the Act, as amended by
WIOA, defines ``competitive integrated employment,'' and that
definition forms the basis for the definition in final Sec.
361.5(c)(9). Moreover, the many provisions of the Act and the final
regulations in final part 361, including those governing the selection
of an employment outcome, the vocational rehabilitation services
provided, the exercise of informed choice, and the closure of an
individual's service record, underscore the individualized nature of
the VR program, thereby making it unnecessary to add the word
``individualized'' to the term ``competitive integrated employment'' in
these final regulations.
Furthermore, the Secretary disagrees with the commenters'
recommendation that we replace the regulatory criteria in proposed
Sec. 361.5(c)(9)(ii) with the statutory criteria, verbatim, in section
7(5)(B) of the Act, as amended by WIOA. As stated in the NPRM, the
integrated setting criteria in proposed Sec. 361.5(c)(9)(ii), although
not verbatim, are nevertheless consistent with the statutory definition
in section 7(5)(B) of the Act, as amended by WIOA, with respect to the
integrated nature of the employment setting, and, in turn, are
consistent with the definition of ``integrated setting'' in prior Sec.
361.5(b)(33)(ii). Also in light of the consistency of section 7(5)(B)
of the Act with the prior regulatory definition of ``integrated
setting,'' as well as the Department's long-standing interpretation of
that definition, the Secretary does not believe that the criteria in
the statutory definition of ``competitive integrated employment'' would
permit within its scope work options that would not have satisfied the
criteria in prior Sec. 361.5(b)(32)(ii). There is no indication in the
Act, as amended by WIOA, or the limited legislative history, that
Congress intended to narrow the scope of the integrated setting
criterion of the definition of ``competitive integrated employment.''
Therefore, the Secretary believes the definition of ``competitive
integrated employment'' in final Sec. 361.5(c)(9)(ii), while not
verbatim, is nonetheless consistent with the Act, prior regulations,
and long-standing Department policy. This means employment that would
have satisfied the definition of ``integrated settings'' in prior
regulations and Department guidance would satisfy the definition of
``competitive integrated employment'' in these final regulations.
We emphasize that it is the DSU's responsibility to apply final
Sec. 361.5(c)(9)(ii) in a manner consistent with long-standing
Departmental policy. The DSU must apply the criteria equally to any
position, whether it involves the management or administration of, or
the production and delivery of goods and services by, the organization,
and without regard to the type of business operation, such as, but not
limited to, a call center within a community rehabilitation program,
the manufacture of office supplies by a State industries program for
individuals who are blind, or a contract for landscaping services. The
criteria contained in final Sec. Sec. 361.5(c)(9)(ii) and
361.5(c)(32)(ii) provide important clarifications that are necessary to
better enable a DSU to determine, on a case-by-case basis, whether a
particular position in an organization's specific work unit is in an
integrated location.
The Randolph-Sheppard Act provides opportunities for self-
employment and entrepreneurship in the community to individuals who are
blind. As a form of self-employment and business ownership, the
outcomes of individuals in the vending facilities established under the
Randolph-Sheppard Act are deemed to be in integrated settings and
specifically within the definition of ``employment outcome'' in final
Sec. 361.5(c)(15).
Changes: None.
Typically Found in the Community
Comments: One commenter stated that work opportunities established
by community rehabilitation programs specifically for the purpose of
employing individuals with disabilities in the community constitute an
integrated setting, and that these jobs enable people to become more
self-sufficient and live a more rewarding life.
A few commenters asked whether the criteria would prohibit the
employment of individuals with disabilities in work settings operated
by community rehabilitation providers that exclusively serve other
persons with disabilities (e.g., group homes, inclusive child care
centers, adult day programs, or peer support programs), because these
locations are not typically found in the community or do not afford the
level of interaction among individuals with and without disabilities
required by the definition.
One commenter specifically addressed the criterion requiring the
work location to be a setting typically found in the community, stating
that the criterion does not exist in the statutory definition and it
would limit opportunities for individuals with disabilities to
participate in new and innovative employment models and businesses that
are not yet typical. The commenter recommended that we remove this
requirement.
Discussion: The Secretary has incorporated language contained in
the prior regulatory definition of ``integrated setting'' requiring
that the work location be in ``a setting typically found in the
community,'' meaning that an integrated setting must be one that is
typically found in the competitive labor market. This long-standing
Departmental interpretation is consistent with the Act, as amended by
WIOA, as well as with express congressional intent as set forth in
prior legislative history. Specifically, integrated setting ``is
intended to mean a work setting in a typical labor market site where
people with disabilities engage in typical daily work patterns with co-
workers who do not have disabilities; and where workers with
disabilities are not congregated . . .'' (Senate Report 105-166, page
10, March 2, 1998). Nothing in the Act suggests that Congress intended
a different interpretation of the integrated setting criterion in the
amendments made by WIOA. Rather, Congress demonstrated a continuation
of this interpretation by incorporating into the statute, almost
verbatim, a criterion from prior Sec. 361.5(b)(33)(ii) into the
definition of ``competitive integrated employment'' in section 7(5)(B)
of the Act. Therefore, the Secretary maintains the long-standing
Departmental policy that settings established by community
rehabilitation programs specifically for the purpose of employing
individuals with disabilities (e.g., sheltered workshops) do not
constitute integrated settings because these settings are not typically
found in the competitive labor market--the first of two criteria that
must be satisfied if a DSU is to
[[Page 55643]]
determine that a work setting is an integrated location under final
Sec. 361.5(c)(9).
As we made clear in the discussion of Integrated Location--General
previously and have stated in long-standing Departmental policy, DSUs
must apply the integrated location criteria in a consistent manner and
on a case-by-case basis to any work setting, including settings
operated by community rehabilitation providers that exclusively serve
other persons with disabilities (e.g., group homes, inclusive child
care centers, adult day programs, or peer support programs).
Nonetheless, we note that the settings described in the comments,
though formed for the unique purpose of serving individuals with
disabilities, have not been established for the purpose of employing
them. Thus, the settings in question in the comments would appear to
satisfy the first criterion that the setting is typically found in the
community. If this is the case, it would remain for the DSU to
determine if the setting is one in which the employee with the
disability interacts with employees without disabilities in the work
unit and across the work site to the degree that employees without
disabilities in similar positions interact with these same persons.
With respect to the comment specifically about proposed Sec.
361.5(c)(9)(ii)(A), which requires that the location be a setting
typically found in the community, the Secretary disagrees with the
commenter's request to remove the criterion from the definition. The
criterion does not exclude from competitive integrated employment any
innovative or unique business models that otherwise satisfy the
definition's criteria. Instead, the Secretary interprets the criterion
to be more narrowly focused on the purpose for which the business is
formed. As explained earlier, businesses established by community
rehabilitation programs or any other entity for the primary purpose of
employing individuals with disabilities do not satisfy this criterion,
and, therefore, are not considered integrated settings, because these
settings are not within the competitive labor market. The Department
has long considered several factors to typically distinguish positions
in these types of businesses from those that satisfy the criterion. The
factors that generally would result in a business being considered
``not typically found in the community,'' include: (1) The funding of
positions through Javits-Wagner-O'Day Act (JWOD) contracts; (2)
allowances under the FLSA for compensatory subminimum wages; and (3)
compliance with a mandated direct labor-hour ratio of persons with
disabilities. It is the responsibility of the DSU to take these factors
into account when determining if a position in a particular work
location is an integrated setting.
Changes: None.
Level of Interaction Among Individuals With and Without Disabilities
Comments: Of those commenters who commented specifically on the
level of interaction among individuals with and without disabilities,
one commenter asked that we include language to require individuals
with disabilities to interact with other employees and individuals
without disabilities to the same extent that employees without
disabilities paid directly by the employer interact with these persons.
The commenter stated that the additional language would help to
emphasize that individuals can exercise informed choice in the
selection of service providers under the VR program.
One commenter suggested that we define ``integrated location'' as a
ratio of individuals with disabilities and individuals without
disabilities, stating that true integrated employment consists of a mix
of workers with and without disabilities.
Another commenter recommended that we adopt the prior Departmental
guidance in technical assistance circular 06-01 mentioned in the
Integrated Location--General discussion. The commenter believed that
the guidance required DSUs to give equal weight to the interaction of
individuals with disabilities with other individuals without
disabilities, including employees in the work unit and across the work
site, and customers as well as vendors.
Discussion: In response to those comments addressing proposed Sec.
361.5(c)(9)(ii)(B), the second criterion of integrated location,
section 102(d) of the Act and final Sec. 361.52 require that
individuals be able to exercise informed choice in the selection of
service providers. Therefore, it is not necessary to amend the
definition to require that individuals with disabilities interact with
employees and other persons without disabilities to the same extent
that employees without disabilities paid directly by the employer
interact with these persons. We do not believe that including the
additional language in final Sec. 361.5(c)(9)(ii)(B) would further
protect the ability of individuals to choose among service providers.
The Secretary appreciates the commenter's recommendation that we
revise this criterion and define an integrated setting as being
comprised of a ratio (not specified by the commenter) of employees with
disabilities in comparison to individuals without disabilities. Since
``integrated setting'' was first defined in VR program regulations, we
have considered how best to capture the intent of Congress and long-
standing Department policy in its criteria. In doing so, we considered
whether to establish a numerical ratio and have rejected this as
impractical and unworkable. Given the many and varied types of
employment settings in today's economy, we cannot determine a single
ratio that could be used to satisfactorily determine the level of
interaction required to meet the intent underlying the definition.
Rather than using a numerical standard, we believe that an ``integrated
setting'' is best viewed in light of the quality of the interaction
among employees with disabilities and persons without disabilities when
compared to that of employees without disabilities in similar
positions, and have not added a numerical ratio to final Sec.
361.5(c)(9).
The Secretary disagrees with the commenter's interpretation of the
prior guidance provided in technical assistance circular 06-01 and the
assertion that factors such as the level of interaction of employees
with disabilities with other employees in the work unit and across the
work site, as well as with customers and vendors, should be weighted
equally. As stated in the NPRM, the Secretary believes the focus of
whether the setting is integrated should be on the interaction between
employees with and without disabilities, and not solely on the
interaction of employees with disabilities with people outside of the
work unit. For example, the interaction of individuals with
disabilities employed in a customer service center with other persons
over the telephone, regardless of whether these persons have
disabilities, would be insufficient by itself to satisfy the
definition. Instead, the interaction of primary consideration should be
that between the employee with the disability and his or her colleagues
without disabilities in similar positions.
Changes: None.
Work Unit
Comments: Commenters supporting and opposing the integrated
location criteria commented specifically on the use of ``work unit'' in
final Sec. 361.5(c)(9)(ii)(B). Some in support requested that we
clarify the meaning of the term with respect to the numbers of
individuals with disabilities as compared to those without disabilities
[[Page 55644]]
to ensure that the standard is consistently applied to work units of
different sizes, and the effect of the term on the ability of
individuals to choose to work alone. One commenter suggested that we
clarify that the employment of individuals with disabilities in non-
traditional work units who perform their duties of the position in
isolation or separate from other employees in the work unit satisfies
the definition of ``competitive integrated employment'' as long as all
other criteria are met.
A few commenters asked whether ``work unit'' refers to all
employees in a certain job category or program, or to groups of
employees working together to accomplish tasks. These commenters stated
that certain categories of employees (such as temporary office workers
and certain kinds of contract workers) regularly interact with others
within the work site (including other employees, customers, or
vendors), but do not work side by side or in collaboration with others
within the same job category. Similarly, a few commenters requested
that we clarify the effect of the criteria on employment in scattered
work sites.
Of those in opposition, some requested that we remove ``work unit''
from the definition because they were concerned that its use prohibits
mobile work crews and enclaves unless very restrictive criteria are
met, and that if Congress had intended to eliminate group work
opportunities, it would have done so in the law. Other commenters
requested clarification of the effect of the term on group employment
under the JWOD Act commonly used in Ability One and long-term
commercial contracts, stating that these settings provide well-paying
jobs for persons with the most significant disabilities.
Discussion: In response to those comments that address the use of
the term ``work unit,'' the Secretary disagrees with the recommendation
to remove the term from the definition because it properly focuses the
consideration of the interaction of the individual with the disability
with employees without disabilities within the environment in which the
work is performed. As used in the definition, ``work unit'' may refer
to all employees in a particular job category or to a group of
employees working together to accomplish tasks, depending on the
employer's organizational structure. In addition, its use is consistent
with prior guidance issued by the Department. The Secretary emphasizes
that the Department has long maintained that the interaction required
between employees with disabilities and employees without disabilities
is not dependent on the number of individuals in the work unit and that
the criterion must be applied consistently to work units of any size.
The Department also has long-held that the interaction between
employees with and without disabilities need not be face to face. Nor
do we interpret the criterion as necessarily excluding employment
settings in which individuals work alone, such as telecommuting,
temporary employment, and work in mobile or scattered locations, from
the scope of the definition of ``competitive integrated employment,''
so long as the employee with the disability interacts with employees of
the employer in similar positions and interacts with other persons
without disabilities to the same extent that employees without
disabilities interact with others.
As stated earlier in this section, the Department has long
considered the funding of positions through JWOD contracts to be a
distinguishing characteristic when determining if a business is
typically found in the community. Likewise, the use of the term ``work
unit'' in the definition does not change its application with respect
to the required interaction among employees with and without
disabilities in the work setting. Entities that are set up specifically
for the purpose of providing employment to individuals with
disabilities will likely not satisfy the definition's criteria. The
high percentage of individuals with disabilities employed with these
entities most likely would result in little to no opportunities for
interaction between individuals with disabilities and non-disabled
individuals. These entities, therefore, likely would be considered
sheltered or non-integrated employment sites. Nonetheless, DSUs must
apply these criteria on a case-by-case basis when determining if an
individual's employment is in an integrated location and satisfies the
definition of ``competitive integrated employment.''
Changes: None.
Interaction During Performance of Job Duties
Comments: One commenter stated that to define ``integrated
location'' as only ``the interaction between employees with
disabilities and those without disabilities that is specific to the
performance of the employee's job duties, and not the casual,
conversational, and social interaction that takes place in the
workplace'' is too narrow and may not reflect many workers' interaction
patterns in typical work settings.
Discussion: Under the definition of ``competitive integrated
employment'' and consistent with the general principles contained in
the prior definition of ``integrated setting,'' the DSU is to consider
the interaction between employees with disabilities and those without
disabilities that is specific to the performance of the employee's job
duties, and not the casual, conversational, and social interaction that
takes place in the workplace. As a result, it would not be pertinent to
its determination of an integrated setting for a DSU to consider
interactions in the lunchrooms and other common areas of the work site
in which employees with disabilities and those without disabilities are
not engaged in performing work responsibilities.
The Secretary recognizes that the application of the integrated
location criteria in the manner explained in the preceding paragraphs
will restrict the types of employment options available to individuals
with disabilities through the VR program. However, these restrictions
have been in effect since the definition of ``employment outcome'' was
last revised in 2001 and, therefore, do not reflect new Departmental
policy. Specifically, through application of the criteria, individuals
with disabilities hired by community rehabilitation programs to perform
work under service contracts, either alone, in mobile work crews, or in
other group settings (e.g., landscaping or janitorial crews), whose
interaction with persons without disabilities (other than their
supervisors and service providers), while performing job
responsibilities, is with persons working in or visiting the work
locations (and not with employees of the community rehabilitation
programs without disabilities in similar positions) would not be
performing work in an integrated setting. The Secretary believes that,
even if such group employment in a community rehabilitation program
provides for competitively paid wages, this fact does not change the
non-integrated nature of the employment and may result in a less
desirable level of integration (e.g., interaction with non-disabled co-
workers) than individual employment, which supports the autonomy and
self-sufficiency of individuals with disabilities.
In summary, the DSU must determine, on a case-by-case basis, that a
work location is in an integrated setting, meaning it is typically
found in the community, and it is one in which the employee with the
disability interacts with employees and other persons, as appropriate
to the position, who do not
[[Page 55645]]
have disabilities to the same extent that employees without
disabilities interact with these persons. Finally, the DSU is to
consider the interaction between the employee with the disabilities and
these other persons that takes place for the purpose of performing his
or her job duties, not mere casual and social interaction. We firmly
believe that the integrated location criteria within final Sec.
361.5(c)(9)(ii), when properly applied, ensure that participants in the
VR program, including individuals with the most significant
disabilities, are afforded a full opportunity to integrate in their
communities and to achieve employment available to the general public.
Changes: None.
Opportunities for Advancement
Comments: One commenter asked whether employment in which
individuals with disabilities truly do not have the opportunity to
advance in their jobs satisfies the definition of ``competitive
integrated employment,'' if the criteria regarding competitive earnings
and integrated locations are met. This commenter gave the example of a
small business.
Discussion: To ensure that the employment of persons with
disabilities is equivalent in all respects to that of persons without
disabilities, section 7(5)(C) of the Act, as amended by WIOA, and final
Sec. 361.5(c)(9)(iii) require that the employee with the disability
have the same opportunities for advancement as employees without
disabilities in similar positions, regardless of the size of the
business. This new criterion is consistent with the prior definitions
of ``competitive employment'' and ``integrated settings.'' If employees
in positions similar to that of the employee with the disability have
the opportunity to advance in their employment, the individual with the
disability must be afforded the same opportunity for this criterion of
the definition to be satisfied.
Changes: None.
Construction of a Facility for a Public or Nonprofit Community
Rehabilitation Program (Sec. 361.5(c)(10))
Comment: One commenter requested that ``construction'' and
``ongoing maintenance'' be clearly defined in the regulations.
Discussion: The term ``construction of a facility for a public or
nonprofit community rehabilitation program'' remains unchanged in
section 7(6) of the Act, as amended by WIOA, and final Sec.
361.5(c)(10).
We disagree with the recommendation that we define ``ongoing
maintenance'' in part 361. Final Sec. 361.5(c)(2)(viii) specifies such
costs, when incurred for operating and maintaining DSU facilities, may
be allowable administrative costs under the VR program. However,
ongoing costs of any kind, including ongoing maintenance costs, are not
allowable expenditures when establishing, developing, or improving a
community rehabilitation program (see final Sec. 361.5(c)(16)(iii)).
Changes: None.
Customized Employment (Sec. 361.5(c)(11))
Comments: Most commenters supported the new definition of
``customized employment'' in proposed Sec. 361.5(c)(11). A few
commenters requested that the definition include the ``discovery
phase'' of the customized employment model. A few commenters suggested
that the definition address when it is appropriate for the DSU to
consider customized employment for individuals with disabilities.
Further, these commenters stated that DSUs should use customized
employment as the last option in assisting an individual with a
disability to achieve competitive integrated employment. Another
commenter questioned whether customized employment means ``job
carving.'' Furthermore, one commenter requested that we clarify how
individuals with disabilities, who are working in customized
employment, could advance in their careers. One commenter questioned
whether an employer would want to support an individual with a
significant disability in customized employment. Another commenter
stated that customized employment should not be an unfunded mandate.
Finally, one commenter asked that we clarify the impact customized
employment might have on the performance accountability measure for the
core programs, including the VR program, in the workforce development
system under section 116 of WIOA that measures the median wage of
participants during the second quarter after they exit from these
programs. This commenter suggested that earnings from customized
employment would deflate this measure.
Discussion: We appreciate the comments supporting the new
definition of ``customized employment'' in final Sec. 361.5(c)(11).
However, we disagree with commenters who recommended that the
definition be modified to include additional requirements, such as the
inclusion of the discovery phase of the model or when a DSU must
consider customized employment for an individual. Section 7(7) of the
Act, as amended by WIOA, which defines the term ``customized
employment,'' does not include this information. Therefore, we believe
final Sec. 361.5(c)(11) is consistent with the statute and further
regulatory change is not necessary.
We disagree with the commenter that DSUs should use customized
employment as a last resort when assisting an individual with a
disability to achieve an employment outcome. We believe that customized
employment may be an option for some individuals with significant
disabilities, while, for other individuals, it may not be a viable path
to competitive integrated employment. We strongly encourage DSUs to
tailor customized employment services, like all of the services in
final Sec. 361.48(b) provided to eligible individuals under an
individualized plan for employment, to meet the unique strengths,
needs, interests, and informed choice of the individual, so that he or
she can achieve an employment outcome in competitive integrated
employment. We understand that some may have referred to customized
employment in the past as ``job carving;'' however, the Act, as amended
by WIOA, does not use that term. Therefore, we have not incorporated
the term ``job carving'' into these final regulations.
We believe it is possible for individuals with disabilities in
customized employment to advance in their careers. Individuals who
achieve competitive integrated employment through customized employment
could advance in their career with their original employers or by
seeking advancement with other employers. The definition of
``customized employment'' in section 7(7) of the Act, as amended by
WIOA, and final Sec. 361.5(c)(11) do not include any criteria
requiring an individual with a significant disability to remain in
customized employment; rather, these individuals may seek additional
vocational rehabilitation services for the purpose of advancing in
their careers through other forms of competitive integrated employment.
Customized employment is an alternative that enables individuals with
disabilities and employers the opportunity to negotiate job tasks and/
or reassign basic job duties to improve overall production in the
workplace. For employers, customized employment allows an employer to
examine its specific workforce needs and fulfill those needs with a
well-matched employee. We encourage DSUs to work with employers,
particularly those employers that have not been open to employing
individuals with significant
[[Page 55646]]
disabilities, to enable them to hire these individuals through
customized employment when appropriate.
We disagree with the commenter that customized employment is an
unfunded mandate. Customized employment services are included in the
list of allowable vocational rehabilitation services in final Sec.
361.48(b). DSUs may expend their resources, including program funds, on
supporting individuals in customized employment when appropriate.
Customized employment, as we have discussed, must lead to
competitive integrated employment. Section 116(b)(2)(A)(i)(III) of
title I of WIOA establishes a primary performance accountability
indicator for all core programs of the workforce development system,
including the VR program, that measures the median earnings of all
participants who have exited the program in the second quarter after
exit. As such, earnings from customized employment will affect the VR
program's performance, in the same manner that other earnings will do
so. We cannot assume, as the commenter suggests, that individuals in
customized employment will earn low wages.
Changes: None.
Employment Outcome (Sec. 361.5(c)(15))
Some commenters supported the definition of ``employment outcome''
in proposed Sec. 361.5(c)(15) because it is consistent with the
overall purpose of the Act, as amended by WIOA, to promote the
achievement of competitive integrated employment and self-sufficiency
by individuals with disabilities. As proposed, an ``employment
outcome'' would mean full- or part-time employment in competitive
integrated employment, or supported employment. As such, uncompensated
employment outcomes (e.g., homemakers and unpaid family workers) would
be removed from the scope of the definition for purposes of the VR
program. However, most commenters strongly opposed removing
``uncompensated employment outcomes,'' and recommended revisions or
clarifications to the proposed definition.
Statutory Basis
Comments: Most of the commenters on the proposed definition of
``employment outcome'' in Sec. 361.5(c)(15) stated that the proposed
change is contrary to congressional intent and not mandated by the Act,
as amended by WIOA. Many of these commenters requested that the
Secretary use the discretion permitted under section 7(11)(C) of the
Act to not limit the definition to compensated employment, thereby
permitting uncompensated outcomes of homemaker and unpaid family worker
to continue to count as an employment outcome under the VR program.
In addition, recognizing that WIOA amends section 102(b)(4) of the
Act to require that the individualized plan for employment contain a
specific employment goal consistent with competitive integrated
employment, a few commenters presented two arguments to support the
retention of uncompensated outcomes as an employment outcome. First,
the commenters argued that the phrase ``consistent with the Act,'' as
used in the statutory definition, does not require that all components
of the term ``competitive integrated employment'' be satisfied. In the
alternative, these commenters suggested that homemaker and unpaid
family worker outcomes satisfy the criteria for competitive integrated
employment because they are typically found in the community and the
earnings of individuals with disabilities who obtain these outcomes are
commensurate with those of non-disabled persons in similar positions.
Discussion: We appreciate the commenters' concerns and recognize
that the definition of ``employment outcome'' in proposed and final
Sec. 361.5(c)(15) will end a long-standing Department policy. We gave
considerable thought to all aspects of the issue and seriously
considered the definition in light of the comments received.
We agree with commenters that the change eliminating uncompensated
outcomes was not explicitly required on the basis of an amendment to
the statutory definition in section 7(11) of the Act, which remained
unchanged, in pertinent part, by WIOA. Nonetheless, we believe that the
Act as amended by WIOA, when read in its entirety, provides a strong
justification for the change.
We agree with the commenters that section 7(11)(C) of the Act
permits the Secretary to use his discretion to include other vocational
outcomes within the scope of the definition of ``employment outcome.''
This provision is purely discretionary, and there is no requirement
that the Secretary exercise this discretion, either to incorporate new
outcomes or to retain previously permitted outcomes. However, if the
Secretary chooses to exercise this discretion, the Secretary must do so
in a manner that is consistent with the Act.
As noted throughout the preambles to the NPRM and these final
regulations, WIOA amended the Act by emphasizing the achievement of
competitive integrated employment by individuals with disabilities,
including individuals with the most significant disabilities. The Act,
as amended by WIOA, refers extensively to competitive integrated
employment, including in the statement of the purpose for the VR
program, requirements for developing individualized plans for
employment and providing services to students and youth with
disabilities, and the limitations on the payment of subminimum wages in
new section 511. In particular, section 102(b)(4) of the Act, as
amended by WIOA, and final Sec. 361.46(a) require that the specific
employment goal identified in the individualized plan for employment be
consistent with the general goal of competitive integrated employment.
The changes made by WIOA provide a marked contrast to the Act, as
amended by the Workforce Investment Act of 1998 (WIA). Under WIA, the
emphasis in the Act was on achieving integrated employment.
Consequently, in 2001, the Secretary amended the definition of
``employment outcome'' and required that all employment outcomes in the
VR program be in integrated settings, under prior Sec. 361.5(b)(16).
In so doing, the Secretary eliminated sheltered employment as an
employment outcome. At that time, because we considered homemaker and
unpaid family worker outcomes to occur in integrated settings, these
outcomes continued to constitute an ``employment outcome,'' for
purposes of the VR program.
By contrast, given the pervasive emphasis on achieving competitive
integrated employment--not just integrated employment--throughout the
Act, as amended by WIOA, the Secretary has determined that
uncompensated employment outcomes, including homemaker and unpaid
family worker outcomes, are no longer consistent with the Act. For this
reason, the Secretary believes it is no longer an appropriate exercise
of the Secretary's discretion under section 7(11)(C) of the Act to
include uncompensated outcomes within employment outcomes in final
Sec. 361.5(c)(15).
We disagree with the commenters' argument that an ``employment
outcome'' need not satisfy all criteria of the definition of
``competitive integrated employment,'' with one narrow exception.
Section 7(11)(B) of the Act and final Sec. 361.5(c)(15) include
supported employment within the employment outcomes available to
individuals with disabilities through the VR program. Under section
7(38) of the Act, as amended by WIOA, and final
[[Page 55647]]
Sec. 361.5(c)(53), supported employment requires that the individual
be employed in competitive integrated employment or in an integrated
setting in which the individual is working on a short-term basis toward
competitive integrated employment. Thus, in limited circumstances,
individuals in supported employment may not have achieved employment
that satisfies all the criteria of ``competitive integrated
employment'' initially since they will be earning non-competitive wages
on a short-term basis. This very narrow exception is the only instance
in which the statute permits that all criteria of ``competitive
integrated employment'' need not be satisfied for an individual to
achieve an employment outcome. However, even under this narrow
exception, the expectation is that, after a short period of time, the
individual will achieve competitive integrated employment in supported
employment. It is understood, and the commenters do not argue
otherwise, that uncompensated employment, such as homemaker and unpaid
family worker outcomes, does not satisfy the definition of ``supported
employment.'' There is no expectation that the individuals will ever be
compensated in such employment.
We disagree with the first of the commenters' arguments that all
criteria of ``competitive integrated employment'' need not be satisfied
for employment to be considered competitive integrated employment. To
interpret the Act's definition of ``employment outcome'' this way would
ignore one of the three major components of the definition of
``competitive integrated employment''--competitive wages.
While we agree with the assertion that individuals with
disabilities who achieve homemaker or unpaid family worker outcomes
perform their work in settings typically found in the community and
receive no wages, as would a non-disabled homemaker or unpaid family
worker, these similarities are not sufficient to satisfy the definition
of ``competitive integrated employment.'' ``Competitive integrated
employment'' requires the payment of wages at or above the applicable
Federal, State, or local minimum wage. Neither homemakers nor unpaid
family workers earn a wage. Therefore, individuals achieving
uncompensated outcomes, such as homemakers and unpaid family workers
cannot have achieved an employment outcome in competitive integrated
employment.
Changes: None.
Informed Choice
Comments: Many commenters asserted that the definition of
``employment outcome'' in proposed Sec. 361.5(c)(15) is contrary to
the principle of informed choice and that individuals with disabilities
should have the right to choose homemaker and other uncompensated
outcomes just as do persons without disabilities.
Discussion: While we agree that section 102(d) and many other
provisions of the Act place a premium on the ability of individuals
with disabilities to exercise informed choice throughout the vocational
rehabilitation process, including the choice of an employment outcome,
we do not agree that the definition of ``employment outcome'' in final
Sec. 361.5(c)(15) is inconsistent with the individual's ability to
exercise informed choice. We have historically interpreted the statute
as allowing individuals who are participating in the VR program to
exercise informed choice among those outcomes that satisfy the
definition of ``employment outcome.'' Under these final regulations,
such outcomes must be in competitive integrated employment or supported
employment.
If an individual makes an informed choice to pursue uncompensated
employment (e.g., homemaker or unpaid family worker outcomes) or any
other outcome that does not meet the definition of ``employment
outcome'' under final Sec. 361.5(c)(15), he or she may still do so,
but not with the assistance of the VR program. In final Sec. 361.37,
the DSU is required to refer that individual to other Federal, State,
or local programs and providers that can meet the individual's needs
for related services (e.g., the State Independent Living Services
(SILS) program, Independent Living Services for Older Individuals Who
Are Blind program (OIB), Centers for Independent Living program (CIL),
and programs for the aging). In addition, final Sec. 361.37 requires
that individuals receive sufficient information concerning the scope of
the VR program and competitive integrated employment opportunities.
This information enables individuals to make a fully informed choice
regarding whether to pursue an employment outcome through the VR
program or homemaker and other uncompensated outcomes through other
sources.
We believe the definition of ``employment outcome'' in final Sec.
361.5(c)(15) ensures that the VR program promotes maximum opportunities
for individuals with disabilities, particularly those with significant
disabilities, to pursue competitive integrated employment or supported
employment options. Individuals with disabilities can achieve
competitive integrated employment or supported employment if given
appropriate services and supports and, therefore, should be informed
that they are not limited to pursuing uncompensated outcomes no matter
how significant their disabilities. Nevertheless, we recognize that
some individuals will choose to pursue such outcomes. These final
regulations require each DSU to preserve individual choice by referring
any individual who decides to pursue uncompensated outcomes, or any
other outcome that does not meet the definition of an ``employment
outcome'' in final Sec. 361.5(c)(15), to other appropriate resources
for assistance.
Changes: None.
Legitimacy of Homemaker Outcomes
Comments: Some commenters stated that the definition of
``employment outcome'' in proposed Sec. 361.5(c)(15) does not
recognize the legitimacy of homemaker occupations and devalues the work
performed by homemakers. Some commenters stated that homemaker outcomes
provide economic value for the individual or family, though the
individual does not receive direct wages. Others suggested that
homemaker outcomes allow the individual to care for other family
members who are disabled and who would otherwise be institutionalized.
Discussion: We agree with the commenters that homemakers perform
work that has an economic value for themselves and others in the home.
For example, by caring for themselves and the home, homemakers can
enable other members of the household to work outside the home and earn
an income. In addition, homemakers may care for persons with
disabilities in the household, thus helping them to remain in their
homes, rather than to reside in institutional settings. Therefore, we
emphasize that nothing in these final regulations is intended to alter
the fact that homemaker outcomes serve as a legitimate and valued
option for people with disabilities. The Secretary does not devalue the
dignity or the worth of the individuals who perform this work through
this regulatory action. Rather, the definition of ``employment
outcome'' in final Sec. 361.5(c)(15), focuses the VR program on its
statutory purpose, as set forth in section 100(a)(2)(B)--giving persons
with disabilities, including those with significant or the most
significant disabilities, the opportunity to work in competitive
integrated employment and to achieve economic self-sufficiency.
Changes: None.
[[Page 55648]]
Availability of Services
Comments: Several commenters who opposed the definition of
``employment outcome'' in proposed Sec. 361.5(c)(15) stated that the
services provided to individuals pursuing homemaker outcomes through
the VR program provide a bridge, gateway, or stepping stone to
competitive integrated employment. Many of those commenters stated that
services such as Braille training, assistive technology, mobility
training, and other home management services are essential to the
ability of individuals who are blind and visually impaired to prepare
for employment. Many commenters expressed the concern that without
homemaker services, many individuals, especially those who are blind
and visually impaired, will be unable to function, and either be shut
in their homes or forced to live in a care facility. Finally, some
commenters stated that the loss of homemaker services could result in
low self-esteem, the loss of independence, physical disease, and
depression among individuals who are blind and visually impaired.
Discussion: We strongly agree that Braille training, assistive
technology, and mobility training are critical to the independence of
individuals who are blind and visually impaired, and help to build the
foundation on which they can successfully pursue gainful employment. In
addition, we recognize that these services can enable individuals who
are blind and visually impaired to increase their confidence, as well
as their physical and psychological well-being. Most importantly, these
services always have been, and continue to be, available to individuals
with disabilities under an individualized plan for employment pursuant
to section 103(a) of the Act and final Sec. 361.48(b), so long as the
individuals are pursuing an employment outcome under final Sec.
361.5(c)(15), specifically competitive integrated employment or
supported employment. To the extent such individuals do not wish to do
so, these same services are, and always have been, available under the
independent living programs authorized by title VII of the Act.
We understand, from anecdotal evidence, that it has been the
practice of some DSUs to provide individuals who are newly blind or
experiencing significant vision loss with services designed to help
them attain homemaker outcomes, with the expectation that the
individuals will return to the VR program when they are ready to pursue
additional training and the achievement of an employment outcome.
However, DSUs must provide the vocational counseling and guidance to
help individuals pursue an employment outcome consistent with
competitive integrated employment, as required by section 102(b)(4) of
the Act, as amended by WIOA, and final Sec. 361.46(a)(1) at the outset
or refer individuals to the independent living programs under final
Sec. 361.37 depending on their individual goals. DSUs are encouraged
to deliver services such as Braille and mobility training throughout
the vocational rehabilitation process, in combination with the other
education, training, and equipment needed to achieve the identified
employment goal. In this way, DSUs can more effectively engage
individuals in the VR program and better assist them to achieve the
ultimate goal of competitive integrated employment or supported
employment.
Changes: None.
Disproportionate Impact
Comments: Many commenters stated that the change in the definition
of ``employment outcome'' in proposed Sec. 361.5(c)(15) will have a
disproportionate impact on individuals served through the VR program
who are blind and visually impaired. A few commenters requested that we
create an exception for agencies that serve individuals who are blind
if we maintain the definition as proposed.
Discussion: As stated in the preamble to the NPRM, we believe the
definition of ``employment outcome'' in final Sec. 361.5(c)(15) will
have minimal impact on most DSUs in their administration of the VR
program because, nationally, a steadily decreasing and relatively small
number of individuals exit the program as homemakers or unpaid family
workers. The data reported by DSUs demonstrate that the majority of
DSUs have been placing increased importance and emphasis in their
policies and procedures on competitive integrated employment and
supported employment outcomes, thereby deemphasizing uncompensated
outcomes. This shift in practice has been the product of the DSUs'
responding to the changes to the Act since the enactment of WIA in 1998
and reflecting that changing emphasis in their administration of the VR
program.
Nonetheless, we recognize that some DSUs, particularly those
serving individuals who are blind and visually impaired, report a
greater percentage of homemaker outcomes than others. For example, VR
agencies serving individuals who are blind and visually impaired
reported that 618 individuals obtained homemaker outcomes in FY 2014,
representing 9.8 percent of all employment outcomes for these agencies.
In comparison, all other VR agencies reported that 2,436 individuals
obtained homemaker outcomes in FY 2014, representing 1.4 percent of all
employment outcomes for these agencies. Consequently, we proposed in
the NPRM a transition period of six months following the effective date
of these final regulations to allow DSUs to complete the VR process for
individuals already pursuing homemaker outcomes under individualized
plans for employment. See the discussion on ``Transition Period'' later
in this section regarding the comments received on the proposed
transition period.
Neither section 7(11) nor any other provision of the Act, as
amended by WIOA, permits the Secretary to make an exception when
implementing the definition of ``employment outcome'' to allow DSUs
serving individuals who are blind and visually impaired to continue
assisting individuals to achieve uncompensated outcomes, such as
homemaker outcomes, when that employment is not consistent with the
Act. Therefore, there is no statutory authority to make the exception
recommended by commenters.
Changes: None.
Resources for Service Provision
Comments: Several commenters stated that services such as training
in Braille, orientation and mobility training, and the provision of
assistive technology and training in its use are not available to
individuals who are blind and visually impaired through any other
resources, such as medical insurance and one-stop delivery centers. In
particular, many commenters stated that the OIB program lacks
sufficient resources to serve the individuals who would no longer be
eligible to receive vocational rehabilitation services as a result of
the change in the definition of ``employment outcome'' in proposed
Sec. 361.5(c)(15), because, to be eligible for the VR program, an
individual must intend to achieve an employment outcome. A few
commenters asked that we request additional funds for this program. One
commenter suggested that we lower the age of eligibility for services
from the OIB program to allow younger individuals to receive these
services. Additionally, many commenters stated that other independent
living programs and providers lack the funds and qualified staff needed
to provide individuals who are blind and visually impaired with the
complex skills of Braille literacy and orientation and mobility.
Several commenters stated that the change in
[[Page 55649]]
the definition of ``employment outcome'' will result in loss of funding
needed by community rehabilitation programs to provide these vital
services.
One commenter asked if the Department would create a separate
homemaker program not directly connected to the VR program. One
commenter stated that many DSUs have entered into long-term contractual
arrangements for providing services to individuals pursuing homemaker
outcomes and requested that we exempt these arrangements from the
application of the new rule. Another commenter requested that the
Client Assistance Program (CAP) and other advocacy groups conduct
outreach to the community of individuals who are blind and visually
impaired who otherwise would have chosen homemaker outcomes.
Discussion: We recognize that medical insurance and other one-stop
delivery system programs under WIOA typically do not support training
in Braille and mobility or the provision of assistive technology for
individuals who are blind and visually impaired.
Under final Sec. 361.37(b), the circumstances when the DSU must
provide referrals to other programs and service providers for
individuals who choose not to pursue an employment outcome under the VR
program has been expanded. Similarly, final Sec. 361.43(d) expands the
requirement for the referral of individuals found ineligible for
vocational rehabilitation services, or determined ineligible subsequent
to the receipt of such services, to include appropriate State, Federal,
and local programs, and community service providers (e.g., the SILS
program, OIB program, CILs, and programs for the aging) better suited
to meet their needs.
Those programs designed to meet the needs of individuals who choose
to pursue homemaker outcomes include the OIB program, the only program
authorized under title VII of the Act, as amended by WIOA, which
remains under the administration of the Department. There is no
authority, in either title I or VII, to permit DSUs to use VR program
funds to provide OIB program services in order to alleviate any
deficiencies in OIB funding, which may result from an increase in the
number of individuals seeking services from the OIB program following
the change in the employment outcome definition for purposes of the VR
program. However, the Administration has requested a $2.0 million
increase over the 2016 level for the OIB program in the fiscal year
2017 President's Budget to assist States in meeting an anticipated
increase in the demand for OIB services. The Department will consider
increases in the demand for OIB program services resulting from this
rule change in future budget requests.
We recognize that some CIL staff may not possess the skills
necessary to provide individuals who are blind and visually impaired
the specialized training and services that will enable them to remain
in their homes and care for themselves, such as training in Braille and
orientation and mobility. Therefore, we strongly encourage DSUs to
strengthen their relationships with the CILs in their States by
providing training and technical assistance necessary to build the
capacity of the staff that will afford them the option to deliver these
services in accordance with the State Plan for Independent Living
developed in the State. The Department will support these efforts
through technical assistance in collaboration with the Department of
Health and Human Services, which is now responsible for the
administration of the Centers for Independent Living program under
title VII of the Act, as amended by WIOA.
We disagree that the change in the definition necessarily will
result in a loss of funding for community rehabilitation programs to
provide homemaker services. Although DSUs may no longer use VR program
funds to purchase these services from community providers, they may use
other program funds to do so, such as those for the OIB programs.
In response to the comment requesting an exemption for existing
contractual relationships between the DSUs and other entities to assist
individuals with disabilities to achieve outcomes in uncompensated
employment, once final Sec. 361.5(c)(15) takes effect a DSU cannot
contract with another entity to assist an individual with a disability
to achieve an uncompensated outcome, such as homemaker or unpaid family
worker. There is no statutory authority that would permit an exemption
to the prohibition. However, as discussed in more detail in the
Transition Period section, DSUs are able to use VR program funds to
continue to engage in contractual arrangements for providing services
to individuals with disabilities who are already in the process of
pursuing homemaker and other uncompensated employment outcomes under
individualized plans for employment approved prior to the effective
date of these final regulations.
While we understand the concern raised by the commenter who
requested a lower eligibility age for the OIB program, title VII of the
Act, as amended by WIOA, retains the eligible age of 55 for OIB program
services in the statute; therefore, the Department is not authorized to
change the age of eligibility. Nor does the Act, as amended by WIOA,
authorize the creation of a homemaker program separate from the VR
program.
While we appreciate the commenter's recommendation that the CAP
should provide outreach services to individuals affected by the
implementation of the revised definition of ``employment outcome,''
section 112 of the Act requires, as it always has, the CAP to provide
information and advocacy services to individuals who are applicants or
consumers of the VR program or any other program under the Act. The CAP
may provide information and advocacy services for those individuals
pursuing uncompensated outcomes who are served by the VR program during
the transition period or served by the OIB or independent living
programs after the transition period. However, no authority exists in
section 112 of the Act to permit the CAP to conduct outreach to, or to
serve, individuals pursuing uncompensated outcomes under programs not
authorized by the Act. Although the Department is no longer responsible
for the administration of the CIL and SILS programs, these programs
continue to be authorized under title VII of the Act, and therefore the
CAP can provide assistance to individuals receiving independent living
services.
Changes: None.
Feasibility Studies
Comments: Some commenters recommended that we conduct a study of
homemaker closures to address problems of overuse and that the
definition of ``employment outcome'' include strict criteria to prevent
overuse.
One commenter asked whether the Department had conducted a
feasibility study to determine if the referral of individuals from VR
to other service providers would reasonably result in the provision of
services.
Discussion: We have not conducted, nor do we intend to conduct, a
study of homemaker closures to address problems of overuse. A study to
ensure DSUs do not overuse uncompensated outcomes is not necessary
because such outcomes will no longer be permitted under the VR program
once these final regulations take effect and the transition period
ends. For the same reason, we do not believe it necessary to change
Sec. 361.5(c)(15) to prevent the overuse of
[[Page 55650]]
homemaker and unpaid family worker outcomes.
However, we intend to monitor State implementation of the final
regulations during our annual review and periodic on-site monitoring of
State VR agencies to ensure that persons with significant disabilities,
including those who are blind and visually impaired, receive vocational
rehabilitation services in pursuit of competitive integrated employment
or supported employment. Additionally, we will review the steps DSUs
are taking to ensure that individuals are appropriately referred under
final Sec. Sec. 361.37(b) and 361.43(d), to other Federal, State, and
local programs and providers (e.g., the SILS program, OIB program,
CILs, and programs for the aging) that are better able to meet the
needs of individuals with disabilities who desire to receive homemaker
services. If needed, the Department will consider providing technical
assistance to DSUs to enable them to build better relationships with
these other entities to increase the potential for successful
referrals.
Changes: None.
Transition Period
Comments: A few commenters supported the Department's proposed
transition period of six months following the effective date of the
final regulations, during which DSUs would finish providing vocational
rehabilitation services to, and close the service records of,
individuals pursuing uncompensated outcomes, such as homemakers and
unpaid family workers, through individualized plans for employment that
were approved prior to the effective date.
Some commenters stated that six months would not be long enough to
finish providing services and close these service records or to develop
relationships with providers of independent living services to which
the DSUs could refer these individuals. Of these commenters, some
recommended that the Department extend the proposed transition period
to 12 months following the effective date of the final regulations,
while some others recommended 18 or 24 months.
However, most commenters who commented on the proposed transition
period recommended that we adopt a flexible period that DSUs would
determine case by case, taking into account the needs of the
individual. Finally, one commenter recommended that we permit DSUs to
provide vocational rehabilitation services to individuals with the goal
of homemaker on their individualized plans for employment without
regard to the duration of the services, but that we not allow DSUs to
implement new individualized plans for employment with the goal of
homemaker following the effective date of the final regulations.
Discussion: To permit DSUs to develop individualized plans for
employment that include uncompensated employment goals, such as those
of homemakers and unpaid family workers, after the effective date of
these final regulations would be inconsistent with the Act, as amended
by WIOA. Section 102(b)(4) of the Act, as amended by WIOA, and final
Sec. 361.46(a), require all individualized plans for employment
developed under the Act to include employment goals consistent with the
general goal of competitive integrated employment.
However, we do agree with commenters that DSUs may need longer than
six months following the effective date to finish providing services to
some individuals who are already pursuing homemaker or other
uncompensated outcomes on individualized plans for employment that were
developed and executed prior to the effective date. Data obtained
through the RSA-911 case service report show that, on average,
individuals with disabilities take approximately 24 months to complete
the vocational rehabilitation process from the time they apply for
services until their service records are closed. These data also
demonstrate that individuals who are 55 years and older and blind take
approximately 21.5 months to complete the vocational rehabilitation
process from the time that they apply for services.
Therefore, the Secretary has concluded that DSUs may continue to
provide services to individuals with uncompensated employment goals on
their individualized plans for employment that were approved prior to
the effective date of the final regulations through June 30, 2017,
unless a longer period of time is required based on the needs of the
individual, as documented in the individual's service record.
The Secretary believes that DSUs can finish providing services to,
and close the service records of, most individuals pursuing homemaker
and other uncompensated outcomes during this transition period.
However, a DSU can determine on a case-by-case basis, taking into
consideration the unique needs of each individual, that the DSU cannot
complete the provision of services within that time frame and,
therefore, may continue the services until the individual no longer
needs them. For example, services may be interrupted and, consequently,
the DSU cannot complete the services prior to June 30, 2017. For this
and other reasons, the DSU may extend the provision of services beyond
June 30, 2017, until they are completed and the individual's service
record is closed.
By extending the transition period, DSUs will have sufficient time
to develop and strengthen their relationships with other governmental
and nonprofit providers of independent living services so that DSUs may
make appropriate referrals to these providers and individuals with
disabilities can receive the services they need to maintain their homes
and independence. The Department plans to provide guidance and
technical assistance to: (1) Facilitate the transition to the new
definition of employment outcome; and (2) minimize the potential
disruption of services to VR program consumers currently receiving
services and who do not have a competitive integrated employment or
supported employment goal reflected in their individualized plan for
employment.
Finally, all participants who exit the VR program after July 1,
2016, including those exiting in uncompensated employment, such as
homemakers and unpaid family workers, must be included in the
calculations of the performance accountability measures established in
section 116(b)(2)(A)(i) of title I of WIOA and explained more fully in
the joint performance information collection request. The performance
accountability requirements of section 116 of WIOA take effect July 1,
2016.
Changes: We have included a note in final Sec. 361.5(c)(15)
allowing for a transition period to permit a DSU to continue services
to individuals with uncompensated employment goals on their approved
individualized plans for employment prior to the effective date of the
final regulations until June 30, 2017, unless a longer period of time
is required based on the needs of the individual with the disability.
Extended Services (Sec. 361.5(c)(19))
Comments: A few commenters were concerned that the provision of
extended services to youth with the most significant disabilities will
cause an undue hardship for some DSUs. A few other commenters
understood the proposed changes to mean that the DSUs were responsible
for funding all individuals in extended services even after the
individual transitions from the DSU for support.
Discussion: Final Sec. 361.5(c)(19)(iv) specifies that ``extended
services'' are those services provided to individuals with the most
significant disabilities, which may include youth with the most
[[Page 55651]]
significant disabilities, by a State agency, a private nonprofit
organization, employer, or any other appropriate resource once an
individual has concluded support services from the DSU. The definition
of ``extended services'' in final Sec. 361.5(c)(19)(v) specifies that
the DSU provides extended services only to ``youth with the most
significant disabilities'' for a period not to exceed four years or
until such time as a youth reaches the age of 25 and no longer meets
the definition of a ``youth with a disability'' under final Sec.
361.5(c)(58). For further information on the provision of extended
services in accordance with final Sec. Sec. 363.4 and 363.22, see the
Analysis of Comments and Changes section for the Supported Employment
Program in 34 CFR part 363.
Changes: None.
Indian; American Indian; Indian American; Indian Tribe (Sec.
361.5(c)(25))
Comments: Many commenters disagreed with expanding the definition
of ``Indian tribe'' to make tribal organizations eligible for AIVRS
grants. Most of these commenters requested that we establish policies
that give tribal governments the authority to designate those tribal
organizations or entities acting on their behalf as applicants or
recipients of AIVRS funding.
Discussion: We provide a detailed analysis of these comments in a
separate regulatory action implementing the amendments made by WIOA to
miscellaneous programs under the Act, including the AIVRS program,
published elsewhere in this issue of the Federal Register.
Changes: None.
Informed Choice
Comments: Some commenters requested that we define ``informed
choice.''
Discussion: We disagree with the recommendation to define
``informed choice'' in final Sec. 361.5(c). Section 102(d) of the Act
and final Sec. 361.52 fully describe the critical aspects of informed
choice in the context of the VR program and reflect the statutory
emphasis that individuals participating in the VR program must be able
to exercise informed choice throughout the entire rehabilitation
process.
Changes: None.
Supported Employment Definitions
Comments: We received comments on the definitions of ``supported
employment'' and ``supported employment services'' in proposed
Sec. Sec. 361.5(c)(53) and 361.5(c)(54), respectively, concerning the
short-term basis period, transitional employment, and the duration of
supported employment services.
Discussion: We discuss these comments later in the Analysis of
Comments and Changes section for the Supported Employment Program in
final 34 CFR part 363.
Transition-Related Definitions
Comments: We received comments on definitions pertaining to the
transition of students and youth with disabilities from school to
postsecondary education and employment, including ``pre-employment
transition services,'' ``student with a disability,'' ``transition
services,'' and ``youth with a disability.''
Discussion: We discuss these comments in section B later in this
Analysis of Comments and Changes section of the preamble.
Submission, Approval, and Disapproval of the State Plan (Sec. 361.10)
Content and Submission of the VR Services Portion of the Unified and
Combined State Plan
Comments: Apart from public comments received on the joint
regulations proposed by the U.S. Departments of Labor and Education
implementing jointly administered requirements for the Unified or
Combined State Plan, we received comments on proposed Sec. 361.10
pertaining to the VR services portion of the Unified or Combined State
Plan. Many commenters expressed support for the revised State Plan
requirements and process as described in the proposed joint
regulations, noting the regulations promote an opportunity for
collaboration across the workforce development system. Additionally,
these commenters requested technical assistance and guidance to clarify
the State Plan process.
One commenter requested that we clarify the meaning of ``The VR
services portion of the State Plan'' and asked whether this is in fact
a separate program-specific component of the Unified or Combined State
Plan. This commenter previously submitted a Unified State Plan in which
the vocational rehabilitation components of the plan were interspersed
throughout the overall plan. One commenter asked whether the proposed
joint regulation in 34 CFR 676.130(f), which requires the RSA
Commissioner to approve the VR services portion of the Unified or
Combined State Plan before the Secretaries of Labor and Education
approve the Unified or Combined State Plans, means that DSUs will have
separate timelines for the submission of the VR program-specific
components of the plan.
Discussion: We appreciate the commenters' support, as well as the
requests for clarifications. Final Sec. 361.10 implements section
101(a)(1) of the Act, as amended by WIOA, which requires a State to
submit a Unified or Combined State Plan under section 102 or section
103, respectively, of title I of WIOA, in order to receive funding
under the VR program. The Unified or Combined State Plan must contain a
VR services portion. Section 101(a)(1) of the Act, as amended by WIOA,
and final Sec. 361.10(a) require the VR services portion of the
Unified or Combined State Plan to contain all State Plan requirements
under section 101(a) of the Act. Prior to the enactment of WIOA, DSUs
submitted a stand-alone State Plan directly to the Department. Under
WIOA, the VR services portion will be submitted as part of the Unified
or Combined State Plans by the State to the Secretary of the U.S.
Department of Labor, who will distribute the plans to the other Federal
agencies responsible for their review and approval, including the
Department of Education with respect to the review and approval of the
VR services portion of the plans.
The ``Required Elements for Submission of the Unified or Combined
State Plan and Plan Modifications Under the Workforce Innovation and
Opportunity Act,'' recently approved by the Office of Management and
Budget under control number 1205-0522, presents the VR services portion
of the Unified or Combined State Plan as a distinct component of the
plan. The timelines for submission of the Unified or Combined State
Plan, and, hence, the VR services portion of that plan, are governed by
sections 102 and 103 of title I of WIOA, and the joint final
regulations published elsewhere in this issue of the Federal Register.
Thus, there is no statutory authority to establish a separate timeline
or date for the submission of the VR services portion of the plan,
despite the fact that the Commissioner must approve the VR services
portion before the Secretaries of Labor and Education approve the
remainder of the plans.
Changes: None.
Alignment of Program and Fiscal Years
Comments: Many commenters were interested in how the new timelines
for the submission and modification of the Unified and Combined State
Plans will be aligned with the specific requirements of the VR services
portion of the Unified or Combined State Plan, including reporting
requirements, performance levels, and the difference
[[Page 55652]]
between the start of the program year on July 1 for the purposes of
requirements under title I of WIOA versus the start of the Federal
fiscal year on October 1 when the VR program formula grants are issued
in accordance with the Act. A few commenters supported the alignment of
the program years under the Unified and Combined State Plans among all
core programs in the workforce development system, including the VR
program.
Discussion: While we understand the concern expressed by commenters
regarding the potential confusion caused by differences between the VR
program's fiscal year and the other core programs' program year,
section 110(a)(2)(A) of the Act, which specifies the manner in which VR
program allotments are to be made, was not amended by WIOA. Moreover,
section 111(a)(1) of the Act, which also remained unchanged by WIOA,
requires that payments are made to States on a Federal fiscal year
basis. This provision is consistent with section 101(a)(1), which
requires States to submit a VR services portion of a Unified or
Combined State Plan to receive funding ``for a fiscal year.'' Finally,
section 101(a)(10) of the Act, as amended by WIOA, requires the DSU to
submit certain data to demonstrate the annual performance of the VR
program, within the same fiscal year in which the VR program operates.
For these reasons, there is no statutory authority to change the period
for making allotments to the States from the fiscal year beginning on
October 1 to the program year used under title I of WIOA, which is July
1 of each year for most core programs.
In order to align the VR program with the other core programs to
the extent practicable, DSUs must submit the VR services portion of the
Unified or Combined State Plan and report the data required under final
Sec. 361.40 in a manner consistent with the jointly administered
requirements set forth in the joint regulations governing Unified or
Combined State Plan requirements published elsewhere in this issue of
the Federal Register. However, States will continue to receive VR
program allotments and report fiscal data through the Financial Status
Report (SF-425) in accordance with the Federal fiscal year.
Changes: None.
Other Comments
Comments: Several commenters were uncertain about the application
of common performance measures and asked whether combined partners
under a Combined State Plan would be held to the new performance
standards as well. One commenter asked whether, when there is more than
one DSU in the State, DSUs serving individuals who are blind will have
separate performance levels from DSUs serving individuals with all
other disabilities. Another commenter suggested that Unified or
Combined State Plans be posted electronically to a Web site that the
public could easily access.
We also received comments regarding the determination of
eligibility for individuals with autism and on the significance of
disability.
Discussion: The Departments of Education and Labor address these
comments in the Analysis of Comments and Changes section of the joint
final regulations implementing the jointly administered requirements
for the submission of a Unified or Combined State Plan under sections
102, and 103 of title I of WIOA and the performance accountability
system under section 116 of title I of WIOA, published elsewhere in
this issue of the Federal Register, because they apply to all core
programs in the workforce development system, not just the VR program.
We address the comments regarding the determination of eligibility
for individuals with autism and the significance of disability in the
Assessment for Determining Eligibility and Priority for Services (Sec.
361.42) section of this preamble.
Changes: None.
Requirements for a State Rehabilitation Council (Sec. 361.17)
Establishment of a State Rehabilitation Council
Comments: One commenter suggested the word ``if'' be removed from
the introductory paragraph in Sec. 361.17. This commenter suggested
that all States are required to have a State Rehabilitation Council
(SRC or Council).
Discussion: Section 101(a)(21) of the Act, which remained unchanged
by WIOA, and final Sec. 361.16 permit States to establish either an
independent State commission or an SRC. Therefore, there is no
statutory authority to mandate that States establish a Council, rather
than an independent commission. For this reason, we have not revised
the introductory paragraph in final Sec. 361.17 as the commenter
recommended, because it is consistent with the statute. However, the
Act does not prohibit a State from establishing both an independent
commission and a SRC if it chooses to do so.
Changes: None.
Additional Members
Comments: Some commenters requested that we require in Sec.
361.17(b) that the SRC include additional members, such as a
representative of the State's Council on Developmental Disabilities,
entities carrying out programs under the Assistive Technology Act of
1998 in the State, and groups of, or representing, individuals with
intellectual and developmental disabilities.
Discussion: Section 105(b)(1) of the Act, as amended by WIOA, made
only one amendment to the composition requirements of the SRC related
to the representation of the AIVRS projects in the State on the SRC.
The Act, as amended by WIOA, did not alter the composition requirements
in any other way. As a result, there is no statutory basis to require
additional representatives from other State entities. However, the Act,
as amended by WIOA, does not prohibit a State from electing to add more
members to its SRC if it determines this is appropriate.
Changes: None.
Terms of Appointment
Comments: One commenter suggested that we amend the requirements
related to terms of appointment in Sec. 361.17(e) to allow SRC members
who were appointed to fill a vacancy and serve the remainder of their
predecessor's term to be appointed to two additional consecutive full
terms.
Discussion: WIOA did not amend section 105(b)(6) of the Act or
change the requirements governing terms of appointment; therefore,
there is no statutory authority to amend these requirements in final
Sec. 361.17(e). The Department has interpreted these requirements to
permit an SRC member who completed the term of a vacating member to be
appointed for only one additional consecutive full term of three years.
This long-standing Department interpretation is consistent with
section 105(b)(6) of the Act, which limits a term to no more than three
years; however, there is no requirement that each member be appointed
for a three-year term. Under section 105(b)(6)(A)(i) of the Act, an
individual who is appointed to complete a predecessor's unfinished term
is appointed for the remainder of that term. This appointment
constitutes one full term for that individual. Section 105(b)(6)(B) of
the Act prohibits an individual from serving more than two consecutive
full terms. Therefore, if an individual is appointed to complete one
year remaining of a predecessor's term and is then reappointed for a
second full three-year term, this individual has served two full terms
even though the total number of years served is four.
Changes: None.
[[Page 55653]]
Coordination With One-Stop Centers
Comments: None.
Discussion: Section 105(c)(8) of the Act and final Sec.
361.17(h))(8) permit the SRC to perform functions in addition to those
specifically authorized in the Act and final regulations so long as
they are comparable to the specified functions. To support the
alignment of the VR program with the workforce development system as
emphasized throughout the Act and these final regulations, we clarify
that SRCs may coordinate and establish working relationships with one-
stop centers. This coordination is comparable to the coordination with
SILCs and CILs required under section 105(c)(7) of the Act and final
Sec. 361.17(h)(7).
Changes: None.
Comprehensive System of Personnel Development (Sec. 361.18)
Data Report for Comprehensive System of Personnel Development (Sec.
361.18(a))
Comments: One commenter recommended revisions to proposed Sec.
361.18(a) regarding the submission of data on the comprehensive system
of personnel development (CSPD) in the vocational rehabilitation
services portion of the Unified or Combined State Plan to reduce burden
on DSUs. Specifically, the commenter recommended that DSUs be required
to submit information about the vocational rehabilitation personnel via
pre-print assurances, rather than descriptions, and be required to
submit aggregated data, rather than disaggregated data.
Discussion: WIOA made only technical changes to section
101(a)(7)(A) of the Act, none of which increased the reporting that had
been required of DSUs for nearly 20 years. While we are sensitive to
the burden imposed by reporting requirements, there is no statutory
basis for the Department to make the changes suggested by the
commenter. Section 101(a)(7)(A) of the Act, as amended by WIOA,
explicitly mandates that DSUs provide the requisite information in a
descriptive format and the data in a disaggregated format.
Changes: None.
Applicability of Education, and Experiential Requirements to
Rehabilitation Counselors (Sec. 361.18(c)(1))
Comments: We received many comments regarding proposed Sec.
361.18(c)(1)(ii), which requires DSUs to establish, as part of a CSPD,
personnel standards for rehabilitation professionals and
paraprofessionals that include educational and experiential
requirements. Most of these commenters opposed applying this provision
to vocational rehabilitation counselors, and many of these commenters
stressed the importance of maintaining the education and experience
requirement under prior Sec. 361.18(c)(1)(i) for vocational
rehabilitation counselors. Specifically, these commenters stated that
vocational rehabilitation counselors should be required to meet a
national or State-approved or recognized certification, licensing,
registration, or other comparable requirements for the area in which
such personnel are providing vocational rehabilitation services. These
commenters strongly urged the Department to require that vocational
rehabilitation counselors meet that higher standard.
Similarly, many commenters urged that the training and education
received in a master's degree program in rehabilitation counseling
relate in a necessary, direct, and practical way to the work vocational
rehabilitation counselors do each day. These commenters asserted that
rehabilitation counseling is a professional career that requires
extensive knowledge in a very broad arena. In addition, several
commenters stressed that the educational requirements applied to
vocational rehabilitation counselors must be sufficient to ensure that
they have the following knowledge: medical and psychological aspects of
disability, counseling and guidance strategies, vocational assessment,
person-centered planning, cultural competency, career services, and
building relationships with businesses who would like to hire or retain
individuals with disabilities. These commenters maintained that all of
these skills are available to individuals pursuing a master's degree in
a program accredited by the Council on Rehabilitation Education.
Several commenters maintained that section 101(a)(7)(B)(ii) of the
Act, as amended by WIOA, and proposed Sec. 361.18(c)(1)(ii), which set
education and experience requirements of a baccalaureate degree in an
additional field of study such as business administration, human
resources, and economics, do not apply to vocational rehabilitation
counselors. These commenters strongly believe that since a national
certification exists for certified rehabilitation counselors this
provision is inapplicable for vocational rehabilitation counselors.
Some commenters stated that because there was no legislative report
accompanying WIOA, the Department cannot be certain that Congress
intended that the lower education and experience requirements in
section 101(a)(7)(B)(ii) of the Act, as amended by WIOA, apply to
vocational rehabilitation counselors. One commenter stated that
including a business degree in the credentials required for vocational
rehabilitation personnel, with respect to qualified vocational
rehabilitation counselors, was intended to be supplemental to a
Master's degree in rehabilitation counseling and does not supplant the
highest standard in the State, which in many States is the master's
degree in rehabilitation counseling. Another commenter stated that
since individuals with less experience could be paid less, they
potentially could make up a larger portion of the DSU staff. If done
correctly, the commenter stated that this could be a great opportunity
to add individuals with business and marketing backgrounds to the DSU
staff. This could also potentially help reduce caseloads, since
recipients who need assistance only with placement could go straight to
the marketing/business staff. Some commenters observed that the new
requirements appear to be based on an assumption that a counselor
should be able to work with both consumers and employers, as opposed to
a team approach where experts in counseling work with consumers and
business experts work with employers.
One commenter supported the education and experience requirements
in proposed Sec. 361.18(c)(1)(ii) because of the heightened emphasis
on employer engagement and competitive integrated employment outcomes.
This commenter stated that the proposed changes will provide an
opportunity for DSUs to adjust the level of expertise and commitment of
its personnel. The commenter also stated that establishing these
educational requirements and work experiences will ensure that program
participants are receiving quality services.
Discussion: We appreciate the many comments we received regarding
CSPD and the changes proposed in Sec. 361.18(c)(1)(ii). We appreciate
the fact that CSPD is an important issue for DSUs and their personnel
and that it represents a cornerstone of the VR program, ensuring that
individuals with disabilities receive services from staff who are
qualified to meet their individual needs.
As stated in the NPRM, proposed Sec. 361.18(c)(1)(ii) mirrors
section 101(a)(7)(B)(ii) of the Act, as amended by WIOA, with regard to
minimum education and experience requirements for vocational
rehabilitation personnel. In so doing, Sec. 361.18(c)(1)(i), both
proposed and final: (1) Retains language in prior Sec. 361.18(c)(1)(i)
regarding national and State-approved
[[Page 55654]]
certification and licensure requirements since this requirement
remained unchanged by WIOA; (2) incorporates new educational and
experiential requirements in proposed Sec. 361.18(c)(1)(ii) that range
from a baccalaureate degree with at least one year of relevant
experience to a master's or doctoral degree; and (3) deletes the
requirement in prior Sec. 361.18(c)(1)(ii) that DSUs must re-train
staff who do not meet their established personnel standards.
We agree with commenters that the higher standard in section
101(a)(7)(B)(i) of the Act and final Sec. 361.18(c)(1)(i), which had
been the only personnel standard for vocational rehabilitation
personnel prior to the enactment of WIOA, has served a critical role in
ensuring that well-qualified staff are available to provide vocational
rehabilitation services to individuals with disabilities. We understand
other lower education or experience requirements may not prepare DSU
staff in the same manner as a national or State-approved certification
or licensure for vocational rehabilitation counseling could. As
commenters indicated, programs leading to such national or State-
approved certification or licensure in vocational rehabilitation
provide vocational rehabilitation counselors with critical knowledge
and understanding of medical and psychological aspects of disability,
counseling and guidance strategies, vocational assessment, person-
centered planning, cultural competency, career services, and building
relationships with businesses who would like to hire or retain
individuals with disabilities. However, section 101(a)(7)(B) of the
Act, as amended by WIOA, requires that States establish and maintain
personnel standards, which apply to all vocational rehabilitation
professionals and paraprofessionals employed by the DSU, including both
national or State-approved certification and licensure requirements in
section 101(a)(7)(B)(i) and the education and experience requirements
in section 101(a)(7)(B)(ii). This means that the personnel standards
apply to vocational rehabilitation counselors and all other vocational
rehabilitation professionals and paraprofessionals. There is nothing in
the statute that limits the higher standard to vocational
rehabilitation counselors. Nor is there any statutory basis to preclude
a DSU from hiring a vocational rehabilitation counselor who meets the
education and experience requirements of section 101(a)(7)(B)(ii) but
not a national or State-approved certification or licensure
requirement. Final Sec. 361.18(c)(1) is consistent with the Act as
amended by WIOA.
We also agree with the commenters who supported the proposal, and
believe that the new education and experience requirements set forth in
section 101(a)(7)(B)(ii) of the Act, as amended by WIOA, and final
Sec. 361.18(c)(1)(ii) are beneficial to the VR program and the
individuals they serve.
Changes: None.
Applicability of Standards to Other Personnel
Comments: Some commenters stated that the lower educational
standards might better be applied to other vocational rehabilitation
personnel (e.g., business relations specialists, placement specialists,
etc.). One commenter said other positions (such as financial officers,
legal counsel, DSU program/division directors, and policy/regulatory
compliance officers) should be subject to requirements regarding the
development of skills and knowledge and should be required to complete
and maintain a certain amount of training regarding the provision of
rehabilitation services.
Discussion: Consistent with our interpretation of the CSPD
requirements in a NPRM published pursuant to the 1998 Amendments to the
Act, we interpret the Act to require the DSU establish and implement
appropriate, certification-based standards for all categories of
professionals and paraprofessionals needed to conduct the VR program.
However, in light of the difficulty States may experience in developing
numerous standards at the same time, we would expect DSUs to give
priority to those professions that are generally considered most
critical to the success of the VR program (65 FR 10619, 10622-10623
(Feb. 28, 2000)). This requirement under the Act, as amended by WIOA,
applies to all personnel positions listed under the State's vocational
rehabilitation classification as it had under WIA. The specific
positions covered under such a classification will vary from State to
State. With respect to financial officers and legal counsel, States
have the discretion to determine whether they are classified as
vocational rehabilitation professionals or paraprofessionals since
their classification varies between States. In many States, these
positions are not dedicated solely to the DSU and its VR program, but
rather are more general State personnel positions. We would agree that
program and division administrators and policy and regulatory
compliance officers for the DSU's VR program must be covered by the
requirement in final Sec. 361.18(c)(1).
Similarly, we would agree that the VR program director or
administrator would be covered by the CSPD requirements of section
101(a)(7)(B) because that position would be considered a vocational
rehabilitation professional or paraprofessional. The Secretary believes
that the individual who oversees vocational rehabilitation
professionals and paraprofessionals should satisfy at least the minimum
education and experience requirements applicable to all vocational
rehabilitation professionals and paraprofessionals.
We appreciate the comment regarding the personnel standards and
their applicability to vocational rehabilitation paraprofessionals.
Neither the Act nor these final regulations distinguish between
vocational rehabilitation professionals and paraprofessionals. By the
same token, neither the Act nor these final regulations define what
constitutes a vocational rehabilitation professional or
paraprofessional as opposed to an administrative staff position
providing clerical or other support to rehabilitation personnel.
The distinction among vocational rehabilitation professionals,
paraprofessionals, and administrative (e.g., clerical and other
support) staff are made at the State level in accordance with State
hiring policies and procedures. Neither section 101(a)(7)(B) of the
Act, as amended by WIOA, nor final Sec. 361.18(c)(1) require the DSU
to develop personnel standards for the hiring of staff who are not
classified as vocational rehabilitation professionals or
paraprofessionals. However, both the Act and these final regulations
require a DSU to develop personnel standards for the hiring of
vocational rehabilitation professionals and paraprofessionals that are
consistent with the standards set forth in section 101(a)(7)(B) of the
Act, as amended by WIOA, and final Sec. 361.18(c)(1).
As such, if a national or State-approved standard--or, in the
absence of such standards, other comparable requirements (e.g., State
personnel standards)--exists for such paraprofessional this should be
the standard for such personnel. However, if no such standard exists or
the DSU is unable to hire staff that meet such standard, then the DSU
must, under final Sec. 361.18(c)(1)(ii), hire vocational
rehabilitation paraprofessionals who meet standards consistent with the
education and experience levels established in the Act and these final
regulations.
Changes: None.
[[Page 55655]]
De-Professionalization and Diminution of Vocational Rehabilitation
Personnel
Comments: Several commenters stated that the proposed education and
experience requirements seemingly discount the role and impact of the
professional rehabilitation counselor working with eligible consumers
to obtain competitive integrated employment. Many stated that proposed
Sec. 361.18(c)(1)(ii)(A)(1), which permits a baccalaureate degree plus
one year of relevant experience, serves as a guideline to promote the
de-professionalization of the expertise level associated with
rehabilitation counseling and the professional provision of qualified
services for individuals with disabilities. The commenters asserted
that an individual with a baccalaureate degree, some related work
experience, or volunteer work, is not equivalent to a master's degree
level graduate who is a qualified counselor licensed to practice
counseling.
Further, at least one commenter expressed concern that the
flexibility offered by the new education and experience requirements
could lead to the unintended diminution of a vocational rehabilitation
workforce able to meet the needs of a consumer population with
significant disabilities, which is its major focus, especially as
public resources diminish. The commenter encouraged the Department to
work with DSUs and academic institutions to ensure this diminution does
not occur. The commenter stated that some of the degrees listed under
these personnel standards would be appropriate for specialized titles
such as ``business relations specialists'' but may not be appropriate
for vocational rehabilitation counselors.
Discussion: Prior Sec. 361.18(c)(1)(ii) permitted DSUs to hire
individuals who did not meet the national or State-approved standard so
long as the agency provided training to enable the individual to reach
that higher standard. While WIOA deleted the provision that allowed
DSUs to hire individuals at a lower standard so long as additional
training was provided so that the staff person could eventually satisfy
the national or State-approved standard, DSUs under final Sec.
361.18(c)(1)(ii) must ensure that individuals who do not meet the
higher standard satisfy certain statutorily-required minimum standards.
Looking at the new requirements in this way, the new educational and
experiential requirements merely set minimum hiring standards, which
previously had been left at the DSU's discretion. In this manner, we
disagree with commenters that the new provisions of section
101(a)(7)(B)(ii) of the Act, as amended by WIOA, and final Sec.
361.18(c)(1)(ii) promote the de-professionalization of the vocational
rehabilitation counselor or the diminution of the knowledge and skills
needed to meet the vocational rehabilitation needs of individuals with
disabilities.
We believe the education and experience requirements set forth in
section 101(a)(7)(B)(ii) of the Act, as amended by WIOA, and final
Sec. 361.18(c)(1)(ii) enable DSUs to hire personnel in such a manner
that results in an expansion of qualifications of staff available to
provide vocational rehabilitation services. For example, the new
education and experience requirements could enable DSUs to expand the
number of staff trained to provide certain services critical to meeting
the employment needs of individuals with disabilities and employers,
such as employment specialists or job placement specialists, thereby
increasing opportunities for employer engagement and the achievement of
competitive integrated employment outcomes by individuals with
disabilities. This broader range of acceptable education and experience
could lead to a more diverse workforce in VR agencies.
Looking at the new personnel standard requirements in this way,
they could be viewed as a means of enabling DSUs to expand the range of
qualified personnel available to provide certain services in-house
rather than having to contract for those services. DSUs could employ
sufficient qualified personnel to work in teams to meet the holistic
needs of the individuals served by the VR program, ranging from
specific disability-related services to employment-related services. We
believe this interpretation is consistent with the plain meaning of the
statutory requirements in section 101(a)(7)(B) of the Act, and the
heightened emphasis throughout WIOA on employer engagement and the
achievement of competitive integrated employment outcomes.
Changes: None.
State Job Classification Minimum Qualifications
Comments: One commenter noted the various degrees listed (e.g.,
psychology and business) in section 101(a)(7)(B)(ii) of the Act, as
amended by WIOA, and proposed Sec. 361.18(c)(1)(ii) are not typically
seen for the same position when State governments are developing
classification minimum qualifications because each of the degrees
provide individuals with different skill sets. The commenter added
that, while a DSU would need personnel with skill sets from many of the
degrees listed, it would be unreasonable to expect that a single
individual would have expertise in two or more specialized skill sets.
Some commenters stated that the standards in proposed Sec.
361.18(c)(1) should be sufficient for recruitment of vocational
rehabilitation counselors, but that the use of ``and'' between proposed
Sec. Sec. 361.18(c)(1)(i) and 361.18(c)(1)(ii) seems to imply that
additional standards must be used. They expressed concern that
requiring at least one year's paid or unpaid work in the field would
make it challenging for DSUs to recruit qualified counselors directly
from long-term training programs.
Discussion: We disagree with commenters that the degrees listed in
section 101(a)(7)(B)(ii) of the Act, as amended by WIOA, and proposed
Sec. 361.18(c)(1)(ii) necessarily will pose problems for the
development of minimum qualifications within State job classification.
While we agree that it would be unreasonable for a single job position
to list each of those degrees as a minimum qualification, it is
reasonable to post various job positions within the classification for
vocational rehabilitation counselors. As stated previously, we believe
the amendments to WIOA provide DSUs with an opportunity to employ other
personnel, such as business specialists or job placement specialists,
who could complement the critical work performed by vocational
rehabilitation counselors. In so doing, DSUs could minimize the need to
contract for these services. While final Sec. 361.18(c)(1)(ii) permits
DSUs to hire individuals with a variety of degrees, there is no
requirement or expectation that a vocational rehabilitation counselor
or any other vocational rehabilitation professional or paraprofessional
employed by the DSU be an expert in more than one area.
The education and experience requirements of section
101(a)(7)(B)(ii) of the Act apply only in those circumstances when the
DSU is not able to hire vocational rehabilitation professionals and
paraprofessionals who satisfy a national- or State-approved
certification or licensure standard. Vocational rehabilitation
counselors graduating from long-term training programs would meet a
national or State-approved standard and could be hired in accordance
with personnel standards established under section 101(a)(7)(B)(i) of
the Act, which does not require that the individual satisfy minimum
experience requirements.
Changes: None.
[[Page 55656]]
Additional or Substitute Qualifications
Comments: Two commenters recommended revising proposed Sec.
361.18(c)(1)(ii)(B) by inserting a work experience requirement similar
to that required for individuals with a baccalaureate degree as set
forth in proposed Sec. 361.18(c)(1)(ii)(A)(1).
Many commenters requested the proposed regulations be revised to
include a new provision in Sec. 361.18(c)(1)(ii) to allow a complement
of work experience, in addition to specialized training or
certification through either advanced higher education or through a
legitimately recognized association that provides specialized training
when working specifically with individuals who possess unique barriers
to independence and require unique training, such as individuals who
are blind.
Another commenter recommended that proposed Sec. 361.18(c)(1)(ii)
be revised to allow years of experience to substitute for the
identified degree(s) for paraprofessionals, which could create
reasonable flexibility. A requirement of years of experience, coupled
with staff development required by the regulations, would assure that
paraprofessionals are highly qualified to provide appropriate services
to individuals with disabilities.
Discussion: We appreciate the suggestion made by two commenters
adding minimum paid or unpaid work experience requirements for DSU
personnel hired at the master's or doctoral level. We also appreciate
the many comments recommending that, in addition to satisfying a
national or State-approved standard, work experience be required for
those personnel who work with individuals with significant barriers to
employment, such as individuals who are blind or visually-impaired.
While we agree work experience can be valuable, section
101(a)(7)(B) sets forth explicit requirements for a DSU's personnel
standards, including requirements related to minimum educational and
experiential requirements. Given the explicit nature of these
requirements, there is no statutory basis to require different or
additional personnel standards in final Sec. 361.18(c)(1).
Changes: None.
Interplay Between National or State-approved Certification or Licensure
Standards and Minimal Educational and Experiential Requirements
Comments: Many commenters requested clarification regarding the
interplay between the requirement that a State's CSPD be consistent
with a national or State-approved certification or licensure standard
in proposed Sec. 361.18(c)(1)(i) and the minimal educational and
experiential requirements in proposed Sec. 361.18(c)(1)(ii). Most of
these commenters did not support the proposed regulatory language,
stating that it is confusing to have two sets of standards for
vocational rehabilitation personnel. A few commenters questioned
whether a DSU may choose between the two standards, i.e. choose to
maintain the higher standard of Sec. 361.18(c)(1)(i) or the lower
standard of Sec. 361.18(c)(1)(ii). Similarly, some commenters
requested clarification about whether the DSUs can maintain their
current personnel standards consistent with applicable national or
State-approved or recognized certification, licensing, or registration
requirements. These commenters were concerned that including lower
standards in the regulations would force DSUs to lower their standards.
Further, some commenters stated that most States have a minimum
personnel standard that is greater than what is being proposed and
asked whether the DSUs will have to hire vocational rehabilitation
personnel at the lower educational standard.
Discussion: Contrary to the suggestions made by several commenters,
the personnel standards in section 101(a)(7)(B)(i) and (ii) are
separate and distinct requirements. Therefore, DSUs may not choose to
implement one and not the other but, rather, must develop both
standards. Under section 101(a)(7)(B)(i), States must continue to
develop personnel standards that are consistent with applicable
national or State-approved certification or licensure requirements, as
well as develop personnel standards that satisfy minimum education and
experience requirements. As has always been the case, CSPD standards do
not dictate whom a State may or may not hire. Hiring is solely a State
matter. Instead, the CSPD standards simply set parameters for the
standards a State must use in establishing its hiring procedures. There
is nothing in the Act or these final regulations to preclude a DSU from
continuing to hire vocational rehabilitation professionals and
paraprofessionals that satisfy the higher standard. However, in hiring
individuals who do not meet a national or State-approved certification
or licensure standard, DSUs must hire individuals who meet the
educational and experiential requirements set forth in section
101(a)(7)(B)(ii). These individuals must have at least a baccalaureate
degree in a specified field of study plus one year of relevant
experience, or a master's or doctoral degree in one of the fields
specified.
Further, if a vocational rehabilitation counselor is hired under
the standard set forth in final Sec. 361.18(c)(1)(i) (e.g., a standard
consistent with a national or State-approved standard), that vocational
rehabilitation counselor is not required to meet the education or
experience requirements set forth in final Sec. 361.18(c)(1)(ii) as
well. There is no requirement that an individual meet both personnel
standards set forth in final Sec. 361.18(c)(1).
Changes: None.
Succession Planning
Comments: One commenter suggested that the CSPD requirements should
address succession planning at the administrative level. The commenter
recommended that the final regulations be revised to incorporate CSPD
requirements to address the void in administrative skill and knowledge
created in DSUs by retirements.
Discussion: We agree with the commenter's concern that DSUs face a
significant loss of knowledge and skills as key personnel retire. We
note that DSUs are required, under final Sec. 361.18(d)(2)(iii), to
include succession planning in their staff development plans when
developing personnel standards and providing on-going training.
Changes: None.
Re-Training of Staff Not Meeting Personnel Standards
Comments: Several commenters expressed serious concerns about the
elimination of the requirement to re-train staff who are not meeting
the DSU's personnel standards for qualified staff, in prior Sec.
361.18(c)(1)(ii).
Discussion: While we appreciate the concern expressed by commenters
regarding the deletion of the regulatory requirement for the DSU to
provide re-training to personnel who do not meet the DSU's personnel
standards, the statutory requirement for re-training, which had been
contained in section 101(a)(7)(B)(ii) of the Act, as amended by WIA,
has been deleted by the amendments made by WIOA. Despite the deletion
of the regulatory requirement, there is nothing in the Act or these
final regulations that prohibits a DSU from making the decision to re-
train staff as the agency deems appropriate. However, there is no
statutory basis for the Department to require such re-training in these
final
[[Page 55657]]
regulations given the specific deletion of that statutory requirement.
Changes: None.
Standards of Personnel Development--Other Comparable Requirements
(Sec. 361.18(c)(1))
Comments: Several commenters recommended that the Department define
``other comparable requirements,'' which is included in the personnel
standard in section 101(a)(7)(B)(i) of the Act and proposed Sec.
361.18(c)(1)(i) and applies if there are no applicable national, State-
approved, or recognized certification, licensing, or registration
requirements. The commenters recommended that ``other comparable
requirements'' should include competence in counseling and guidance,
knowledge and application of the medical and psychological aspects of
disability, knowledge and implementation of vocational testing, working
knowledge and integration of labor market data and disability
employment policy, and providing the services required to develop and
implement individualized career plans that assist persons with
disabilities in successful employment in a competitive integrated work
environment.
Discussion: Section 101(a)(7)(B)(i) of the Act and final Sec.
361.18(c)(1)(i) require a DSU to develop personnel standards that are
consistent with any national or State-approved or recognized
certification, licensing, or registration requirements, or, in the
absence of these requirements, other comparable requirements (including
State personnel requirements) that apply to the profession or
discipline in which that category of personnel is providing vocational
rehabilitation services. While we agree with commenters that ``other
comparable requirements'' could include any of the areas suggested, we
disagree that the final regulations should define the phrase. This
phrase provides DSUs with maximum flexibility when developing personnel
standards by enabling DSUs to modify personnel standards as relevant
credentials evolve.
Changes: None.
Meaning of ``A 21st Century Understanding of the Evolving Labor Force
and the Needs of Individuals With Disabilities''
Comments: Many commenters asked for clarification of what is meant
by a 21st century understanding of the evolving labor force and the
needs of individuals with disabilities, as used in section
101(a)(7)(B)(ii) of the Act, as amended by WIOA, and in proposed Sec.
361.18(c)(2)(ii). Many commenters stated that the list of examples of
relevant personnel skills in proposed Sec. 361.18(c)(2)(ii) either did
not help clarify the meaning or was incomplete. Some commenters stated
that the list represented skills more oriented to the medical models of
the past rather than the employer focus required today. One commenter
asserted that the congressional intent behind the requirements for a
21st century understanding included a focus on employment; an
understanding of economic and job market trends, business management,
and operations; and meeting the needs of local and regional employers.
Many commenters who thought the list of examples was incomplete
suggested additions. Some were suggested because the commenters stated
that customary, but critical, skills for vocational rehabilitation
counselors had been left out of the list. Some brought a more modern
focus to the traditional topic, refining knowledge of medical and
psychological aspects of disability to include more employment-focused
use of such knowledge to determine functional limitations and the
vocational implications of these functional limitations on employment
planning and workplace accommodations.
Other commenters provided lists of skills that represented areas in
which the focus is on greater knowledge of the world of work, including
labor market trends and various sources of labor market information and
its use in selecting vocational goals and developing individualized
plans for employment. Some commenters suggested that using information
about job requirements, labor market trends, and other labor market
information would help build relationships with employers through
greater knowledge of their businesses and their employment requirements
and would also help in job development and job placement efforts.
One group of commenters suggested that a recent U.S. Government
Accountability Office (GAO) study, which identified gaps in the
knowledge of vocational counselors employed by the U.S. Department of
Veterans Affairs, could serve as a starting point for developing a list
of skills needed for the 21st century vocational rehabilitation
counselor employed by the DSU. Some skills included familiarity with
Bureau of Labor Statistics data, the Dictionary of Occupational Titles,
and the Department of Labor's O*NET occupational system; vocational
testing and assessment; job accommodations; training in the Americans
with Disabilities Act (ADA) and other employment discrimination laws;
vocational implications of various disabilities, including traumatic
brain injury, post-traumatic stress syndrome, mental illnesses, and
autism; employment plan development; Social Security work incentives,
and the Ticket to Work and Self-Sufficiency program; and knowledge of
disability programs in the State and local area, including independent
living programs.
One commenter suggested that the six areas of knowledge and skills
in proposed Sec. 361.18(c)(2)(ii) could be used to ensure vocational
rehabilitation personnel have a 21st century understanding. The
commenter stated the examples focused on critical knowledge domains and
closely mirror the knowledge domains required for accreditation by a
vocational rehabilitation counseling program. However, the commenter
expressed concern that the process of evaluating whether candidates
have the necessary knowledge and skills would be insufficient without
the assurance that the candidate graduates from an accredited
vocational rehabilitation counseling program. The commenter recommended
that the Department recognize graduates from accredited programs as
having the knowledge, skill, and experience requirements that are
necessary to provide high quality services to individuals with
disabilities.
Discussion: We appreciate the many comments and suggestions we
received about the skills and knowledge essential to ensuring a 21st
century understanding of the evolving labor force and the needs of
individuals with disabilities under section 101(a)(7)(B)(ii) of the
Act, as amended by WIOA, and in proposed Sec. 361.18(c)(2)(ii).
Lacking a widely-accepted definition of the term, we proposed several
examples in the regulations to help clarify its meaning. Most
commenters, however, stated that the examples in proposed Sec.
361.18(c)(2)(ii) were not sufficient because they did not include a
clear focus on employment or emphasize the use of the most up-to-date
techniques.
In considering what changes to make in the examples, we first
recognized that the requirements for a 21st century understanding apply
to knowledge and skills relevant to working with both employers and
individuals with disabilities. We also believe that ``21st century''
refers to maintaining a cutting edge, state-of-the-art approach to
whatever topic is included in the list, not merely maintaining
activities at traditional, established levels. These underlying
principles governed the review, selection, and wording of the examples.
[[Page 55658]]
We looked at traditional topic areas that are still necessary for
working with individuals with disabilities and employers, with the
intent to add language that suggests use of contemporary practices or
that adds emphasis on an employment focus. For example, we replaced the
previous language about knowledge of medical and psychological aspects
of disability with language about knowledge of the functional
limitations of various disabilities and the vocational implications of
these functional limitations for employment.
We considered new approaches to learn about the world of work,
large-scale employer needs (e.g., labor market trends and occupational
shortages), small-scale employer needs (e.g., specific job
requirements, soft skill requirements), and ways to use information
differently to inform traditional vocational rehabilitation practices
(such as using labor market information to assist in developing
vocational goals and employment plans, while providing informed
choice). We also took into consideration the GAO report titled ``VA
Vocational Rehabilitation and Employment: Further Performance and
Workload Management Improvements Are Needed'' (GAO-14-61) published
January 14, 2014, as well as various lists of suggested examples
provided by national organizations and endorsed by other commenters.
After considering all of the comments and suggestions received, we have
amended the examples in final Sec. 361.18(c)(2)(ii). We clarify that
the term ``apprenticeships'' as used in 361.18(c)(2)(ii)(D) does not
include Registered Apprenticeships.
In response to commenters asking whether the ``21st century
understanding'' requirement applies only to vocational rehabilitation
counselors, section 101(a)(7)(B) of the Act, as amended by WIOA, and
final Sec. 361.18(c) require the DSU to develop personnel standards
that apply to all vocational rehabilitation professionals and
paraprofessionals, not just vocational rehabilitation counselors. The
revised list of examples set forth in final Sec. 361.18(c)(2)(ii)
provides a comprehensive, but not exhaustive, list of skills necessary
for achieving employment outcomes in the 21st century. Because we
realize that States may choose to employ staff in a variety of
positions, the skills listed may be applicable to various positions in
differing ways.
Finally, as we described earlier in the Applicability of Education,
and Experiential Requirements to Rehabilitation Counselors (Sec.
361.18(c)(1)) section, we agree with the comment that accredited
programs provide vocational rehabilitation counselors with knowledge
and skills critical to providing vocational rehabilitation services to
individuals with disabilities. However, section 101(a)(7) of the Act
does not specify that individuals pursuing employment as vocational
rehabilitation counselors must obtain an undergraduate or a graduate-
level degree in rehabilitation counseling from accredited programs and
final Sec. 361.18(c) mirrors the Act in this respect. In addition, we
recognize that other DSU personnel, such as employment specialists and
job placement specialists, serve a critical role in working with
employers and individuals with disabilities. The Secretary believes all
vocational rehabilitation professionals and paraprofessionals must have
the knowledge and skills necessary to satisfy the ``21st century
understanding'' requirement.
Changes: We have substantially revised the examples in final Sec.
361.18(c)(2)(ii) to provide a more robust list of the skills and
knowledge needed to meet the needs of employers and individuals with
disabilities in the evolving 21st century labor market.
Staff Development (Sec. 361.18(d))
Comments: Several commenters requested clarification regarding
proposed Sec. 361.18(d)(1)(i), which requires, as part of the DSU's
system of personnel development, training implemented in coordination
with entities carrying out State programs under section 4 of the
Assistive Technology Act of 1998 (29 U.S.C. 3003). Some of these
commenters asked whether the purpose of this provision is to require
those entities to provide the training to the DSUs. If so, the
commenters requested that the Department revise proposed Sec.
361.18(d)(1)(i) to make that intent clear. These commenters also sought
clarification on how the training is to be coordinated with the State's
assistive technology program. Other commenters thought a Federal
``training fund'' source should be made available for the training,
regardless of who provides it. Still other commenters stated that
proposed Sec. 361.18(d)(1)(i) should be revised to require that the
DSUs fund the entities carrying out the State's assistive technology
program to provide this training.
Many commenters expressed concerns about insufficient training
funds to meet the training needs of vocational rehabilitation personnel
and requested that the Department require DSUs to allocate training
funds for any required CSPD training. The commenters were further
concerned that the potential hiring of staff at the baccalaureate or
higher degree in a discipline other than vocational rehabilitation
counseling would increase the need for training in order to ensure
these personnel have solid knowledge of the VR program. Despite this
expected increased need for training, DSUs will face reduced financial
resources because of the elimination of the In-Service Training Grant
program by WIOA. Therefore, these commenters were concerned that DSUs
would allocate less funding for staff development training,
certification fees, and other related expenses. One commenter requested
that the Department provide training funds to each DSU to assist in
providing staff development and personnel training in the areas
mandated by WIOA. Still another commenter recommended that the
Department offer regional training rather than onsite training through
its monitoring or technical assistance process. The commenter said the
regional trainings could benefit a larger group of personnel.
A few commenters recommended that proposed Sec. 361.18(d) be
revised to require specific training areas for staff development. For
example, one commenter stated that many vocational rehabilitation
counselors struggle to identify appropriate service providers for
individuals with autism. The commenter requested further guidance from
the Department on providing vocational rehabilitation services to this
population in order to increase opportunities for competitive
integrated employment.
Another commenter asked the Department to require DSUs to include
in their agency planning and oversight the substantial involvement of
mental health advocates, including individuals who have personally
experienced mental illness, treatment, and recovery. Similarly, another
commenter recommended that DSUs be required to hire and train peer
service providers experienced in working with individuals with mental
illness who are seeking vocational rehabilitation services, thereby
increasing the DSU's effectiveness in serving this population. Still
another commenter recommended that staff development include caseload
management training, including implementation standards, measures,
techniques, and strategies.
Another commenter stressed the importance of coordinating personnel
development activities under the Act and the IDEA. The commenter
[[Page 55659]]
recommended that State and local education agencies and DSUs establish
memoranda of understanding on coordinating personnel development
activities. Yet another commenter recommended that proposed Sec.
361.18(d) require staff development to emphasize the need for evolving
skills, including understanding the evolving labor market,
nondiscrimination laws, the medical and psychosocial aspects of various
disabilities, and how this understanding evolves over time.
Discussion: We appreciate the comments seeking clarification of the
requirement that the DSU's CSPD must include assistive technology
training for vocational rehabilitation professionals and
paraprofessionals. Section 101(a)(7)(A)(v)(I) of the Act was amended
slightly by WIOA, but not in a manner that imposed additional
requirements for this particular training. Therefore, final Sec.
361.18(d)(1)(i) contains only technical changes from the prior
regulation, and there is no statutory basis for the Department to add
new requirements regarding how the training should be financed. Section
101(a)(7)(A)(v)(I) of the Act, as amended by WIOA, and final Sec.
361.18(d)(1)(i) simply require DSUs to ensure their vocational
rehabilitation professionals and paraprofessionals are adequately
trained. This must include a system for the continuing education of
personnel in rehabilitation technology, and it must include training
implemented in coordination with the entity carrying out the State's
assistive technology program. It is within the DSU's discretion to
determine how and by whom such training will be provided, so long as
the training is adequate.
Further, it is beyond the scope of the Act and these regulations to
mandate that an entity, authorized under a separate Federal law, such
as the Assistive Technology Act of 1998, perform any action, including
providing the training described here. There is also no separate
Federal program from which money may be given to DSUs to pay for this
training, as in-service training funds were eliminated from the Act by
WIOA. However, the Act does not prohibit DSUs from using title I VR
program funds to provide the training directly or through a contract
with the entity providing assistive technology services in the State.
There are many possible sources of training on assistive technology
and several ways in which the DSUs may coordinate with the State
assistive technology program entity. For example, the DSU may select a
trainer with input from the State's assistive technology program
entity, or the DSU and the State assistive technology program entity
may jointly train DSU staff. Final Sec. 361.18(d)(1)(i) provides the
DSU with maximum flexibility to coordinate with the assistive
technology program entity in the manner it deems appropriate.
While we understand the limited financial resources available to
DSUs, there is no authority under the Act to provide funding to DSUs
for any of the trainings required by section 101(a)(7) of the Act and
final Sec. 361.18(d)(1)(i). As the commenters noted, WIOA eliminated
the In-Service Training Grant program, which had been used by many DSUs
to provide staff development training. Nonetheless, the Act has, and
continues to, permit DSUs to use title I VR program funds to provide
staff development and training. Given the availability of VR program
funds for this purpose, we disagree that DSUs necessarily will allocate
fewer resources for this effort.
Finally, the Department will explore options for providing staff
development trainings on a broader scale, including regional training.
As section 101(a)(7) of the Act is specific about the training
areas that may be included for staff development, there is no statutory
basis for imposing additional training requirements. However, final
Sec. 361.18(d)(2) is consistent with the Act in that it gives DSUs
maximum flexibility to use staff development trainings that are
specific to each DSU's needs. Nevertheless, we understand the concerns
raised by commenters requesting training on specific topics. We agree
that serving individuals with autism may raise many complex issues,
some of which are addressed in an Institute on Rehabilitation Issues
Monograph on rehabilitation of individuals with autism spectrum
disorders, which may be found at: http://www.iriforum.org//books.aspx.
While there is statutory authority under section
101(a)(21)(A)(i)(III) to require DSUs to involve mental health
advocates in the agency's planning and oversight activities when the
DSU has an independent commission or council, there is no specific
statutory requirement under section 101(a)(7) that DSUs hire mental
health peer service providers. Moreover, there is no statutory basis
under section 101(a)(7)(A)(v) of the Act to require caseload management
be included in staff development training. However, there is nothing to
preclude a DSU from doing these things under Sec. 361.18(d)(2) if a
need is identified by the DSU.
Finally, we agree with the commenter regarding the need for
coordinating staff development between DSUs and State and local
education agencies. The Act, as amended by WIOA, places heightened
emphasis on providing vocational rehabilitation services to students
and youth with disabilities. Although section 101(a)(7) of the Act does
not require DSUs to enter into memoranda of understanding with
educational agencies, final Sec. 361.18(f) continues to mandate this
coordination as it has for many years in prior regulations. We also
agree that staff development should emphasize the evolving skills
needed to provide vocational rehabilitation services so that
individuals with disabilities may achieve competitive integrated
employment in the evolving 21st century labor market. Only with these
evolving skills will vocational rehabilitation personnel be able to
engage effectively with employers in the evolving labor market of the
21st century. We believe the staff development requirement set forth in
final Sec. 361.18(d)(1) and (2) covers these skills needed in the 21st
century evolving labor market.
Changes: None.
Training Based on the Needs of the DSU
Comment: None.
Discussion: After further Departmental review, we have determined
proposed Sec. 361.18(d)(2) contained a drafting error by inadvertently
using the word ``should'' rather than ``must.'' The regulation has used
the term ``must'' since final regulations were published in 1997, with
regard to the specific training areas for staff development. The
specific training areas ``must'' be based on the needs of the DSU.
Final Sec. 361.18(d)(2) reflects the correct wording, and this change
in these final regulations represents no change in the requirement for
DSUs because the provision now reads as it has since 1997.
Changes: Final Sec. 361.18(d)(2) has been changed to require
training areas for staff development be based on the needs of the DSU,
as is true in prior regulations.
Public Participation Requirements (Sec. 361.20)
Public Hearings for Changes in an Order of Selection
Comments: Several commenters supported the changes to the prior
regulations in proposed Sec. 361.20 that outline the requirements for
public notice and participation prior to the adoption of any
substantive policies or procedures governing the provision of
vocational rehabilitation services under the State plan, including
substantive
[[Page 55660]]
amendments. Proposed Sec. 361.20 clarifies through descriptive
examples the distinction between substantive and administrative changes
to VR program rules, policies, and procedures. While ``substantive
changes'' trigger the requirement that the designated State agency
provide notice and conduct a public meeting, ``administrative changes''
typically do not. These commenters stated that the proposed regulation
clarifies and supports a more rigorous and open channel of
communication between the designated State agency, the SRC, and
community stakeholders.
Nonetheless, several commenters requested further clarification.
One commenter asked if a DSU must conduct a public meeting every time
it opens or closes a priority category under an order of selection.
Discussion: We appreciate the support for, as well as the requests
for further clarification of, proposed Sec. 361.20, which
distinguishes between those substantive changes requiring public
meetings and those administrative changes that do not.
Final Sec. 361.20(a)(2)(v) states that adopting or amending
policies implementing an order of selection constitutes a substantive
change that requires public input. However, it is the Department's
long-standing policy that a DSU need not conduct a public meeting each
time it opens or closes a priority category if doing so is consistent
with the information describing the implementation of the order of
selection in that agency's currently approved State Plan (now the VR
services portion of the Unified or Combined State Plan).
By contrast, we believe that closing one or more priority
categories would be a substantive change in the administration of the
VR program, and would consequently trigger the requirement to conduct a
public meeting if such change represents a departure from the manner in
which the DSU has implemented the order of selection under the approved
State Plan. For example, if a DSU implements an order of selection and
closes one or more priority categories after one or more years without
closing priority categories, we believe this action would constitute a
substantive change in the administration of the VR program and would
require a public meeting.
Changes: None.
Public Meetings of the State Rehabilitation Council
Comments: One commenter asserted that meetings of the SRC should
fulfill the requirements of proposed Sec. 361.20, since these are
public meetings, and the Council is charged with the responsibility to
review vocational rehabilitation policies and other substantive changes
to the VR program. The commenter stated that holding public meetings in
addition to the Council's meetings takes time away from the central
work of the DSU.
Discussion: Under section 101(a)(16)(A) of the Act and final Sec.
361.20, it is the responsibility of the designated State agency, not
the SRC, to conduct public meetings. Therefore, the Council's meetings
cannot satisfy, on their own, the requirement of final Sec. 361.20.
Likewise, it is the responsibility of the Council, and not the
designated State agency, to conduct its meetings as required by section
105 of the Act and final Sec. 361.17. We recognize that the designated
State agency works closely with the Council, as it is required to do,
with regard to substantive changes made to policies and procedures
affecting the VR program. Therefore, if the designated State agency and
the Council determine it would be expedient and effective to do so,
they may use the regular or special meetings of the Council as a forum
for obtaining input from the Council and the public on substantive
changes in VR program rules, policies, and procedures. If the
designated State agency chooses to conduct joint meetings in this
manner, they must ensure that all requirements concerning the conduct
of public meetings in final Sec. 361.20 are satisfied. We emphasize
that neither the designated State agency nor the Council are required
to conduct joint meetings for the purpose of gathering public input on
substantive changes to the administration of the VR program under
either final Sec. Sec. 361.17 or 361.20, though both entities may find
it efficient to do so.
Changes: None.
Substantive and Administrative Changes
Comments: A few commenters stated that the distinction between
those changes in DSU rules, policies, and procedures that require
public comment and those that do not was not clear in the proposed
regulation, and requested further clarification.
Discussion: With respect to the comments seeking further
clarification and examples of what constitutes a substantive versus
administrative change, the commenters did not specify what additional
clarification was needed, and so we can provide no further examples.
However, the lists of examples in final Sec. 361.20(a)(2) and (a)(3)
are not exhaustive; rather, they illustrate some of the most common
substantive and administrative changes contemplated by DSUs. We
recognize that States may contemplate many more changes to their rules,
policies, and procedures implementing the VR program than those
identified in these final regulations.
In addition, the Act, as amended by WIOA, and these final
regulations provide significant flexibility to the States in the manner
in which they administer the VR program and deliver vocational
rehabilitation services, and States may adopt rules, policies, and
procedures governing the administration of the program that best suit
their particular circumstances. As a result, States may adopt rules,
policies, and procedures that vary widely from one another, and we do
not believe that it is practicable to further clarify, or add to, the
examples listed in final Sec. 361.20(a)(2) and (a)(3). While we
believe that final Sec. 361.20 provides States with the guidance
necessary to determine if a potential change in rules, policies, and
procedures constitutes a substantive change requiring a public meeting,
we encourage States to seek guidance from the Department about State
specific changes.
Changes: None.
Public Comment Through Electronic Means
Comments: One commenter asked if publishing policy changes on a
State agency's Web site and receiving public comment and input at the
Web site constitutes a public meeting.
Discussion: The publication by the DSU of a proposed change in
rules, policies, or procedures governing its administration of the VR
program on a Web site does not constitute a public meeting under
section 101(a)(16)(A) of the Act or final Sec. 361.20. As used in
final Sec. 361.20(a), which requires public meetings to be held
throughout the State, ``public meeting'' means a gathering of people in
a physical or virtual (as in the case of videoconferences or
teleconferences) location. Nonetheless, designated State agencies can
use postings on a Web site and other innovative strategies to gather
valuable input from individuals with disabilities, community
rehabilitation programs, and other stakeholders affected by proposed
changes in rules, policies, or procedures.
Changes: None.
Requirements Related to the Statewide Workforce Development System
(Sec. 361.23)
Comments: Apart from comments on the joint regulations proposed by
the Departments of Education and Labor
[[Page 55661]]
implementing jointly administered requirements for the one-stop
delivery system, one commenter requested that we retitle Sec. 361.23
to improve the reference to the joint regulations governing the one-
stop delivery system. A second commenter expressed concern that one-
stop centers cannot meet the needs of individuals who are blind or
visually impaired. The commenter did not provide an explanation or
recommendation on how the regulations could be revised to address this
concern.
Discussion: Final Sec. 361.23 provides a cross-reference to the
joint regulations governing the one-stop delivery system in subpart F
of part 361. Therefore, we believe there is no need to retitle or amend
the section further as suggested by the commenter.
We appreciate the concern regarding the availability of services at
the one-stop centers for individuals who are blind or visually-
impaired. While we understand that there have been some issues with
respect to accessibility and availability of services for individuals
with significant disabilities in the past, section 121(b)(1)(B)(iv) of
WIOA identifies the VR program as a core partner of the workforce
development system. As such, DSUs and other core partners of the
workforce development system are required to ensure the programmatic
and physical accessibility of the services provided through the one-
stop centers. For further information, see the joint regulations
governing the one-stop delivery system published elsewhere in this
issue of the Federal Register. Furthermore, we strongly encourage DSUs
that serve individuals who are blind or visually impaired to ensure the
needs of these individuals are met through the one-stop delivery
system, as appropriate, by strengthening their relationships with other
core programs through the memoranda of understanding required under
section 121 of WIOA and the joint regulations in subpart F. The
Secretary believes the strengthened relationships between the VR
program and other core programs, as well as the delivery of vocational
rehabilitation services directly at the one-stop centers, will ensure
the needs of individuals who are blind or visually impaired are met.
Changes: None.
Cooperation and Coordination With Other Entities (Sec. 361.24)
General
Comments: Some commenters expressed concerns about the difficulty
in establishing new collaborative relationships, the lack of or limited
fiscal resources necessary to develop and support collaboration, and
mechanisms for accountability and transparency. One commenter indicated
that collaborative relationships do not currently exist in their State
and that establishing them will require additional money and will alter
the methodology for developing the State Plan and the statewide needs
assessment.
A few commenters expressed concern that proposed Sec. 361.24
contained limited language regarding the contents of agreements and the
delineation of issues that should be addressed. For example, a few
commenters remarked that there was no requirement for an agreement
between the DSU and Medicaid, and mental health agencies, for people
with psychiatric disabilities needing long-term employment supports
funded by Medicaid. The commenters suggested that cooperative
agreements include identification of individuals needing extended
supports, referral mechanisms, the use of Medicaid funds in providing
extended supports, how funds will be braided between the DSU and
agencies with primary responsibilities to serve individuals with
specific disabilities, and sources and criteria for providers of
extended supports. A similar comment about waivers for home and
community based settings stressed that all parties must work
cooperatively at both the policy and individual levels; however, the
commenter noted that the proposed regulations merely require there to
be an agreement, without specifying minimum contents of those
agreements.
Discussion: We appreciate and understand the concerns about the
difficulty in establishing new collaborative relationships required
under the Act, the lack of or limited fiscal resources necessary to do
so, and mechanisms for accountability and transparency. However, DSUs
have extensive experience in meeting the requirements under prior Sec.
361.24 for cooperating and coordinating with other entities, and we
believe that this will enable DSUs to implement the collaboration
requirements in the Act as amended by WIOA.
We also appreciate the concerns that proposed Sec. 361.24
contained limited language regarding the contents of agreements and the
delineation of issues that should be addressed. While section
101(a)(11) specifies the content requirements for only some of the
cooperative agreements, nothing in the Act or final Sec. 361.24
precludes DSUs from including specific content to clarify the
responsibility of collaborating entities through these agreements, and
we strongly encourage DSUs to do so. For example, DSUs may enter into
cooperative agreements with Medicaid and mental health agencies for
people with psychiatric disabilities needing long-term employment
support funded by Medicaid. Cooperative agreements may include
identification of individuals needing extended supports, referral
mechanisms, the use of Medicaid funds in providing extended support,
how funds will be braided between DSUs and agencies with primary
responsibilities to serve individuals with specific disabilities, and
sources and criteria for providers of extended services.
Changes: None.
Cooperation and Collaboration With Other Agencies and Entities
Comments: Many commenters supported proposed Sec. 361.24, which
expanded the entities with whom the DSU must collaborate and coordinate
its activities under the VR program and several offered additional
recommendations.
One commenter especially supported the coordination with employers.
Other commenters supported the requirement for cooperative agreements
with the State Medicaid agency and the State agency primarily serving
people with intellectual and developmental disabilities; however,
several commenters noted that the State agency responsible for
providing mental health services was not included in this requirement
and recommended its inclusion.
Many commenters strongly recommended that DSUs be required to enter
into formal interagency agreements with AIVRS grant recipients and with
Tribal Education Agencies (TEAs) located in the State.
One commenter recommended that the assurance in the VR portion of
the Unified or Combined State Plan specify that the DSU coordinate
activities with other State agencies functioning as an employer network
under the Ticket to Work and Self-Sufficiency Program established under
section 1148 of the Social Security Act (42 U.S.C. 1320b-19), and that
the network be expanded to include other agencies acting as employer
networks. A related comment inquired whether there should be a Federal
Partnership Plus agreement instead of individual State agreements.
A few commenters suggested that in the development of the
vocational rehabilitation services portion of the Unified or Combined
State Plan, the Department require the DSU to collaborate with the lead
entity
[[Page 55662]]
implementing programs under the Assistive Technology Act of 1998.
Discussion: We appreciate the commenters' review, support, and
recommendations. Although some commenters recommended adding the State
agencies responsible for providing mental health services to the
required cooperative agreement with the State Medicaid agency and the
State agency serving individuals with intellectual and developmental
disabilities, section 101(a)(11)(G) of the Act does not require such an
agreement and, in fact, is very specific about the entities with which
the DSU must develop interagency agreements. For this reason, there is
no statutory basis for us to require the DSUs to enter into formal
cooperative agreements with the State agencies responsible for
providing mental health services.
However, we agree with commenters that it could be beneficial to
individuals with disabilities to formalize coordination of services
between the DSUs and the State agencies providing mental health
services. While final Sec. 361.24(f) does not require a formal
cooperative agreement, as the commenters suggest, there is nothing in
the Act or in this section that prohibits a DSU from entering into a
formal cooperative agreement with the State agencies providing mental
health services. Furthermore, section 101(a)(11)(K) of the Act, as
amended by WIOA, and final Sec. 361.24(g) stress the importance of the
relationship between the DSU and the State agencies providing mental
health services and requires collaboration between them.
Similarly, while we agree with commenters that coordination and
collaboration between DSUs and entities holding section 14(c)
certificates under the FLSA and Tribal Education Agencies could be
beneficial for different reasons and we encourage such coordination and
collaboration, there is no basis under section 101(a)(11) of the Act to
require this. However, Section 101(a)(11)(H) of the Act and final Sec.
361.24(d) do require the VR services portion of the Unified or Combined
State Plan to include an assurance that the State has entered into a
formal cooperative agreement with each AIVRS grant recipient in the
State.
Additionally, the Department does not have the authority under
section 101(a)(11)(J) of the Act to expand the requirement in final
Sec. 361.24(i) to include non-State agencies acting as employer
networks. The Act only requires the DSU to coordinate with State
agencies serving as employment networks under the Ticket to Work
program. While final Sec. 361.24(i) does not impose the requirement on
the DSUs for non-State agencies serving this function, there is nothing
in the Act or these final regulations that would prohibit a DSU from
doing so. Similarly, the statute does not provide the authority to
develop a Federal Partnership Plus agreement in lieu of individual
State agreements.
Section 101(a)(11)(I) of the Act and final Sec. 361.24(h) require
an assurance in the VR portion of the Unified or Combined State Plan
that the DSU and the lead agency and the entity, if any, implementing
programs under section 4 of the Assistive Technology Act of 1998 have
developed working relationships and will enter into agreements for the
coordination of their activities, including the referral of individuals
with disabilities to programs and activities described in that section.
However, the Act does not require that the DSU collaborate with the
Assistive Technology Act program in developing the VR portion of the
Unified or Combined State Plan. Therefore, to add this requirement in
final Sec. 361.24(h), as recommended, is not supported by the Act.
Also, nothing in the Act precludes a DSU from seeking input from the
Assistive Technology Act program in the development of the VR portion
of the Unified or Combined State Plan.
Changes: None.
Non-Educational Agencies
Comments: One commenter asked for clarification of non-educational
agencies and requested examples.
Discussion: Section 101(a)(11)(C) of the Act, as amended by WIOA,
and final Sec. 361.24(a) require the DSU to describe in the VR
services portion of the Unified or Combined State Plan its cooperation
with, and use of, a variety of entities, including non-educational
agencies serving out-of-school youth. In response to the commenter, the
Act does not define non-educational agencies. Therefore, the Act and
these final regulations maximize flexibility because the DSU is not
limited to a list that may or may not be applicable in any given State.
However, we believe that non-educational agencies could include public
systems such as welfare services, foster care, and the juvenile or
criminal justice systems serving out-of-school youth. Non-educational
agencies also could include those State or local agencies that
administer the youth formula grant program authorized under title I of
WIOA.
Changes: None.
Federal Agreements
Comments: A few commenters asked whether we intend to establish
working arrangements or agreements with agencies at the Federal level
to assist States in their efforts to implement proposed Sec. 361.24,
and one suggestion was made to establish an interagency coordinating
workgroup to review any working arrangements or agreements with these
agencies.
Discussion: The Department already cooperates and works
collaboratively with its Federal partners. The Act does not provide for
formal arrangements at the Federal level for the coordination,
collaboration, and cooperation required by section 101(a)(11) of the
Act; however, we believe that guidance and technical assistance in the
development of agreements and cooperative arrangements may be
beneficial. Where appropriate, the Department will work collaboratively
with Federal partners to assist States.
Changes: None.
Guidance on the Braiding of Funds
Comments: Two commenters suggested that Federal agencies coordinate
guidance regarding the ways in which various funding streams may be
braided to help States implement agreements to fully support
individuals with disabilities. One commenter requested that the
Department emphasize transparency of coordination efforts to track
resources to ensure accountability and sustainability.
Discussion: Each Federal program has its own requirements for the
expenditure of funds, and States must adhere to those requirements when
collaborating. Moreover, while the Uniform Guidance, as set forth in 2
CFR part 200, provides for the braiding and blending of funds, it also
requires that funds must be spent solely on allowable costs, namely
those costs permitted under and allocable to that program. A cost is
allocable to the extent that the program receives a benefit relative to
the expenditure of those funds (in other words, a proportionate share
of those expenditures). While the Department exercises oversight of the
expenditure of funds by DSUs under the Act, we do not have the
authority to provide guidance related to the expenditure of funds
provided by other Federal agencies or programs. However, we support
transparency of coordination efforts to track resources to ensure
accountability and sustainability.
Changes: None.
Requirements for Training
Comments: One commenter suggested including joint training among
the activities in which the DSU must coordinate with other entities.
[[Page 55663]]
Discussion: There is no authority under section 101(a)(11) of the
Act to require the DSUs to add joint training to the activities that
the DSU must coordinate with other entities, with one exception. Joint
training is required in section 101(a)(11)(H) with grant recipients
under the AIVRS program, but not with the other entities in section
101(a)(11) of the Act.
Changes: None.
Notification of the Client Assistance Program
Comments: One commenter suggested that proposed Sec. 361.24
require that all cooperating agencies notify program participants about
the CAP in each State.
Discussion: The suggestion is inconsistent with the Act. Section 20
of the Act requires only programs and projects providing services under
the Act, not cooperating agencies, be mandated to notify program
participants of the CAP. Moreover, section 112 of the Act authorizes
the CAP to serve only individuals who are applicants or consumers of
programs funded under the Act. To the extent that a cooperative entity
is serving an individual who is also an applicant or consumer of a
program funded under the Act, that individual would already receive
information about the CAP under section 20 of the Act.
Changes: None.
Requirements for Third-Party Cooperative Arrangements (Sec. 361.28)
In-Kind Contributions
Comments: Two commenters agreed with the changes to the prior
regulation in proposed Sec. 361.28. Many commenters, primarily from
one State, noted that excluding costs for administrative time and other
indirect costs paid by third parties as an allowable source of match
would negatively impact cooperative arrangements between VR agencies
and their partners.
One commenter requested that the regulations maintain flexibility
for States to use in-kind funding contributions from partners to
augment a State's match and leverage State funding. Another commenter
expressed concern that as a result of the proposed changes, services
for students and clients in one program would cease, and that school
district employees would lose their jobs.
Discussion: We appreciate the commenters' concerns, and agree that
eliminating the ability of third-party cooperative agencies from using
certified personnel time would indeed pose a hardship, but such
prohibition is not contained in Sec. 361.28, either proposed or final.
Section 361.28(c), both proposed and final, explicitly permits public
third-party cooperative agencies to provide match via certified
personnel time for staff directly providing the vocational
rehabilitation services under the third-party cooperative arrangement,
as they have been permitted to do for many years. For example, for a
school that is the cooperating agency, the cooperating agency may use
the certified time for the teacher responsible for teaching the
students under the third-party cooperative arrangement program as a
permissible source of match since the teacher is directly providing the
service under the third-party cooperative arrangement. Final Sec.
361.28(c) does not change the long-standing arrangements that many DSUs
have with third-party cooperative agencies, such as the schools, with
regard to certified personnel time. However, not all certified
personnel time is permissible as a source of match under a third-party
cooperative arrangement. As stated above, the teacher's time is
permissible for match purposes under the VR program because he or she
is directly providing the service, but certified time for other school
staff such as principals, vice principals, secretaries, and
supervisors, is not permissible for match purposes under the VR program
because these individuals do not directly provide vocational
rehabilitation services. The certified time for these individuals is a
third-party in-kind contribution as defined in 2 CFR 200.96 and, as
such, is not permissible source of match for the VR program. While
final Sec. 361.28(c) is a new provision, the content merely clarifies
the matching requirements that existed in accordance with Sec.
361.60(b), which remains virtually unchanged by these final
regulations. The changes made to this section further clarify the
allowable sources of match under third-party cooperative arrangements.
Consequently, we believe that final Sec. 361.28(c) should have little
or no effect on the services for students and other individuals with
disabilities served through third-party cooperative arrangements or the
cooperative agencies and their employees.
Contrary to what some commenters appear to believe, third-party in-
kind contributions have never been an allowable source of match under
the VR program, including for purposes of third-party cooperative
arrangements. Final Sec. 361.60(b)(2), which remains unchanged,
prohibits the use of third-party in-kind contributions as a source of
match for the VR program and this prohibition would apply to third-
party cooperative arrangements under the VR program as well. However,
during monitoring of the VR program, the Department has found that many
DSUs seem to be unaware of this prohibition, especially in the context
of third-party cooperative arrangements. For this reason, the
Department proposed revisions to Sec. 361.28(c), which are maintained
in these final regulations, to remind DSUs of the allowable sources of
match for third-party cooperative arrangements. Specifically, these
sources include cash transfers from the cooperating agency to the DSU
and certified personnel expenditures of cooperating agency staff who
directly provide vocational rehabilitation services under the third-
party cooperative arrangement, both of which were proposed in the NPRM.
In final Sec. 361.28, we have added a new paragraph (c)(3) to specify
that other direct expenditures incurred under the contract with the
cooperating agency only for the direct provision of services under the
third-party cooperative arrangement may be an allowable source of
match. These expenditures are distinguished from in-kind contributions
because the expenditures were incurred specifically for the purpose of
the third-party cooperative arrangement and in accordance with the
terms and conditions of the contract and within the contract period,
all of which can be verified by supporting documentation from the
cooperating agency. For example, if it was necessary for a cooperating
agency to purchase instructional materials to provide new or expanded
services authorized under the third-party cooperative arrangement
contract, and if those materials were not already available to the
cooperating agency, the expenditures for those materials may be an
allowable source of match. On the other hand, expenditures for costs
incurred by the third-party cooperating agency not directly for the
provision of vocational rehabilitation services, such as, indirect
costs, depreciation, existing utilities, space and supplies are not an
allowable source of match because they are third-party in-kind
contributions as defined in 2 CFR 200.96.
Changes: We have revised final Sec. 361.28 by adding new paragraph
(c)(3) to permit other direct expenditures incurred by the cooperating
agency to be used as a source of match so long as those expenditures
were incurred specifically for the purpose of the third-party
cooperative arrangement.
[[Page 55664]]
Students Who Are Eligible or Potentially Eligible for Services
Comments: One commenter requested that proposed Sec. 361.28(a)(2)
include services provided by the cooperating agency for students with
disabilities who are eligible or potentially eligible for services from
the DSU.
Discussion: Under final Sec. 361.28(a)(2), which remains unchanged
from prior regulations, vocational rehabilitation services provided
under a third-party cooperative arrangement are only available to
applicants for, or recipients of, services from the VR program. Given
amendments to the Act made by WIOA, particularly new provisions in
section 103(b)(7) regarding transition services to groups of students
and youth with disabilities and section 113 regarding the provision of
pre-employment transition services to students with disabilities, it is
possible that some of these services will be provided to youth or
students with disabilities who have not yet applied or been determined
eligible for vocational rehabilitation services. This means that these
students and youth with disabilities would be considered a
``recipient'' of vocational rehabilitation services for purposes of
final Sec. 361.28. As such, DSUs could enter into third-party
cooperative arrangements for the provision of these group transition
services or pre-employment transition services so long as all
requirements of final Sec. 361.28 are satisfied.
Changes: None.
Statewide Assessment; Annual Estimates; Annual State Goals and
Priorities; Strategies; and Reports of Progress (Sec. 361.29)
Comprehensive Statewide Needs Assessment
Comments: We received many comments on proposed Sec. 361.29
pertaining to statewide assessment, annual estimates, goals and
priorities, strategies, and reports of progress. One commenter
requested clarification of the role of SRCs in the conduct of a
comprehensive statewide needs assessment under WIOA.
Several commenters suggested that we revise Sec. 361.29(a) to
require that the comprehensive statewide needs assessment be conducted
independently, thereby helping to ensure that the needs assessment is
more objective and comprehensive.
Another commenter requested that we add a requirement to proposed
Sec. Sec. 361.29(a)(1)(i) and 361.29(b) that the statewide assessment
include individuals who are working in subminimum wage and sheltered
employment for employers using section 14(c) certificates issued by the
Department of Labor under the FLSA. The commenter recommended that
because States are required to conduct annual reviews of individuals in
subminimum wage and sheltered employment, the needs of these
individuals should be added to the assessment requirements under Sec.
361.29(a).
Additionally, the commenter stated that States should be required
to review the quality of supported employment services provided to
individuals with the most significant disabilities and ensure that any
employer holding subminimum wage certificates under section 14(c) of
the FLSA should be able to provide supported employment services.
Lastly, the same commenter asserted that States should include data on
individuals working in segregated employment in any reports to RSA.
Discussion: In response to the comment requesting clarification of
the role of the SRC, there is no authority under section 101(a)(15) or
105 of the Act or under title I of WIOA for the SRC to participate in
the conduct of any needs assessments required by title I of WIOA. The
activities of the Council are limited to those listed in section 105(c)
of the Act and final Sec. 361.17(h), both of which remain unchanged by
WIOA or these final regulations. In general, the SRC's responsibilities
encompass only functions associated with the conduct of the VR program
under title I of the Act, not those functions of the VR program as a
core partner in the workforce development system under title I of WIOA.
Specifically, section 105(c)(3) and final Sec. 361.17(h)(3)
authorize the Council to advise the DSU on activities carried out under
title I of the Act and part 361 and to assist with the preparation of
the VR services portion of the Unified or Combined State Plan,
applications, reports, needs assessments, and evaluations required to
be carried out under title I and part 361.
We disagree with the recommendation to require that the
comprehensive statewide needs assessment be conducted independently.
Final Sec. 361.29(a) mirrors section 101(a)(15)(A) of the Act, which
does not require that the assessment be carried out independently. On
the contrary, that provision requires that the DSU and Council jointly
conduct the assessment every three years. Therefore, there is no
authority to revise Sec. 361.29(a) as the commenters recommend.
The contents of the comprehensive statewide needs assessment are
outlined in section 101(a)(15)(A) of the Act and final Sec. 361.29(a)
is consistent with the statute. However, nothing in the Act and these
final regulations prohibits a DSU and Council from conducting a needs
assessment that includes additional elements, such as the needs of
individuals in subminimum wage and sheltered employment.
Changes: None.
Annual Estimates and Reports of Progress
Comments: One commenter supported the change in proposed Sec.
361.29 that requires DSUs that have implemented orders of selection to
estimate and report how many individuals with disabilities are not
receiving services, asserting this will provide indirect data regarding
the appropriateness of not implementing an order of selection. One
commenter requested clarification as to what the Department means by
the submission of annual estimates ``at such time and in such manner to
be determined by the Commissioner'' and expressed concern that this was
not consistent with the continued requirements to submit various annual
reports and updates. The same commenter suggested that the phrase
``standards and indicators authorized by Section 106 of the Act'' be
removed as no longer relevant and that only performance measures
authorized under WIOA be included.
Another commenter stated that the requirement under WIOA for the
increased collection of data would offer evidence of successes and
challenges across the Nation but would also impose some additional
costs on the DSUs, which are already struggling under budget
constraints.
Additionally, one commenter expressed concerns about the apparent
lack of annual reporting of progress toward achieving goals and
priorities, and that once the WIOA system is fully implemented, annual
reporting should not be such a burden. The commenter requested guidance
on how best to use data collected under the newly aligned systems to
maximize fiscal and staff resources.
One commenter expressed concern that the lack of annual reporting
to the Department regarding flaws in the delivery system for persons
with significant disabilities, including those receiving supported
employment services, could preclude making timely adjustments to
maximize the opportunity for successful, integrated employment in
accordance with Section 109 of the Act, as amended by WIOA,
[[Page 55665]]
which allows for ``expanded types of trainings, technical assistance
and other services DSUs may provide under the VR program, to employers
who have hired or are interested in hiring individuals with
disabilities.''
Discussion: We appreciate the support for the requirement to report
the numbers of individuals with disabilities who may not be served in
the event that an order of selection is implemented, as well as the
other comments expressing concerns and suggestions. In response to the
comment requesting clarification pertaining to submission of annual
estimates, ``at such time and in such manner to be determined by the
Commissioner'' allows the Department to solve a practical problem
caused by a statutory inconsistency. Section 101(a)(10) requires that
DSUs collect key data to more effectively manage the VR program and
ensure that the needs of the program's consumers, including those with
the most significant disabilities, are met. Many of these data must be
collected annually, and historically have been submitted as part of
annual State plan updates. However, under sections 102 and 103 of title
I of WIOA, the Unified or Combined State Plan is submitted every four
years, with modifications made at least every two years, as
appropriate. Therefore, the Secretary may determine it appropriate to
require the data, which are collected annually by DSUs, to be reported
only when the State submits a Unified or Combined State Plan or a
modification to that Plan.
Although collected data are to be submitted at a time and in a
manner to be determined by the Secretary, DSUs still must gather and
analyze required data annually as required by the Act and these final
regulations. This will allow the agency to respond in a timely manner
to the needs of all consumers, including those with the most
significant disabilities who may need supported employment services in
order to achieve their vocational goals.
Section 106 of the Act requires that the standards and indicators
for the VR program must be consistent with the performance
accountability measures required by section 116 of title I of WIOA for
all core programs, including the VR program. Therefore, all references
to standards and indicators throughout the Act and these final
regulations refer to the performance accountability measures under WIOA
and the phrase cannot be removed from final Sec. 361.29.
We address comments associated with any burden resulting from the
data reporting requirements under section 101(a)(10) of the Act, as
amended by WIOA, in the Regulatory Impact Analysis section of these
final regulations. The Departments of Education and Labor will jointly
issue guidance regarding the alignment of data reporting requirements
pursuant to the joint regulations governing the performance
accountability system established under WIOA and published in subpart E
of part 361.
Changes: None.
Provision of Training and Services for Employers (Sec. 361.32)
Comments: While commenters generally appreciated the increased
emphasis on engagement with employers, some suggested that the
regulations clarify the types of services and activities in which the
DSU may engage, and differentiate the roles and responsibilities of the
DSU and the employer, especially with regard to providing
accommodations.
Some commenters acknowledged the importance and need for training
employers about their obligations under the ADA and about vocational
rehabilitation services provided through the VR program, such as work-
based learning experiences, pre-employment transition services,
disability awareness and the needs of individuals with disabilities in
the workplace.
A few commenters suggested that the Department recommend some
actions to engage employers, such as encouraging States to establish
employer advisory councils at the State, regional, or local level.
One commenter suggested that proposed Sec. 361.32 was not strong
enough to prioritize the activities under this section because it
authorizes, but does not require, an allocation of funding for
services. The commenter recommended that the Department more heavily
emphasize the importance of activities under this section.
Finally, one commenter recommended aligning allowable activities
under this section with WIOA performance measures regarding
effectiveness in serving employers and requested guidance on tracking
data related to services provided to employers and the effectiveness of
such services.
Discussion: We appreciate the supportive comments and the
additional recommendations for implementing the requirements for
activities DSUs may engage in with employers. Section 109 of the Act,
as amended by WIOA, describes the activities for which States may pay
to educate and provide services to employers who have hired, or are
interested in hiring, individuals with disabilities under programs
carried out under title I of the Act. However, section 109 of the Act
does not address prohibited activities or the differentiation of the
roles and responsibilities of the DSU and the employer, particularly in
providing accommodations. Section 109(1) only allows the DSU to provide
training and technical assistance to employers regarding the employment
of individuals with disabilities, including disability awareness, and
the requirements of the ADA and other employment-related laws. The
recommended inclusion of language to describe accommodations that are
incumbent upon employers to provide does not fall under the purview of
the Department or within the scope and authority of these regulations.
Instead, the responsibility of employers for work place accommodations
is within the jurisdiction of the Equal Employment Opportunity
Commission, which is charged with the enforcement of title I of the
ADA.
Section 109 of the Act, as amended by WIOA, and final Sec. 361.32
clearly recognize the important role that DSUs can play in increasing
opportunities for competitive integrated employment for individuals
with disabilities through the provision of technical assistance and
training to employers and specify a wide variety of these activities.
For example, the statute and regulation describe the areas in which
DSUs may work with employers to provide opportunities for work-based
learning experiences and pre-employment transition services to recruit
qualified applicants who are individuals with disabilities, to train
employees who are individuals with disabilities, and to promote
awareness of disability-related obstacles to continued employment.
Furthermore, the Act and final regulation provide that the DSU may
assist employers through consultation, technical assistance, and
support related to workplace accommodations, assistive technology,
facilities and workplace access, and using available financial support
for hiring or accommodating individuals with disabilities. Given these
and other examples, we do not believe that it is necessary to include
additional language in final Sec. 361.32 to further emphasize the
importance of this technical assistance and training. However, we
clarify here that the use of the term ``apprenticeships'' in final
Sec. 361.32 does not include Registered Apprenticeships.
Although we recognize the value of the DSUs engaging employers
through activities such as establishing Statewide or regional/local
level employer advisory councils, section 109 of the Act
[[Page 55666]]
does not require this activity and therefore, we have no statutory
authority to require this activity in these regulations. However, final
Sec. 361.24(c) requires States to describe in the VR services portion
of the Unified or Combined State Plan how the DSU will work with
employers to identify opportunities for competitive integrated
employment and career exploration, and to facilitate the provision of
vocational rehabilitation services.
We agree that the provision of training and services for employers
by DSUs is important in accomplishing the purposes of the Act, as
amended by WIOA; however, final Sec. 361.32 mirrors section 109 of the
Act, as amended by WIOA, which authorizes, but does not require, the
expenditure of funds for activities under this section. Therefore, we
have no authority to require DSUs to incur expenditures under this
section.
The Departments of Education and Labor appreciate the comment
regarding the potential interplay between the activities authorized
under section 109 of the Act and final Sec. 361.32, and the
performance indicator for the effectiveness of serving employers
required by 116(b)(2)(A)(i)(VI) of title I of WIOA. Because the
measures apply to all core programs in the workforce development
system, not just the VR program, we have addressed this comment in the
joint final regulations implementing the performance accountability
measures under section 116 of WIOA, and published elsewhere in this
issue of the Federal Register.
Changes: None.
Innovation and Expansion Activities (Sec. 361.35)
Resource Plans for Statewide Independent Living Councils
Comments: Many of the commenters opposed the changes in proposed
Sec. 361.35(a)(3) which requires the State to assure that it will
reserve and use a portion of its VR program funds to support the
funding of the Statewide Independent Living Council (SILC), consistent
with the plan prepared jointly by the Council and the State under
section 705(e)(1). The commenters contend that WIOA did not amend
section 101(a)(18)(A)(ii)(I) of the Act and therefore, the Department
should not change its regulation and allow the State and the SILC to
determine not to use I&E funds. The commenters further stated that any
change to Sec. 361.35 would harm CILs by diverting funds from the SILS
program under Part B of title VII if I&E funds are not used. Some other
commenters opposed proposed Sec. 361.35 allowing innovation and
expansion funds to be used at all to support SILC resource plans to the
extent needed, arguing that other funding sources are available.
A few commenters requested clarification as to when the DSU uses
I&E funds to support the SILC. Of these, one commenter indicated that
the DSU, in the commenter's State, has supported the SILC with
innovation and expansion funds and would likely continue to do so
unless there is a change in the designated State entity (DSE), the
State agency responsible for the administration of the independent
living programs authorized under title VII of the Act, as amended by
WIOA.
Discussion: We appreciate the concerns expressed by commenters. In
proposed Sec. 361.35, we attempted to set forth our long-standing
interpretation of the statutory language in section
101(a)(18)(A)(ii)(II) that a State's contribution of innovation and
expansion funds to the SILC resource plan is governed by the resource
plan's description of support for the SILC. We consistently have
interpreted the statutory requirement in section 101(a)(18)(A)(ii)(II)
that the funding of the SILC be consistent with the SILC resource plan
to mean that the State and the SILC may decide to use innovation and
expansion funds to support the SILC resource plan, or not to do so as
they determine how they will use the sources of funding available under
section 705(e) to support the SILC.
Our data shows that States and SILCs have been using innovation and
expansion funds to support SILC resource plans in this way for many
years. Based upon an analysis of the data from all of the State Plans
for Independent Living for the period FY 2014 through FY 2016, we found
that innovation and expansion funds account for 38 percent of the
roughly $8.7 million contributed by States to SILC resource plans. We
found that only 32 States contributed innovation and expansion funds to
the SILC resource plan. Of these 32 States, 13 States used only
innovation and expansion funds to support the SILC.
However, because the innovation and expansion section of the Act
remained unchanged by WIOA and our proposed regulation sparked
confusion among many commenters, we have decided to return to the
current regulation which mirrors the statutory language requiring that
the reservation and use of the innovation and expansion funds to
support the funding of the SILC be consistent with the SILC resource
plan. We continue to interpret the current regulation, as we always
have, that the State and the SILC determine in the SILC resource plan
which sources and amounts of available funding, including innovation
and expansion funding, will be used in the SILC resource plan, and then
the State reserves and uses the innovation and expansion funding to
support funding of the SILC, consistent with the SILC resource plan.
Changes: We have revised final Sec. 361.35(a)(3) to substitute the
language of the current regulation, with conforming edits, for the
language in the proposed regulation.
Innovative Approaches With Components of the Workforce Development
System
Comments: None.
Discussion: Section 101(a)(18)(A)(i) of the Act and final
361.35(a)(1) require the designated State unit to develop and implement
innovative approaches to improve vocational rehabilitation services to
individuals with disabilities that are consistent with the
comprehensive statewide needs assessment and the State's goals and
priorities. To support the alignment of the VR program with the
workforce development system as emphasized throughout the Act and these
final regulations, we clarify that these innovative approaches may
include activities and partnerships with components of the workforce
development system.
Changes: None.
Ability To Serve All Eligible Individuals; Order of Selection for
Services (Sec. 361.36)
Individuals Who Require Specific Services and Equipment To Maintain
Employment
Comments: Most commenters supported proposed Sec. 361.36(a)(3)(v),
which permits the DSU to elect to serve eligible individuals who
require specific services or equipment to maintain that employment,
whether or not those individuals are receiving vocational
rehabilitation services under the order of selection. The commenters
stated that this proposed change from the prior regulations will better
serve the needs of individuals with disabilities who are at risk of
losing their jobs by allowing the DSU an opportunity to serve them
outside an order of selection, as appropriate.
A few commenters expressed concern that proposed Sec.
361.36(a)(3)(v) would allow individuals with less significant
disabilities to be served before individuals with significant or the
most significant disabilities. A few commenters also questioned whether
this new provision applies only to
[[Page 55667]]
individuals with the most significant disabilities. In addition, a few
commenters stated that providing specific services or equipment to
eligible individuals who do not meet the order of selection should be
mandatory to ensure that they are able to maintain their employment.
Conversely, a few commenters suggested that the DSU should not be
required to use this authority at all. One commenter suggested that a
DSU should not be required to state its intent to use the authority in
the vocational rehabilitation services portion of the Unified or
Combined State Plan. One commenter requested clarification of the term
``immediate need,'' which the Department used in explaining the
proposed provision in the preamble of the NPRM.
Discussion: We appreciate the comments supporting the flexibility
afforded to DSUs in Sec. 361.36(a)(3)(v). We also recognize the need,
as expressed by some commenters, for clarification of this exemption
from the order of selection.
Final Sec. 361.36(a)(3)(v), which implements section 101(a)(5)(D)
of the Act, applies to those specific services or equipment that an
individual needs to maintain current employment. The regulation does
not apply to other services an individual may need for other purposes.
In other words, if an individual is receiving services and equipment
from a DSU under this exemption, the individual is within the order of
selection for the purpose of receiving any other vocational
rehabilitation services not covered by the exemption. This means that
if the individual needs services that are not directly tied to
maintaining current employment, the individual's ability to receive
those services from the VR program depends on the individual's
placement in the State's order of selection.
As to whether and how the DSU may exercise its authority under
final Sec. 361.36(a)(3)(v), that section applies to all eligible
individuals, not just those with the most significant disabilities. It
is possible that individuals with less significant disabilities would
receive vocational rehabilitation services before individuals with
significant or the most significant disabilities. The Act, as amended
by WIOA, gives the DSU the option to provide services and equipment to
individuals at immediate risk of losing employment outside the
established order, and the DSU should consider doing so if financial
and staff resources are sufficient. If the DSU elects to do so--again,
the exercise of the authority is not mandatory--section 101(a)(5)(D) of
the Act requires that it indicate this in the VR services portion of
the Unified or Combined State Plan.
The term ``immediate need'' in the Summary of Proposed Changes
section of the NPRM has its common meaning, and it remains the same.
The phrase means that the eligible individual would almost certainly
lose his or her current job if not provided specific services or
equipment in the very near future that would enable him or her to
retain that employment.
Changes: None.
Information and Referral
Comments: One commenter sought clarification about referring
individuals to other programs under proposed Sec. 361.37 for specific
services or equipment necessary to help them retain employment, as well
as other services that cannot be provided under proposed Sec.
361.36(a)(3)(v). This commenter further suggested that if an individual
is referred elsewhere for specific services or equipment necessary to
maintain employment, the DSU should follow up to ensure the necessary
services were delivered.
Discussion: If the individual is placed into a closed category of
that order, under sections 101(a)(5)(E) and 101(a)(20) of the Act, and
final Sec. Sec. 361.36(a)(3)(iv)(B) and 361.37(a)(2), the DSU must
refer the individual to other programs and providers for those services
not covered by the exemption. These provisions require a DSU to assure
in the VR services portion of the Unified or Combined State Plan that
individuals who do not meet the order of selection criteria will have
access to an information and referral system through which the DSU will
refer them to other appropriate Federal and State programs, including
other components of the statewide workforce development system.
However, neither section 101(a)(5)(E) nor 101(a)(20) requires the
DSU to follow up with the programs to which the individuals are
referred, and we have no authority to do so either. While we agree this
is a best practice, we also recognize the administrative burden the
requirement would impose on the DSU.
Changes: None.
Monitoring by the State Rehabilitation Council
Comments: A few commenters proposed that Sec. 361.36(f)(4) allow
the SRC to monitor the use of this authority by the DSU and ensure that
individuals with the most significant disabilities are still
prioritized for vocational rehabilitation services. A few other
commenters also suggested that the SRC be involved in monitoring the
use of the new provision but did not propose any additional regulatory
language.
Discussion: Section 105(c) of the Act, which sets forth the
functions of the SRC, does not authorize it to monitor the DSU's
exercise of the order of selection exemption. Rather, section 107(a)(1)
of the Act requires the Department to monitor the DSUs.
However, under section 105(c)(1)(A) of the Act and final Sec.
361.17(h)(1)(i), the SRC is tasked with reviewing, analyzing, and
advising the DSU about the order of selection and the discretion to
exercise the authority set forth in section 101(a)(5)(D) of the Act and
final Sec. 361.36(a)(3)(v). In addition, the SRC has the opportunity
to review and comment on the DSU's intent to use the authority under
Sec. 361.36(a)(3)(v) when the SRC reviews the DSU's order of selection
policies under final Sec. 361.36(f) and when the SRC advises and
assists the DSU in the preparation of the VR services portion of the
Unified or Combined State Plan under final Sec. 361.17(h)(3).
Changes: None.
Order of Selection Criteria
Comments: A few commenters suggested that the DSU develop a
``meaningful'' order of selection to ensure that individuals with the
most significant disabilities receive vocational rehabilitation
services. One commenter suggested that the order of selection be based
on something other than the refinement of the three criteria in the
definition of ``individual with a significant disability'' in Sec.
361.5(c)(30).
Discussion: Section 101(a)(5) of the Act remained unchanged by
WIOA, except for the addition of section 101(a)(5)(D) permitting the
DSU to exercise its discretion to provide specific services and
equipment to individuals, who are at risk of immediate job loss,
outside the order of selection. Therefore, there is no authority to
further amend final Sec. 361.36 to require the DSU to establish a
``meaningful'' order of selection or to permit the order of selection
to be based on criteria other than those included in the definition of
an ``individual with a significant disability'' in final Sec.
361.5(c)(30).
Changes: None.
Prohibited Factors
Comments: Some commenters questioned whether the proposed Sec.
361.36 is consistent with the requirement in Sec. 361.42(c)(2)(ii)(D),
which prohibits the DSU from considering an applicant's particular
service needs, the anticipated cost of
[[Page 55668]]
services required by an applicant, or the income level of an applicant
and applicant's family. Other commenters indicated that the proposed
Sec. 361.36 aligns with Sec. 361.42(a)(1)(iii), which permits the DSU
to provide vocational rehabilitation services to eligible individuals
who require services in order to retain their employment.
Discussion: For States operating under an order of selection, the
DSU must determine eligibility under final Sec. 361.42 prior to
assigning eligible individuals to any priority category. WIOA did not
change this requirement. Therefore, under final Sec.
361.42(c)(2)(ii)(D) an applicant's particular service needs (including
those services necessary to maintain current employment) are not
considered in determining eligibility. The order of selection exemption
in final Sec. 361.36(a)(3)(v) applies only after an individual has
been determined eligible. Consequently, the eligible individual would
be exempt from the order of selection for the purpose of receiving
services necessary to maintain employment.
Changes: We have made a technical amendment to Sec.
361.36(d)(2)(vi) to reflect the exemption set forth in Sec.
361.36(a)(3)(v).
Pre-Employment Transition Services
Comments: Some commenters raised various concerns, posed questions,
or sought clarification about pre-employment transition services,
including serving students with disabilities who may not have applied
or been determined eligible for vocational rehabilitation services.
Discussion: We address these comments in the Pre-Employment
Transition Services (Sec. 361.48(a)) section elsewhere in this
Analysis of Comments and Changes.
Changes: None.
Information and Referral Programs (Sec. 361.37)
Benefits Planning
Comments: Most of the comments received on this regulation were in
support of the changes to the prior regulation in proposed Sec.
361.37, while some suggested further revisions. A few of these
commenters suggested that Sec. 361.37 specify to whom referrals are
made for benefits planning for individuals with disabilities receiving
Social Security benefits under title II or title XVI of the Social
Security Act.
Discussion: We appreciate the comments supporting the changes to
Sec. 361.37 and the comments suggesting further revisions. Section
361.37(b)(5), both proposed and final, which requires the DSU to refer
individuals who do not choose to seek an employment outcome under the
VR program to the SSA for information about receiving benefits while
employed, has remained unchanged from the VR program regulations that
were published in 2001. While section 102(b)(2) of the Act, as amended
by WIOA, requires the DSU to provide information about benefits
planning to individuals with disabilities receiving Social Security
benefits, it does not mandate the DSUs to make related referrals to any
one agency or organization for this service. Some DSUs have the
capacity to provide this information in-house, whereas others may need
to refer individuals to other programs or entities. As such, and
because the needs of the individuals requiring these services also
vary, we believe it best serves DSUs and individuals with disabilities
not to require a specific referral program in final Sec. 361.37. For
the same reason, we have not specified other entities to which DSUs may
refer individuals with disabilities for any other type of service.
Changes: None.
Referral Options
Comments: One commenter suggested that a list of all options for
referrals be included in proposed Sec. 361.37. Another commenter
suggested that referral options may not be available in certain
geographical areas of the State. The commenter also noted the dilemma
facing DSU personnel if it is known, before a referral is made, that
individuals with disabilities are unlikely to receive services from
other programs in the State.
Discussion: We do not believe it is possible or practicable to
include a list of all referral options in final Sec. 361.37 because
the Federal, State, and local agencies, as well as non-profit
organizations that serve individuals with disabilities vary widely from
State to State. In addition, DSUs are most familiar with the referral
option in their State and we would not want them to believe these
options were limited by the inclusion of a list in final Sec. 361.37.
However, we clarify that these referral options include one-stop
centers as components of the workforce development system.
If referral options are not available in a geographic location or
if a referral will not result in the individual with a disability
receiving services, we encourage DSUs to continue to build partnerships
with a broader set of appropriate Federal and State programs, including
other components of the statewide workforce development system, to
ensure effective referral options are available in the State. DSUs
should not make referrals to other programs unless there is an
expectation that the individual with a disability will benefit from the
referral.
Changes: None.
Follow-Up
Comments: One commenter suggested that DSUs be required to follow-
up on referrals made to other programs to verify that individuals with
disabilities are receiving the services for which they were referred.
Discussion: The Act, as amended by WIOA, does not require a DSU to
follow-up on the referrals it makes to other programs. Therefore, we
have not made the suggested revision. While we agree with commenters
that this is a best practice, we also recognize the administrative
burden the requirement would impose. However, the criteria for
appropriate referrals in final Sec. 361.37(c) is designed to ensure
effective referrals for individuals with disabilities.
Changes: None.
Independent Living Services
Comments: A few commenters suggested that there may be difficulty
in referring individuals with disabilities for independent living
services if the DSU is not the same entity administering the
independent living programs authorized under title VII of the Act, as
amended by WIOA. One commenter stated that the Department would need to
partner with the Department of Health and Human Services when referrals
are made for independent living services.
Discussion: We acknowledge that some States may establish a
designated State entity (DSE) responsible for administering the
independent living programs, which is separate from the DSU for the VR
program. However, this should not inhibit referrals between the VR and
independent living programs as required in final Sec. 361.37(b). In
these circumstances, we encourage the DSU to partner with the DSE to
develop effective referral policies and procedures to enable
individuals with disabilities to access both programs. The Department
intends to support these partnerships in the State through technical
assistance developed and delivered jointly with the Department of
Health and Human Services, which now administers the SILS program and
the CIL program.
Changes: None.
Protection, Use, and Release of Personal Information (Sec. 361.38)
Comments: None.
[[Page 55669]]
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 core programs in the workforce development
system, including the VR program, under section 116(b) of title I of
WIOA. Section 116(b) of WIOA requires DSUs to collect significantly
more personal information than was required previously under section
101(a)(10) of the Act and prior Sec. 361.40. Therefore, after further
Departmental review, we have strengthened the protection of the
confidentiality of this information by requiring in final Sec. 361.38
that DSUs enter into written agreements with any entity seeking access
to personal information collected under the VR program for the purpose
of audits, evaluations, research, or for other program purposes. We
understand that DSUs already enter into such written agreements and the
revisions to final Sec. 361.38 will not represent a change in
practices under the VR program.
Changes: We have revised final Sec. 361.38(a), (d), and (e) by
requiring that DSUs enter into written agreements with other
organizations and entities receiving personal VR program information
during the conduct of audits, evaluations, research, and for other
program purposes.
Reports; Evaluation Standards and Performance Indicators (Sec. 361.40)
We received numerous comments on proposed reporting requirements
under Sec. 361.40, including the collection and reporting of data on
students with disabilities receiving pre-employment transition
services, evaluation standards and performance indicators under section
106 of the Act, common performance accountability measures under
section 116 of WIOA, and the timeframe for implementation of reporting
requirements. We also received comments on burden estimates that were
included in the Regulatory Impact Analysis of the NPRM. While one
commenter supported the collection of new data elements required under
section 101(a)(10) of the Act and implemented in Sec. 361.40(a) of
these final regulations, in general, commenters expressed concerns or
requested additional clarification concerning the collection and
reporting of data. We address these comments under the subheadings
below.
Pre-Employment Transition Services
Comments: We received several comments on the reporting of data on
students with disabilities receiving pre-employment transition services
under proposed Sec. 361.40(a)(1)(ii). One commenter noted that States
may opt to track funding and services for students receiving pre-
employment transition services in different ways, depending on factors
such as staffing patterns, order of selection wait list considerations,
and counselor caseload sizes. One commenter expressed the opinion that
there are more effective ways to track the expenditures from the 15
percent of the VR program allotment reserved for the provision of pre-
employment transition services than collecting individual case
information for each student receiving these services.
A few commenters requested guidance about the specific data
elements that will be required for students who are receiving pre-
employment transition services and are applicants, or potentially
eligible, for vocational rehabilitation services. Another commenter
asked what additional data will be needed for purposes of performance
accountability reporting pursuant to section 116 of WIOA once the
student becomes a participant under the VR program.
Finally, one commenter requested clarification and guidance about
the interplay between the data required to be reported under Sec.
361.40(a), collected through the Case Service Report (RSA-911), and the
content of the VR services portion of the Unified or Combined State
Plan regarding the number of students who are receiving pre-employment
transition services.
Discussion: We appreciate the concerns expressed regarding the new
data reporting requirements in final Sec. 361.40(a) related to the
provision of pre-employment transition services to students with
disabilities. We agree with commenters that it is reasonable to
anticipate an increase in the number of individuals that will need to
be reported through the RSA-911. Prior to the enactment of WIOA, DSUs
could only serve, and thus report, individuals who were applicants or
eligible individuals under the VR program. However, section 113 of the
Act, as added by WIOA, requires DSUs to provide pre-employment
transition services to all students potentially eligible for vocational
rehabilitation services who need such services, regardless of whether
they have applied and been determined eligible for vocational
rehabilitation services. This change is likely to result in a
significant increase in the number of individuals reported under the
RSA-911.
Students with disabilities who are not yet served under an
individualized plan for employment and who receive pre-employment
transition services are not considered ``participants'' as that term is
defined under the joint final regulations for performance
accountability purposes published elsewhere in this issue of the
Federal Register. However, students with disabilities receiving pre-
employment transition services are considered ``reportable
individuals'' for RSA-911 reporting and WIOA performance purposes,
regardless of whether they have applied for vocational rehabilitation
services or are receiving these services under an individualized plan
for employment. This does not, however, preclude a DSU from serving an
eligible student with a disability under an individualized plan for
employment. Once the student has begun receiving services under a
signed individualized plan for employment, he or she will be counted as
a participant and included in the applicable performance indicator
calculations. At the point the student with a disability becomes a
participant, all the applicable RSA-911 data elements will be collected
and reported in the individual's RSA-911 case record.
We have identified and defined the specific data elements needed
for all students with disabilities receiving pre-employment transition
services in the RSA-911 instructions. We believe this will reduce
collection and reporting burden to the maximum extent possible, and
prevent a requirement for collecting specific information that would
otherwise result in an application for services for students with
disabilities who have not intended to apply for these services.
In addition to the tracking necessary to demonstrate compliance
with the requirement to reserve at least 15 percent of the State's VR
allotment for providing pre-employment transition services, under
section 110(d) of the Act, as amended by WIOA, and final Sec.
361.65(a)(3), section 101(a)(10) of the Act requires DSUs to have a
mechanism to report the number of students with disabilities receiving
these services. We recognize the burden this will place on DSUs and we
have included a specific, but limited, set of data elements in the RSA-
911 to enable DSUs to report the number of students with disabilities
receiving these services, including both those who have been determined
eligible for vocational rehabilitation services and those who have not
applied for vocational rehabilitation services. For further information
regarding the specific data elements DSUs are required to report
regarding students receiving pre-employment transition services, see
the RSA-911 data collection instrument published elsewhere in this
issue of the Federal
[[Page 55670]]
Register. We believe DSUs should use these data, along with other
information (such as that obtained through the comprehensive statewide
needs assessment required under section 101(a)(15)(A) of the Act, as
amended by WIOA, and final Sec. 361.29(a)), when developing the VR
services portion of the Unified or Combined State Plan, including the
goals and strategies related to the provision of pre-employment
transition services under sections 101(a)(15)(C) and (D) of the Act, as
amended by WIOA, and final Sec. 361.29(c) and (d).
Changes: None.
Standards and Indicators
Comments: With respect to proposed Sec. 361.40(b), a few
commenters requested that we add indicators to the evaluation standards
and performance indicators. Of these, a few requested that separate
indicators be added for transition services to students and youth with
disabilities and for services to youth with disabilities. One commenter
expressed the concern that students with disabilities will not be
counted as participants or included in the performance indicators,
thereby eliminating a large number of vocational rehabilitation
consumers from the performance measures. This commenter recommended
that we establish new performance indicators for students with
disabilities receiving pre-employment transition services. Another
commenter requested we add performance indicators aligned with
evidence-based practices that promote individuals with disabilities
entering the labor force. One commenter requested that we include
additional performance indicators in these final regulations rather
than add them later through an information collection request. Another
commenter asked if the Department would continue using the evaluation
standards and performance indicators in prior Sec. Sec. 361.80 through
361.89 as Federal reporting requirements under the VR program. Finally,
one commenter requested that we limit the data selected to only that
required to determine the performance accountability measures under
section 116 of WIOA.
Discussion: Section 106 of the Act, as amended by WIOA, makes the
VR program subject to the common performance accountability measures,
established in section 116 of title I of WIOA, which are applicable to
all core programs of the workforce development system. Therefore, we
have removed prior Sec. 361.80 through Sec. 361.89, which established
the evaluation standards and indicators in use by the VR program prior
to the enactment of WIOA. Final Sec. 361.40(b) includes a cross
reference to the joint performance accountability regulations developed
by the Departments of Labor and Education in subpart E of final part
361.
Section 106 of the Act, as amended by WIOA, does not provide
additional VR program-specific performance accountability measures.
However, consistent with section 116(b)(1)(A)(ii) of title I of WIOA,
section 106(a)(2) permits States, but not the Department, to establish
and provide information on additional performance accountability
indicators. States must identify any additional performance indicators
in the Unified or Combined State Plan. Under this section, States could
opt to include additional performance indicators, including any or all
of the additional performance measures recommended by commenters or the
evaluation standards and performance indicators set forth in prior
Sec. Sec. 361.80 through 361.89.
In addition, section 101(a)(10)(A) of the Act requires that, in the
VR services portion of the Unified or Combined State Plan, the State
assures that it will submit certain reports in the form and level of
detail and at the time required by the Secretary. Regarding applicants
for, and eligible individuals receiving, services, these reports must
provide the wide variety of data specified in section 101(a)(10)(C), as
well as data related to the evaluation standards and indicators in
section 106 of the Act, which are the performance accountability
indicators in section 116(b) of title I of WIOA. Therefore, there is no
statutory authority to limit the data reported by DSUs through the RSA-
911 to those data needed for the performance accountability indicators
applicable to the core programs under WIOA, as recommended.
Changes: None.
Program Year
Comments: One commenter requested that the Department use the
program year under title I of WIOA, instead of the fiscal year, for the
operation of the VR program in order to better align the program with
the performance data required under section 116 of WIOA.
Discussion: We understand the concern expressed by commenters and
the potential confusion that may result because the annual award and
financial reporting cycle for the VR program is no longer aligned with
the State planning and performance reporting cycle required under title
I of WIOA. The VR program is a current-funded program for which
Congress appropriates annual funds to be obligated consistent with the
Federal fiscal year and section 110(a)(2)(A) of the Act, which
specifies the manner in which allotments are to be made. As noted in
the Submission, Approval, and Disapproval of the State Plan (Sec.
361.10) section earlier in this preamble, section 110(a)(2)(A) of the
Act, which was not amended by WIOA, requires that allotments be made
for each fiscal year beginning on or after October 1, 1978. We
interpret section 110(a)(2)(A) of the Act to require that VR program
allotments coincide with the Federal fiscal year. Thus, we cannot
change the year under which the VR program operates in order to align
it with the July 1 through June 30 program year for submission of the
VR services portion of the Unified or Combined State Plan and the
reporting of performance data required under final Sec. 361.40. States
will continue to receive VR program allotments and report fiscal data
through the Financial Status Report (SF-425) and the VR program Cost
Report (RSA-2) in accordance with the Federal fiscal year.
Changes: None.
Performance Accountability Regulations
Comments: One commenter recommended that we include the joint
performance regulations in proposed Sec. 361.40.
Discussion: We disagree with the recommendation. The extent and
detail of the joint regulations governing the performance
accountability system under section 116 of title I of WIOA makes it
necessary to include them in a separate subpart of these final
regulations. For the convenience of the reader, we grouped this subpart
E with subparts D and F, which set forth the joint final regulations
implementing requirements for unified and combined planning and the
one-stop delivery system, respectively, of WIOA. We believe it is
sufficient to include a cross reference to subpart E in final Sec.
361.40(b).
Changes: None.
Cumulative Caseload Report (RSA-113)
Comments: We received two comments regarding the VR program's
Cumulative Caseload Report (RSA-113). One commenter asked whether we
intend to make changes to this data collection instrument and requested
that we provide guidance on these changes. Another commenter suggested
that the Department discontinue use of the RSA-113 because it is
redundant with data reported through the revised RSA-911.
Discussion: We do not intend to make changes to the currently
approved RSA-113 or the instructions for its submission. At this time,
we use the
[[Page 55671]]
data reported through the RSA-113, the only source of quarterly VR
program data, for program management purposes and to support budget
requests for the VR program. However, we intend to reduce the reporting
burden on the States by discontinuing use of the RSA-113 when DSUs are
able to report similar data through the RSA-911 on a quarterly basis.
When appropriate, the Department will provide guidance to DSUs
regarding reporting changes.
Changes: None.
States With Two VR Agencies
Comments: One commenter asked whether, in States with two VR
agencies, those agencies that serve individuals who are blind and
visually impaired would establish levels of performance for purposes of
the performance accountability indicators under section 116 of title I
of WIOA separate from those established by agencies serving individuals
with all other disabilities. Another commenter expressed concern that
VR agencies serving individuals who are blind and visually impaired
would be required to establish separate levels of performance due to
the relatively low number of individuals served by these agencies and
the high variance in outcomes.
Discussion: Section 116(b)(3)(A)(iii) of title I of WIOA requires
States to identify, in their Unified or Combined State Plans, expected
levels of performance for the performance indicators for the first two
years covered by their plans. Because this section, as well as all
other provisions of section 116 of WIOA pertinent to the establishment
of levels of performance for the performance accountability indicators,
refers to the ``State,'' States must establish the expected levels of
performance using State-level, not VR agency-level, data. Therefore, in
States with more than one VR agency, the agencies must work together to
identify expected levels of performance that take into account their
individual performance. We will monitor each agency's performance on
the performance accountability indicators and their contributions
toward achieving the adjusted levels of performance through a review of
the data reported on the RSA-911 and during periodic reviews in
accordance with section 107 of the Act. See the Analysis of Comments
and Changes section of the joint performance regulations published
elsewhere in this issue of the Federal Register for a more detailed
discussion about setting expected levels of performance and adjusted
levels of performance.
Changes: None.
Reporting Burden
Comments: We received numerous comments on the Department's burden
estimates, all of which stated that we underestimated the costs
associated with the reporting of data under proposed Sec. 361.40
described in the Regulatory Impact Analysis section of the NPRM. In
particular, commenters raised concerns about estimates of the amount of
time needed for the collection of new data and the quarterly reporting
of individual data on all open service records, as well as the cost of
changes to State management information systems. Some of these
commenters stated that the proposed new reporting requirements will
create a burden on the financial and personnel resources of the agency.
One commenter noted that documenting and tracking the number of
potentially eligible students with disabilities would be burdensome and
costly considering the number of potentially eligible students is
staggering when compared to the number of transition-age consumers
previously served by the DSUs.
Discussion: We recognize that proposed new data collection and
reporting requirements, including data on students with disabilities
receiving pre-employment transition services, will have an impact on
the financial and personnel resources of the agency. However, the
collection and reporting of such data are required by the amendments
made by WIOA to section 101(a)(10) of the Act. In addition, the
collection and reporting of data regarding the number of students with
disabilities receiving pre-employment transition services and the costs
of these services will enable the Department and the States to better
track the use of VR program funds that must be reserved for the
provision of these services.
In response to the comments regarding the burden associated with
the reporting of data under final Sec. 361.40 and as a result of
further Departmental review, we have adjusted the burden estimates as
described in the Regulatory Impact Analysis section of the preamble of
these final regulations. Comments pertaining to specific estimates of
reporting burden included in the Regulatory Impact Analysis of the NPRM
are addressed in the Regulatory Impact Analysis of these final
regulations. No changes are needed to the regulatory text of final
Sec. 361.40.
Changes: None.
RSA-911 Case Service Report
Comments: We received comments related to the definitions of data
elements, the reporting of Social Security numbers, the reliability of
data, the data elements used to report services to employers, the
reporting of barriers to employment as required by section 116 of title
I of WIOA, and the timelines by which States must report data required
for the performance accountability indicators.
Discussion: We discuss comments related to the manner in which the
data are required to be reported under final Sec. 361.40(a) and (b)
through the RSA-911 in the supporting statement for this data
collection instrument published elsewhere in this issue of the Federal
Register, and under the joint performance accountability system final
regulations, also published elsewhere in this issue of the Federal
Register, as appropriate.
Assessment for Determining Eligibility and Priority for Services (Sec.
361.42)
Advancing in Employment and Other Eligibility Criteria
Comments: Many commenters expressed strong support for proposed
Sec. 361.42(a)(1)(iii) permitting an applicant to be eligible if he or
she requires vocational rehabilitation services to advance in
employment and meets all other eligibility criteria. However, some of
these commenters requested clarification regarding the effect of the
regulation when an individual is unable to advance in employment due to
his or her disability. These commenters also asked whether advancing in
employment refers only to the individual's current employment, or if it
extends to preparations, including graduate education services, for
advancing in future employment. A few commenters requested
clarification about whether a DSU would be required to support the
pursuit of a graduate degree by an individual already employed
successfully in a competitive integrated environment and about how
financial need shall be assessed.
Some commenters expressed concern that the term ``advance in
employment'' was too vague and that it would be difficult to know when
an individual has achieved his or her goal since one can always advance
in employment to some degree. These commenters also expressed concerns
that serving more individuals who want to advance in employment could
force a DSU to implement an order of selection. Some commenters
suggested that the regulations should clarify that advancement in
employment should be explicitly linked to the individual's impairment,
rather than broader developmental needs.
[[Page 55672]]
A few commenters inquired whether the proposed changes in Sec.
361.1, which establishes the purpose of the VR program, affect the
determination of eligibility under Sec. 361.42. These commenters
expressed concern that the deletion of the term ``gainful employment''
in proposed Sec. 361.1 could be misconstrued as disallowing entry
level employment as a vocational goal. A few commenters asked whether
the new emphasis on self-sufficiency and competitive integrated
employment means that those who apply for vocational rehabilitation
services intending only to work part-time will be a lower priority for
the purpose of determining eligibility.
Discussion: We appreciate the strong support for the changes in
final Sec. 361.42. We also understand the need for clarification.
Section 102(a)(1)(B) of the Act, as amended by WIOA, allows for an
individual with a disability, whose physical or mental impairment
constitutes a substantial impediment to employment, to be determined
eligible for vocational rehabilitation services if he or she requires
services to prepare for, secure, retain, advance in, or regain
employment. By adding the phrase ``advance in,'' section 102(a)(1)(B)
of the Act, as amended by WIOA, reinforces the Department's long-
standing commitment that the VR program must provide comprehensive
services to assist individuals with disabilities to achieve their
maximum vocational potential. The VR program is not intended solely to
place individuals with disabilities in entry-level jobs but rather to
assist them to obtain appropriate employment, given their unique
strengths, resources, priorities, concerns, abilities, capabilities,
and informed choice. The VR program's purpose is the same regardless of
whether an individual wants to advance in employment or obtain
employment. We disagree with the commenter that the provision of
vocational rehabilitation services to assist an individual to advance
in employment should be limited to disability needs rather than other
needs or desires. The extent to which DSUs should assist eligible
individuals to advance in their careers by providing vocational
rehabilitation services depends upon whether the individual has
achieved employment that is consistent with this standard. The DSU's
assistance could include, as appropriate for the individual, graduate-
level postsecondary education, if necessary to achieve the advancement
in employment specified in the vocational goal on the individual's
approved individualized plan for employment. All other eligibility
criteria still apply to applicants seeking to advance in employment.
Consistent with long-standing Department policy, we interpret the
phrase ``advance in employment,'' as used in section 102(a)(1)(B) of
the Act and final Sec. 361.42(a)(1)(iii), broadly to include
advancement within an individual's current employment or advancement
into new employment. In this way, the VR program ensures that
individuals with disabilities obtain the services necessary so they can
pursue and engage in high-demand jobs available in today's economy.
The addition of the phrase ``advance in'' in Sec.
361.42(a)(1)(iii), both proposed and final, underscores long-standing
policy. Because DSUs have been assisting individuals to advance in
employment prior to this statutory and regulatory revision, we do not
anticipate that the change will result in a DSU implementing an order
of selection due to an increased number of individuals seeking to
advance in employment. As stated, although the phrase ``advance in''
employment is new in both the statute and these final regulations, its
inclusion merely mirrors long-standing Departmental policy as set forth
in RSA-PD-97-04, dated August 19, 1997.
As discussed in more detail in the Purpose (Sec. 361.1) section
earlier in this preamble, inclusion of the term ``economic self-
sufficiency,'' rather than ``gainful employment'' as contained in prior
Sec. 361.1, does not alter the eligibility criteria set forth in final
Sec. 361.42(a)(1) or establish a priority of services for individuals
seeking any particular form of employment. Therefore, the changes
contained in final Sec. Sec. 361.1 and 361.42(a)(1)(iii) do not
require DSUs to treat individuals seeking part-time or self-employment
differently (e.g., given lower priority) than individuals seeking full-
time employment. Neither the Act, as amended by WIOA, nor these final
regulations, supports such an interpretation. Section 361.42(c)(2), for
example, prohibits the DSU from considering the nature of an
applicant's vocational goal when determining eligibility and priority
for services. Therefore, a DSU may not prioritize the determination of
eligibility for individuals who choose to pursue full-time employment
over those who elect to seek part-time employment or self-employment.
In addition, economic self-sufficiency is intended to serve as a goal
to maximize employment, which may be achieved through a variety of
employment options, including entry-level employment for individuals
for whom it is consistent with their skills, interests, and informed
choice. However, the achievement of economic self-sufficiency is not
among the criteria used to determine eligibility for the VR program
under section 102(a) of the Act.
Changes: None.
Substantial Impediment to Employment
Comments: One State VR agency asked whether a substantial
impediment to employment for the purpose of determining eligibility
meant an impediment to any employment, or just to the employment the
individual wished to pursue.
Discussion: Although this particular eligibility criterion was not
changed in the Act, as amended by WIOA, or Sec. 361.42, either
proposed or final, we clarify in this Discussion that the term
``substantial impediment to employment'' should be interpreted in its
broadest context, not just considered with respect to the applicant's
specific vocational goal when determining eligibility. Final Sec.
361.42(c)(2)(ii)(B), as it did in prior regulations, prohibits the DSU
from considering the individual's desired employment objective, even if
known, during this stage of the vocational rehabilitation process.
Changes: None.
Prohibited Factors
Comments: A number of commenters expressed concerns about the
inability to consider an applicant's employment history when
determining eligibility, particularly for those who are currently
employed and apply for vocational rehabilitation services to advance in
employment. One commenter stated that not being able to evaluate
disability barriers from previous or current employment experiences, or
not being able to assess abilities and capabilities by examining past
and current educational credentials, could prevent the qualified
rehabilitation counselor from determining whether an individual has a
substantial impediment to employment and whether the individual
requires services to achieve an employment outcome.
Other commenters expressed concern that proposed Sec.
361.42(c)(2), which precludes the consideration of an applicant's
employment history, current employment status, level of education, or
educational credentials when determining eligibility for services,
contradicts the definition of ``assessment'' in Sec.
361.5(c)(5)(ii)(E), which states that the vocational rehabilitation
counselor must rely on information obtained from the eligible
individual's experience in integrated
[[Page 55673]]
employment settings in the community and other integrated settings.
Some of these commenters requested that we remove the requirement
that a DSU must not consider an applicant's employment history, current
employment status, level of education, or educational credentials when
determining eligibility for services. A commenter requested that
criminal records be added to the list of prohibited factors when
determining eligibility for vocational rehabilitation services, except
when the criminal background is related to the employment outcome.
Discussion: The additional factors, set forth in both proposed and
final Sec. 361.42(c)(2)(ii)(E) and (F), that a DSU must not consider
when determining an applicant's eligibility for vocational
rehabilitation services are consistent with long-standing policy. A DSU
must examine a variety of factors when developing an individualized
plan for employment, including the individual's past and current
employment and education credentials, to ensure that the appropriate
vocational rehabilitation services are identified to assist the
individual to achieve his or her chosen vocational goal specified in
the approved individualized plan for employment. However, a DSU may not
use an applicant's employment or education to determine his or her
eligibility for vocational rehabilitation services. The change from the
prior regulation in proposed and final Sec. 361.42(c)(2)(ii)(E) and
(F) clarifies existing eligibility criteria and the list of prohibited
factors in order to ensure consistency with the phrase ``advance in
employment'' in the Act, as amended by WIOA, and these final
regulations. Because an individual may be eligible for the VR program
if he or she requires vocational rehabilitation services to advance in
employment, the Act seems to take into account that the individual
could have more than minimal educational or employment history.
Regardless of his or her education or employment history, the applicant
still must demonstrate that he or she has a disability and that the
disability constitutes a substantial impediment to employment as
required in Sec. 361.42(a)(1)(ii) and requires vocational
rehabilitation services to prepare for, secure, retain, advance in, or
regain employment in accordance with final Sec. 361.42(a)(1)(iii). In
making these determinations, the qualified vocational rehabilitation
counselor would review all known information about the applicant in
order to assess the individual's impediments and service needs, but the
eligibility determination itself must not be based on the fact that the
individual has an extensive employment or educational history.
Although final Sec. 361.42(c)(2) does not specifically prohibit a
DSU from considering an applicant's criminal background when
determining an individual's eligibility for vocational rehabilitation
services, the Act and these final regulations require that a DSU base
the determination of eligibility only on those factors identified in
section 102(a)(1) of the Act and final Sec. 361.42(a)(1). However, the
DSU may develop policy and issue guidance to its vocational
rehabilitation counselors about managing an individual's criminal
background when developing the individualized plan for employment to
ensure that the vocational goal is appropriate and that any necessary
vocational rehabilitation services to address this background are
provided in a manner that is consistent with limitations that might be
imposed by Federal, State, and local law and regulations due to that
criminal history. For further information regarding Federal law and
guidance in this area, see: http://wdr.doleta.gov/directives/ and
http://www.eeoc.gov/laws/guidance/.
Changes: None.
Residency
Comments: A number of commenters requested clarification about the
definition of ``residency'' for the purpose of determining eligibility
and providing vocational rehabilitation services. Several commenters
noted that individuals may apply for services when living just across
the border in a neighboring State, while other individuals receive
services from one State but intend to work in another State and
continue working with the VR agency with which they began their
rehabilitation program.
Discussion: We proposed only one change from the prior regulation
in Sec. 361.42(c)(1) to clarify that a DSU is prohibited from
establishing de facto duration of residency requirements by requiring
the applicant to produce documentation that would, under State or local
law, result in a duration of residence requirement. Although the
clarification regarding documentation did not exist in prior Sec.
361.42(c)(1), the provision as contained in final Sec. 361.42(c)(1) is
consistent with long-standing Department policy. The explicit
prohibition against a duration of residency requirement existed in
prior Sec. 361.42(c)(1) and remains unchanged in all other respects in
these final regulations and is consistent with section 101(a)(12) of
the Act.
Nonetheless in response to the requests for clarification, as
stated in Technical Assistance Circular 12-04, titled ``Provision of
Vocational Rehabilitation Services to An Individual by More Than One
Agency'' and dated June 11, 2012, we clarify here in this Discussion
that an individual may receive vocational rehabilitation services from
more than one DSU simultaneously, including those in different States,
when appropriate, and in accordance with the implementation of an order
of selection, as applicable, in each State. In this way, the individual
can receive the services that best support his or her vocational needs
and the achievement of an employment outcome.
Changes: None.
Compliance Threshold
Comments: A few commenters recommended that we establish a
compliance threshold of 90 percent with the requirement to determine
eligibility within 60 days of the receipt of the application. These
commenters stated this would provide a national benchmark by which DSUs
would be held accountable by community stakeholders as well as State
and Federal auditors.
Discussion: Section 102(a)(6) of the Act and final Sec.
361.41(b)(1) require DSUs to determine the eligibility of an applicant
within 60 days from the receipt of an application for vocational
rehabilitation services, unless exceptional circumstances preclude the
determination and the individual agrees to a specific extension of
time. This requirement remains unchanged in the Act, as amended by WIOA
and these final regulations; therefore, it is not a new requirement
imposed on DSUs.
We appreciate the recommendations made by commenters for a
mechanism to ensure compliance. Section 106(a)(1) of the Act requires
States to comply with the common performance accountability system
requirements imposed on all core programs of the workforce development
system, including the VR program, established by section 116 of title I
of WIOA. Section 116(b)(1)(A) requires a State to comply with the six
primary performance indicators set forth in section 116(b)(2)(A)(i), as
well as any other additional performance indicators developed by the
State. While there is no statutory authority for the Department to
impose a performance accountability measure, such as that recommended
by commenters, there is nothing to preclude a State from developing
such a measure for itself. We will continue to assess the compliance
[[Page 55674]]
of DSUs with the 60-day eligibility determination requirement in
accordance with section 107 of the Act using all available data and
information.
Changes: None.
Entities Holding Special Wage Certificates
Comments: Many commenters requested clarification about whether a
DSU may contract with a community rehabilitation program to provide
assessments used in the determination of eligibility, if the community
rehabilitation program holds a subminimum wage certificate under
section 14(c) of the FLSA.
Discussion: Neither the Act, as amended by WIOA, nor these final
regulations prohibit a DSU from contracting with a community
rehabilitation program for assessment services regardless of whether
that provider also holds a subminimum wage certificate under section
14(c) of the FLSA. Nevertheless, we strongly encourage DSUs to contract
with providers that can conduct assessments in competitive integrated
settings. It is through these assessments that DSUs may best determine
the individual's eligibility for the VR program and the vocational
rehabilitation services needed to achieve competitive integrated
employment.
Changes: None.
Extended Evaluation and Trial Work Experiences
Comments: Many commenters supported eliminating extended evaluation
as a tool for determining eligibility for some individuals with the
most significant disabilities. However, many other commenters also
requested clarification of the circumstances under which it might be
appropriate to use extended evaluation for the determination of
eligibility for vocational rehabilitation services. Some commenters
expressed concern that individuals for whom a trial work opportunity
may not be available may inappropriately be determined ineligible for
services and requested an evidentiary standard in the absence of the
term ``clear and convincing evidence'' in Sec. 361.42. Some commenters
explicitly requested that extended evaluation be reinserted into the
regulations.
Some commenters asked whether the term ``clear and convincing
evidence'' was removed from proposed Sec. 361.42(e)(2)(iii) by mistake
and recommended retaining this standard. The proposed language required
that ``sufficient evidence'' be obtained through trial work experiences
to determine if an individual cannot benefit from vocational
rehabilitation services to achieve a vocational goal. These commenters
believed sufficient evidence is not a strong enough standard and that
individuals with significant disabilities may be inappropriately
determined ineligible as a result.
One commenter recommended that we revise Sec. 361.42(e)(2)(i) to
require that all trial work experiences take place in integrated
settings by deleting the phrase ``to the maximum extent possible.'' One
commenter requested that we add examples of supports for individuals
with serious mental illness to Sec. 361.42(e)(2)(iv), such as
individual placement and supported employment services.
Discussion: We appreciate the support by many commenters for the
elimination of the use of extended evaluations for the purpose of
determining that an individual is unable to benefit from vocational
rehabilitation services due to the severity of the individual's
disability and, thus, is ineligible for vocational rehabilitation
services under section 102(a)(2)(B) of the Act, as amended by WIOA, and
Sec. 361.42. The Act's amendment and these final regulations help to
ensure that before a DSU makes an ineligibility determination, it must
conduct a full assessment of the capacity of the applicant to perform
in realistic work settings, without the use of lengthy extended
evaluations.
We appreciate the comment recommending that all trial work
experiences be conducted in competitive integrated employment settings.
While we agree that these experiences should be provided in competitive
integrated employment settings, to the maximum extent possible, as
stated in both proposed and final Sec. 361.42(e)(2)(i), there is no
statutory authority to do as the commenter recommends. Section
102(a)(2)(B) of the Act, as amended by WIOA, requires a DSU to explore
an individual with a disability's ability to work through trial work
experiences prior to determining that the individual is not eligible
for the VR program due to the severity of his or her disability. The
trial work experiences must be of ``sufficient variety'' and must
provide the individual with the opportunity to ``try different
employment experiences'' and ``become employed in competitive
integrated employment.'' There is no mandate in section 102(a)(2) that
all trial work experiences be in competitive integrated employment. In
fact, the use of the phrases ``sufficient variety'' and ``different
employment opportunities'' suggest the congressional understanding that
some trial work experiences may need to be provided in a setting other
than competitive integrated employment. However, given the Act's
heightened emphasis on the achievement of employment outcomes in
competitive integrated employment, as well as the fact that section
102(a)(2)(B) of the Act, as amended by WIOA, specifically mandates that
trial work experiences provide individuals with the opportunity to
become employed in competitive integrated employment, we believe that
final Sec. 361.42(e)(2)(i) is consistent with the statute. Proposed
and final Sec. 361.42(e)(2)(i), are both consistent with prior Sec.
361.42(e)(2)(i), with only minor wording changes to conform to terms
used in the Act, as amended by WIOA. The Department also believes that
trial work experiences in integrated settings, rather than simulated or
mock experiences in sheltered environments, provide the DSU with the
best and most comprehensive evidence of an individual's capacity to
achieve competitive integrated employment. Therefore, consistent with
the intent of the Act to provide individuals with disabilities the
opportunity to achieve competitive integrated employment, we strongly
recommend that DSUs exhaust all opportunities to provide trial work
experiences through actual work experiences in integrated community
environments to obtain the evidence necessary for making the
determination of an individual's eligibility for vocational
rehabilitation services.
We do not expect that individuals with significant disabilities
will be determined ineligible in greater numbers as a result of this
change. Rather, we expect that more individuals, including those with
the most significant disabilities, and those who may require supported
employment services, will achieve competitive integrated employment
outcomes.
We appreciate the comments regarding the inadvertent deletion of
prior regulatory provisions regarding clear and convincing evidence
from proposed Sec. 361.42(e)(2)(iii) and appreciate the strong support
that this provision be retained in these final regulations. We agree
with commenters that ``sufficient evidence'' is insufficient for a
determination of ineligibility and that some individuals with
significant disabilities may be inappropriately determined ineligible
as a result. The deletion of the provision related to clear and
convincing evidence was indeed an error and we have revised final Sec.
361.42(e)(2)(iii) to read exactly as it had in prior regulations, thus
resulting
[[Page 55675]]
in no regulatory change from prior regulations to these final
regulations.
We believe retaining prior regulatory text in these final
regulations is consistent with the statutory requirements of section
102 of the Act, as amended by WIOA. Specifically, section 102(a) of the
Act, read in its entirety, establishes the information that is
sufficient to make a determination of eligibility for an individual
with a disability for purposes of the VR program. There is no, and
never has been, a statutory requirement that clear and convincing
evidence be used to make an eligibility determination. This long-
standing statutory interpretation is consistent with use of the phrase
``sufficient evidence'' in Sec. 361.42(e)(2)(iii)(A), both prior and
final, with respect to eligibility determinations. However, when making
a determination of ineligibility due to the severity of an individual's
disability, section 102(a)(5)(C)(i) of the Act, which remained
unchanged by WIOA, requires the DSU to inform the individual in writing
of the reason for the ineligibility determination, including the clear
and convincing evidence that formed the basis for that determination.
This long-standing statutory requirement is consistent with use of the
phrase ``clear and convincing evidence'' in Sec. 361.42(e)(2)(iii)(B),
both prior and final, with respect to determinations of ineligibility.
Therefore, given the error noted by commenters, the Department has
retained prior Sec. 361.42(e)(2)(iii) in these final regulations.
In addition, prior to WIOA, section 102(a)(2)(B) of the Act
required that trial work experiences be of sufficient variety and
provided over a sufficient period of time to enable the DSU to
determine the eligibility of the individual, or to obtain clear and
convincing evidence of the individual's inability to achieve an
employment outcome due to the severity of his or her disability.
Section 102(a)(2)(A) and section 102(a)(2)(B) now state only that
the trial work experiences must be of sufficient variety and over a
sufficient period of time to determine the eligibility of the
individual. Section 102 of the Act, as amended by WIOA, no longer makes
reference to the need for clear and convincing evidence for the purpose
of determining an individual's ineligibility for vocational
rehabilitation services. Consistent with these amendments, we proposed
to revise Sec. Sec. 361.42(e)(1) and 361.42(e)(2)(iii) to require that
trial work experiences be of sufficient variety and over a sufficient
period of time for the DSU to obtain sufficient evidence that the
individual cannot benefit from participation in the VR program.
In proposing this change, we believe that the Act, as amended by
WIOA, did not intend, to weaken the evidentiary standard required for
this determination. It remains our long-standing policy that
individuals with disabilities, including those with the most
significant disabilities, must be afforded every opportunity to obtain
the vocational rehabilitation services needed to achieve high quality
employment and that a DSU should only deny an individual this
opportunity in limited circumstances, and based on the highest level of
proof.
Therefore, we have revised final Sec. 361.42(e)(2)(iii) to clarify
that the trial work experiences must yield clear and convincing
evidence before a DSU may determine an individual is incapable of
benefiting from the provision of vocational rehabilitation services,
and, thus, is ineligible for the program.
We agree with the commenter that individuals with serious mental
illness should be afforded the necessary supports, such as--but not
limited to--individual placement or supported employment services, to
ensure trial work experiences are beneficial. The same is true for any
individual with significant disabilities participating in trial work
experiences. Proposed Sec. 361.42(e)(2)(iv) remained unchanged from
prior regulations. While we disagree with the commenter that specific
examples pertinent to mental illness should be included in final Sec.
361.42(e)(2)(iv) because to do so could cause more confusion as to why
other examples were not added. However, assistive technology services
and personal assistance services are not the only support that should
be provided during a trial work experience. Although we believe the
provision was clear that the two examples given were just two examples
of many given the use of the word ``including,'' we have nonetheless
made a small change to Sec. 361.42(e)(2)(iv) to add further clarity.
Changes: We have revised final Sec. 361.42(e)(2)(iii) to retain
prior Sec. 361.42(e)(2)(iii), thereby specifying that a DSU must base
eligibility determinations on sufficient evidence, but that
determinations of ineligibility due to the severity of an individual's
disability must be based on clear and convincing evidence. We have also
revised final Sec. 361.42(e)(2)(iv) to add the phrase ``including, but
not limited to'' when providing examples of the types of support
services that may be provided to an individual participating in a trial
work experience. This change clarifies that DSUs should ensure an
individual with a disability receives the supports he or she needs so
that the trial work experience is beneficial.
Development of the Individualized Plan for Employment (Sec. 361.45)
Time Frame for Developing the Individualized Plan for Employment
Comments: Many commenters supported the change from the prior
regulations in proposed Sec. 361.45(e) which required that the DSU
develop the individualized plan for employment for each eligible
individual as soon as possible, but no later than 90 days following
determination of eligibility, unless the DSU and the individual agree
to a specific extension of that time frame. Some commenters supported
the 90-day standard but were concerned that the quality of plans be
maintained and that plans continue to be individualized based on
interests, abilities and informed choice and not be made uniform out of
expediency. These commenters stated that DSUs may not take the time
needed to develop a comprehensive individualized plan for employment
within the 90-day time limit, and may settle for a more generalized
plan rather than seeking an extension of time. Some commenters, though
they supported a specific time limit, stated that the limit should be
shorter than 90 days and recommended that we strengthen the regulation
to promote the more timely development of the individualized plan for
employment. One commenter recommended the adoption of a 90 percent
compliance standard for this regulation to strengthen the adherence to
the time limit. Another commenter asked how long the extended period
should be to ensure that there are no additional delays in the
development of the individualized plan for employment. Finally, one
commenter requested guidance concerning how to proceed in situations
where the individual does not agree to an extension.
Discussion: We appreciate the comments supporting the proposed
regulatory changes, as well as the concerns expressed by commenters
about those same changes. As explained in the NPRM, the change to Sec.
361.45(e), which mirrors section 102(b)(3)(F) of the Act, as amended by
WIOA, is intended to efficiently and effectively serve eligible
individuals, move them through the VR process with minimal delay, and
achieve employment outcomes in competitive integrated employment. We
believe that DSUs can implement the regulation in a manner that does
not negatively affect the quality and individualized nature of the plan
for
[[Page 55676]]
employment for each eligible individual and that this requirement will
have a minimal impact on the majority of DSUs that have already adopted
the 90-day time frame. Despite the 90-day time frame, these plans must
be of sufficient quality to incorporate mandatory components in section
102(b)(4) of the Act, and meet requirements under Sec. 361.46(a)(1),
which requires the individualized plan for employment to be consistent
with the individual's unique strengths, resources, priorities,
concerns, abilities, capabilities, career interest, and informed choice
consistent with the general goal of competitive integrated employment
(except that in the case of an eligible individual who is a student or
a youth with a disability, the description may be a description of the
individual's projected post-school employment outcome).
In addition, the change to Sec. 361.45(e) is necessary to
implement the statutory requirement in section 102(b)(3)(F) of the Act,
as amended by WIOA, that specifically mandates DSUs to develop the
individualized plan for employment for each individual within 90 days
following the determination of eligibility, unless the DSU and the
individual agree to an extension of that time frame. Therefore, we do
not have the statutory authority to shorten the time frame because to
do so would be inconsistent with the statute.
DSUs must comply with the requirements of section 102(b)(3)(F) of
the Act and final Sec. 361.45(e) when developing the individualized
plans for employment for each eligible individual. We will assess the
DSUs' compliance with the requirement during the monitoring and review
we conduct under section 107 of the Act. We do not believe that it is
necessary, therefore, to include a 90 percent compliance standard in
this regulation to strengthen the adherence to the time frame.
Section 102(b)(3)(F) of the Act and final Sec. 361.45(e) permit
the DSU and individual to agree to a specific extension of the 90-day
time limit without imposing a limitation on the length of that
extension. DSUs should ensure that the extension is warranted based on
the particular circumstances and needs of the individual and that the
extensions are not so long as to cause unnecessary delays in providing
services.
The individualized plan for employment is an evolving document and
may be amended to effect changes of goal, services, providers, and time
frames. If the individual disagrees with the vocational rehabilitation
counselor's request to extend the time for developing the plan, the
counselor should determine whether the plan, as written at that time,
addresses the mandatory components of section 102(b) of the Act and
final Sec. 361.46, and whether the information in the plan is
sufficient to allow the DSU and individual to proceed with the delivery
of services, with the understanding that the plan may be amended. If
the counselor determines that the plan does not contain sufficient
information on which to base the provision of services and the
individual still disagrees with the request to extend the development
of the plan beyond 90 days after further vocational guidance and
counseling, the counselor should refer the individual to the CAP for
help in resolving the disagreement, and must, in accordance with
section 102(c)(2)(B)(ii), inform the individual of the due process
rights set forth in section 102(c) of the Act and final Sec. 361.57.
Changes: None.
Options for Developing the Individualized Plan for Employment
Comments: All comments received on proposed Sec. 361.45(c)(1)
supported the requirement that a DSU provide eligible individuals
information about the option of requesting assistance from a disability
advocacy organization when developing the individualized plan for
employment. Many of the commenters recommended that we include in the
regulation examples of disability advocacy organizations, such as
agencies funded under the Act, entities providing services under the
Ticket to Work and Work Incentive Act of 1998, and agencies assisting
individuals with disabilities under the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 and the IDEA.
All commenters supported our inclusion of benefits planning in
proposed Sec. 361.45(c)(3). A few commenters requested that we define
that term. One commenter asked whether we would support the development
of additional benefit planning resources and what documentation would
be required to verify the individual's completion of benefits planning.
Discussion: We appreciate the comments supporting the proposed
regulations. Section 102(b)(1)(A) of the Act, as amended by WIOA, and
final Sec. 361.45(c)(1)(ii)(C) are intended to empower eligible
individuals by clarifying that they can choose to seek assistance from
disability advocacy organizations when developing their individualized
plans for employment. Section 102(b)(1)(A) of the Act does not specify
examples of these disability advocacy organizations, and we do not
believe it necessary to include examples in final Sec.
361.45(c)(1)(ii)(C) because to do so could have an unintended limiting
effect. However, we encourage DSUs to provide eligible individuals with
a list of the advocacy organizations in the State so that they may
identify those organizations with expertise in disability-related
needs, responsibilities, and services that are required to achieve the
individuals' employment goals.
Consistent with section 102(b)(2) of the Act, as amended by WIOA,
final Sec. 361.45(c) requires DSUs to provide certain information in
writing to eligible individuals when developing the individualized plan
for employment. Specifically, final Sec. 361.45(c)(2) and (3) require
DSUs to provide general information on additional supports and
assistance for individuals with disabilities desiring to enter the
workforce, including assistance with benefits planning, to individuals
receiving Supplemental Security Income or Social Security Disability
Insurance benefits. We recommend that DSUs retain a copy of this
written information and guidance in the individual's service record, as
they would be documents pertinent to the development of the
individualized plan for employment.
In addition, we understand that benefits planning may take many
different forms over a course of time. Furthermore, benefits planning
and the individuals certified to provide these types of support
services are determined by the SSA's work incentive program. We believe
it is important that States retain sufficient flexibility to work with
providers appropriately certified or defined by SSA. Therefore, we
disagree with the recommendation to define ``benefits planning'' in
these final VR program regulations.
Furthermore, although DSUs must provide information about benefits
planning and available resources, they are not required to document the
completion of these services. However, if benefits planning is included
and the services in the individualized plan for employment, it should
be documented upon completion.
Changes: None.
Data for Preparing the Individualized Plan for Employment
Comments: One commenter stated that the determination of
eligibility only requires that an individual have impediments to
employment but not necessarily impediments to the specific employment
outcome the individual desires, and questioned why only this data would
be used.
[[Page 55677]]
Discussion: While we appreciate the concerns expressed by the
commenter, this section of the Act was not changed by WIOA and,
therefore, no changes were proposed in the NPRM. We address other
comments we received on this section regarding the use of sheltered
employment settings for the conduct of assessments in the Assessment
for Determining Eligibility and Vocational Rehabilitation Needs section
under the Applicable Definitions section previously in this preamble.
Changes: None.
Content of the Individualized Plan for Employment (Sec. 361.46)
Comments: The majority of commenters supported proposed Sec.
361.46(a)(1), requiring that the individualized plan for employment
specify an employment goal consistent with the general goal of
competitive integrated employment under section 102(b)(4) of the Act,
as amended by WIOA. However, a few commenters expressed concern that
the proposed regulation does not satisfactorily address the needs of
all individuals with disabilities because it limits options for
employment goals to competitive integrated employment, and stated that
the regulation is in conflict with congressional intent regarding the
full range of employment options.
A few commenters recommended adding to or clarifying the
requirement in proposed Sec. 361.46(a)(7)(iii) that the individualized
plan for employment contain a description of how the responsibilities
for service delivery will be divided between the employment network and
the DSU under section 102(b)(4)(H) of the Act.
Discussion: We appreciate the support for the proposed regulation.
WIOA did not amend section 102(b)(4)(H) of the Act, which requires that
the individualized plan for employment for an individual receiving
assistance from an employment network through the Ticket to Work and
Self-Sufficiency program established under the Social Security Act
include a description of how the responsibility for providing services
will be divided between the employment network and the DSU. Therefore,
we do not believe that further clarification of this long-standing
requirement is necessary.
We received comments about eliminating uncompensated employment
outcomes through the individualized plan for employment, and we address
them in the discussion on the definition of ``employment outcome'' in
final Sec. 361.5(c)(15) under the Applicable Definitions section
elsewhere in this Analysis of Comments and Changes section.
Changes: None.
Scope of Vocational Rehabilitation Services for Individuals With
Disabilities
Services for Individuals Who Have Applied or Been Determined Eligible
for Vocational Rehabilitation Services (Sec. 361.48(b))
Advanced Training
Comments: A few commenters supported including advanced training in
STEM fields (science, technology, engineering, or mathematics,
including computer science), medicine, law, or business as a vocational
or other training service in proposed Sec. 361.48(b)(6) so that
individuals with disabilities can be prepared for the high-demand
careers available in today's economy. One commenter recommended that
advanced training be provided, as appropriate, not only for those
specific careers mentioned in proposed Sec. 361.48(b)(6), but for all
careers. Another commenter suggested that Sec. 361.48(b)(6) explicitly
state that advanced training must be provided under an individualized
plan for employment. Still another commenter requested that proposed
Sec. 361.5(c) include a definition of ``advanced training.''
By contrast, a few commenters expressed concern about the potential
cost burden upon VR agencies that would result from individuals
pursuing advanced training under proposed Sec. 361.48(b)(6). These
commenters suggested that comparable benefits are typically limited for
graduate students; as a result, DSUs would need to cover all or a
substantial portion of the cost of advanced degrees.
Additionally, one commenter requested that we clarify in Sec.
361.48(b) that vocational rehabilitation services are not intended to
assist individuals to obtain employment in only entry-level careers.
Discussion: We appreciate the support for including advanced
training among the individualized services available. The Department
has a long history of encouraging DSUs to provide advanced training,
when appropriate, to assist eligible individuals in achieving their
employment goals. Section 103(a)(18) of the Act, as amended by WIOA,
specifically permits DSUs to provide vocational rehabilitation services
that encourage qualified eligible individuals to pursue advanced
training in the STEM fields, medicine, law, or business. Section
103(a)(5) of the Act and our prior regulation in Sec. 361.48(f) (now
final Sec. 361.48(b)(6)) have historically permitted DSUs to provide
training at institutions of higher education, including in advanced
degree programs, to qualified eligible individuals.
While section 103(a)(18) of the Act specifically mentions advanced
education in certain fields, that does not exclude advanced training in
other fields under section 103(a)(5) of the Act. In reviewing proposed
Sec. 361.48(b)(6), the Department recognizes that it could be
interpreted as allowing advanced training in only certain fields. This
was not our intent, and that restriction would not be consistent with
section 103(a) of the Act or long-standing Department policy.
Therefore, we have revised final Sec. 361.48(b)(6) to clarify that
DSUs may provide advanced training in any field, not just the specific
fields listed in section 103(a)(18) of the Act.
We do not believe that a definition of ``advanced training'' is
necessary. Neither section 7, nor section 103(a), of the Act, as
amended by WIOA, defines ``advanced training.'' We understand that
``advanced training'' may have multiple meanings, such as degrees
conferred by institutions of higher education and advanced
certifications in certain fields, all of which may be permissible under
the VR program. Therefore, we will not define this term in final Sec.
361.48(b)(6) or elsewhere in final part 361 to avoid limiting the
meaning of ``advanced training.''
As stated earlier, final Sec. 361.48(b)(6) continues the long-
standing availability of financial support for advanced training
through the VR program. Therefore, though comparable benefits for
graduate-level education may be limited, we anticipate that DSUs will
experience little, if any, increase in the costs of providing this
existing service.
The Secretary agrees that providing vocational rehabilitation
services is not limited only to helping an individual with a disability
obtain entry-level employment. Under section 102(a)(1) of the Act, as
amended by WIOA, and final Sec. 361.48(b), DSUs are to provide
vocational rehabilitation services to help eligible individuals advance
in employment, consistent with each individual's approved
individualized plan for employment and his or her unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice.
Changes: We have revised Sec. 361.48(b)(6) to clarify that DSUs
may provide advanced training in any field.
Other Services
Comments: Some commenters recommended that proposed Sec. 361.48(b)
[[Page 55678]]
include other services not already specifically mentioned. Of these
commenters, a few suggested that Sec. 361.48(b)(6) allow DSUs to
provide tuition and other services for students with intellectual or
developmental disabilities in a Comprehensive Transition and
Postsecondary Program for Students with Intellectual Disabilities, as
defined by the Higher Education Act of 2008. One commenter asked that
assistive technology be included among the individualized services
listed in this section. Another commenter suggested that Sec.
361.48(b) require that DSUs recruit, train, and hire peer service
providers and mental health advocates to offer individualized support
services to individuals experiencing mental illness.
Finally, one commenter requested that we clarify the difference
between job retention services and follow-along services in Sec.
361.48(b)(12).
Discussion: We disagree with the commenters' recommendations to
identify in final Sec. 361.48(b) other services not specifically
listed. The list of services in section 103(a) of the Act and final
Sec. 361.48(b) is not exhaustive. Therefore, DSUs may provide other
services, not specifically listed, if necessary for the individual to
achieve an employment outcome. Similarly, we clarify here that the
vocational and other training services specified in final Sec.
361.48(b)(6) encompass tuition and other services for students with
intellectual or developmental disabilities in a Comprehensive
Transition and Postsecondary Program for Students with Intellectual
Disabilities, as defined by the Higher Education Act of 2008. In
addition, assistive technology is encompassed in the definition of
``rehabilitation technology'' in final Sec. 361.5(c)(45), which is
included among the individualized services in final Sec.
361.48(b)(17). Also, section 103(a) of the Act, as amended by WIOA,
does not specifically require a DSU to provide mental health advocacy
services or peer-counseling services for individuals with mental health
diagnoses. However, a DSU may provide peer-counseling services, on an
individualized basis, under final Sec. 361.48(b)(3), (12), and (21).
Finally, job-retention services and follow-along services are both
types of job-related services. Job-retention services may include any
vocational rehabilitation service (i.e., vocational rehabilitation
counseling and guidance, maintenance, or tools) necessary to help an
individual maintain employment. Follow-along services typically mean
direct contact with an employed individual to provide support with
issues arising from employment, such as on-the-job performance, or with
addressing employment barriers, such as absenteeism or tardiness, that
could jeopardize employment.
Changes: None.
Scope of Vocational Rehabilitation Services for Groups of Individuals
With Disabilities (Sec. 361.49(a))
Establishment, Development, or Improvement of Community Rehabilitation
Programs
Comments: One commenter suggested that vocational rehabilitation
services provided under Sec. 361.49(a)(1) for establishing,
developing, or improving a public or other nonprofit community
rehabilitation program should be allowable only if these services
result in competitive integrated employment for the individuals
receiving services from the program.
Discussion: We agree with the comment that services for groups
provided under Sec. 361.49(a)(1) must be provided for the purpose of
achieving competitive integrated employment. Section 103(b)(2) of the
Act remained unchanged by the amendments in WIOA, except for a
technical amendment. As such, services provided under this authority
have always been for the purpose of promoting integration in the
community through employment, and final Sec. 361.49(a)(1), like the
Act, as amended by WIOA, emphasizes employment outcomes in competitive
integrated employment, including supported employment and customized
employment.
Changes: None.
Technical Assistance to Businesses
Comments: Another commenter sought clarification about the
difference between technical assistance to businesses seeking to employ
individuals with disabilities in proposed Sec. 361.49(a)(4) and
training and services for employers in proposed Sec. 361.32. This
commenter inquired whether both authorities may be used to fund these
similar services.
Discussion: In answer to the request for clarification, DSUs are
permitted to partner with employers and businesses under both final
Sec. Sec. 361.49(a)(4) and 361.32, as authorized by sections 103(b)
and 109, respectively, of the Act, as amended by WIOA. Under final
Sec. 361.49(a)(4), DSUs may use VR program funds to provide technical
assistance to businesses seeking to hire individuals with disabilities,
and this authority must be exercised in a manner consistent with the
ultimate purpose of the program--achieving competitive integrated
employment. Final Sec. 361.32 is similar, and it identifies specific
activities DSUs may engage in when providing training and technical
assistance to businesses. These activities may include, but are not
limited to, general training and technical assistance for employers
about employing individuals with disabilities, disability awareness,
and employment law; recruitment, training, retention of, and workplace
accommodations for, employees with disabilities; and improving
opportunities for work-based learning experiences for individuals with
disabilities. The specific activities in final Sec. 361.32 are
encompassed within the more general authority of final Sec.
361.49(a)(4). Thus, there is little distinction between the two
authorities, and DSUs may rely on both when providing training and
technical assistance to businesses seeking to employ individuals with
disabilities in competitive integrated employment.
Changes: None.
Establishment, Development, or Improvement of Assistive Technology
Programs
Comments: A few commenters opposed proposed Sec. 361.49(a)(8),
because it requires that individuals with disabilities be applicants of
or be determined eligible for vocational rehabilitation services to
access assistive technology services through the establishment,
development, or improvement of assistive technology demonstration,
loan, reutilization, or financing programs established under the
Assistive Technology Act of 1998.
Discussion: We agree with commenters that section 103(b)(8) of the
Act, as amended by WIOA, is not explicitly limited to individuals with
disabilities who have applied or been determined eligible for the VR
program. We also agree that individuals with disabilities who are not
applicants or eligible individuals of the VR program may benefit from
the coordination of programming with activities authorized under the
Assistive Technology Act of 1998.
After further review, we recognize that limiting these generalized
assistive technology services to applicants and eligible individuals of
the VR program, as we did in proposed Sec. 361.49(a)(8), may have
created an unintended barrier for these individuals in accessing
generalized assistive technology services. Our intention of limiting
this service to applicants and eligible individuals of the VR program
in proposed Sec. 361.49(a)(8) was to be consistent with the
establishment authority in section 103(b)(2) of the Act
[[Page 55679]]
and proposed Sec. 361.49(a)(1), which remained substantially unchanged
by WIOA.
However, we acknowledge that the nature of the services provided
under the new establishment authority of section 103(b)(8) of the Act
and proposed Sec. 361.49(a)(8) is quite different. We also acknowledge
that neither section 103(b) of the Act, as amended by WIOA, nor
proposed Sec. 361.49 mandates the DSU to provide any one of these
services, including the assistive technology related services in
section 103(b)(8) of the Act and proposed Sec. 361.49(a)(8).
Furthermore, consistent with section 103(b) of the Act, under final
Sec. 361.49(a), some of the services to groups are available to
individuals who may not have applied or been determined eligible for
vocational rehabilitation services.
We acknowledge that some individuals with disabilities may require
generalized assistive technology services before they are able to apply
for vocational rehabilitation services, or that, through the receipt of
generalized assistive technology services, individuals with
disabilities may realize their potential to achieve competitive
integrated employment and subsequently apply for vocational
rehabilitation services. Therefore, the final regulations do not limit
assistive technology services to applicants and eligible individuals of
the VR program.
Finally, the assistive technology services provided under this
authority are more generalized in nature and for the benefit of a group
of individuals; they are not tied to the individualized plan for
employment of any one individual. Individualized assistive technology
services and devices may only be provided, under section 103(a)(14) of
the Act and final Sec. 361.48(b)(17) and in accordance with an agreed
upon individualized plan for employment.
Changes: We have revised final Sec. 361.49(a)(8) so that DSUs are
permitted to provide any individual with a disability generalized
assistive technology services provided under programs established,
developed, or improved by the DSU in coordination with activities
authorized under the Assistive Technology Act of 1998.
Advanced Training
Comments: One commenter sought clarification of the authority of
the DSU to provide support to eligible individuals (including, as
appropriate, tuition) for advanced training in specific fields under
proposed Sec. 361.49(a)(9).
Discussion: As stated in the NPRM, because Sec. 361.49(a)(9)
addresses services to groups, we believe there are only limited
circumstances in which it would be appropriate for the DSU to provide
support for advanced training under that section. Examples include
supporting an advanced degree program for multiple eligible individuals
at the same institution of higher education or developing and
implementing specific programming to benefit a group of eligible
individuals working toward advanced degrees at institutions of higher
education.
Final Sec. 361.49(a)(9), which mirrors section 103(b)(9) of the
Act, as amended by WIOA, is not intended, and must not be used, to
replace the authority of the DSU to provide advanced training to
eligible individuals on their individualized plans for employment under
section 103(a)(5) and (18) of the Act and final Sec. 361.48(b).
Changes: None.
Comparable Services and Benefits (Sec. 361.53)
Accommodations and Auxiliary Aids and Services
Comments: Although a few commenters supported the proposed
regulation, many commenters recommended that accommodations and
auxiliary aids and services be exempt from a search for comparable
services and benefits when they are needed to help an individual
participate in services that are exempt from such a search. Two
commenters recommended removing the requirement to search for
comparable benefits for auxiliary aids and devices altogether. Some
commenters indicated that, prior to WIOA, providing accommodations or
auxiliary aids and services was typically done in support of another
service and rarely a stand-alone service.
A few commenters noted a technical error in proposed Sec.
361.53(b), which cross-referenced the vocational rehabilitation
services exempt from a determination of the availability of comparable
services and benefits in proposed Sec. 361.48(a) instead of proposed
Sec. 361.48(b), the correct citation. These commenters also
recommended revising the regulation to specify that a comparable
service review is not required prior to providing an accommodation or
auxiliary aid or service if it is necessary for an individual to
receive one of the exempt services listed in proposed Sec. 361.48(b).
Discussion: We appreciate the comments and recommendations about
comparable services and benefits. Although many commenters suggested
that we exempt accommodations and auxiliary aids and services from a
search for comparable services and benefits, especially when they are
needed to enable an individual to participate in services that are
exempt from such a search, doing so would be contrary to the statute.
Whereas some commenters noted that prior to WIOA, providing
accommodations for auxiliary aids and services was typically done in
support of another service and rarely as a stand-alone service, section
101(a)(8)(A)(i) of the Act, as amended by WIOA, specifically added
accommodations or auxiliary aids and services to those services that
require a determination of available comparable services and benefits
before the DSU may provide them. Moreover, section 101(a)(8)(A)(i)
specifically exempts certain services from this search, but
accommodations or auxiliary aids and services are not among those that
are exempt.
We agree that there was an error in the cross-reference to proposed
Sec. 361.48(a), as noted by several commenters. We have made the
correction.
Changes: We have revised final Sec. 361.53(b), which cross-
references Sec. 361.48, to correct a typographical error that appeared
in the NPRM. The correct cross-reference is Sec. 361.48(b).
Pre-Employment Transition Services and Personally Prescribed Devices
Comments: A few commenters suggested that pre-employment transition
services be added to the list of services exempt from a search for
comparable services and benefits because the vocational rehabilitation
agency must ensure that these services are provided or provide them
directly.
One commenter suggested that personally-prescribed devices, such as
eyeglasses, hearing aids, and wheelchairs, be added as an exempt
service under proposed Sec. 361.53(b). The commenter based this
recommendation on a statement in the preamble of the NPRM about
identifying agency financial responsibilities in interagency agreements
under proposed Sec. 361.53(d) that personally prescribed devices are
not included in accommodations or auxiliary aids and services for the
purposes of these regulations.
Discussion: While we agree with commenters that DSUs must provide,
or arrange for the provision of, pre-employment transition services,
section 101(a)(8)(A)(i) of the Act, as amended by WIOA, does not exempt
these services from the search for comparable services and benefits as
it does for other specific services. A DSU may satisfy its mandate
under section 113 of the Act by arranging for pre-employment transition
services provided by another public
[[Page 55680]]
entity after conducting a search for comparable services and benefits.
Similarly, section 101(a)(8)(A)(i) of the Act does not exempt
personally-prescribed devices, such as eyeglasses, hearing aids, and
wheelchairs. Given that the Act specifically exempts some services,
there is no statutory basis to exempt other services or devices from
the search for comparable services and benefits; therefore, personally
prescribed devices may not be added as an exempt service under final
Sec. 361.53(b) as referenced in final Sec. 361.53(d).
Changes: None.
Interagency Agreements
Comments: Several commenters addressed interagency agreements
between DSUs and public institutions of higher education for providing
accommodations and auxiliary aids and services. A few commenters shared
their concern that students may not receive services they need because
the DSU and an institution of higher education cannot agree on
financial responsibilities. One commenter suggested that DSUs be
required to provide the services and then pursue reimbursement from the
universities if no interagency agreement exists. Other commenters
supported interagency agreements so long as they did not result in
denial or delays in providing needed aids or accommodations. Some
commenters stated that interagency agreements should not require
negotiation of the financial responsibilities for providing
accommodations or auxiliary aids and services, which should be the
responsibility of the agency that is providing the service, aid, or
accommodation. Other commenters stated that these financial
responsibilities should be defined at a national level. One commenter
suggested that interagency agreements should be explicit in specifying
who is responsible for accommodations, services, and auxiliary aids,
and that the regulations should include a required time frame of six
months from the publication of the final regulations for completing
interagency agreements.
A few commenters objected to one example in the NPRM describing
agency financial responsibilities in interagency agreements with public
institutions of higher education. Specifically, the commenters thought
the example of a DSU providing interpreters or readers both in and out
of a classroom in a State where tuition is free for deaf or blind
students could be misinterpreted as guidance or direction from the
Department about how to assign financial responsibilities rather than
as an example of negotiating financial responsibilities.
Discussion: We appreciate the concerns expressed by commenters
regarding negotiation of financial responsibilities in interagency
agreements and the potential delay in students receiving services.
Pursuant to section 101(a)(8)(A)(i) of the Act and final Sec.
361.53(c)(2), DSUs must provide a service if that service is not
available as a comparable service at the time it is needed. This
provision should not be interpreted as precluding the required
negotiation of financial responsibilities under an interagency
agreement required by section 101(a)(8)(B) of the Act and final Sec.
361.53(d).
Although some commenters suggested that accommodations and
auxiliary aids and services should be the responsibility of the agency
providing the service requiring the accommodations, section
101(a)(8)(B) of the Act, as amended by WIOA, mandates that State-level
interagency agreements identify who is financially responsible for
providing vocational rehabilitation services, including accommodations
or auxiliary aids and services.
There is no statutory authority for the Department to define these
financial responsibilities at the national level. While the statute and
these final regulations establish some parameters, both permit States
to develop interagency agreements appropriate to their unique needs,
thereby ensuring maximum flexibility. For example, States may choose to
explicitly identify the financial responsibilities of each party to the
interagency agreement as suggested by the commenter.
Additionally, there is no statutory authority for the Department to
impose a deadline of six months from the publication of the final
regulations to complete interagency agreements. Moreover, we do not
believe such a deadline is necessary because the requirement to enter
into interagency agreements, set forth in section 101(a)(8)(B) of the
Act and final Sec. 361.53, existed prior to the enactment of WIOA. The
requirement to enter into an interagency agreement is long-standing,
with the only change being the explicit inclusion of accommodations or
auxiliary aids and services. However, as noted in the preamble to the
NPRM, we believe that these services were always included in the search
for comparable services and benefits, as is any vocational
rehabilitation service that is not explicitly exempt. For this reason,
the changes made to the interagency agreements pursuant to the
amendments made by WIOA are technical--not substantive--in nature, and
additional time to implement the requirement is not necessary.
Finally, in response to comments expressing concern about one of
the examples provided in the preamble to the NPRM, that example is one
of several in a non-exhaustive list. Determination of agency financial
responsibilities in interagency agreements is a State matter and should
be developed appropriately to meet each State's unique circumstances.
We provided the examples only to demonstrate how some States have
resolved financial responsibilities in interagency agreements. However,
these examples do not necessarily represent best practices or the
complete universe of how such issues may be resolved.
Changes: None.
Semi-Annual and Annual Review of Individuals in Extended Employment and
Other Employment Under Special Certificate Provisions of the Fair Labor
Standards Act (Sec. 361.55)
Effective Date
Comments: Many commenters strongly supported or endorsed proposed
Sec. 361.55, which was viewed as helpful in increasing the potential
of as many people with disabilities as possible moving into competitive
integrated employment. A few commenters requested clarification about
the effective date.
Discussion: We appreciate the many comments supporting this
regulation, which is consistent with section 101(a)(14) of the Act, as
amended by WIOA. The additional review requirement in Sec. 361.55 is
one of many new requirements by which WIOA places heightened emphasis
on ensuring that individuals with disabilities, including those with
the most significant disabilities, can achieve competitive integrated
employment if given the necessary services and supports.
In response to the comments seeking clarification of the effective
date of the requirements in final Sec. 361.55, most provisions of the
Act, as amended by WIOA (with only a few exceptions not applicable
here), took effect on July 22, 2014, the date WIOA was signed into law.
This includes section 101(a)(14), which requires the semi-annual review
and reevaluation for the first two years following the beginning of
employment, and annually thereafter, for individuals with a disability
who have received services under the VR program and who are employed in
an extended employment setting in a community
[[Page 55681]]
rehabilitation program or any other employment under section 14(c) of
the FLSA. The purpose of these reviews is to determine each
individual's interest, priorities, and needs with respect to
competitive integrated employment or training for such employment.
Changes: None.
Who is subject to the requirements?
Comments: A few commenters requested that we clarify who is subject
to these requirements (e.g., all individuals, only youth, or
individuals in day habilitation programs).
Discussion: Final Sec. 361.55 applies to all individuals with
disabilities, regardless of age, who have been served by the VR program
and are employed in extended employment or in any employment setting at
subminimum wage. This includes any individual who has received services
under an individualized plan for employment but has been determined by
the DSU to be no longer eligible for services under final Sec. 361.43.
Changes: None.
Documentation
Comments: A few commenters asked that we clarify the documentation
required for the semi-annual and annual reviews.
Discussion: The documentation required in final Sec. 361.55(b)(2)
for the semi-annual or annual reviews must be consistent with final
Sec. 361.47(a)(10). We believe that the DSU could satisfy the
requirement by: (1) Documenting the results of the semi-annual or
annual review; (2) obtaining a signed acknowledgment that the
individual with a disability, or if appropriate, the individual's
representative, has provided input to the review; and (3) obtaining a
signed acknowledgment by the individual, or the individual's
representative as appropriate, that the review was done.
Final Sec. 361.47(b) requires the DSU, in consultation with the
SRC, if the State has a Council, to determine the type of documentation
that the DSU will maintain in order to meet service record
requirements, including those in final Sec. 361.55(b)(2). We encourage
the DSU to document the interests, priorities, and needs discussed in
final Sec. 361.55(b)(1) and the maximum efforts made under final Sec.
361.55(b)(3) to assist the individual in achieving competitive,
integrated employment.
Changes: None.
Costs of Conducting the Reviews
Comments: One commenter noted the unknown costs to the DSU
associated with conducting semi-annual and annual reviews.
Discussion: We agree with the commenter that the costs associated
with conducting semi-annual and annual reviews may not be readily
known; however, prior to the amendments made by WIOA, DSUs were
required to conduct annual reviews for up to two years and annually
thereafter at the request of the individual with a disability or his or
her representative. Therefore, the DSU should have a historical cost
basis for estimating the current costs of conducting these reviews.
Changes: None.
Informed Choice
Comments: Other commenters suggested allowing an individual,
directly or indirectly through his or her representative, to exercise
informed choice to opt out of future reviews after any review has taken
place.
Discussion: While we appreciate the commenter's suggestion to allow
an individual to opt out of future reviews after any given review has
taken place, section 101(a)(14) of the Act, as amended by WIOA, does
not permit this. WIOA removed the previous statutory provision that
required the reviews to be conducted annually only for the first two
years of employment. Under the prior requirement, the reviews would
continue past the mandatory two years only if requested by the
individual or, if appropriate, the individual's representative. By
removing this language, WIOA requires the reviews and provides no
ability for an individual to opt out.
Changes: None.
Retroactive Reviews
Comments: One commenter was concerned that the semi-annual and
annual reviews would not be conducted by the DSU in that State. The
commenter observed that the DSU had not been tracking individuals or
conducting reviews, despite beginning tracking efforts in 2014. The
commenter suggested that we require DSUs to conduct, within a specified
time, retroactive semi-annual and annual reviews for all individuals
with disabilities in subminimum wage or extended employment that have
been found ineligible to benefit from vocational rehabilitation
services.
Discussion: We appreciate both the concern about the DSU not
tracking and conducting reviews, as well as the recommendation to
require DSUs to conduct retroactive semi-annual and annual reviews
within a specified time. Since the enactment of WIOA, DSUs have been
required to conduct semi-annual reviews on individuals with
disabilities in extended employment, or any other employment under
section 14(c) of the FLSA, for two years following the beginning of
such employment and annually thereafter. To require a set period of
time for retroactive reviews is inconsistent with the Act; however, the
conduct of reviews, albeit with differing time frames, has been a
requirement prior to the passage of WIOA and a responsibility of the
DSU. Therefore, a DSU that historically has not, and is not conducting
reviews currently, would be out of compliance with the requirement
under the Act.
Changes: None.
Cross-Reference With 34 CFR 397.40
Comments: A few commenters suggested that the language in proposed
Sec. 361.55 and proposed 34 CFR 397.40, regarding semi-annual and
annual reviews, be cross-referenced and reconciled to ensure
consistency and avoid confusion about which requirements apply and the
respective responsibilities of the DSU under each provision. One
commenter suggested we add a new Sec. 361.55(c) to indicate that: (1)
The requirements in part 361 supersede any requirements that may apply
in 34 CFR 397.40 regarding the responsibilities of a DSU for
individuals with disabilities, regardless of age, who are employed at a
subminimum wage; and (2) reviews conducted under Sec. 361.55 are
subject to the requirements under 34 CFR 397.40, regarding informing
the individual of self-advocacy, self-determination, and peer mentoring
training opportunities available in the community.
Discussion: Although a few commenters suggested that the language
in proposed Sec. 361.55 and proposed Sec. 397.40 regarding semi-
annual and annual reviews be cross-referenced and reconciled to ensure
consistency and avoid confusion about applicable requirements and
responsibilities of the DSU, the sections are under separate titles in
the Act and have differing effective implementation dates. Section
101(a)(14) took effect upon enactment (July 22, 2014); section 511 of
the Act, as amended by WIOA, will take effect on July 22, 2016.
Moreover, final part 361 and 34 CFR part 397 apply to different,
although sometimes intersecting, groups of individuals with
disabilities. Final Sec. 361.55 applies only to individuals who have
received or are receiving vocational rehabilitation services, whereas
final 34 CFR 397.40 covers a much broader population of individuals
with disabilities because
[[Page 55682]]
many of those individuals may not have ever received vocational
rehabilitation services. Neither section supersedes the other;
therefore, the specific responsibilities of the DSU and the
requirements for reviews must be met under both. While it is
conceivable that the required reviews under final Sec. 361.55 and
final 34 CFR 397.40 may be fulfilled concurrently for some individuals
with disabilities to whom both apply, it cannot be assumed that a
review required under final Sec. 361.55 sufficiently replaces the
review required under final 34 CFR 397.40 or vice versa.
Changes: None.
Individuals With a Record of Service
Comments: None.
Discussion: Upon further Departmental review of proposed Sec.
361.55 in light of the practical implementation of these requirements
with regard to students with disabilities receiving pre-employment
transition services under section 113 of the Act, as amended by WIOA
and final Sec. 361.48(a), we have determined that clarifying technical
amendments are necessary. Thus, we clarify in final Sec. 361.55(a)(1)
and (a)(2) that the requirements of final Sec. 361.55 apply to those
individuals who have a record of service--in other words, individuals
who have applied for or been determined eligible for, vocational
rehabilitation services--and achieved employment either at subminimum
wage or in extended employment. This clarifying change retains the
long-standing applicability of these requirements to such individuals.
Without this clarifying change, it may be construed that the
requirements may also apply to students with disabilities receiving
pre-employment transition services. As noted in a separate discussion
related to ``Transition Services,'' there is no requirement that these
students apply for or be determined eligible for vocational
rehabilitation services in order to receive pre-employment transition
services. As such, it is possible that a DSU will have no information
about the student to form the basis for these semi-annual or annual
reviews.
Changes: Final Sec. Sec. 361.55(a)(2)(i) and (ii) now explicitly
applies these requirements to individuals who have a record of service.
B. Transition of Students and Youth With Disabilities From School to
Postsecondary Education and Employment
This section presents the analysis of comments we received on
proposed regulations regarding the provision of transition and other
vocational rehabilitation services to students and youth with
disabilities to ensure that they have meaningful opportunities to move
from school to post-school activities, including competitive integrated
employment. The analysis is presented by topical headings relevant to
sections of the regulations in the order they appear in part 361 as
listed. We discussed some of these regulatory sections, such as
Sec. Sec. 361.24, 361.46, 361.48(b), and 361.49, under section A as
they also pertain to the general administration of the VR program and
the provision of vocational rehabilitation services to individuals with
disabilities of any age.
Topical Headings
Transition-Related Definitions (Sec. 361.5(c))
Pre-Employment Transition Services (Sec. 361.5(c)(42))
The Term ``Pre-Employment Transition Services''
Scope of Definition
Definitions for Required Activities
Acronym for Pre-Employment Transition Services
Student With a Disability (Sec. 361.5(c)(51))
Scope of Definition
Educational Programming
Students Who Have Applied or Been Determined Eligible for
Vocational Rehabilitation Services
Transition Services (Sec. 361.5(c)(55))
Scope of ``Pre-Employment Transition Services'' and ``Transition
Services''
Outreach and Engagement of Parents or Representatives
Youth With a Disability (Sec. 361.5(c)(58))
Distinction Between ``Student With a Disability'' and ``Youth
With a Disability''
Scope of Definition
Coordination With Education Officials (Sec. 361.22)
Coordination of Pre-Employment Transition Services
Financial and Programmatic Responsibilities
Contracting With Subminimum Wage Programs
Coordination and Outreach to Parents and Representatives
Dispute Resolution
Cooperation and Coordination With Other Entities (Sec. 361.24)
Content of the Individualized Plan for Employment (Sec. 361.46)
Scope of Vocational Rehabilitation Services for Individuals With
Disabilities (Sec. 361.48)
Pre-Employment Transition Services (Sec. 361.48(a))
Scope of Pre-Employment Transition Services and Use of Reserve
Potentially Eligible
Discretion to Provide Pre-Employment Transition Services to All
Students With Disabilities
Provision of Required Activities Based on Need
Continuation of Pre-Employment Transition Services
Required Activities
Continuum of Services
Other Vocational Rehabilitation Services as Pre-Employment
Transition Services
Pre-Employment Transition Coordination Activities
Documentation and Reporting
Performance Measures
Services for Individuals Who Have Applied for or Been Determined
Eligible for Vocational Rehabilitation Services (Sec. 361.48(b))
Scope of Vocational Rehabilitation Services for Groups of
Individuals With Disabilities (Sec. 361.49)
Transition-Related Definitions (Sec. 361.5(c))
Pre-Employment Transition Services (Sec. 361.5(c)(42))
The Term ``Pre-Employment Transition Services''
Comments: Some commenters suggested revising the term ``pre-
employment transition services'' to ``student career services.''
Discussion: We appreciate the suggestions raised by the commenters.
However, we will not change the term ``pre-employment transition
services'' in final Sec. 361.5(c)(42) to ``student career services''
because this term is not used in the Act. Rather, section 7(30) of the
Act, as amended by WIOA, defines ``pre-employment transition
services,'' and it is the term used throughout title I of the Act,
including in sections 101(a)(25), 103(a)(15), 110(d), 112(a), and 113.
Changes: None.
Scope of Definition
Comments: A few commenters recommended alternate definitions for
the term ``pre-employment transition services'' that would include: (1)
The pre-employment transition coordination responsibilities in proposed
Sec. 361.48(a)(4); (2) each of the five required activities in
proposed Sec. 361.48(a)(2); and (3) use of the term ``potentially
eligible'' and its definition.
Discussion: While we appreciate the suggestions, we disagree that
the definition of ``pre-employment transition services'' should be
expanded to include more specific information regarding the types of
services that constitute ``pre-employment transition services'' and the
population to be served. The definition of ``pre-employment transition
services'' in final Sec. 361.5(c)(42) is consistent with the statutory
definition in section 7(30) of the Act because it refers to the
required and authorized activities specified in detail in final Sec.
361.48(a), which are the only services permitted.
We also disagree with the recommendation to include pre-
[[Page 55683]]
employment coordination services in the definition of ``pre-employment
transition services.'' We agree that coordination activities are
necessary for arranging and providing pre-employment transition
services. However, coordination activities are more akin to the related
activities performed by vocational rehabilitation counselors and other
vocational rehabilitation personnel during the course of providing pre-
employment transition services rather than the services themselves. As
such, we included pre-employment transition coordination activities
under the implementation of pre-employment transition services in final
Sec. 361.48(a), but have not included them as part of the definition
of ``pre-employment transition services.''
We also do not believe it is necessary to define the term
``potentially eligible,'' either within the definition of ``pre-
employment transition services'' or separately in final Sec. 361.5(c).
Because this term is unique to implementing pre-employment transition
services and is not applicable to any other vocational rehabilitation
service, we interpret the phrase ``potentially eligible'' in Sec.
361.48(a)(1) as meaning all students with disabilities, regardless of
whether they have applied or been determined eligible for vocational
rehabilitation services. In so doing, the term is applicable only when
implementing the requirements governing pre-employment transition
services in final Sec. 361.48(a).
Changes: None.
Definitions for Required Activities
Comments: A few commenters recommended that we define the required
activities listed in proposed Sec. 361.48(a)(2), including work-based
learning experiences, and career (or job exploration) counseling. In
this same vein, many suggested that we define work-based learning
experiences in a manner consistent with section 103(a) of the School to
Work Opportunities Act of 1994, and include job training, work
experiences, workplace mentoring, and instruction in general workplace
competencies. One commenter requested that we define career counseling,
expressing concern that many States may provide this service in ways
that are less effective than one-on-one counseling, such as
presentations to groups of students. One commenter requested that we
broadly define the five required pre-employment transition services to
facilitate maximum use of the VR funds reserved for those services.
However, a few commenters requested that the required activities not be
defined so as to maintain the flexibility permitted in the Act, as
amended by WIOA, to allow States to be innovative in the types of
activities provided to students with disabilities and to maximize use
of the VR funds reserved for providing pre-employment transition
services.
Discussion: We considered the requests to define the required
activities listed in Sec. 361.48(a)(2). We reviewed section 103 of the
School-to-Work Opportunities Act of 1994, which expired on October 1,
2001, and found that it included mandatory activities under the work-
based learning component that are similar to the five required
activities identified in section 113(b) of the Act, as amended by WIOA.
Given the similarities, we do not believe further clarifications are
needed.
We agree with the comment that, by not defining the required
activities, we maintain flexibility for States and enable the use of
creative and innovative strategies that are State specific and tailored
to meet the needs of students with disabilities. We also considered the
comment about defining career counseling. DSUs must provide career
counseling, or job exploration counseling as the term is used in
section 113 of the Act, in a manner that most effectively meets the
needs of the student with a disability in an individual or group
setting, as they would any other vocational rehabilitation service. By
providing job exploration counseling in group settings, DSUs can
prepare students with disabilities for one-on-one counseling.
Changes: None.
Acronym for Pre-Employment Transition Services
Comments: A few commenters expressed concerns about the use of an
acronym for ``pre-employment transition services.''
Discussion: We agree with the commenters that an acronym should not
be used as shorthand for ``pre-employment transition services.'' We did
not use the most obvious acronym for ``pre-employment transition
services'' in the NPRM or in these final regulations, and we do not
intend to use it in administering the VR program because of its
negative connotations.
Changes: None.
Student With a Disability (Sec. 361.5(c)(51))
Scope of Definition
Comments: A few commenters supported the proposed definition.
However, most commenters did not agree, for differing reasons, with the
Department's proposed definition or its interpretation set forth in the
preamble of the NPRM. Most of those disagreeing stated the Department
narrowed the scope of the definition of a ``student with a
disability.''
Some commenters disagreed with the regulatory definition because it
did not mirror the statutory definition. Specifically, they believed
the addition of the phrase ``a student who is'' to the phrase ``an
individual with a disability for the purposes of section 504'' in
proposed Sec. 361.5(c)(51)(i)(C)(2) narrows the scope of the statutory
definition. In fact, one commenter believed that the interpretation
effectively eliminated individuals qualifying on the basis of section
504 of the Act.
A few commenters recommended that the Department adjust the age
range of a ``student with a disability,'' while other commenters
recommended that the definition require a consistent age range across
the Nation.
Discussion: We appreciate the comments supporting the definition,
as well as those expressing concern or disagreement. We anticipated
many of the same concerns when developing the proposed regulations.
However, we firmly believe that Sec. 361.5(c)(51), both as proposed
and final, is consistent with both the plain meaning and intent of the
definition in section 7(37) of the Act, as amended by WIOA. We agree
with commenters that Sec. 361.5(c)(51)(i)(C)(2), both as proposed and
final, limits the definition to students. We adopted almost verbatim
section 7(37) of the Act, as amended by WIOA, and, in so doing, we
attempted to eliminate confusion that the term ``student with a
disability'' could be construed to apply to someone not in an
educational program. We recognize that the applicability of section 504
of the Act, in any other context, is much broader. Therefore, in an
effort to reduce confusion and potential non-compliance, we clarified
in Sec. 361.5(c)(51)(i)(C)(2), both proposed and final, that this
particular criterion, as all others, applies only to students with
disabilities. We believe this clarification is consistent with the
statute because the term itself--``student with a disability''--
describes a population that encompasses only individuals with
disabilities who are participating in educational programs. For this
reason, we also disagree with the recommendations to remove any
explicit requirement in the definition of a ``student with a
disability'' that the individual be a participant in an educational
program because to do so would contradict the plain meaning of
[[Page 55684]]
the term itself and section 7(37) of the Act.
The definitions of ``student with a disability'' in section 7(37)
of the Act and final Sec. 361.5(c)(51) allow for a certain degree of
flexibility in the age range of students with disabilities. States may
elect to use a lower minimum age for receipt of pre-employment
transition services than the earliest age for the provision of
transition services under section 614(d)(1)(A)(i)(VIII) of the IDEA.
The section applies beginning with the first individualized education
program (IEP) to be in effect when a child with a disability turns 16,
or younger if determined appropriate by the IEP Team, and updated
annually thereafter. Pursuant to 34 CFR 300.320(b) of the the IDEA
regulations, transition services may be provided for students with
disabilities younger than age 16, if determined appropriate by the IEP
Team. Furthermore, a ``student with a disability'' may not be older
than 21, unless a State law provides for a higher maximum age for the
receipt of special education and related services under the IDEA.
Therefore, there is no statutory authority to revise the definition of
a ``student with a disability,'' for purposes of the VR program, by
adjusting the specified age range or creating a standard age range to
be applied across the Nation because to do so would be inconsistent
with the age criteria contained in the statutory definition.
Changes: None.
Educational Programming
Comments: Some commenters stated that the Department's
interpretation that the definition applies only to students in
secondary school directly contradicts congressional intent, as
expressed in section 2(b)(5) of the Act, as amended by WIOA, because
the narrower interpretation does not ensure, to the greatest extent
possible, that students and youth with disabilities have opportunities
for postsecondary success. Most of these commenters stated that
students in postsecondary education should be included within the
definition, as should students in GED, ESL, home school, vocational/
technical programs, and juvenile justice or mental health treatment
facilities, so long as they meet the age requirements in the
definition. These commenters stated that students in these educational
programs and settings also need pre-employment transition services,
which are available only to individuals who meet the definition of a
``student with a disability.'' One commenter requested that the
Department share documentation of congressional intent in support of
the interpretation that the definition does not include individuals in
postsecondary education. A few commenters were concerned that the
emphasis on serving only secondary students might decrease emphasis by
DSUs on services for individuals enrolled in postsecondary education.
Some commenters expressed concern about the impact of the
Department's interpretation of the definition of ``student with a
disability'' on the use of funds reserved for the provision of pre-
employment transition services. These commenters believed the
definition of a ``student with a disability'' should be broader in
order for States to maximize use of the funds reserved for pre-
employment transition services.
Discussion: We appreciate the concerns expressed by the commenters
and have reconsidered our interpretation, as described in the preamble
to the NPRM, that the definition of a ``student with a disability''
should be limited to students in a secondary education program. Our
intention in the NPRM was to be consistent with congressional intent
for the definition, given the requirements governing the availability
of a free appropriate public education under the IDEA, which is limited
to services included in the individualized education programs of
children with disabilities who are enrolled in secondary education
under State law (20 U.S.C. 1412(a)(1) and 1401(9)). Services provided
under the IDEA are not affected by our interpretation here, which
applies only to the VR program.
Nonetheless, we agree that section 7(37) of the Act, as amended by
WIOA, is silent on the educational setting for a student with a
disability. After much consideration of the potential effects for such
change in interpretation, the Secretary agrees that the definition of a
``student with a disability'' in final Sec. 361.5(c)(51), for purposes
of the VR program, should be interpreted as applying to students also
enrolled in educational programs outside secondary school, including
postsecondary education programs, so long as the students satisfy the
age requirements set forth in final Sec. 361.5(c)(51). We believe this
change will eliminate the concern expressed by commenters regarding the
potential negative effect a different interpretation would have on a
DSU providing and maximizing postsecondary education opportunities to
eligible individuals with disabilities needing such services under an
approved individualized plan for employment. Furthermore, as was set
forth in the NPRM, the Secretary believes that the definition applies
to secondary students who are homeschooled, as well as students in
other non-traditional secondary educational programs. This
interpretation is not affected by this discussion, and these
individuals remain covered by the definition of a ``student with a
disability'' in final Sec. 361.5(c)(51).
We also agree with commenters that postsecondary education students
may benefit from certain pre-employment transition services set forth
in section 113 of the Act, as amended, and final Sec. 361.48(a), all
of which are limited to ``students with disabilities.'' We believe this
broader interpretation of the definition will increase the potential
for DSUs to maximize the use of funds reserved for the provision of
pre-employment transition services by increasing the number of students
who can receive these services. Therefore, we have revised the
definition of ``student with a disability'' in final Sec. 361.5(c)(51)
to include students in secondary, postsecondary, and other recognized
education programs.
However, this broader interpretation does not expand the list of
required or authorized activities in section 113 of the Act, as amended
by WIOA, and final Sec. 361.48(a). A DSU can use the reserved funds to
provide pre-employment transition services, as set forth in final Sec.
361.48(a), to students with disabilities in postsecondary education or
other educational programs who meet the age requirements of the
definition. For example, a DSU may provide work-based learning
activities such as internships to an individual with a disability in a
postsecondary education program who otherwise satisfies the definition
of a ``student with a disability,'' but may not use the reserved funds
(dedicated to the provision of pre-employment transition services under
final Sec. 361.48(a)) to provide services and activities not
specifically included in section 113 of the Act and final Sec.
361.48(a). In other words, a DSU may not use the funds reserved for
pre-employment transition services to pay for tuition and other costs
of attending postsecondary education, since this is not among those
activities that are required or authorized under section 113 of the Act
and final Sec. 361.48(a). These and other necessary services, however,
may be provided with VR funds not reserved for the provision of pre-
employment transition services so long as they are provided pursuant to
an approved individualized plan for employment under section 103(a) of
the Act and final Sec. 361.48(b) of these final regulations.
[[Page 55685]]
Section 113 of the Act, as amended by WIOA, requires DSUs to
coordinate pre-employment transition services with local educational
agencies. This applies to students with disabilities in educational
programs administered by local educational agencies. DSUs should
coordinate the pre-employment transition services provided to students
who are not participating in programs administered by local educational
agencies with the public entities administering those educational
programs, as described in section 101(a)(11)(C) of the Act, as amended
by WIOA, and final Sec. 361.24.
Changes: We have revised the definition of ``student with a
disability'' in final Sec. 361.5(c)(51) to includes students in
secondary, postsecondary, and other recognized education programs.
Students Who Have Applied or Been Determined Eligible for Vocational
Rehabilitation Services
Comments: A few commenters recommended that the definition apply
only to individuals with disabilities who have applied for and been
determined eligible for vocational rehabilitation services.
Discussion: We disagree with the comments recommending that a
``student with a disability'' should be limited to individuals who have
applied or been determined eligible for vocational rehabilitation
services. The definition in final Sec. 361.5(c)(51) is consistent with
section 7(37) of the Act, which does not limit the definition to
applicants and eligible individuals of the VR program. Furthermore, to
impose such a limitation would be contrary to the Department's
interpretation of ``potentially eligible,'' students with disabilities,
as used in section 113 of the Act, as amended by WIOA, and final Sec.
361.48(a). We have repeatedly stated in both the NPRM and these final
regulations that all ``students with disabilities,'' regardless of
whether they have submitted an application or been determined eligible
for vocational rehabilitation services, may receive pre-employment
transition services under final Sec. 361.48(a). See a more detailed
discussion of ``Potentially Eligible'' later in this section in
connection with comments received under final Sec. 361.48(a).
Upon further Departmental review of this issue, the Secretary has
determined that other conforming changes are needed throughout final
part 361 to ensure these students, who may not have applied or been
determined eligible for the VR program, would still be protected by
fundamental rights under the VR program, namely the protection of their
personal information under final Sec. 361.38 and the right to exercise
informed choice under final Sec. 361.52. We have revised these
provisions to refer to ``recipients of services'' rather than
``eligible individuals.''
Changes: We have revised final Sec. 361.38 and final Sec. 361.52
to refer to ``recipients of services'' rather than ``eligible
individuals,'' thereby ensuring that students and youth with
disabilities who may receive pre-employment transition services or
transition services to groups, as applicable, are still protected by
requirements governing confidentiality and informed choice even if they
have not applied or been determined eligible for the VR program.
Transition Services (Sec. 361.5(c)(55))
Scope of ``Pre-Employment Transition Services'' and ``Transition
Services''
Comments: A few commenters supported the definition of ``transition
services'' in proposed Sec. 361.5(c)(55), while a few commenters
requested clarification regarding the difference between ``transition
services'' and ``pre-employment transition services,'' and the
responsibility of DSUs to provide job placement assistance within the
context of these services.
Discussion: We appreciate the support from commenters to maintain
the proposed definition of ``transition services'' in final Sec.
361.5(c)(55). As to the difference between ``pre-employment transition
services'' and ``transition services,'' we believe the distinction
between the two is critical. As stated in the preamble to the NPRM,
vocational rehabilitation services are provided on a continuum, with
pre-employment transition services being the earliest set of services
available to students with disabilities.
Pre-employment transition services, authorized by section 113 of
the Act, as amended by WIOA, and implemented by final Sec. 361.48(a),
are designed to help students with disabilities to begin to identify
career interests that will be further explored through additional
vocational rehabilitation services, such as transition services.
Furthermore, pre-employment transition services are only those services
and activities listed in section 113 of the Act, as amended by WIOA,
and final Sec. 361.48(a). Job placement assistance is not included
among the listed pre-employment transition services, but it could
constitute a transition service under section 103(a)(15) of the Act and
final Sec. 361.48(b). Finally, pre-employment transition services are
available only to students with disabilities, whereas transition
services may be provided to a broader population--both students and
youth with disabilities.
Following the continuum, transition services represent the next set
of vocational rehabilitation services available to students and youth
with disabilities. They are outcome-oriented and promote movement from
school to post-school activities, including postsecondary education,
vocational training, and competitive integrated employment. As such,
transition services may include job-related services, such as job
search and placement assistance, job retention services, follow-up
services, and follow-along services, based on the needs of the
individual.
Individualized transition services under section 103(a)(15) of the
Act and final Sec. 361.48(b) must be provided to students who have
been determined eligible for the VR program and in accordance with an
approved individualized plan for employment. Transition services also
may be provided in group settings to students and youth with
disabilities under section 103(b)(7) of the Act, as amended by WIOA,
and final Sec. 361.49(a)(7). Although these group services are not
individualized, they can still be beneficial for job exploration,
including presentations from employers in the community and group
mentoring activities.
Changes: None.
Outreach and Engagement of Parents or Representatives
Comments: A few commenters requested that we revise the definition
to incorporate parental outreach and engagement.
Discussion: We agree that engaging and coordinating with parents or
representatives of students and youth with disabilities is consistent
with the network of services and activities included in the definition,
and we have revised the definition accordingly.
Changes: We have revised final Sec. 361.5(c)(55) by adding
paragraph (v) to include outreach to and engagement of parents or, as
appropriate, the representatives of students or youth with disabilities
in the definition of ``transition services.''
Youth With a Disability (Sec. 361.5(c)(58))
Distinction Between ``Student With a Disability'' and ``Youth With a
Disability''
Comments: While a few commenters praised the clarity of the
proposed definition, most stated that making a
[[Page 55686]]
distinction between a student with a disability and a youth with a
disability creates unnecessary complexity and burden. These commenters
recommended that services available to students with disabilities, such
as pre-employment transition services, also be available to youth with
disabilities. One commenter recommended that ``youth with a
disability'' be defined more broadly than ``student with a disability''
so that individuals who are homeschooled and others could be covered by
the definition.
Discussion: We appreciate all of the comments and concerns about
the definition of ``youth with a disability'' in Sec. 361.5(c)(58).
While we understand the commenters' concerns, the Act, as amended by
WIOA, defines the terms ``student with a disability'' and ``youth with
a disability'' differently. Moreover, the Act and these final
regulations use the terms differently, depending on the context. For
example, only students with disabilities can receive pre-employment
transition services under section 113 of the Act and final Sec.
361.48(a), but both students with disabilities and youth with
disabilities can receive transition services under section 103 of the
Act and final Sec. Sec. 361.48(b) and 361.49(a). The definitions set
forth in these final regulations are consistent with the statute, and
we have no statutory authority to consolidate the two definitions or to
delete one of them because to do so would be inconsistent with the
statute.
The age range in the definition of ``youth with a disability'' in
final Sec. 361.5(c)(58) is broader than that for ``student with a
disability'' in final Sec. 361.5(c)(51). Therefore, a student with a
disability always meets the definition of a ``youth with a disability''
because a student with a disability has an age range that fits within
the age range prescribed by the definition of a ``youth with a
disability.''
However, a youth with a disability may not necessarily meet the
definition of a ``student with a disability.'' A youth with a
disability could also be a student with a disability if the individual
meets the age range in the definition of ``student with a disability''
and participates in an educational program (see the earlier discussion
of educational programming under Student with a Disability section
Sec. 361.5(c)(51)). On the other hand, a youth with a disability who
is outside the age range for a student with a disability or is not
participating in an educational program does not meet the definition of
a ``student with a disability.''
Changes: None.
Scope of Definition
Comments: One commenter questioned whether the definition of
``youth with a disability'' includes criteria related to the IDEA or
section 504, as is the case with the definition of a ``student with a
disability.''
Discussion: As previously discussed, the definition of ``youth with
a disability'' in final Sec. 361.5(c)(58) not only is broader in age
range but also is not tied to participation in an educational program
under the IDEA or section 504 of the Act, as is the definition of
``student with a disability.''
Changes: None.
Coordination With Education Officials (Sec. 361.22)
Coordination of Pre-Employment Transition Services
Comments: A few commenters expressed support for proposed Sec.
361.22, suggesting minimal to no changes. A few, however, stated that
DSUs are required to provide pre-employment transition services in
collaboration with educational agencies, and recommended that we
include in proposed Sec. 361.22(b) reference to these services
wherever the interagency coordination of transition services is
mentioned. One commenter stated that a major challenge in transition is
determining which entity is responsible for job placement assistance
and support, and recommended proposed Sec. 361.22(b) be revised to
incorporate specific mention of these services in the coordination of
pre-employment transition services.
A few commenters recommended that we consider including in proposed
Sec. 361.22 a reference to technical assistance circular 14-03 (RSA-
TAC-14-03), which discusses transition-related principles.
Discussion: We appreciate the comments supporting proposed Sec.
361.22, as well as those seeking further clarification or expressing
concerns. We agree that pre-employment transition services should be
added to final Sec. 361.22(b) as it is referenced in final Sec.
361.22(a)(1). However, there is no statutory basis to require job
placement services in connection with pre-employment transition
services, as job placement services are not among the required or
authorized activities under section 113 of the Act, as amended by WIOA.
Yet, while we cannot require it, nothing in the Act prohibits States
from including job placement activities as a transition service in the
formal interagency agreement.
We disagree with the request to add a reference in final Sec.
361.22(b) to technical assistance circular 14-03 because the content of
technical assistance circular 14-03 has been significantly affected by
the amendments to the Act made by WIOA. As a result, we will be
revising this particular technical assistance circular accordingly.
Changes: We have revised Sec. 361.22(b)(1) to state that the
formal interagency agreement must include collaboration between the DSU
and the State educational agency for providing pre-employment
transition services to students with disabilities. We have also revised
Sec. Sec. 361.22(b)(3) and (b)(4) to similarly cover pre-employment
transition services when identifying personnel responsible for
providing services and when developing procedures for outreach to and
identification of students with disabilities.
Financial and Programmatic Responsibilities
Comments: One commenter suggested that we revise proposed Sec.
361.22 by requiring that the formal interagency agreement between the
DSU and the State educational agency contain more robust minimum
content provisions, since the agreement is critical to providing
services to students with disabilities and a successful transition from
school to post-school activities.
Many commenters stated that additional guidance is needed to
determine which entity, the school or the DSU, is financially
responsible for providing transition services to students with
disabilities. Many requested that we revise proposed Sec. 361.22 to
explicitly identify the financial roles and responsibilities of each
entity, stating that the interagency agreement cannot be effective if
it is broad, general or abstract. Other commenters recommended that the
formal interagency agreement provide clear direction about agencies'
responsibilities for services under particular circumstances, stating
that specificity is essential to coordinating shared responsibilities
and funding.
A few commenters expressed concern that major problems and delays
in implementing transition planning services occur because neither WIOA
nor the IDEA state explicitly which entity is responsible for providing
transition services. These commenters stated that the financial
responsibilities must be made clear so that neither the local
educational agency nor the DSU may shift the burden for providing a
[[Page 55687]]
service, for which it otherwise would be responsible, to the other
entity.
A few commenters also noted that while many of these decisions can
be resolved at the State and local level, there are still instances
where it is difficult to determine the responsible entity, such as in
the determination of which entity is responsible for job placement
assistance and related work supports. Conversely, one commenter,
representing school officials, stated that decisions about providing
and assuming financial responsibility for transition services must be
made at the State and local level through interagency collaboration and
coordination, cannot be wholly dictated by regulation, and must be made
based on the circumstances of the situation and the eligibility of the
student.
One commenter expressed the concern that the budget for the VR
program is not as significant as the budget for special education, and
vocational rehabilitation funds may be quickly exhausted if the VR
program were to provide pre-employment transition services to every
student with a disability. Another commenter noted that the schools and
DSUs need to collaborate with other entities that have shared
responsibilities and funding. Similarly, one commenter stated that the
IDEA, WIOA, and the Americans with Disabilities Act seem to be in a
competitive relationship, since the entities covered by these statutes
are responsible for providing and funding some of the same services.
Discussion: As discussed in the preamble of the NPRM, over the
years many individuals have sought clarification and posed questions
about the financial responsibilities of schools and DSUs when services
fall under the purview of both entities. For example, pre-employment
transition services and transition services can be both vocational
rehabilitation services under the VR program and special education or
related services under the IDEA. While neither the Act, as amended by
WIOA, nor the IDEA is explicit as to which entity--the DSU or the State
educational agency and, as appropriate, the local educational agency--
is financially responsible for providing pre-employment transition
services and transition services, both final Sec. 361.22(c) and 34 CFR
300.324(c)(2) provide that neither the DSU nor the local educational
agency may shift the burden for providing services, for which it
otherwise should be responsible, to the other entity. It is essential
that section 101(c) of the Act, as amended by WIOA, and section
612(a)(12) of the IDEA, along with their implementing regulations in
Sec. 361.22(c) and 34 CFR 300.154, are read in concert to avoid any
inconsistency or conflict between the two requirements.
Section 113(a) of the Act, as amended by WIOA, requires the DSU to
provide, or arrange for the provision of, pre-employment transition
services in collaboration with local educational agencies. Therefore,
decisions as to which entity will be responsible for providing services
that are both special education services and vocational rehabilitation
services must be made at the State and, as appropriate, local level as
part of the collaboration between the DSU, State educational agencies,
and, as appropriate, the local educational agencies.
We agree that the formal interagency agreement should facilitate
the transition of students with disabilities receiving special
education services to receiving vocational rehabilitation services
without delay or disruption. Since the decisions about financial
responsibility for providing pre-employment transition services and
transition services must be made at the State and local level during
collaboration and coordination of services, a formal interagency
agreement or other mechanism for interagency coordination can
explicitly address all aspects of these issues. As suggested in the
NPRM, the agreement criteria could address criteria such as:
1. The purpose of the service. Is it related more to an employment
outcome or education? That is, is the service usually considered a
special education or related service, such as transition planning
necessary for the provision of a free appropriate public education?
2. Customary Services. Is the service one that the school
customarily provides under part B of the IDEA? For example, if the
school ordinarily provides job exploration counseling or work
experiences to its eligible students with disabilities, the mere fact
that those services are now authorized under the Act as pre-employment
transition services does not mean the school should cease providing
them and refer those students to the VR program. However, if summer
work experiences are not customarily provided by a local educational
agency, the DSU and local educational agency may collaborate to
coordinate and provide summer work-based learning experiences.
3. Eligibility. Is the student with a disability eligible for
transition services under the IDEA? The definition of a ``student with
a disability'' under the Act and these final regulations is broader
than under the IDEA because the definition in the Act includes those
students who are individuals with disabilities under section 504 of the
Act. It is possible that students receiving services under section 504
do not have individualized education programs under the IDEA because
they are not eligible to receive special education and related services
under the IDEA. As a result, DSUs are authorized to provide transition
services under the VR program to a broader population under WIOA than
local educational agencies are authorized to provide under the IDEA.
The Secretary believes that these criteria may assist DSUs, State
educational agencies, and local educational agencies as they
collaborate and coordinate the provision of transition services,
including pre-employment transition services, to students with
disabilities. We strongly encourage that formal interagency agreements
have clearly defined parameters for collaborating and coordinating the
delivery of pre-employment transition services and transition services
and clearly defined responsibilities for each entity. However, there is
no statutory basis for the Department to establish service delivery or
financial responsibilities. Those decisions must be made at the State
level while developing an interagency agreement and considering the
population, available resources, and needs of the students and youth.
Consequently, States have maximum flexibility to develop these
interagency agreements in a manner that best meets the unique needs and
capacities of both the DSUs and educational agencies.
Changes: None.
Contracting With Subminimum Wage Programs
Comments: Some commenters recommended that proposed Sec.
361.22(b)(6) be revised to prohibit contracts or arrangements with, or
referrals to, programs in which youth with disabilities are employed at
subminimum wage. They stated that the agreements should go beyond
documentation requirements and make proactive efforts to identify
individuals being considered for employment at subminimum wage. One
commenter expressed support for using the existing formal interagency
agreement as the mechanism to develop and document the process required
in section 511 of the Act as proposed in Sec. 361.22.
Discussion: We agree with commenters that the Act emphasizes the
need to ensure that individuals with disabilities, especially students
and youth with disabilities, are given the opportunity to receive
training for and
[[Page 55688]]
obtain work in competitive integrated employment. The commenters
misunderstood our proposal because Sec. 361.22(b)(6), both proposed
and final, requires the interagency agreement between the DSU and the
State educational agency to include an assurance that, in accordance
with 34 CFR 397.31, neither the State educational agency nor the local
educational agency will enter into a contract or other arrangement with
an entity, as defined in 34 CFR 397.5(d), for the purpose of operating
a program for a youth with a disability under which work is compensated
at a subminimum wage. Moreover, new requirements in section 511 of the
Act, as amended by WIOA, and in final 34 CFR part 397 place additional
limitations on the use of subminimum wages for individuals with
disabilities, especially youth with disabilities. For example, final 34
CFR 397.10 requires the DSU, in coordination with the State educational
agency, to develop a process that ensures youth with disabilities
receive documentation demonstrating their completion of the various
required activities.
Changes: None.
Coordination and Outreach to Parents and Representatives
Comments: A few commenters urged the Department to ensure that
coordination efforts include outreach to parents of students who are in
need of transition services. One such commenter recommended proposed
Sec. 361.22(b)(4) be revised to include systematic outreach to, and
engagement of, parents, including through the IEP process for the IDEA
eligible students. The commenter stated that without this outreach and
engagement, parents will not have a meaningful understanding of the
benefits of vocational rehabilitation services for their children.
Discussion: While there is no statutory basis in section
101(a)(11)(D) of the Act to require outreach to parents, we agree that
family members, caregivers, and representatives play a critical role in
the transition process. We believe that for pre-employment transition
services and transition services to be meaningful and to lead to
successful outcomes for students and youth with disabilities, their
family members, caregivers, and representatives must be aware of the
services and benefits offered by DSUs and be involved in the transition
process. Although DSUs may conduct outreach to parents and
representatives, this activity may be affected by State laws governing
the age of majority.
Under section 615(m) of the IDEA and 34 CFR 300.520, a State may
transfer all rights accorded to parents under Part B of the IDEA to the
student when he or she reaches the age of majority under State law that
applies to all children. If rights under the IDEA transfer to the
student, a student may have the right to make his or her own education,
employment, and independent living decisions under the IDEA. DSUs may
conduct outreach directly to these students. Parental consent to
participate in pre-employment transition services and transition
services should be obtained pursuant to State law, as well as policies
of the educational programs and the DSU. We further emphasize here that
the Department funds programs and projects that advise and assist
parents and representatives of students and youth with disabilities as
their children prepare for adult life. The Department awarded grants to
more than 65 Parent Training and Information Centers funded by the
Office of Special Education Programs and seven Parent Information and
Training Programs funded by RSA during FY 2015. Individuals will find
additional resources regarding age of majority at
www.parentcenterhub.org/repository/age-of-majority-parentguide/.
Changes: None.
Dispute Resolution
Comments: Some commenters expressed the concern that proposed Sec.
361.22(c) is limited and provides no safeguards for students if an
agreement is not reached about financial responsibility for a
particular service, which can lead to delays in services or no services
at all. Some commenters stated that the formal interagency agreement
should include a mechanism to resolve disputes between the State
educational agency and the DSU about providing pre-employment
transition services and transition services. One commenter also
suggested that we require language in the formal interagency agreement
to inform individuals of the availability of the CAP.
Discussion: We disagree with the recommendations to require that
the formal interagency agreement include: (1) A mechanism for resolving
disputes between the DSU and the State educational agency or local
educational agency; (2) a method for resolving disputes between an
individual with a disability and these entities; and (3) information
about the CAP. Section 101(a)(11)(D) of the Act, as amended by WIOA,
which provides the statutory authority for final Sec. 361.22(b), does
not require that States create a grievance procedure for disputes under
the agreements, in general, or, more specifically, about the provision
of pre-employment transition services or transition services. Likewise,
section 101(a)(11)(D) of the Act does not require the interagency
agreement to identify a process for resolving disputes between an
individual with a disability and the DSU, State educational agency, or
local educational agency about pre-employment transition services and
transition services, or to include information about the CAP. We
believe final Sec. 361.22 is consistent with the Act, and it provides
States maximum flexibility to develop the interagency agreements in a
manner that best meets their unique needs and circumstances. However,
there is nothing in the Act or these final regulations that prohibits
States from including in the formal interagency agreement a grievance
procedure (e.g., similar to the one in section 101(a)(8) of the Act) to
resolve disputes between the DSU and the State educational agency, or
the local educational agency, as appropriate, as well as procedures to
resolve disputes between an individual with a disability and the DSU,
State educational agency or local educational agency, and information
about the CAP. We encourage States to include these procedures and
information in their interagency agreements.
Section 20 of the Act requires all programs providing services
under the Act, including the VR program, to inform applicants and
recipients of services of the availability and purpose of the CAP.
Therefore, regardless of whether the formal interagency agreement
between the DSU and the State educational agency addresses the CAP, all
students and youth with disabilities receiving vocational
rehabilitation services, including pre-employment transition services
and transition services, will be informed about it. In addition, an
applicant for, or eligible individual under, the VR program who is
dissatisfied with a decision made by vocational rehabilitation
personnel, including those about pre-employment transition services and
transition services, may request a review of that decision under
section 102(c) of the Act. Upon further Departmental review, the
Secretary has realized that the statute has created an unintended
inconsistency among sections 20, 102(c), 103(b)(7), 12(a), and 113.
Specifically, section 20 requires programs funded under the Act to
inform applicants for and recipients of those services about the CAP.
There is no requirement that the recipients be
[[Page 55689]]
determined eligible for those services in order to receive information
about the CAP. Section 103(b)(7) of the Act permits the DSU to provide
transition services to youth and students with disabilities in a group
setting, regardless of whether those students or youth have applied for
or been determined eligible for vocational rehabilitation services.
Section 112(a) specifically authorizes the CAP to assist students with
disabilities receiving pre-employment transition services. Section 113
makes clear that students with disabilities are eligible to receive
pre-employment transition services regardless of whether they have
applied or been determined eligible for the VR program. All of these
provisions, read in concert, make clear that due process rights under
the Act would be available to students and youth with disabilities
receiving pre-employment transition services and transition services
even if they have not yet applied for or been determined eligible for
the VR program. However, section 102(c) refers only to ``applicants and
eligible individuals,'' thus creating an internal inconsistency within
the Act. Because it is clear that students and youth with disabilities
are able to receive certain services without having applied or been
determined eligible for vocational rehabilitation services and they are
eligible for advocacy assistance from the CAP, the Secretary has
determined it is necessary to amend final Sec. 361.57 throughout to
make clear that ``recipients'' of vocational rehabilitation services
may exercise due process rights when disagreements arise during the
receipt of pre-employment transition services and transition services.
We have also made conforming changes throughout final part 361, such as
with the definition of ``impartial hearing officer'' in Sec.
361.5(c)(24) and ``qualified and impartial mediator'' in 361.5(c)(43).
The student or youth with a disability, or the individual's parent,
as appropriate, will be informed of the CAP. Disputes or disagreements
between parents and educational personnel are beyond the scope of the
Act and these final regulations.
Changes: We have revised final Sec. 361.57 throughout to replace
``eligible individuals'' with ``recipients.'' We also made conforming
changes to the definitions of ``impartial hearing officer'' and
``qualified and impartial mediator'' in final Sec. 361.5(c).
Cooperation and Coordination With Other Entities (Sec. 361.24)
Comments: A few commenters disagreed with proposed Sec. 361.24(d),
stating that the regulations do not ensure that American Indian
students and youth with disabilities enrolled in, but disconnected
from, the education system are adequately served. These same commenters
specifically requested that reference to the American Indian Vocational
Rehabilitation Services (AIVRS) program funded under Sec. 121 of the
Act be made throughout the final regulations whenever ``new transition
services'' are mentioned. A few other commenters addressed transition
services for American Indian students with disabilities without
referring to proposed Sec. 361.24.
Some commenters recommended that we require DSUs to include in
their formal interagency agreements with AIVRS projects and to address
in their 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 with disabilities, particularly
those that attend schools on Indian reservations. The commenters also
recommended that we require State VR agencies to address how services
to American Indian students with disabilities will be incorporated into
the budgeting and spending plans for the funds reserved for providing
pre-employment transition services for students with disabilities.
One commenter encouraged the Department to consider using Impact
Aid funds for youth in transition.
Discussion: While the Department understands 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
does not believe a revision to the final regulations is necessary to do
this.
Final Sec. 361.24, as it did when proposed, 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 assure that DSUs have entered into formal
cooperative agreements with AIVRS programs in their States. Section
361.24(d)(2) sets out requirements for cooperative agreements with
AIVRS programs, and those include strategies for providing transition
planning under Sec. 361.24(d)(2)(iii). Furthermore, the Federal funds
reserved in accordance with Sec. 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, regardless of whether an application for
services has been submitted. Finally, Sec. 361.30 requires that the
DSU assure in the VR services portion of the Unified or Combined State
Plan that it will provide services to American Indians with
disabilities to the same extent that it provides services to other
populations with disabilities in the State.
Final Sec. 361.22 provides for a formal interagency agreement with
the State Educational Agency that would include educational services,
including transition services and pre-employment transition services,
provided by local educational agencies for Indian students with
disabilities living on reservations. DSUs coordinate with schools on
reservations that provide services through the Bureau of Indian
Education or TEAs under the requirement in Sec. 361.24(a) that the DSU
cooperate with Federal and local agencies and programs. Because the
final regulations provide appropriate mechanisms for coordination with
the Federal, State and Tribal agencies that provide educational
services to Indian students with disabilities on reservations, we do
not believe a change in the regulations is necessary.
As for using funds for transition services provided under the
Impact Aid law (formerly Title VIII of the Elementary and Secondary
Education Act of 1965 (ESEA) and now in Title VII as a result of the
Every Student Succeeds Act reauthorization), the comment is beyond the
scope of these regulations. That said, however, the Impact Aid provides
assistance to local school districts with concentrations of children
residing on Indian lands, military bases, low-rent housing properties,
or other Federal properties and, to a lesser extent, concentrations of
children who have parents in the uniformed services or employed on
eligible Federal properties who do not live on Federal property. The
majority of Impact Aid funds is general aid to the school district
recipients and may be used in whatever manner the districts choose, as
long as it is consistent with State and local requirements. The
Department does not have the statutory authority to direct Impact Aid
general aid money, including for the use suggested by the commenter.
Changes: None.
[[Page 55690]]
Content of the Individualized Plan for Employment (Sec. 361.46)
Comments: A few commenters requested additional guidance regarding
the use of a ``projected post-school employment outcome'' in an
individualized plan for employment for a student or youth with a
disability and asked whether the use of the broad category ``Standard
Occupational Codes'' would meet this description.
Discussion: In response to the request for additional guidance, the
individualized plan for employment with a projected post-school
employment outcome should outline the services and activities that will
guide the individual's career exploration. The projected post-school
employment outcome facilitates the individual's exploration and
identification of a vocational goal based upon his or her informed
choice. It may be a specific goal, such as a Web designer, or a broader
goal, such as medical practitioner. The projected goal may be amended
during the career development process, and eventually it must be
revised to a specific vocational goal once this process is completed.
Changes: None.
Scope of Vocational Rehabilitation Services for Individuals With
Disabilities (Sec. 361.48)
Pre-Employment Transition Services (Sec. 361.48(a))
Scope of Pre-Employment Transition Services and Use of Reserve
Comments: Some commenters expressed support for the proposed
regulation. However, most commenters recommended revisions or sought
clarification about the scope and provision of pre-employment
transition services. One commenter suggested that we revise proposed
Sec. 361.48(a) to include only direct services to individuals, while
another commenter requested clarification as to whether pre-employment
transition coordination activities in proposed Sec. 361.48(a)(4) could
be paid for with funds reserved for providing pre-employment transition
services.
Discussion: Section 113(a) of the Act, as amended by WIOA, states
that the funds reserved under section 110(d) and any funds made
available from State, local, or private (other) sources shall be used
to provide, or arrange for the provision of, pre-employment transition
services. The coordination activities required by section 113(d) of the
Act, as amended by WIOA, and final Sec. 361.48(a)(4) are essential for
arranging and providing the ``required'' and ``authorized'' activities
set forth in section 113(b) and (c) of the Act and final Sec.
361.48(a)(2) and (3). Therefore, there is no statutory authority to
limit the scope of final 361.48(a) to only the direct services required
by section 113(b) of the Act. See a more detailed discussion of the
definition of ``Pre-Employment Transition Services,'' and the services
included in that definition, earlier in this section.
We agree with the commenter that proposed Sec. 361.48(a) should be
revised to clarify that pre-employment transition coordination services
provided under Sec. 361.48(a)(4) may be paid with funds reserved for
providing pre-employment transition services, because coordination
activities are essential for arranging and providing those services, as
required by section 113(a) of the Act and Sec. 361.48(a).
Changes: We have revised final Sec. 361.48(a) to clarify that the
funds reserved for the provision of pre-employment transition services
may be used to pay for pre-employment transition coordination
activities.
Potentially Eligible
Comments: Through the NPRM, we sought public comments and alternate
suggestions related to our interpretation of ``potentially eligible''
to mean all students with disabilities, regardless of whether they have
applied for and been determined eligible for the VR program. Of the
comments received, most agreed with this interpretation. However, some
commenters provided alternate interpretations.
Of those commenters, a few suggested that the term should be
interpreted as meaning students with disabilities who have at least
applied for vocational rehabilitation services, with one commenter
suggesting this would both allow for providing individualized services
and ensure parental consent for students with disabilities to work with
a vocational rehabilitation counselor. Other commenters stated that
serving applicants for vocational rehabilitation services would allow
the counselor not only to gather sufficient information to meet the
specific needs of the student with a disability but also to track and
report the provision of services and expenditure of funds. One
commenter recommended revising proposed Sec. 361.48(a)(1) to limit the
``potentially eligible'' population to those individuals who have both
applied for and been determined eligible for vocational rehabilitation
services.
Furthermore, some commenters provided alternate interpretations for
limiting or expanding the population to students or youth based upon
age-range, or enrollment in secondary, postsecondary, or dual
enrollment educational programs. One commenter recommended that
``potentially eligible'' be defined to ensure consistent implementation
across States. A few commenters expressed concerns that the regulations
significantly limit the resources for students who have applied for and
been determined eligible for the full scope of vocational
rehabilitation services, as well as individuals with most significant
disabilities. A few commenters expressed concerns that spending funds
required to be reserved for providing pre-employment transition
services on students who are potentially eligible for vocational
rehabilitation services may force DSUs to implement an order of
selection or close priority categories under an existing order of
selection. One commenter raised concerns that DSUs may have limited
fiscal and human resources required to address the needs of potentially
eligible students. One commenter requested clarification as to how
students would be identified.
Another commenter suggested that proposed Sec. 361.48(a) does not
conform to section 112 of the Act, as amended by WIOA, because the CAP
is unable to provide assistance or advocacy services to individuals who
are not vocational rehabilitation clients or client-applicants. A few
commenters also expressed concerns about students being able to make
informed choices, as well as obtaining parental consent for potentially
eligible students who are minors and participating in pre-employment
transition services, prior to submitting an application for vocational
rehabilitation services.
Discussion: We appreciate the comments supporting the proposed
regulation, as well as comments expressing concerns and suggestions for
changes. After much consideration of all available options, we have
decided to maintain our interpretation of ``potentially eligible'' for
purposes of pre-employment transition services. In so doing, all
students with disabilities, regardless of whether they have applied for
or been determined eligible for the VR program, may receive pre-
employment transition services. The Secretary believes this is the
broadest legally supportable interpretation and the one that is most
consistent with the apparent congressional intent.
Most notably, section 113 of the Act is the only statutory section
that references ``potentially eligible'' students with disabilities.
All other sections of title I of the Act refer to ``applicants'' or
individuals determined eligible for services. Given the stark
[[Page 55691]]
contrast in the use of ``potentially eligible'' in section 113 of the
Act, the Secretary believes it imperative that meaning is given to that
phrase by not limiting it to individuals who have applied for or been
determined eligible for the VR program.
The broader interpretation means all students with disabilities
will be able to obtain much-needed pre-employment transition services
and begin the early phase of job exploration without the potential
delays, and the administrative burden on DSU personnel and resources,
caused by application processing, eligibility determinations,
assignment to an order of selection category, and development of an
individualized plan for employment. However, there is nothing that
precludes a DSU from taking an application as soon as a student
expresses an interest in pre-employment transition services or other
vocational rehabilitation services and making a timely determination of
eligibility.
We want to emphasize that the phrase ``potentially eligible''
applies only in the context of pre-employment transition services. This
means that students with disabilities who need individualized services
beyond the scope of pre-employment transition services (e.g.,
transition and other vocational rehabilitation services) must first
apply for, and be determined eligible for, the VR program, be assigned
to the appropriate category if the State is on an order of selection,
and develop an approved individualized plan for employment. We
recommend that DSUs request students with disabilities who are
``potentially eligible'' for vocational rehabilitation services and
receiving pre-employment transition services submit an application for
services as soon as possible in the event further vocational
rehabilitation services are needed.
This recommendation is especially pertinent for those States that
have implemented an order of selection. A student's position on the
wait list for services other than pre-employment transition services,
in the event the student is placed in a closed category, is based on
the date of application, not the date of referral or the receipt of
pre-employment transition services. To provide students with
disabilities an opportunity to apply for services as early as possible
in the transition process and ensure a smooth transition into the VR
program, it is imperative that DSUs collaborate with educational
programs to identify students who may be eligible or potentially
eligible for vocational rehabilitation services and engage parents and
representatives. The earlier a student is placed on a wait list, the
sooner his or her turn will open in the State's order in the event a
State is on an order of selection.
We want to make clear that neither the Act nor these final
regulations exempt these students with disabilities from the State's
order of selection, if one has been implemented, or VR program
requirements once they apply and are determined eligible for services.
While under the order of selection regulations at Sec. 361.36, the
student could continue to receive pre-employment transition services if
such services have begun, a student could not begin to receive pre-
employment transition services if such services had not begun prior to
applying and being determined eligible. To permit such would create an
exemption from the order of selection requirements and the statute does
not provide such authority. However, we recognize the benefit early
services can have for students. Therefore, we want to make clear that
these students could receive transition services offered to groups of
students and youth with disabilities under Sec. 361.49. While not
identical to pre-employment transition services, many similar services
could be provided under the services to groups authority.
A detailed discussion regarding comments related to the
continuation of pre-employment transition services under an order of
selection is provided in the Continuation of Pre-Employment Transition
Services section later in this Analysis of Comments and Changes.
In response to the concern related to the availability of services
from the CAP, section 112(a) of the Act, as amended by WIOA,
specifically authorizes CAP grantees to assist individuals receiving
services under sections 113 and 511 of the Act. Therefore, these
individuals are clients and client-applicants for purposes of the CAP.
Finally, as discussed previously under ``Coordination with
Education Officials,'' parental consent to participate in pre-
employment transition services is governed by State law, as well as
policies of the educational programs and the DSU. Furthermore, informed
choice, as outlined in final Sec. 361.52, applies throughout the
vocational rehabilitation process; therefore, students with
disabilities receiving pre-employment transition services under final
Sec. 361.48(a) must be given the opportunity to exercise their
informed choice.
Changes: None.
Discretion To Provide Pre-Employment Transition Services to All
Students With Disabilities
Comments: One commenter requested that we clarify whether States
have the option, under proposed Sec. 361.48(a), to provide pre-
employment transition services to all students with disabilities,
including those who have not applied for vocational rehabilitation
services. Another commenter requested that we revise the ``may'' in
proposed Sec. 361.48(a)(1) to ``shall'' in order to ensure that pre-
employment transition services are provided to all students with
disabilities, regardless of whether they have applied for services.
Discussion: We agree that clarification is necessary. Section
110(d)(1) of the Act, as amended by WIOA, requires States to reserve at
least 15 percent of their Federal vocational rehabilitation allotment
for providing pre-employment transition services. Moreover, section 113
of the Act, as amended by WIOA, requires States to use the reserved
funds to provide, or arrange for the provision of, pre-employment
transition services to all students with disabilities in need of such
services who are eligible or potentially eligible for services.
Therefore, the requirement to reserve and use funds for providing pre-
employment transition services is mandatory, not discretionary. A State
must provide pre-employment transition services to all students with
disabilities needing those services and may not limit or expand those
services. We used the term ``may'' in proposed Sec. 361.48(a)(1) to
recognize that, for the first time, the Act permitted the delivery of
pre-employment transition services to students with disabilities who
have not applied for or been determined eligible for the VR program.
However, we acknowledge the confusion caused by the use of the term. We
therefore clarify that States must provide pre-employment transition
services not only to students with disabilities who have applied for
vocational rehabilitation services but also to those students with
disabilities who have not applied for services.
Changes: We have revised final Sec. 361.48(a)(1) to clarify that
DSUs must make pre-employment transition services available statewide
to all students with disabilities, not just those who have applied for
or been determined eligible for vocational rehabilitation services.
Provision of Required Activities Based on Need
Comments: Some commenters requested that we clarify whether a
[[Page 55692]]
student must be provided all five required services or only those
required services based upon a student's need. Of these comments, many
recommended the latter, as students with disabilities may not need all
five activities set forth in section 113(b) of the Act, as amended by
WIOA.
A few commenters requested clarification about, or criteria for,
making a determination of need. One commenter also recommended that the
regulations promote client choice about participating in pre-employment
transition services to ensure that students are not coerced into
participating in these services. Finally, one commenter expressed
concern that DSUs may require students with disabilities to participate
in pre-employment transition services as readiness or preparatory
activities before applying for vocational rehabilitation services,
thereby delaying the transition from school to post-school activities.
Discussion: Section 113(a) and (b) of the Act, as amended by WIOA,
when read in concert with each other, as well as final Sec.
361.48(a)(2), require the DSU to make certain ``required'' pre-
employment transition services available to all students with
disabilities who need them. However, none of these provisions mandate
that all five ``required'' activities be provided to each student with
a disability if all the activities are not necessary. Pre-employment
transition services, as is true for any vocational rehabilitation
service, must be provided solely on the basis of the individual's need
for that service.
Under final Sec. 361.50, DSUs are responsible for developing
policies, in consultation with the SRC, for determining the need for
pre-employment transition services. These policies must include clear
and consistent criteria based on the needs of students identified in
the comprehensive statewide needs assessment. The policies will guide
the DSU, in consultation with school personnel, family members, and
students with a disability, in determining which pre-employment
transition services each student needs, consistent with his or her
interests and informed choice.
Finally, pre-employment transition services are designed to be an
early start at job exploration for students with disabilities and
should enrich, not delay, transition planning, application to the VR
program, and the continuum of vocational rehabilitation services
necessary for movement from school to post-school activities. Neither
section 113 of the Act, as amended by WIOA, nor final Sec. 361.48(a)
requires students with disabilities receiving pre-employment transition
services to apply for, or be determined eligible for, the VR program or
to receive other vocational rehabilitation services. The Act and these
final regulations maximize opportunities for achieving competitive
integrated employment by imposing no requirement that would delay or
hinder the student's ability to access these crucial early services or
that would permit a DSU to coerce an individual to participate in any
of them. However, should the student with a disability need additional
vocational rehabilitation services, he or she must apply for and be
determined eligible for those services. See the more detailed
discussion of comments related to ``Potentially Eligible'' earlier in
this section.
Changes: None.
Continuation of Pre-Employment Transition Services
Comments: Some commenters expressed concerns about the continuation
of pre-employment transition services and availability of reserved
funds for those services once a student with a disability applies for
and is determined eligible for the VR program. Of those commenters,
many expressed the need for a continuation of services for those
students who received pre-employment transition services prior to
applying for the VR program and aging out of or exiting an educational
program. Some commenters requested that States be permitted to use
funds reserved under section 110(d) of the Act to continue to provide
services for any student with a disability who has received pre-
employment transition services and who cannot receive vocational
rehabilitation services due to a State's implementation of an order of
selection. One commenter suggested that those students found eligible
for the VR program while, or after, receiving pre-employment transition
services should be given an automatic service priority under a State's
order of selection, while another commenter requested clarification as
to why students with disabilities have not received a service priority
under proposed Sec. 361.36. Some commenters expressed concerns that
serving students who have not applied for services, regardless of the
severity of their disability, will result in a delay of services to
other students who have applied and been determined eligible for
vocational rehabilitation services, including individuals with the most
significant disabilities. A few commenters expressed the concern that
the emphasis on serving students would limit the funds available to
serve adult consumers.
Discussion: We understand the commenters' concerns about the
continuation of services for students with disabilities after receiving
pre-employment transition services, as some students may apply but not
be determined eligible for the VR program. Others may no longer satisfy
the definition of a ``student with a disability'' because they are no
longer within the required age range or are no longer participating in
an education program. These issues arise only when a student with a
disability who is receiving, or has received, pre-employment transition
services also needs other vocational rehabilitation services. All
students with disabilities who apply for vocational rehabilitation
services, even if they are still receiving pre-employment transition
services, will be subject to all relevant requirements for eligibility,
order of selection, and development of the individualized plan for
employment (including its development prior to leaving school under
final Sec. 361.22(a)(2)). Neither the Act nor these final regulations
exempt students with disabilities from any of these requirements, which
apply to all VR program applicants.
Section 101(a)(5) of the Act, as amended by WIOA, does not exempt
students with disabilities receiving pre-employment transition services
prior to the determination of eligibility from a State's order of
selection; therefore, we do not have the statutory authority to include
such an exemption in final Sec. 361.36. Nonetheless, consistent with
the policy underlying prior Sec. 361.36(e)(3), which requires a DSU to
continue providing vocational rehabilitation services to individuals
who had begun receiving these services under an individualized plan for
employment prior to the implementation of an order of selection, it is
imperative that students with disabilities not experience a disruption
in the pre-employment transition services that they are receiving and
that are so critical to their transition to postsecondary education and
employment. Thus, we have revised final Sec. 361.36(e)(3) by requiring
DSUs implementing an order of selection to continue the provision of
pre-employment transition services to students with disabilities who
were receiving these services prior to the determination of eligibility
and assignment to a priority category. DSUs may use the funds reserved
under section 110(d) and final Sec. 361.65(a)(3)
[[Page 55693]]
for the continuation of these services. This change does not permit the
DSU to provide any other transition or vocational rehabilitation
services for students with disabilities assigned to closed priority
categories.
As for ceasing to satisfy the definition of ``student with a
disability,'' pre-employment transition services under section 113 of
the Act and final Sec. 361.48(a) are available only to students with
disabilities. Therefore, if an individual no longer meets the
definition of a ``student with a disability,'' despite the fact that he
or she has received or is receiving pre-employment transition services,
he or she is no longer able to receive these services under section 113
of the Act and final Sec. 361.48(a). However, if the individual has
been determined eligible for vocational rehabilitation services and has
been assigned to an open category in the State's order of selection, if
the State has implemented one, he or she may continue to receive the
same types of pre-employment transition services under section 103(a)
of the Act and final Sec. 361.48(b), in accordance with an approved
individualized plan for employment. The DSU would pay for these
services with VR funds, other than those reserved for the provision of
pre-employment transition services under section 113 of the Act because
the reserved funds must be used solely for the provision of pre-
employment transition services to individuals who satisfy the
definition of a ``student with a disability.''
Changes: We have revised final Sec. 361.36(e)(3) by requiring a
designated State unit implementing an order of selection to continue to
provide pre-employment transition services to students with
disabilities who have begun receiving these services prior to the
determination of eligibility and assignment to a closed priority
category.
Required Activities
Comments: Several commenters provided alternate suggestions for the
required activities specified in proposed Sec. 361.48(a)(2). One
commenter recommended that States be permitted to develop their own
menu of pre-employment transition services, while many other commenters
recommended a variety of revisions to proposed Sec. 361.48(a)(2).
Specifically, one commenter requested that job exploration counseling
include actual work experience in competitive integrated employment
settings. A few commenters requested that work-based learning
experiences include paid or unpaid work experiences in school or
community settings, as well as experiential learning opportunities.
Some commenters who recommended paid work experiences suggested that
placement be aligned with the definition of competitive integrated
employment. Many commenters on work-based learning experiences
requested that the Department delete ``to the maximum extent possible''
from the regulation, prohibit sheltered work in segregated settings,
and require that the experiences only be provided in integrated
settings. However, a few commenters requested clarification as to
whether entities with certificates issued by the Department of Labor
under section 14(c) of the FLSA could provide pre-employment transition
services.
A few commenters suggested that we revise proposed 361.48(a)(2) to
conform to similar language in the Higher Education Opportunity Act of
2008 by replacing ``or'' with ``and'' in the language that governs
counseling on opportunities for enrollment in comprehensive transition
or postsecondary educational programs at institutions of higher
education. In addition, these commenters recommended language specific
to counseling on opportunities for enrollment of students with
intellectual disabilities in postsecondary educational programs at
institutions of higher education. A few other commenters proposed
revising the focus of workplace readiness training to replace the
development of social skills and independent living with a focus on
soft skills, financial literacy, mobility skills, and other skills
necessary for employment. Another few commenters recommended that the
regulations require instruction in self-advocacy to be provided by a
recognized self-advocacy group of the individual's choosing and that
peer mentoring occur during work experiences. A few commenters
recommended that the required activities include outreach to and
engagement of parents of students with disabilities in conjunction with
parent centers and parent training information centers.
Discussion: We appreciate the commenters' suggestions, concerns,
and requests for clarification. However, section 113(b) of the Act, as
amended by WIOA, specifically itemizes the pre-employment transition
services that must be provided--the ``required'' activities.
Furthermore, section 113(c) of the Act itemizes the pre-employment
transition services that may be provided--the ``authorized''
activities--in the event funds remain after providing the required
activities. Given the Act's specificity about the pre-employment
transition services that must be provided, as well as those that may be
provided, there is no statutory basis to require additional activities
or impose additional requirements, such as requiring that instruction
in self-advocacy be provided by a recognized self-advocacy group of the
individual's choosing or that peer mentoring occur during work
experiences.
We disagree with the commenters' request to revise Sec.
361.48(a)(2)(iii) to conform to similar language in the Higher
Education Opportunity Act of 2008 and specifically includes programs
and services for students with intellectual disabilities. Final Sec.
361.48(a)(2)(iii) mirrors section 113(b)(3) of the Act, as amended by
WIOA, and we do not believe the replacement of ``or'' with ``and''
helps to better describe the manner in which DSUs are to provide this
service. In addition, Section 113(b)(3)of the Act and final Sec.
361.48(a)(2)(iii) encompass counseling on the broad range of
comprehensive transition or postsecondary education programs available
to all students with disabilities, including students with intellectual
disabilities. Therefore, we do not believe it is necessary to revise
final Sec. 361.48(a)(2)(iii).
Moreover, there is no statutory basis for States to develop their
own menu of pre-employment transition services. Rather, under section
113(b) of the Act and final Sec. 361.48(a)(2), each State must make
all ``required'' pre-employment transition services available to
students with disabilities who need such services.
Similarly, contrary to recommendations made by commenters, we do
not have the authority to remove, by regulation, statutory
requirements. Accordingly, Sec. 361.48(a)(2)(ii) must be consistent
with section 113(b)(2) of the Act, as amended by WIOA, which requires
that work-based learning experiences occur in integrated settings to
the maximum extent possible. While we agree with commenters that work-
based learning experiences in integrated settings are optimal, the
Act's use of the phrase ``to the maximum extent possible'' leaves open
the possibility for work-based learning experiences in non-integrated
settings. Consequently, we cannot require that all work-based learning
experiences occur in integrated settings. However, DSUs should exhaust
all opportunities for work-based learning experiences in competitive
integrated employment settings before considering provision of these
services in non-integrated work settings, as appropriate for the needs,
and consistent with the informed choice, of the individual student with
a disability,
[[Page 55694]]
and his or her family or guardian, as applicable.
Having said this, the Department agrees that actual work
experiences in integrated settings, rather than simulated or mock
experiences in sheltered environments, provide students with
disabilities with the most beneficial opportunities for job
exploration, work-based learning, work readiness, and peer mentoring.
The Secretary believes that DSUs, to the maximum extent possible,
should provide work-based learning experiences, which may be paid or
unpaid, through actual work experiences in integrated community
environments to prepare students with disabilities for community-based
competitive integrated employment, instead of using classrooms and
educational facilities as settings for work-based learning experiences
that segregate, replicate the tasks performed in adult sheltered
employment, and often result in referrals to segregated employment
settings following exit from school.
If these are paid work-based learning experiences, students with
disabilities must be paid competitive wages to the extent competitive
wages are paid to students without disabilities. Training stipends are
also permissible for students with disabilities to the same extent that
they are provided to students without disabilities participating in
these experiences. Similarly, nothing in the Act prohibits States from
coordinating the provision of pre-employment transition services with
entities that hold certificates issued by the Department of Labor under
section 14(c) of the FLSA. However, the Department strongly encourages
training in competitive integrated settings to prepare students for
competitive integrated employment. In addition, there is no statutory
basis here to require that self-advocacy instruction be provided by a
specific entity.
We agree that engaging students' parents or representatives is
essential to their participation in pre-employment transition services
and vital to their success. Since DSUs will be delivering pre-
employment transition services to students with disabilities at a much
younger age, parents must be involved, as required by State law and the
policies of educational agencies and the DSU. We encourage DSUs to
provide information regarding the application process and availability
of services to all students with disabilities, and their parents or
representatives, early in the transition process. As such, parent
centers funded through the Rehabilitation Act and the IDEA may serve as
mechanisms for outreach to, and engagement of, parents.
Changes: None.
Continuum of Services
Comments: A few commenters requested clarification about ``required
activities'' under pre-employment transition services in Sec.
361.48(a)(2). One commenter stated that pre-employment transition
services appear to be a continuum of services and requested
clarification as to whether a student might initially receive a general
level of pre-employment transition services and then later receive a
customized level of pre-employment transition services. Another
commenter requested clarification as to how individualized pre-
employment transition services would be funded for a student or youth
with a disability who is not a vocational rehabilitation client. One
commenter suggested that general pre-employment transition services be
reserved for students who are potentially eligible for the VR program,
while reserving individualized level pre-employment transition services
for those students with disabilities determined eligible for vocational
rehabilitation services. The same commenter suggested that pre-
employment transition services be directed toward determining whether
further vocational rehabilitation services are required for the
individual to be successful in securing and maintaining employment. A
few commenters requested clarification of the difference between
employment assistance under pre-employment transition services and
transition services, including the role of the vocational
rehabilitation counselor.
Discussion: In response to requests for clarification, DSUs may
provide, or arrange for the provision of, ``required'' pre-employment
transition services to students with disabilities in classroom,
employment, or community (group) settings. These services may be
general in nature for students with disabilities who have not applied
and been determined eligible for vocational rehabilitation services. As
a student progresses through the vocational rehabilitation process by
applying and being determined eligible for services, the DSU will have
the information necessary to conduct assessments and provide more
individualized and customized services to address the student's
particular needs. But in some instances DSUs may nonetheless have
sufficient information to provide individualized pre-employment
transition services to students with disabilities who have not applied
and been determined eligible for vocational rehabilitation services.
Thus, we decline to require in final Sec. 361.48(a)(2) that providing
more individualized pre-employment transition services be limited to
students with disabilities who have applied and been determined
eligible for vocational rehabilitation services.
Finally, section 113 requires that DSUs use the funds reserved
under section 110(d) of the Act, as amended by WIOA, to provide pre-
employment transition services not only to students with disabilities
who are eligible for vocational rehabilitation services but also to
students with disabilities who are potentially eligible for vocational
rehabilitation services, which includes all students with disabilities
regardless of whether they have submitted an application for these
services.
Examples of the five ``required'' activities and how they may be
provided in either a group or individualized setting include, but are
not limited to, the following:
One, general job exploration counseling may be provided in a
classroom or community setting and include information regarding in-
demand industry sectors and occupations, as well as non-traditional
employment, labor market composition, administration of vocational
interest inventories, and identification of career pathways of interest
to the students. Job exploration counseling provided on an individual
basis might be provided in school or the community and include
discussion of the student's vocational interest inventory results, in-
demand occupations, career pathways, and local labor market information
that applies to those particular interests.
Two, work-based learning experiences in a group setting may include
coordinating a school-based program of job training and informational
interviews to research employers, work-site tours to learn about
necessary job skills, job shadowing, or mentoring opportunities in the
community. Work-based learning experiences on an individual basis could
include work experiences to explore the student's area of interest
through paid and unpaid internships, apprenticeships (not including
pre-apprenticeships and Registered Apprenticeships), short-term
employment, fellowships, or on-the-job trainings located in the
community. These services are those that would be most beneficial to an
individual in the early stages of employment exploration during the
transition process from school to post-school activities, including
employment. Should a student need more individualized services (e.g.,
job coaching, orientation and mobility training, travel expenses,
[[Page 55695]]
uniforms or assistive technology), he or she would need to apply and be
determined eligible for vocational rehabilitation services and develop
and have an approved individualized plan for employment.
Three, counseling on opportunities for enrollment in comprehensive
transition or postsecondary educational programs at institutions of
higher education in a group setting may include information on course
offerings, career options, the types of academic and occupational
training needed to succeed in the workplace, and postsecondary
opportunities associated with career fields or pathways. This
information may also be provided on an individual basis and may include
advising students and parents or representatives on academic curricula,
college application and admissions processes, completing the Free
Application for Federal Student Aid (FAFSA), and resources that may be
used to support individual student success in education and training,
which could include disability support services.
Four, workplace readiness training may include programming to
develop social skills and independent living, such as communication and
interpersonal skills, financial literacy, orientation and mobility
skills, job-seeking skills, understanding employer expectations for
punctuality and performance, as well as other ``soft'' skills necessary
for employment. These services may include instruction, as well as
opportunities to acquire and apply knowledge. These services may be
provided in a generalized manner in a classroom setting or be tailored
to an individual's needs in a training program provided in an
educational or community setting.
Five, instruction in self-advocacy in a group setting may include
generalized classroom lessons in which students learn about their
rights, responsibilities, and how to request accommodations or services
and supports needed during the transition from secondary to
postsecondary education and employment. During these lessons, students
may share their thoughts, concerns, and needs, in order to prepare them
for peer mentoring opportunities with individuals working in their
area(s) of interest. Further individual opportunities may be arranged
for students to conduct informational interviews or mentor with
educational staff such as principals, nurses, teachers, or office
staff; or they may mentor with individuals employed by or volunteering
for employers, boards, associations, or organizations in integrated
community settings. Students may also participate in youth leadership
activities offered in educational or community settings.
The wide variety of pre-employment transition services described in
these examples is designed to be an early start at job exploration for
students with disabilities. DSUs are not to use these activities as
assessment services for the purpose of determining whether additional
vocational rehabilitation services are needed, or if the individual
will be successful in employment. In response to commenters' requests
for clarification of the difference between employment assistance under
pre-employment transition services and transition services, see more
detailed descriptions of the distinctions between the two types of
services in the Transition Services (section 361.5(c)(55)) and Scope of
Pre-Employment Transition Services and Use of the Reserve sections
earlier in this section B.
Changes: None.
Other Vocational Rehabilitation Services as Pre-Employment Transition
Services
Comments: A few commenters recommended that we interpret the scope
of required activities under section 113 of the Act, as amended by
WIOA, to include both support services and individualized vocational
rehabilitation services necessary to participate in pre-employment
transition services. The commenters requested that the funds reserved
for providing pre-employment transition services also be permitted to
pay for services provided under section 103(a) of the Act, as amended
by WIOA, and proposed Sec. 361.48(b), including, but not limited to
job coaching services, maintenance, transportation to and from work-
based learning experiences, travel, uniforms, tools, sign language
interpreters, reasonable accommodations, assistive technology,
independent living, and orientation and mobility services for students
who are blind. One commenter requested that pre-employment transition
services be expanded to include all transition services for students
determined eligible for vocational rehabilitation services. Another
commenter requested that we include all services listed on an
individualized plan for employment within the scope of pre-employment
transition services, including postsecondary education and training
costs.
Discussion: Section 113 of the Act, as amended by WIOA, and final
Sec. 361.48(a) set out a list of pre-employment transition services
that must be made available to all students with disabilities who are
eligible or potentially eligible for vocational rehabilitation services
(``required'' activities), as well as those that may be provided
(``authorized'' activities). Under section 113(a) of the Act, the funds
required to be reserved for pre-employment transition services must be
used solely for providing pre-employment transition services.
Therefore, the Department has no statutory authority to expand or limit
the pre-employment transition services listed in section 113 of the
Act, as amended by WIOA. Furthermore, if a student with a disability
needs any additional individualized vocational rehabilitation services,
including those necessary for participating in pre-employment
transition services, such as those provided under final Sec.
361.48(b), the student must apply and be determined eligible for
vocational rehabilitation services and develop an individualized plan
for employment that includes the additional necessary services. These
additional services must be charged as a vocational rehabilitation
expenditure separate from the funds reserved for providing pre-
employment transition services.
Changes: None.
Pre-Employment Transition Coordination Activities
Comments: A few commenters expressed concerns that proposed Sec.
361.48(a)(4) did not permit alternate means of participation in the
meetings required by section 113 of the Act, as amended by WIOA, and
permitted in section 103(b)(6) of the Act. Many commenters recommended
we include language to allow for alternate means of participation in
meetings as vocational rehabilitation counselors may not be available
to participate in all individualized education program or person-
centered planning meetings across a State.
A few commenters stated that pre-employment transition coordination
activities must occur between DSUs and parent training and information
centers funded by the Office of Special Education Programs and RSA to
ensure that parental outreach concerning the benefits of pre-employment
transition services is coordinated among these federally funded
centers.
Discussion: We agree that alternate means for participating in pre-
employment transition coordination activities (e.g., video conferences
and teleconferences) could minimize travel time and costs and maximize
both the number of individualized education program and person-centered
planning
[[Page 55696]]
meetings in which a vocational rehabilitation counselor could
participate, as well as the number of direct services a vocational
rehabilitation counselor could provide to students with disabilities.
Although Sec. 361.48(a)(4), both as proposed and final, does not
explicitly permit DSUs to use alternate means to participate in
individualized education program or person-centered planning meetings,
it does not prohibit them. DSUs may therefore use these alternate
means.
Decisions on how to conduct meetings is a matter of agency
administration. Conducting these meetings via alternate means would be
consistent with the explicit authority to conduct alternate format
meetings under section 101(a)(11)(D)(i) of the Act and final Sec.
361.22(b)(1). Additionally, section 614(f) of the IDEA and its
implementing regulations in 34 CFR 300.328 allow the parent of a child
with a disability and a public agency to agree to use alternative means
of meeting participation requirements, such as video conferences and
conference calls, when conducting individualized education program team
meetings and placement meetings under the IDEA, as well as carrying out
administrative matters under section 615 of the IDEA (such as
scheduling, exchange of witness lists, and status conferences). Since
the Act and the IDEA provide for alternate means for conducting
meetings very similar to those required by section 113 of the Act and
final Sec. 361.48(a), DSUs may use alternate means to conduct these
meetings as well. We do not believe a regulatory change is necessary to
accomplish this.
We agree that coordinating with federally funded parent centers is
a mechanism that would help parents of students with disabilities
understand the benefits of pre-employment transition services. Section
113(d) of the Act, as amended by WIOA, however, does not require this.
The statute is clear that the funds reserved for providing pre-
employment transition services must only be spent on the activities
specified in section 113 of the Act, as amended by WIOA, and final
Sec. 361.48(a). Given the Act's specificity of the activities that
constitute pre-employment transition services, there is no statutory
authority for final Sec. 361.48(a)(4) to include any additional
required coordination responsibilities.
Changes: None.
Documentation and Reporting
Comments: Some commenters requested clarification as to how States
should document the provision and costs of pre-employment transition
services for students with disabilities who have not yet applied and
been determined eligible for vocational rehabilitation services and for
whom limited personal information is available. Additionally, one
commenter requested additional guidance about the tracking of funds
expended on groups of students who have not applied or been determined
eligible for the VR program.
A few commenters requested flexibility in the reporting of pre-
employment transition services because it is burdensome for DSUs to
develop and implement tracking systems for a large potentially eligible
population. These commenters also stated this tracking could be
difficult because DSUs may not have access to the personal identifying
information, including Social Security numbers, typically used to
document and report vocational rehabilitation services provided. A few
commenters suggested that the Department establish reporting
requirements for pre-employment transition services that are similar to
the child count reporting requirements under the IDEA. One commenter
requested clarification regarding reporting requirements for the funds
reserved for providing pre-employment transition services and whether
expenditures are only to be reported during the time period for which
an individual meets the definition of a student with a disability or
during the entire fiscal year in which the individual was served.
Discussion: Because sections 110(d) and 113 of the Act require a
State to reserve and use at least 15 percent of its total vocational
rehabilitation allotment for providing, or arranging for the provision
of, pre-employment transition services to students with disabilities,
it will be critical that the DSU implement administrative methods and
procedures that ensure proper data collection and financial
accountability of these reserved funds, as required by final Sec.
361.12 and 2 CFR 200.302 of the Uniform Guidance. In addition, section
101(a)(10)(C) of the Act, as amended by WIOA, expands the VR program-
specific data that DSUs must report, including data elements related to
students with disabilities who are receiving pre-employment transition
services. These reporting requirements are included in final Sec.
361.40(a) to ensure that the Secretary has the information needed to
assess the performance of the VR program, especially with regard to
providing pre-employment transition services to students with
disabilities.
Although the Department recognizes the burden placed on DSUs to
develop procedures for tracking pre-employment transition services and
related expenditures for students who have not yet applied or been
determined eligible for vocational rehabilitation services, DSUs are
required by section 101(a)(10)(C) of the Act to do so in order to
properly account for, and report, the provision of pre-employment
transition services and the reserved funds spent on those services.
Moreover, the State's accounting procedures must be such that the DSU
will be able to complete accurately all required forms, including
financial reports, that show the reservation and use of these funds for
this purpose, as required by final Sec. 361.12 and 2 CFR 200.302.
The Department does not have the authority to grant exceptions
from, or waivers of, these reporting requirements. Regardless of
whether students with disabilities are receiving pre-employment
transition services without having applied or been determined eligible
for vocational rehabilitation services, i.e. by virtue of the fact they
are ``potentially eligible'' for the program, if Federal funds are
being spent, expenditures must be tracked and monitored in accordance
with final Sec. 361.12 and the Uniform Guidance in 2 CFR 200.302
(Financial Management) and 200.328 (Monitoring), as well as the Federal
cost principles in 2 CFR 200.403 (Allowability), 200.404 (Reasonable)
and 200.405 (Allocable). Furthermore, the Department issued Policy
Directive (PD) 15-05 on February 5, 2015, which provided technical
assistance on reporting the total Federal expenditures for providing
pre-employment transition services. We appreciate the commenters'
proposed alternate suggestions for reporting. However, the Department
uses the SF-425 to collect financial data from DSUs so that it can
monitor the financial status of the VR program and assess grantee
compliance with Federal fiscal requirements under the VR program,
including requirements for the reservation and use of funds for
providing pre-employment transition services.
As they have been required to do for many years, DSUs must submit
completed SF-425 reports semi-annually. The end dates for each
reporting period in a fiscal year are March 31 and September 30. Semi-
annual reports must be submitted no later than 45 days after the end of
the reporting period. Final reports must be submitted no later than 90
days after the period of performance. ``Period of performance'' means
the time during which the non-Federal entity may incur new obligations
to carry out the work authorized under the Federal award.
[[Page 55697]]
These final regulations do not affect any of these reporting
requirements. To ensure the proper accounting and reporting of services
provided and funds expended, especially with regard to pre-employment
transition services, DSUs must track and report data on students with
disabilities until they no longer meet the definition of a student with
a disability. At that point, DSUs must track and report services
provided to, and funds expended on, these individuals as they would any
other individual receiving vocational rehabilitation services.
Changes: None.
Performance Measures
Comments: A few commenters expressed concern that pre-employment
transition services and expenditure of funds are not included in the
proposed common performance accountability measures. These commenters
recommended that we revise the common performance accountability
measures to include and evaluate these services. One commenter
requested clarification regarding how group service expenditures would
inform statistical adjustment model calculations, as it was unclear how
the ratio of reportable individuals to participants may reflect on the
performance of a DSU.
Discussion: The VR program is no longer subject to its own set of
performance standards and indicators established by the Department, as
it had been prior to the enactment of WIOA. Because the common
performance accountability indicators are mandated by section 116(b) of
title I of WIOA and apply to all six core programs of the workforce
development system, including the VR program, the Departments of
Education and Labor do not have the authority to establish additional
performance accountability indicators beyond those identified in the
statute. However, section 106(a)(2) of the Act and section
116(b)(1)(A)(ii) of title I of WIOA permit States to develop additional
accountability measures to evaluate the performance of the core
partners in the workforce development system. We intend to monitor
State implementation of pre-employment transition services and
expenditure of funds during our annual review and periodic on-site
monitoring of State VR agencies to identify areas of concern and the
need for technical assistance. The Departments of Education and Labor
address the remaining comments in the joint final regulations
implementing the performance accountability system under title I of
WIOA, and published elsewhere in this issue of the Federal Register.
Changes: None.
Services for Individuals Who Have Applied for or Been Determined
Eligible for Vocational Rehabilitation Services (Sec. 361.48(b))
Comments: A few commenters supported proposed Sec. 361.48(b)(18)
and agreed that youth may be provided transition services that are
similar to pre-employment transition services under an individualized
plan for employment. Another commenter requested that proposed Sec.
361.48(b)(18) require DSUs to provide students and youth with
disabilities an application for vocational rehabilitation services at
the beginning of the transition process. A few commenters expressed
concerns regarding the expansion of services for students and youth
with disabilities at the expense of other individuals with disabilities
served by DSUs. One commenter expressed such concerns in terms of
potential harm to the Randolph-Sheppard program.
Some commenters requested that we identify the services, including
transition services, that would be allowable if provided by community
rehabilitation programs that hold section 14(c) certificates under the
FLSA. A few commenters recommended that the regulations prohibit DSUs
from contracting with section 14(c) certificate holders to provide
transition services. One commenter requested that we clarify if
entities holding section 14(c) certificates may provide transition
services and proposed alternatives for providing these services if they
may not.
One commenter requested that incentives be added for providing
transition services or supported employment services.
Discussion: We appreciate the support for, and consideration given
by commenters to, proposed Sec. 361.48(b)(18). We agree that students
and youth with disabilities should receive adequate information and
applications for vocational rehabilitation services at the beginning of
the transition from secondary programs to post-secondary activities. A
DSU may provide the information and application under final Sec. Sec.
361.41 and 361.52, which require the DSU to establish and implement
standards for promptly processing referrals, informing individuals of
application requirements, and facilitating individuals' informed choice
as they transition. Therefore, we do not believe it is necessary to add
further requirements to final Sec. 361.48(b)(18).
We acknowledge that the heightened emphasis on providing services
to students and youth with disabilities may cause some DSUs concern
about their ability to serve all individuals. We believe that the
process for implementing an order of selection established within
section 101(a)(5) of the Act, as amended by WIOA, is adequate to
address these concerns in the event that vocational rehabilitation
services cannot be provided to all eligible individuals.
We acknowledge the commenters' support and concerns about section
14(c) certificate holders providing transition and other vocational
rehabilitation services. While the Act does not prohibit community
rehabilitation programs that are section 14(c) certificate holders from
providing transition or other vocational rehabilitation services or
training in sheltered settings, section 511 of the Act prohibits local
and State educational agencies from entering into a contract or other
arrangement with section 14(c) entities for the purpose of operating a
program for youth with disabilities under which work is compensated at
a subminimum wage. The Department strongly encourages training in
competitive integrated settings to prepare students for competitive
integrated employment, as stated in the discussion of ``required''
activities in final Sec. 361.48(a) and discussed in more detail in
Required Activities earlier in this section B. There is no statutory
basis for requiring or permitting incentive payments for providing
vocational rehabilitation services, including transition and supported
employment services.
Changes: None.
Scope of Vocational Rehabilitation Services for Groups of Individuals
With Disabilities (Sec. 361.49)
Comments: A few commenters sought clarification of, or suggested
revisions to, proposed Sec. 361.49(a)(7) governing the provision of
transition services for groups of youth and students with disabilities.
Of these, one commenter questioned whether transition services may be
provided under this authority to students and youth with disabilities
who have not applied or been determined eligible for vocational
rehabilitation services. Similarly, another commenter suggested that
DSUs be required to provide an application to all students and youth
with disabilities receiving transition services under proposed Sec.
361.49(a)(7). One commenter communicated concerns that allowing
transition services under this authority will lead to students and
youth with
[[Page 55698]]
disabilities receiving services in segregated environments. Another
commenter suggested that pre-employment transition services under
proposed Sec. 361.49 be limited to group orientations. Yet another
commenter supported providing transition services for groups of
students and youth with disabilities and then providing transition
services to this population under final Sec. 361.48(b) if more
individualized services are necessary.
One other commenter suggested that we add the term ``competitive
integrated employment'' to proposed Sec. 361.49(a)(7) to emphasize
that transition services for groups of students and youth with
disabilities are to support the achievement of competitive integrated
employment. The same commenter recommended that we add outreach to and
engagement of parents to Sec. 361.49(a)(7) as an allowable service to
groups. Finally, one commenter requested clarification of how informed
choice of both the individual and the individual's representative would
be provided and documented if transition services are provided to
groups of youth and students with disabilities.
Discussion: We appreciate all of these comments. A student with a
disability or a youth with a disability is not required to have applied
or been determined eligible for vocational rehabilitation services to
receive general transition services provided to groups under section
103(b)(7) of the Act, as amended by WIOA, and final Sec. 361.49(a)(7).
Therefore, a DSU may, but is not required to, provide or collect
applications from students and youth with disabilities receiving
transition services under final Sec. 361.49(a)(7). Students with
disabilities may receive these services in a variety of settings,
including classroom, employment, and community-based settings. However,
the Department strongly encourages DSUs to provide these services in
integrated settings to the maximum extent possible to best prepare
students and youth with disabilities for competitive integrated
employment. Furthermore, students and youth with disabilities may
continue to receive generalized transition services under this
authority while also receiving individualized vocational rehabilitation
services under an individualized plan for employment pursuant to
section 103(a) of the Act and final Sec. 361.48(b).
Pre-employment transition services may be provided in a group
setting to students with disabilities who have not applied or been
determined eligible for vocational rehabilitation services, as
discussed in the examples in final Sec. 361.48(a). Contrary to the
assumption in some comments, pre-employment transition services cannot
be provided to students with disabilities as a service for groups under
section 103(b)(7) of the Act, as amended by WIOA, or final Sec.
361.49(a)(7). Pre-employment transition services must only be provided
under section 113 of the Act and final Sec. 361.48(a).
The intent of these generalized transition services when provided
under final Sec. 361.49(a)(7) is to benefit groups of students and
youth with disabilities. We understand the concern that these services
are limited to only students and youth with disabilities. Transition
services provided under final Sec. 361.48(b) under an individualized
plan for employment are more individualized in nature, and the settings
in which they are delivered are typically more diverse.
We agree that the purpose of transition services to groups should
ultimately be achieving competitive integrated employment for students
and youth with disabilities consistent with the purpose of the VR
program set forth in final Sec. 361.1. Nonetheless, the transition
services provided under final Sec. 361.49(a)(7) are not limited to
those individuals who have been determined eligible for the VR program
and who are pursuing an employment outcome in competitive integrated
employment or supported employment. Therefore, we cannot require that
the transition services authorized in final section 361.49(a)(7) be
provided only for the purpose of assisting students and youth with
disabilities to obtain competitive integrated employment.
We also agree that the families of students and youth with
disabilities should be involved in all transition services, even though
section 103(b) of the Act, as amended by WIOA, does not specifically
include outreach to and engagement of parents within its requirements.
Neither the Act nor these final regulations prohibit a DSU from
providing outreach to, and engaging parents in, the provision of
transition services under final Sec. 361.49(a)(7).
Finally, informed choice, as outlined in final Sec. 361.52,
applies throughout the vocational rehabilitation process; therefore,
students and youth with disabilities receiving transition services
under final Sec. 361.49(a)(7) must be given the opportunity to
exercise their informed choice.
Changes: None.
C. Fiscal Administration of the VR Program
Section C includes the Analysis of Comment and Changes to the
regulations in subpart C of part 361 that pertain to the fiscal
administration of the VR program and covers requirements for matching
funds, maintenance of effort, program income, and the allotment and
payment of funds. The analysis is presented by topical headings
relevant to sections of the regulations in the order they appear in
part 361 as listed.
Topical Headings
Matching Requirements (Sec. 361.60)
Third-Party In-Kind Contributions
Additional Sources of Match
Differences Between Prior and Proposed Regulations
Maintenance of Effort Requirements (Sec. 361.62)
Program Income (Sec. 361.63)
Waiver
Legal Basis
Pre-Employment Transition Services
Amount of Program Income Earned
Addition Alternative
Allotment and Payment of Federal Funds for Vocational Rehabilitation
Services (Sec. 361.65)
Exemption from the Reservation of Funds Requirement for Pre-
Employment Transition Services
Use of Reserved Funds for Other Vocational Rehabilitation
Services
Amount of Funds to Be Reserved
Application of the Reservation of Funds to the State and to the
State Allotment
Effect of Reallotment and Carryover on the Reservation of Funds
Administrative Costs
Tracking of the Reserved Funds
Use of Reserved Funds for Authorized Activities
Matching Requirements (Sec. 361.60)
Third-Party In-Kind Contributions
Comments: Several commenters requested that the Department either
include third-party in-kind contributions as an allowable source of
match under the VR program or clarify whether these contributions are
an allowable source of match. One commenter questioned whether the
Department has the authority to exclude third-party in-kind
contributions as a source of match under the VR program, given that
these contributions are a permissible source of match in the Uniform
Guidance contained in 2 CFR part 200.
Discussion: We have addressed the comments regarding the
allowability and use of third-party in-kind contributions as match
under the VR program in the discussion of third-party cooperative
arrangements in final Sec. 361.28 earlier in section A of this
Analysis of Comments and Changes section. We received similar comments
about that regulation, and issues of third-party in-kind contributions
most
[[Page 55699]]
often arise in the third-party cooperative arrangement context.
For more than two decades, the Department has excluded third-party
in-kind contributions from the allowable sources of match for the VR
program. Neither the NPRM nor these final regulations reflect any
substantive changes to this prohibition.
In addition, we do not agree that Sec. 361.60 is inconsistent with
2 CFR part 200 with regard to third-party in-kind contributions.
Specifically, 2 CFR 200.306 states that for all Federal awards, any
shared costs or matching funds and all contributions, including cash
and third-party in-kind contributions, must be accepted as part of the
non-Federal entity's cost sharing or matching when specific criteria
are met. However, 2 CFR 200.102(c) states that ``the Federal awarding
agency may apply more restrictive requirements to a class of Federal
awards or non-Federal entities when approved by OMB, or when required
by Federal statutes or regulations. . . .''
Section 361.60(b)(2) has prohibited, and continues to prohibit,
DSUs from considering third-party in-kind contributions as a
permissible source of match under the VR program. The Department is
within its authority to continue to exclude third-party in-kind
contributions as an allowable source of match under the VR program, as
it has done for more than two decades, and thus the VR program
regulations are consistent with 2 CFR part 200. Nevertheless, given the
comments questioning the relationship between the prohibition against
using third-party in-kind contributions for match purposes under the VR
program in Sec. 361.60(b)(2) and the permissibility of these
contributions under 2 CFR 200.306(b), we have revised final Sec.
361.4(d) to reduce confusion. These revisions are purely technical and
do not affect the long-standing prohibition against using third-party
in-kind contributions as a source of match under the VR program.
Changes: We have revised final Sec. 361.4(d) to exempt 2 CFR
200.306(b), as it relates to third-party in-kind contributions, from
the VR program, thereby ensuring consistency with final Sec.
361.60(b)(2) and the long-standing prohibition against third-party in-
kind contributions as a source of match under the VR program.
Additional Sources of Match
Comments: Another commenter requested that the Department include
additional sources of non-Federal share as examples of potential
matching sources.
Discussion: We appreciate the commenter's request for additional
examples of permissible sources of match under the VR program. The 1988
regulations (53 FR 16978 (May 12, 1988)), which remained in effect
until 1997, contained a short list of examples of permissible match
sources, none of which included third-party in-kind contributions.
Similarly, the 1997 final regulations (62 FR 6307 (Feb. 11, 1997))
simplified the requirements by removing the list of permissible sources
of expenditures to meet the non-Federal share. Instead, it referred to
former 34 CFR 80.24 for a list of allowable match sources, to the
extent that provision was not inconsistent with Sec. 361.60(b), which
prohibited third-party in-kind contributions from being used for match
purposes under the VR program. We emphasized in the preamble to the
1995 NPRM (60 FR 64475 (Dec. 15, 1995)) that the proposed regulation
would not prohibit the use of any funding sources that had been
allowable for match purposes under the VR program, but third-party in-
kind contributions were not among them. Although we do not believe the
list of permissible match sources should be re-inserted into final
Sec. 361.60, we provide here the still-effective permissible match
sources that had been contained in prior Sec. 361.76, which existed
until the 1997 regulations took effect and subsequently was replaced by
prior Sec. 361.60.
The old regulations in 34 CFR 361.76, which formed the basis for
both prior and final Sec. 361.60, indicated that the allowable sources
of match were:
1. Direct State appropriation to the VR agency,
2. Transfers or allotments from other public agencies,
3. Expenditures incurred by other public agencies pursuant to a
cooperative agreement in accordance with 34 CFR 361.13 (which formed
the basis for both prior and final Sec. 361.28),
4. Funds set aside from Business Enterprise Programs, established
under the Randolph-Sheppard Act, for which the DSU provides supervision
and management services, and
5. Private contributions deposited into the VR agency's account.
Section 361.60 has remained substantively unchanged from 1997
through these final regulations.
Changes: None.
Differences Between Prior and Proposed Regulation
Comments: One commenter requested we clarify the differences
between the prior and proposed Sec. 361.60(b)(3).
Discussion: We made only technical changes to proposed Sec.
361.60(b)(3)(iii) in the NPRM. Specifically, we replaced the phrase
``grant, subgrant, or contract'' with the word ``subaward'' in order to
be consistent with the use of this term in the Uniform Guidance, as set
forth in 2 CFR part 200. We made no further changes to final Sec.
361.60(b)(3)(iii).
Changes: None.
Maintenance of Effort Requirements (Sec. 361.62)
Comments: A few commenters supported proposed Sec. 361.62. One
commenter stated that section 241(b) of WIOA did not support the
proposed VR regulations and recommended allowing flexibility for States
to choose the fiscal year in which maintenance of effort penalties
would be paid.
Discussion: We appreciate the comments supporting proposed Sec.
361.62. Section 241(b) of WIOA, referenced by the commenter, does not
apply to the VR program but rather to programs authorized under the
Adult Education and Family Literacy Act in title II of WIOA. Instead,
section 420 of WIOA amended section 111(a)(2)(B) of the Act, which
governs the maintenance of effort requirements for the VR program.
Final Sec. 361.62(a) is consistent with section 111(a)(2)(B) of the
Act, as amended by WIOA.
Changes: None.
Program Income (Sec. 361.63)
Waiver
Comments: Several commenters requested that we waive the
requirement for States to expend program income prior to drawing down
Federal grant funds. One commenter stated that the role of the
Department in placing restrictions on the use of program income should
be limited since VR program grantees are not required to generate
program income.
Discussion: We appreciate the comments submitted regarding proposed
Sec. 361.63. The Act gives the Secretary the authority to grant
waivers of only two VR program requirements, specifically those related
to statewideness (section 101(a)(4)) and maintenance of effort (section
111(a)(2)(C)). The Act, as amended by WIOA, does not provide a general
waiver authority or a specific authority to waive program income
requirements. Therefore, we may not include in final Sec. 361.63 a
waiver of the requirement to expend program funds prior to drawing down
Federal VR program funds.
Changes: None.
[[Page 55700]]
Legal Basis
Comments: Another commenter noted that following the 1992
amendments to the Rehabilitation Act, the Department interpreted the
Act as allowing program income, including transferred program income,
to be obligated and/or expended on or before September 30th of the
carryover year of the grant period. According to the commenter, WIOA
did not amend the Act to require the expenditure of program income
under the VR program as soon as it was received. The commenter also
recommended that we review both the 1992 amendments to the
Rehabilitation Act and WIOA to determine whether there is a sufficient
legal basis to exempt DSUs from the requirement to expend program
income before requesting additional Federal grant funds and that we
include this exemption in the VR program final regulations. One
commenter noted that the NPRM incorrectly cited 2 CFR 200.305(b)(5) as
the legal authority requiring that program income be disbursed prior to
drawing down Federal funds.
Discussion: While we agree that DSUs are not required to earn
program income under the VR program, we disagree that the Secretary's
authority over program income is, therefore, limited. As a recipient of
Federal VR program funds, DSUs must comply with all applicable Federal
requirements, including those in the Act, the VR program regulations in
final part 361, Education Department General Administrative Regulations
(EDGAR), and government-wide regulations in 2 CFR part 200 (see final
Sec. 361.4). Requirements governing program income affecting the VR
program are found in final Sec. 361.63 and 2 CFR 200.305, both of
which are under the Secretary's purview. Moreover, final Sec. 361.4(b)
and (d) make final part 361 and 2 CFR part 200, respectively,
applicable to the VR program. For this reason, DSUs must comply with
all Federal requirements governing program income to the extent that
they earn such income under the VR program.
We agree that section 19(a)(2) of the Act allows program income to
remain available for obligation and expenditure in the year following
the year in which the program income was earned. However, we also
believe that final Sec. 361.63(c)(3) is consistent with both section
19(a)(2) of the Act and 2 CFR 200.305. In the event that a DSU receives
program income at the end of a fiscal year and is unable to disburse it
prior to the end of that year, the DSU may carry over that program
income for use in the following Federal fiscal year; however, that DSU
must spend that program income prior to drawing down Federal funds.
The Department reminded DSUs of this requirement--program income
must be disbursed prior to drawing down Federal funds--in PD-11-03
(dated October 26, 2010), as well as in PD-12-06 and PD-15-05 (dated
February 13, 2012 and February 5, 2015, respectively). The Department
also reminded DSUs of this requirement in a PowerPoint presentation at
the FY 2011 Fiscal Conference, held in Washington, DC, in August 2011.
Prior to developing proposed Sec. 361.63, the Department reviewed
the legislative and regulatory history about program income. Our review
found that, while the Act has not addressed this issue specifically,
EDGAR has long done so. The Federal government has had a long-standing
requirement under the common rule implementing former OMB Circular A-
102, codified by the Department of Education in former 34 CFR
80.21(f)(2), that States must expend program income prior to drawing
down Federal grant funds. The Uniform Guidance, codified in 2 CFR part
200, was adopted by the Department in 2 CFR 3474 on December 19, 2014,
in 79 FR 76091. The Uniform Guidance in 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, the Uniform Guidance in 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. Thus, in addition to the ambiguity regarding non-TSA
programs, 2 CFR 200.305(a) does not address whether States must expend
available program income funds before requesting additional Federal
cash, as had been the long-standing government-wide requirement in OMB
Circular A-102 and codified for Department grantees in former 34 CFR
80.21(f)(2). This silence creates concern because, for all other non-
Federal entities, Sec. 200.305(b)(5) clearly requires those entities
to expend available program income funds before requesting payments of
Federal funds.
While the Sec. 200.305(a) silence creates an ambiguity, we do not
believe that this ambiguity should be construed to no longer require
States to expend program income funds before requesting additional
Federal cash because 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). This issue is
critical to the Department because DSUs earn more than $100 million in
program income annually under the VR program--an amount that far
exceeds amounts earned under any other program administered by the
Department. For this reason, the Secretary believes it is essential
that we resolve this ambiguity in these regulations. Therefore, 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).
Upon further review of that proposed change, and in consideration
of one comment, we have determined that the proposed amendment, as
presented in the NPRM, would not achieve the needed objective because
it referenced the wrong citation from 2 CFR part 200. We resolved the
ambiguity by revising final Sec. 361.63(c)(3) to explicitly require
States to expend available program income funds before requesting
additional cash payments, maintaining the long-standing requirement
that applied to VR program grantees under 34 CFR 80.21(f)(2). The
Secretary believes this change is essential to protect the Federal
interest by using program income to increase the funds devoted to the
VR program and keep to a minimum the interest costs to the Federal
government of making grant funds available to the States. There is no
legal basis to exempt DSUs from this long-standing government-wide
requirement.
Changes: We have revised final Sec. 361.63(c)(3) to explicitly
require States to disburse available program income funds before
requesting additional cash payments.
Pre-Employment Transition Services
Comments: Some commenters expressed concerns that the requirement
to spend program income first creates an undue barrier to the ability
of DSUs to reserve 15 percent of their VR program allotments for
providing pre-employment transition services. According to these
commenters, grantees cannot predict the arrival of program income to
the same extent that they can anticipate the arrival of allotted funds.
As a result, DSUs may have to expend program income for pre-employment
transition services instead of their State allotments, thereby failing
to expend the 15 percent reserve required for the provision of pre-
employment transition services.
[[Page 55701]]
Discussion: We recognize the challenge for States to meet both the
requirements to disburse program income prior to drawing down Federal
funds as well as to reserve VR program funds for providing pre-
employment transition services. While final Sec. 361.63(c)(1)(ii)
requires States to expend available program income funds before
requesting additional cash payments, it does not preclude States from
executing allowable accounting adjustments between program income
disbursed on pre-employment transition services and other Federal funds
expended on non-pre-employment transition services for the same time
period. These accounting adjustments must be in accordance with
Generally Accepted Accounting Principles (GAAP) and the State's
accounting procedures and must be reflected in the State accounting
system that is required by final Sec. 361.12 and 2 CFR 200.302.
Changes: None.
Amount of Program Income Earned
Comments: One commenter noted that it is unable to determine the
actual amount of program income earned until after the end of the
Federal award because the program income must be ``netted out.''
Discussion: Program income, as defined in 2 CFR 200.80 and used in
final Sec. 361.63, means the ``gross'' program income earned by the
grantee. Furthermore, as stated earlier, program income is considered
earned when received. In other words, if a DSU receives $100,000 in
program income in November, it should report this amount as received--
or earned--on the SF-425 covering the first quarter of the Federal
fiscal year. Therefore, DSUs should not wait until the end of a fiscal
year to determine the amount of program income received, and all
reports should reflect gross--not net--amounts.
Changes: None.
Addition Alternative
Comments: None.
Discussion: Upon further Department review, we determined it
necessary to clarify in Sec. 361.63(c)(3) that the deduction method is
no longer available to DSUs for expending program income. In examining
the grant formula set forth in the statute more closely, we have
concluded that the use of the deduction method would, in effect, result
in a reduction of a VR grant 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, DSUs 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 VR program
final regulations. We do not believe this change will negatively impact
many, if any, grantees. Therefore, we have revised final Sec.
361.63(c)(3) to require VR program grantees to use program income only
to supplement the VR grant through the addition alternative.
Changes: We have revised final Sec. 361.63(c)(3) to require DSUs
to use the addition alternative when expending program income.
Allotment and Payment of Federal Funds for Vocational Rehabilitation
Services (Sec. 361.65)
Exemption From the Reservation of Funds Requirement for Pre-Employment
Transition Services
Comments: Some commenters agreed with the changes to proposed Sec.
361.65. Many commenters recommended that we exempt DSUs from the
requirement to reserve at least 15 percent of their State allotments
for providing pre-employment transition services in cases where the
DSUs lack resources to do so.
Discussion: We appreciate the commenters who supported proposed
Sec. 361.65 and those who expressed concern or sought clarification.
Section 110(d)(1) of the Act, as amended by WIOA, requires States--not
the Department--to reserve at least 15 percent of their VR program
allotment for providing pre-employment transition services. Given this
explicit requirement, the Secretary lacks statutory authority to exempt
States from the reservation requirement or to modify this requirement
because to do so would be inconsistent with the statute. While we
understand the concerns expressed by commenters regarding an inability
to expend the full amount of reserved funds on pre-employment
transition services, we encourage DSUs to work closely with the school
systems and other entities to identify students with disabilities who
might benefit from pre-employment transition services. Through these
outreach activities, DSUs may be able to identify students with
disabilities who could benefit from pre-employment transition services
and who were not previously known to the agencies.
Changes: None.
Use of Reserved Funds for Other Vocational Rehabilitation Services
Comments: A few commenters requested that agencies who may not meet
the reservation requirement, due to a lack of individuals who qualify
to receive pre-employment transition services, be allowed to use the
remaining reserved funds to provide vocational rehabilitation services
listed under proposed Sec. 361.48(b) to other eligible individuals.
Discussion: Funds reserved, pursuant to section 110(d)(1) of the
Act, for providing pre-employment transition services must be used
solely for the activities set forth in section 113 of the Act, as
amended by WIOA, and final Sec. 361.48(a). If a student with a
disability requires other vocational rehabilitation services, the DSU
must pay for those services with the remainder of the VR program
allotment.
Changes: None.
Amount of Funds To Be Reserved
Comments: A few commenters recommended creating a benchmark for
pre-employment transition services provided, rather than tying those
services to actual Federal funds spent. Two commenters recommended
basing the reservation of funds on the number of individuals in the
State who would be eligible to receive pre-employment transition
services. These commenters added that the remaining funds would be used
for the provision of all other allowable vocational rehabilitation
services.
Two commenters stated that the requirement to reserve at least 15
percent is too high. One commenter recommended that we consider DSUs to
have satisfied the requirement if they demonstrate progress toward the
minimum 15 percent requirement in the first 2 years of implementation,
based upon the amount of funds spent in the previous fiscal year for
pre-employment transition services. One commenter recommended that we
allow States to negotiate the reservation requirement based upon
populations of students with disabilities in the States. One commenter
expressed concern that requiring at least 15 percent of the VR award to
be used for pre-employment transition services will reduce the Federal
VR funds available to support the Randolph-Sheppard program.
Discussion: Section 110(d)(1) of the Act, as amended by WIOA,
requires States to reserve ``at least'' 15 percent of their VR program
allotment for providing pre-employment transition services. Final Sec.
361.65(c)(3) mirrors the statutory requirement. Although several
[[Page 55702]]
commenters referred to the 15 percent reservation requirement as a
``limit,'' the Act as amended by WIOA, and final Sec. 361.65(c)(3) do
not restrict States from spending more than 15 percent of their
allotments for the provision of these services.
We appreciate the many recommendations for alternative ways for
DSUs to meet the pre-employment transition services reservation
requirement under proposed Sec. 361.65(a)(3)(i). We also appreciate
the concerns that the reservation of funds for the sole purpose of
providing pre-employment transition services will reduce the amount of
funds available for other VR program purposes, including services for
individuals who are blind or visually impaired who wish to start a
vending facility under the Randolph-Sheppard program. Nevertheless, the
Act requires States to reserve at least 15 percent of their VR program
allotment for providing pre-employment transition services. The Act
provides no exceptions to this requirement and, therefore, we do not
have the authority to make the changes suggested by the commenters
because to do so would be inconsistent with the statute.
Changes: None.
Application of the Reservation of Funds to the State and to the State
Allotment
Comments: Many commenters requested that RSA apply the pre-
employment transition reservation requirement to the State as a whole
and not to the DSU in States with separate agencies serving individuals
who are blind and individuals with all other disabilities. One
commenter requested clarification regarding how pre-employment
transition services are to be funded. A few commenters requested that
we clarify whether the reservation requirement applies to the State
funds, or just the Federal funds.
Discussion: Section 113(a) of the Act requires pre-employment
transition services to be paid for with funds reserved from the VR
program allotment pursuant to section 110(d)(1) of the Act, as amended
by WIOA. We agree with commenters that the reservation of funds for
providing pre-employment transition services is a State requirement,
not a DSU-specific requirement. Section 110(d) of the Act, as amended
by WIOA, and final Sec. 361.65(a)(3)(i) require the State--not the
DSU--to reserve the funds, thereby making this a matter that must be
resolved at the State level when there are two agencies in the State.
For this reason, the Department encourages DSUs to coordinate to ensure
State compliance. While the Department recommends that each DSU, when a
State has two DSUs, reserve at least 15 percent of its allotment to
facilitate the tracking of State compliance with the reservation
requirement, the Act does not require that this be done. If one DSU
(when a State has two DSUs) uses more of its funds than the other, the
State would be in compliance so long as the State's total of funds
reserved for providing pre-employment transition services is at least
15 percent of the State's total allotment, including any additional
funds received during reallotment by one or both DSUs.
The State allotment, from which funds must be reserved, refers to
the Federal funds awarded pursuant to section 110(a) of the Act, not
State funds appropriated to the DSUs by State legislatures.
Changes: None.
Effect of Reallotment and Carryover on the Reservation of Funds
Comments: One commenter requested clarification regarding whether
funds received during reallotment would count toward the State's
allotment for purposes of the pre-employment transition services
reservation requirement. One commenter requested clarification
regarding whether the reservation requirement applies to the carryover
period.
Discussion: Under section 110(b)(3) of the Act, funds received
during reallotment are an increase to the State's allotment. Similarly,
funds relinquished during reallotment are a reduction to the State's
allotment. Therefore, funds received or relinquished by a State during
reallotment affect the amount of funds that must be reserved for
providing pre-employment transition services.
Section 19 of the Act, which governs the carryover of grant funds,
applies to all VR program funds, including funds reserved for providing
pre-employment transition services. Section 19(b) of the Act permits
grantees to carry over Federal funds for obligation and expenditure in
the subsequent Federal fiscal year only to the extent that the DSU has
provided sufficient non-Federal expenditures to match those funds. This
means that grantees may carry over Federal funds reserved for providing
pre-employment transition services into the subsequent Federal fiscal
year only to the extent that they have provided the requisite 21.3
percent non-Federal share by the end of the Federal fiscal year in
which the funds were awarded. In addition, because they have been
matched in the fiscal year for which they were appropriated, the funds
reserved for providing pre-employment transition services that are
eligible for carryover into the succeeding Federal fiscal year may only
be obligated in that succeeding Federal fiscal year and expended for
providing pre-employment transition services.
Changes: None.
Administrative Costs
Comments: Some commenters requested clarification regarding fiscal
reporting requirements, including staff time, counted toward the
reservation requirement given that DSUs may not expend funds reserved
for providing pre-employment transition services on administrative
costs. One commenter requested clarification regarding the apparent
contradiction of some of the authorized activities listed in proposed
Sec. 361.48(a)(3), which might appear to be administrative in nature,
and the prohibition in proposed Sec. 361.65(a)(3)(ii) against using
reserved funds for administrative costs.
Discussion: We appreciate the comments requesting clarification
regarding whether DSUs may pay for staff-related costs from funds
reserved for the provision of pre-employment transition services.
Section 110(d)(2) of the Act, as amended by WIOA, prohibits DSUs from
using the reserved funds for administrative costs. Section 7(1) of the
Act and final Sec. 361.5(c)(2) define ``administrative costs'' as
including, among other things, ``administrative salaries, including
clerical and other support staff salaries, in support of these
administrative functions.'' It has been the long-standing Department
policy that staff-related costs, including salaries, fringe benefits,
and travel, incurred while providing vocational rehabilitation
services, constitute service costs, not administrative costs. As such,
costs associated with staff time spent providing pre-employment
transition services may be paid with the funds reserved for providing
those services.
By contrast, supervisory costs, rent, utilities, indirect costs,
and other similar associated costs are administrative costs--not
service costs--and, as such, cannot be paid with the reserved funds. In
considering the various pre-employment transition services specified in
section 113 of the Act and final Sec. 361.48(a) in this way, we do not
believe there are actual conflicts between final Sec. 361.48(a) and
Sec. 361.65.
However, we have revised final Sec. 361.65(a)(3)(ii)(B) to add a
cross-reference to the definition of ``administrative costs'' in final
Sec. 361.5(c)(2), to clarify that these costs are still allowable
under the VR program and may be paid for with VR program
[[Page 55703]]
funds not reserved for the provision of pre-employment transition
services under final Sec. 361.65(a)(3).
Changes: We have revised final Sec. 361.65(a)(3)(ii)(B) to clarify
that the administrative costs referred to in this provision are those
that meet the definition of ``administrative costs'' in final Sec.
361.5(c)(2). This change is technical, not substantive.
Tracking of the Reserved Funds
Comments: Some commenters requested that we provide flexibility
regarding the tracking of pre-employment transition service
expenditures to minimize time-consuming administrative requirements.
One commenter requested that the Department issue guidance to States
regarding tracking expenditures, for example, creating a separate
accounting code to track the reservation requirement. One commenter
requested that the Department allow agencies with counselors who work
with schools or support the provision of pre-employment transition
services to count all of the counselor's time toward the reservation
requirement, thereby easing the burden on DSUs associated with tracking
these costs.
Discussion: When tracking expenditures incurred for the provision
of pre-employment transition services, DSUs may need to develop a cost
objective (i.e., a separate accounting code) that is different from the
one used for other VR program cost allocation purposes, thereby
enabling DSUs to track pre-employment transition services expenditures
properly with the reserved funds. Similarly, DSUs should account for
personnel time to ensure the proper allocation of staff time between
the provision of pre-employment transition services and other
vocational rehabilitation services, just as the DSU does when its
personnel work on multiple programs. DSUs must track pre-employment
transition services in a manner that ensures the reserved funds are
used only for the provision of services set forth in section 113 of the
Act and final Sec. 361.48(a). Although this could increase
administrative burden slightly, it is only in this manner that a DSU
can be certain it is expending reserved funds appropriately. The
Department will issue guidance separately about tracking expenditures
from the reserved funds and other fiscal matters relevant to the
reservation of funds for providing pre-employment transition services.
Changes: None.
Use of Reserved Funds for Authorized Activities
Comments: Some commenters requested that we clarify when the
authorized activities (as opposed to the required activities) in
proposed Sec. 361.48(a)(3) are allowable pre-employment transition
expenditures in meeting the reservation requirement. Specifically, the
commenters wanted to know the threshold for determining when funds are
remaining after providing the required activities under Sec.
361.48(a)(3).
Discussion: As stated in final Sec. 361.48(a)(3), a DSU may
provide ``authorized'' pre-employment transition services only to the
extent that reserved funds remain after providing the ``required''
activities. As part of the Comprehensive Statewide Needs Assessment,
States should determine the number of potential individuals eligible
for pre-employment transition services. This data will enable the
States to target the amount of the reserved funds necessary for
ensuring the ``required'' pre-employment transition services are
provided to students with disabilities. To the extent the States
demonstrate that they have made the required pre-employment transition
services available to the population identified in the Comprehensive
Statewide Needs Assessment, the States have met the requirement to
provide the ``required'' pre-employment transition services prior to
the ``authorized'' activities. Any reserved funds remaining beyond the
targeted amount necessary for the ``required'' activities may then be
used for ``authorized'' activities in final Sec. 361.48(a)(3).
Changes: We have revised proposed Sec. 361.65(a)(3)(ii)(A) to
clarify that funds reserved for providing pre-employment transition
services may be used to pay for the costs of providing all of the
services ``specified'' in final Sec. 361.48(a). Proposed Sec.
361.65(a)(3)(ii)(A) referred to services ``authorized'' in final Sec.
361.48(a). We believe this technical change is necessary to avoid any
confusion about the general use of the term ``authorized'' and the
distinction between ``required'' and ``authorized'' services in the
context of pre-employment transition services.
Part 363--The State Supported Employment Services Program
The discussion of comments on part 363 is presented by topic in the
order that the relevant sections appear in this part.
Competitive Integrated Employment and Short-Term Basis (Sec. 363.1)
Comments: Overall, commenters strongly supported the focus and
emphasis in part 363 on individuals with the most significant
disabilities, including youth with the most significant disabilities,
achieving competitive integrated employment. One commenter suggested,
however, that supported employment should not be assumed automatically
as the first option for people with significant, or the most
significant, disabilities. Another commenter urged that ``States''
(presumably designated State agencies) track all individuals working in
segregated settings and at subminimum wage to help identify the need
for supported employment.
Other commenters pointed out discrepancies in the definition of
``supported employment'' between proposed 34 CFR 361.5(c)(53) and
proposed Sec. Sec. 363.1(b) and (c) and urged that these be made
consistent.
One commenter suggested adding other approaches or evidence-based
models such as Individual Placement and Support (IPS) to supported
employment and customized employment. This commenter also asked whether
funds could be used to train new or existing providers in various
models of supported employment.
Many commenters responded to the short-term basis provisions in
proposed Sec. 363.1(c) and proposed 34 CFR 361.5(c)(53) under which
individuals with the most significant disabilities working in an
integrated setting are working toward competitive integrated employment
and can reasonably anticipate achieving competitive integrated
employment within six months of entering supported employment. A few
commenters endorsed the six-month period, indicating that the six-month
period would not allow individuals to linger for long periods in
subminimum wage employment.
A few commenters considered six months to be too long and even
recommended eliminating the short-term basis period altogether,
indicating that under no circumstance should any individual with a
disability be employed at a subminimum wage. However, most commenters
considered six months to be arbitrary, too restrictive, or not
sufficient, especially for individuals with the most significant
disabilities, such as individuals who are blind who, as indicated by
multiple commenters, might require additional training or specialized
services in order
[[Page 55704]]
to achieve competitive integrated employment. Others recommended
extensions of up to 12, 18, or 24 months, or even an unspecified time
based upon an individual's needs, in order to achieve competitive
integrated employment consistent with the individual's unique
strengths, priorities, concerns, abilities, capabilities, interests,
and informed choice.
Some commenters suggested adding unpaid internships,
apprenticeships, and transitional employment as examples of ``working
on a short term basis.'' These commenters also recommended emphasizing
that employment in sheltered workshops and enclaves and group
employment settings does not constitute supported employment. A few
commenters stated that individuals working on a short-term basis should
be only in integrated settings as they work toward competitive
integrated employment. Other commenters, however, referenced
competitive, but non-integrated, settings when commenting on the short-
term basis provision. One commenter asked for clarification to ensure
that AbilityOne contracts with non-profit agencies that employ
individuals with disabilities remain a viable option for individuals
with the most significant disabilities to achieve employment outcomes
in supported employment.
Discussion: We appreciate the many supportive comments regarding
the goal of competitive integrated employment for all individuals with
significant disabilities, including youth with significant
disabilities, and particularly for those with the most significant
disabilities.
We also agree with the commenter who suggested that supported
employment should not be considered automatically as the first choice
for individuals with significant disabilities or the most significant
disabilities. The State Supported Employment Services program
(Supported Employment program) and supported employment services exist
to support individuals with the most significant disabilities who need
intensive services and supports to achieve an employment outcome.
Supported employment should be considered when determining an
individual's employment goal, consistent with his or her unique
strengths, priorities, concerns, abilities, capabilities, interests,
and informed choice.
The Act, as amended by WIOA, specifically mentions customized
employment and supported employment. We do not believe that including
examples of additional approaches or models of supported employment,
such as Individual Placement and Supports, is necessary. However, we
support developing and implementing evidence-based models of supported
employment, so long as they are consistent with the Act, as amended by
WIOA, and the implementing regulations. Furthermore, administrative
funds under this part, subject to the 2.5 percent administrative cost
limitation, and funds under 34 CFR part 361, as appropriate, may be
used to support training of providers and others on various models of
supported employment.
Although the tracking of all individuals working in segregated
settings and at subminimum wage would be useful to designated State
units (DSUs) in identifying and assessing the need for supported
employment, we do not have the authority under the Act to require this
unless the individuals have been served through the VR program (see 34
CFR 361.55, which requires the DSU to conduct semi-annual or annual
reviews, as applicable, of individuals in extended employment and other
employment under special wage certificate provisions of the Fair Labor
Standards Act), or the individuals have become known to the DSU through
the activities required in section 511 of the Act.
We agree with commenters who noted discrepancies in the definition
of ``supported employment'' in proposed 34 CFR 361.5(c)(53) and
proposed Sec. 363.1(b) and (c), and we have made the definitions
consistent in these final regulations.
We also appreciate the many comments about ``short-term basis.'' As
proposed, Sec. 363.1(c) is consistent with the requirement in the Act,
as amended by WIOA, that supported employment be in competitive
integrated employment or in an integrated work setting in which the
individual is working on a short-term basis toward competitive
integrated employment. Therefore, despite the payment of competitive
wages, employment in a non-integrated work setting does not meet the
requirement under the Act, as amended by WIOA, for an employment
outcome in supported employment.
The Secretary acknowledges the diverse views, concerns, and
recommendations of the commenters about the variables that should be
considered in determining the short-term basis period but believes six
months is consistent with the intent of the Act. The Secretary agrees
with the commenters, however, that, in limited circumstances, an
extended period of time may be appropriate based upon the needs of the
individual and upon demonstrated progress toward competitive earnings
documented in his or her service record. Therefore, an individual with
a most significant disability, including a youth with a most
significant disability, may, in limited circumstances, have up to 12
months from achieving a supported employment outcome, as appropriate,
to address fully his or her individualized needs to secure competitive
earnings in supported employment.
In response to the concerns about the availability of sufficient
time to help individuals achieve an employment outcome, particularly in
relation to the short-term basis, we want to clarify when the six-month
short-term basis period, and the additional six months that may be
available in limited circumstances, begins. This period begins only
after an individual with a most significant disability, including a
youth with a most significant disability, has completed up to 24 months
of supported employment services (unless a longer period of time is
necessary based upon the individual's needs) and the individual is
stable in the supported employment placement for a minimum period of 90
days following the transition to extended services. At this point, the
individual has achieved a supported employment outcome in accordance
with the criteria set forth in final Sec. 363.54. We believe that this
provides sufficient time, considering both the time allowed for
providing supported employment services and the short-term basis
period, if needed, to address fully the needs of an individual in
supported employment and to enable that individual to achieve
competitive integrated employment. Our data support this belief and
show that most supported employment outcomes are achieved in less than
24 months.
In response to multiple commenters' concerns about individuals with
the most significant disabilities, such as individuals who are blind
who may require additional training or specialized services to achieve
competitive integrated employment, we want to clarify that vocational
rehabilitation services, as well as supported employment services, are
available to them. The vocational rehabilitation services generally
occur prior to placement in supported employment as part of the
individual's approved individualized plan for employment.
Again, because the definition of ``employment outcome,'' which
includes supported employment, requires achieving competitive
integrated employment as defined in
[[Page 55705]]
final Sec. 361.5(c)(9), all supported employment outcomes must be in
integrated settings with the expectation that individuals with the most
significant disabilities can and will achieve competitive wages.
We appreciate the recommendations regarding activities that
commenters stated should constitute employment during the short-term
basis period, including unpaid internships, apprenticeships, and
transitional employment; however, we want to emphasize that the short-
term basis period begins following the achievement of the supported
employment outcome. Unpaid internships, pre-apprenticeships,
apprenticeships (including Registered Apprenticeships), and
transitional employment are vocational rehabilitation services that
lead to employment outcomes, but they do not constitute supported
employment outcomes within the meaning of the definition of ``supported
employment'' in final 34 CFR 361.5(c)(53) and Sec. 363.1(b) and (c).
Therefore, they would not be appropriate placements for employment on a
short-term basis.
Finally, we agree with commenters that employment in sheltered
workshops and enclaves and group employment settings does not
constitute supported employment under this part because an individual
achieves a supported employment outcome only if, at a minimum, the
supported employment is in an integrated setting. There is a full
discussion about why non-integrated employment does not meet the
definition of ``competitive integrated employment'' in the responses to
comments on the definition of competitive integrated employment in 34
CFR 361.5(c)(9). That discussion also addresses whether entities that
are set up specifically for providing employment to individuals with
disabilities, such as AbilityOne non-profit agencies, will be able to
place individuals with the most significant disabilities in competitive
integrated employment and achieve employment outcomes in supported
employment.
Changes: We have revised the definition of ``supported employment''
to be consistent in both final Sec. 363.1(b) and (c) and final 34 CFR
361.5(c)(53). In the NPRM, the definition in proposed 34 CFR
361.5(c)(53) did not include the phrase ``and customized'' when
referring to competitive integrated employment, and proposed Sec.
363.1(b) did not include the phrase ``including a youth with a most
significant disability'' when referring to individuals with the most
significant disabilities. Additionally, proposed 34 CFR 361.5(c)(53)
included ``transitional employment,'' which has been removed in final
34 CFR 361.5(c)(53). We have corrected other, minor inconsistencies in
singular and plural references to individuals with the most significant
disabilities.
We have also revised final Sec. 363.1(c) by adding a limited
circumstance in which an individual can extend the short term basis up
to a 12-month period from the achievement of the supported employment
outcome to demonstrate progress toward competitive earnings based on
information contained in the service record.
Definitions (Sec. 363.6(a))
Comments: We received several comments regarding changes in
proposed 34 CFR 361.5(c) to definitions relevant to the Supported
Employment program. A few commenters requested the removal of the
definition of ``transitional employment'' in proposed 34 CFR
361.5(c)(56). These commenters also suggested removing the reference to
transitional employment from the definitions of ``supported
employment'' in proposed 34 CFR 361.5(c)(53) and ``ongoing support
services'' in proposed 34 CFR 361.5(c)(37). They noted that WIOA
eliminated ``transitional employment'' and that the definition of
``supported employment'' in WIOA supersedes the definition in the
Workforce Investment Act of 1998, which included ``transitional
employment'' for individuals with mental illness. The commenters
suggested that Congress deliberately removed ``transitional
employment'' to ensure people with the most significant disabilities
have access to competitive integrated employment.
Some commenters sought clarification about the definition of
``extended services'' in proposed 34 CFR 361.5(c)(19)(v) related to
youth with the most significant disabilities.
Discussion: We agree with the commenters' assessment of the
congressional intent behind removing the definition of ``transitional
employment'' and the reference to transitional employment in both the
definition of supported employment and the definition of ongoing
support services. The term is no longer supported by the Act.
We discuss the commenters' request for clarification about the
definition of ``extended services'' in proposed 34 CFR 361.5(c)(19)(v)
for youth with the most significant disabilities in this Analysis of
Comments and Changes under ``Services to Youth with the Most
Significant Disabilities'' in Sec. 363.4(a)(2).
Changes: We have removed the definition of ``transitional
employment'' in final 34 CFR 361.5(c), as well as the references to it
in the definition of ``supported employment'' in 34 CFR 361.5(c)(53)
and ``ongoing support services'' in 34 CFR 361.5(c)(37).
The definition of ``extended services'' in 34 CFR 361.5(c)(19)(v)
has been revised as discussed in Sec. 363.4(a)(2) of this Analysis of
Comments and Changes section under ``Services to Youth with the Most
Significant Disabilities.''
Extension of Time for the Provision of Supported Employment Services
(34 CFR 361.5(c)(54)(iii))
Comment: A few commenters recommended either basing the time frame
for providing supported employment services on an individual's need
rather than a prescribed period of time or revising the regulatory
language to make it easier to extend the 24-month time frame, as
needed. A few other commenters disagreed with extending the time frame
beyond 18 months.
Discussion: We appreciate the concerns regarding the time frame for
providing supported employment services. WIOA extended the availability
of supported employment services from 18 months to 24 months, and this
mandate cannot be changed by the Department. The extension provides
additional time for individuals with the most significant disabilities
to receive the services and supports necessary to achieve an employment
outcome in supported employment, either in competitive integrated
employment or working on a short-term basis to achieve competitive
integrated employment. In accordance with section 7(39)(C) of the Act,
under special circumstances, the eligible individual and the
rehabilitation counselor or coordinator can jointly agree to extend the
time to achieve the employment outcome identified in the individualized
plan for employment.
Changes: None.
Services to Youth With the Most Significant Disabilities (Sec. Sec.
363.4(a)(2) and 363.22)
Extended Services (Sec. 363.4(a)(2))
Comments: Many commenters suggested changing the statutorily
defined time frame of up to four years during which the DSU may expend
supported employment program funds for extended services for youth with
the most significant disabilities, either by establishing a longer or
shorter period for providing extended services or by basing this period
upon individual circumstances.
[[Page 55706]]
Additionally, commenters requested clarification regarding the
point at which the DSU would be required to terminate its provision of
extended services for a youth who turns 25 years of age and no longer
meets the definition of a ``youth with a disability'' in 34 CFR
361.5(c)(58).
With respect to the use of funds allotted under the Supported
Employment program for extended services, a few commenters recommended
changing the word ``may'' in proposed Sec. 363.4(a) to ``shall'' or
``will'' to establish that it is mandatory for DSUs to provide extended
services to youth with the most significant disabilities.
A few commenters asked for clarification whether providing extended
services is mandatory or optional, citing discrepancy between the
language in proposed Sec. 363.22, which appears to indicate that the
reserve must be used for extended services, and proposed Sec.
363.4(a)(2), which uses the word ``may'' when referring to the use of
funds allotted under this part.
Other commenters also proposed making the DSU either the initial
payer or the payer of last resort for extended services for youth with
the most significant disabilities. Still other commenters raised
questions about providing extended services to youth with the most
significant disabilities who have not been served by the DSU as an
applicant or eligible individual.
Discussion: We appreciate the suggested revisions to proposed Sec.
363.4(a)(2). While many commenters sought to limit the DSU's
responsibility for extended services, given limited available
resources, we cannot do so. Section 604(b)(2) of the Act mandates that
the DSU make available extended services for youth with the most
significant disabilities for up to four years. Nothing in the Act
authorizes the Department to grant a waiver of this requirement or to
change the time period from four years to any other time period for
youth with the most significant disabilities.
While the DSU cannot ``opt out'' of any of the activities
authorized under Sec. 363.4 by refusing to fund them, DSUs determine
the need for and fund services on a case-by-case basis dependent upon
each individual's need for services. Therefore, it is not appropriate
to change the ``may'' in 34 CFR 363.4(a) to ``shall'' or ``will,'' and
doing so would not be consistent with the authorizing language in
section 604 of the Act. In light of the responsibility to make
available funds for extended services for youth with the most
significant disabilities, DSUs should continue to explore the
availability of funding from other sources, as is done for other
individuals with the most significant disabilities transitioning from
supported employment services to extended services.
Regarding the point at which the DSU may no longer provide extended
services to a youth with the most significant disabilities, in no case
may a DSU provide more than four years of extended services. Also, once
a youth with the most significant disabilities reaches 25 years of age,
he or she no longer meets the definition of ``youth with a disability''
in 34 CFR 361.5(c)(58), and the DSU must discontinue funding extended
services. We appreciate the commenters bringing this last scenario to
our attention. Final Sec. 363.4(a)(2) now states that at the age of
25, a youth with a most significant disability is no longer eligible to
receive extended services, even if he or she has not yet received
services for four years. Nevertheless, under final Sec.
363.53(b)(2)(ii), the DSU must identify another source of extended
services to ensure that there will be no interruption of services.
As indicated by a few commenters, section 606(b)(7)(D) of the Act
provides that the State shall use supported employment funds only to
supplement, and not to supplant, title I VR program funds in providing
supported employment services. A few commenters suggested that this
provision means that the Supported Employment program or VR program
funds should be the payer of last resort (others suggested the payer of
first resort) for extended services to youth with the most significant
disabilities. The ``supplement, not supplant clause,'' as it is known,
addresses only the relationship between the Supported Employment
program and the VR program when providing supported employment
services, which now includes extended services. It does not affect at
all the relationship of the Supported Employment program or VR program
to sources of funds that have historically been the providers of
extended services to individuals after they have transitioned from
supported employment services provided by the DSU. We expect those
State and other sources of funding to coordinate with the Supported
Employment and VR programs to provide the extended services needed by
youth with the most significant disabilities. One of the purposes of
the Supported Employment program is to assist States in developing
collaborative programs with appropriate public and private nonprofit
organizations to provide supported employment services for individuals
with the most significant disabilities.
As to whether the DSU can provide extended services to youth with
the most significant disabilities who have not been served by the DSU
as an applicant or eligible individual, we emphasize that in order to
be eligible for supported employment services, including extended
services, provided by the DSU, youth with the most significant
disabilities must meet the requirements of Sec. 363.3, which include
being determined eligible for vocational rehabilitation services. The
DSU therefore may not provide extended services to a youth with the
most significant disabilities who has not received services from the
DSU through an individualized plan for employment simply because he or
she meets the definition of a youth with a disability and is in need of
extended services.
Changes: We have revised Sec. 363.4(a)(2) to clarify that extended
services to youth with the most significant disabilities provided by
the DSU may be for a period not to exceed four years, or until such
time as the youth reaches age 25 and no longer meets the definition of
``youth with a disability'' under final 34 CFR 361.5(c)(58), whichever
occurs first.
Reserve of Supported Employment Funds for Services for Youth With the
Most Significant Disabilities (Sec. 363.22)
Comments: One commenter agreed with the reserve requirement,
indicating that the reserve funds should also be targeted to ``school-
to-work'' transition services to place youth in competitive integrated
employment.
Of the commenters that expressed concern regarding the requirement
for reserving 50 percent of supported employment funds for supported
employment services to youth with the most significant disabilities,
most requested an exemption to ensure that adults with the most
significant disabilities, particularly those with adult onset visual
impairment or blindness, are able to be served.
Discussion: We appreciate these concerns. However, WIOA mandates
the 50 percent reservation of funds for supported employment services,
including extended services, for youth with the most significant
disabilities. The reserved funds may not be used for ``school-to-work''
transition services because the funds must be used for supported
employment services for youth with the most significant disabilities,
including extended services, which occur after placing such youth in
competitive integrated employment. WIOA does not provide
[[Page 55707]]
any exceptions or authorize the Department to grant an exemption or
waiver.
Changes: None.
Match Requirements for Funds Reserved for Serving Youth With the Most
Significant Disabilities (Sec. 363.23)
Comments: Some commenters preferred that the 50 percent reserve not
have a match requirement, and others indicated the match tracking and
monitoring requirements are burdensome. A few commenters sought
clarification regarding whether the match required new funding by the
State or whether the State could realign current funding. The
commenters indicated that it was difficult to comprehend the intent of
the match without a defined plan for allocating the funds.
Other commenters requested that in-kind match, such as those used
and tracked in the Independent Living Services for Older Individuals
Who Are Blind program, be allowed to meet the match requirements under
this section. A few commenters requested examples of match and asked
whether certified personnel expenditures are permitted as a third-party
contribution.
Discussion: We appreciate the concerns expressed by the commenters
regarding the required match for funds reserved for providing supported
employment services, including extended services, to youth with the
most significant disabilities. This is a new requirement that will
require all States to provide a non-Federal share; however, States that
have historically expended non-Federal funds to supplement the Federal
supported employment award now may count those expenditures for the
provision of services to youth with the most significant disabilities
as match for the reserve requirement.
WIOA mandates the match requirement for supported employment and
does not provide any exceptions to it or authorize the Secretary to
grant a waiver. The activities and internal processes necessary for
States to track and expend the non-Federal share for the reserve should
not be burdensome because they may be modeled after those used for the
part 361 match requirements.
In addressing what may be used as match, allowable sources of match
for the supported employment program follow the same guidelines for
those sources allowable under the VR program. Under final 34 CFR
361.28(b)(2), which addresses third-party cooperative arrangements for
providing vocational rehabilitation services, which in turn include
supported employment services under final 34 CFR 361.48(b)(13),
certified personnel expenditures for time cooperating agency staff
spent providing direct vocational rehabilitation services pursuant to a
third-party cooperative arrangement are allowable. Certified personnel
expenditures include staff salary and fringe benefits allocable to the
third-party cooperative arrangement. To ensure consistency with part
361, third-party in-kind contributions are not permitted as match.
In reviewing proposed Sec. 363.23 further, we determined that it
did not effectively describe the calculation of the 10 percent match,
which must be based upon the total expenditures, made up of the Federal
funds reserved and the non-Federal share, incurred for providing
supported employment services to youth with the most significant
disabilities.
Changes: We have revised final Sec. 363.23(a)(2)(i) to demonstrate
that the match calculation is based upon the total expenditures,
including the Federal funds reserved and the non-Federal share,
associated with the 50 percent reserve of Federal funds for providing
supported employment services to youth with the most significant
disabilities.
Program Income (Sec. 363.24)
Comments: A commenter disagreed with limiting the use of program
income and supported eliminating the requirement to disburse program
income prior to requesting additional cash draws from its Federal
award.
Discussion: There has been a long-standing government-wide
requirement under the common rule implementing former OMB Circular A-
102, as codified by the Department in former 34 CFR 80.21(f)(2), that
States 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 in 2
CFR part 200, were adopted by the Department in 2 CFR 3474 on December
19, 2014 (79 FR 76091). 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), but not all Federal
program funds made available to States are subject to TSAs. For this
reason, there is an ambiguity in 2 CFR 200.305(a) 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, as had been the long-
standing government-wide requirement in OMB Circular A-102 and codified
for Department grantees in 34 CFR 80.21(f)(2).
This silence creates concern because, for all other non-Federal
entities, 2 CFR 200.305(b)(5) requires those entities to expend
available program income funds before requesting payments of Federal
funds. We do not believe, however, that this ambiguity should be
construed to lift the requirement that States expend program income
funds before requesting additional Federal cash because 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).
Here, 34 CFR 361.63(c)(2) permits the transfer of VR Social
Security reimbursement program income to carryout programs under title
VI of the Rehabilitation Act (Supported Employment). Historically, some
State VR agencies have transferred a portion of VR Social Security
reimbursement program income to the Supported Employment programs for
use by those programs. For this reason, we believe it is essential that
we resolve this ambiguity via these regulations.
Thus, 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), but that provision is ambiguous. These final
regulations now resolve the ambiguity by revising Sec. 363.24(b)(1) to
require States to expend available program income funds before
requesting additional cash payments from their Federal Supported
Employment grant. 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 be transferred, keeping to a minimum potential interest
costs to the Federal government of making grant funds available to the
States. These final regulations should not negatively impact States
because this change merely maintains the status quo that existed under
former 34 CFR 80.21(f)(2).
In addition, upon further review of the proposed program income
regulation, we determined that it was necessary to address the
relationship between program income and match. Just as with program
income in the VR
[[Page 55708]]
program, program income earned in the Supported Employment program may
not be used to meet the required non-Federal share under Sec. 363.23.
Changes: We have revised Sec. 363.24 by removing the inapplicable
reference to the Uniform Guidance in Sec. 363.24(b)(1), leaving only
the requirement that program income earned in the Supported Employment
program must be disbursed prior to requesting additional cash draws
from its Federal award. We have also added a new Sec. 363.24(b)(3),
which provides that program income cannot be used to meet the non-
Federal share requirement under Sec. 363.23.
Period of Availability of Funds (Sec. 363.25)
Comment: None.
Discussion: In reviewing proposed Sec. 363.25(b), we determined
that it would be beneficial to clarify the use of Federal funds
reserved for the provision of supported employment services to youth
with the most significant disabilities that have been matched in the
fiscal year for which the funds were appropriated and thus are
available for obligation in the succeeding fiscal year. The Federal
supported employment reserve funds eligible for carryover into the
succeeding Federal fiscal year, because they have been matched in the
fiscal year for which the funds were appropriated, may only be
obligated and expended in that succeeding Federal fiscal year for
supported employment services to youth with the most significant
disabilities.
Changes: Final Sec. 363.25(b) states that any reserved funds
carried over may only be obligated and expended in that succeeding
Federal fiscal year for providing supported employment services to
youth with the most significant disabilities.
Limitations on Administrative Costs (Sec. 363.51)
Comment: One commenter stated that the reduction of the
administrative cost limit from 5 percent to 2.5 percent would severely
limit the agency's ability to hire and retain staff.
Discussion: Despite this mandated reduction in section 603(c) of
the Act, funds from the VR program remain available for costs related
to the Supported Employment program, including administrative costs
under Sec. 363.4(c)(1) and section 608(a) of the Act. The limitation
of administrative costs under the Supported Employment program expands
the availability of funds for supported employment services to
individuals with the most significant disabilities, and the
availability of VR program funds for administrative costs related to
the Supported Employment program helps to mitigate the impact of the
reduction in administrative costs upon the DSU's ability to hire and
retain staff.
Changes: None.
Requirements for Transition To Extended Services, the Achievement of an
Employment Outcome, and Closure of a Service Record (Sec. 363.53,
Sec. 363.54, and Sec. 363.55)
Comments: Many commenters requested clarification of requirements
related to the transition to extended services, especially for youth
with the most significant disabilities; the interplay of the short-term
basis with the achievement of an employment outcome; and the
requirements related to case closure, particularly when youth with the
most significant disabilities are receiving extended services from the
DSU.
Discussion: We acknowledge the questions and confusion that many
commenters expressed about the transition to extended services,
employment outcome, and closure of the service record as they pertain
to individuals receiving supported employment services. The transition
to extended services continues to take place after an individual has
completed supported employment services. WIOA makes two changes to the
transition to extended services.
First, an individual receiving supported employment services can
now receive those services for up to 24 months, instead of the previous
18, and, under special circumstances, may receive an extension based
upon the individual's need as described in 34 CFR 361.5(c)(54)(iii).
The transition to extended services begins after all supported
employment services are complete. Second, the DSU may now provide
extended services to youth with the most significant disabilities in
accordance with Sec. 363.4(a) and 34 CFR 361.5(c)(19)(v). The DSU's
responsibilities necessitated by both of those changes have been
outlined more comprehensively in a revised section 363.53.
By including the requirement to achieve competitive integrated
employment into the definition of ``supported employment'' in Section
7(38) of WIOA, Congress stated its expectation that all individuals
with disabilities, even those with the most significant disabilities,
could achieve competitive integrated employment. Recognizing, however,
that those individuals with the most significant disabilities may need
more time and supports to reach that goal, Congress permitted those
individuals to be employed in an integrated setting with non-
competitive wages on a short-term basis, as long as they were working
toward competitive integrated employment. The definition of
``employment outcome'' in 34 CFR 361.5(c)(15) addresses the achievement
of competitive integrated employment in supported employment.
Therefore, final Sec. 363.54 explains when an individual with a most
significant disability is considered to have achieved an employment
outcome in supported employment, either in competitive integrated
employment or when he or she is working on a short-term basis toward
competitive employment in an integrated work setting.
When the DSU closes the service record of an individual with a most
significant disability now depends on whether the DSU is providing
services during the short-term basis period or providing extended
services for youth. A new final Sec. 361.55 describes how the new
statutory requirements for employment on a short-term basis working
toward competitive integrated employment, extended services for youth,
and achieving an employment outcome relate to closing the service
record.
Changes: We have reformatted and revised Sec. 363.53 to better
identify the steps that the DSU must take prior to transitioning an
individual with a most significant disability, including a youth with a
most significant disability, to extended services. Those steps include
both a joint decision made by the counselor and the individual that the
individual needs no further supported employment services, as defined
in Sec. 361.5(c)(54), and identifying providers of extended services,
including the DSU in the case of a youth with a most significant
disability, under 34 CFR part 361.5(c)(19).
We have reformatted and revised final Sec. 363.54 to better
identify the considerations that the DSU must take into account when
determining when an individual with a most significant disability,
including a youth with a most significant disability, who is employed
in competitive integrated employment or in an integrated setting and is
working on a short-term basis toward competitive integrated employment,
will be considered to have achieved an employment outcome in supported
employment.
We have removed the cross-reference from proposed Sec. 363.54(b)
to the closure of the service record requirement in 34
[[Page 55709]]
CFR 361.56 as a criterion for achieving an employment outcome.
Final Sec. 363.54 sets forth four requirements that must be
satisfied for an employment outcome. First, the individual must have
completed supported employment services under this part and 34 CFR part
361, meaning the individual has received services for up to 24 months,
or longer if the counselor and the individual have determined that such
services are needed to support and maintain the individual in supported
employment. Any other vocational rehabilitation services listed on the
individualized plan for employment provided to individuals who are
working on a short-term basis toward the achievement of competitive
integrated employment in supported employment need not be completed
prior to satisfying the achievement of an employment outcome.
Second, the individual has transitioned to extended services
provided either by the DSU for youth with the most significant
disabilities, or another provider, consistent with the provisions of
Sec. Sec. 363.4(a)(2) and 363.22.
Third, the individual has maintained employment and achieved
stability in the work setting for a minimum of 90 days after
transitioning to extended services, and, finally, the employment must
be individualized and customized consistent with the strengths,
abilities, interests, and informed choice of the individual.
New final Sec. 363.55 addresses when the service record of an
individual who has achieved an employment outcome in supported
employment may be closed. Separate requirements are specified for
different scenarios, depending on whether individuals with a most
significant disability, including youth with a most significant
disability, achieve competitive integrated employment or work toward
competitive integrated employment on a short-term basis and whether
they are receiving extended services and any other vocational
rehabilitation services from the DSU or from other service providers.
Limitation on Use of Subminimum Wage (34 CFR Part 397)
The Analysis of Comments and Changes of part 397 is presented in
the order in which relevant subjects and sections appear in this part.
General Comments (Part 397)
Comments: More than 550 commenters responded to proposed part 397.
Some commenters expressed strong support for all or various sections. A
few commenters suggested that section 511 of the Act, as added by WIOA,
does not go far enough, and stated that the payment of subminimum wages
to individuals with disabilities perpetuates the perception that these
individuals are less valued. The commenters recommended that the
payment of subminimum wages to individuals with disabilities should be
entirely eliminated. Others supported Congress' steps to reinforce the
belief that, with the proper supports and services, individuals with
all types of disabilities can attain competitive integrated employment.
A few commended the Department for its efforts in issuing important
regulations designed to curb subminimum wage employment, especially for
youth with disabilities, who too often transition from school directly
into sheltered employment at subminimum wages without ever having the
opportunity to try competitive integrated work or explore their
interests and abilities.
Some commenters remarked that section 511 of the Act and the
implementing regulations in part 397 will help to eliminate practices
that have not worked to benefit individuals with disabilities, such as
the overuse of employment at subminimum wages, years of extended
evaluation, and cycles of performance evaluations that result in low
wages based upon an individual's productivity without necessary
supports and services. In addition, a few commenters suggested that
supporting subminimum wage employment appeared to be inconsistent with
the purpose of the VR program and that resources should not be used to
provide services or activities that result in individuals being
employed in segregated settings at subminimum wages.
Generally, however, supporters of proposed part 397 regarded the
regulations as helping individuals who are considering subminimum wage
employment, or those already employed at subminimum wage, access
opportunities for competitive integrated employment.
Multiple commenters voiced opposition to, or concerns about,
proposed part 397. These commenters expressed concern that proposed
part 397 would eliminate or phase out section 14(c) certificates and
subminimum wages, close sheltered workshops, and cause individuals
employed at subminimum wages to lose their jobs. Some of these
commenters stated that individuals employed in sheltered employment
were mostly incapable of working in competitive integrated employment,
enjoyed a supportive and safe environment and social network in
sheltered employment, and would lose income-based financial and medical
benefits if they were paid minimum wages. Additionally, many of these
commenters expressed concern that employers in the community would not
hire individuals with low productivity who are unable to perform at
expected levels and that it was unrealistic to believe that there are
enough jobs for them in competitive employment. As a result, these
individuals with disabilities would remain at home or need increased
support from day programs.
Many commenters suggested that there should be a continuum of
employment opportunities for individuals with disabilities, including
sheltered workshops, and that the proposed regulations do not consider
the choices that individuals and families make among these options.
Discussion: We appreciate the many thoughtful recommendations to
change, clarify, and improve the regulations. Section 511 of the Act,
as added by WIOA, and final part 397 set forth the requirements that
must be satisfied: (1) Before an entity holding a special wage
certificate issued by the Department of Labor under section 14(c) of
the Fair Labor Standards Act (FLSA) may hire a youth with a disability
or continue to employ an individual with a disability of any age at
subminimum wages; and (2) by DSUs and local educational agencies with
regard to services and documentation that must be provided to these
individuals. Neither section 511 of the Act nor final part 397
eliminates the payment of subminimum wages or section 14(c)
certificates. Both of these actions are outside the scope of the
Department's authority and these final regulations. We also understand
the concerns about the potential loss of needed disability-related and
income-based benefits and the availability of sufficient jobs in the
community; however, WIOA embodies the belief that with appropriate
skills and supports, all individuals with disabilities can participate
in the competitive workforce and achieve self-sufficiency. The Act, as
amended by WIOA, and WIOA itself, could result in more job
opportunities becoming available to individuals with disabilities,
including those with the most significant disabilities. Two of the core
purposes of WIOA are to ensure that: (1) Individuals who face barriers
to employment, such as individuals with disabilities, receive the
services and supports they need to acquire the skills necessary to
obtain competitive integrated employment; and (2)
[[Page 55710]]
employers receive the training, technical assistance, and other
services they need to understand and tap into the full potential of
individuals with disabilities in the workforce, for example through
supported employment or customized employment. In addition, the Act, as
amended by WIOA, and final part 361 require DSUs to work with other
public agencies to ensure that individuals with disabilities receive
the benefits planning they need to better understand the interplay of
income-based benefits and work and to make informed decisions about the
type of employment to pursue. Through all of these efforts, the
Secretary hopes that individuals with disabilities, including those
with the most significant disabilities, have more employment
opportunities.
In addition, neither section 511 of the Act nor final part 397
restricts or eliminates sheltered employment. Individuals with
disabilities continue to have a continuum of choices and options for
employment ranging from competitive integrated employment to employment
in sheltered workshops. Therefore, individuals with disabilities
choosing to pursue or continue in sheltered employment may do so;
however, certain requirements must be satisfied before the employer
hires or continues to employ them at subminimum wages. While we
recognize that many subminimum wage jobs for individuals with
disabilities are in sheltered settings, section 511 of the Act and
final part 397 focus exclusively on the requirements that must be
satisfied before an entity holding a section 14(c) certificate may hire
or continue to employ an individual with a disability at subminimum
wages, not on the setting in which those wages are paid.
Changes: None.
Purpose (Sec. 397.1)
Comments: One commenter recommended that Sec. 397.1(b)(1) require
the DSU to ensure that youth with disabilities actually have completed
certain services, not just provide documentation about the completion
of those services to the youth. The commenter further suggested we
revise this section to maximally limit the use of subminimum wage
employment by requiring the DSU to: (1) Track youth with disabilities
receiving pre-employment transition services and transition services
from the DSU who are considering subminimum wage employment; (2)
identify all individuals currently receiving services from the DSU
considering subminimum wage employment; (3) identify all individuals
over the past three years who applied for and were found ineligible for
the VR program and may be currently working in, or considering,
subminimum wage employment; (4) track referral agreements with, and
conduct outreach to, State and local educational agencies to identify
youth with disabilities considering subminimum wage employment; and (5)
track referral agreements with, and conduct outreach to, the State
agency with primary responsibility for providing services and supports
for individuals with intellectual and developmental disabilities, and
any other State agency providing services to a significant number of
individuals in subminimum wage employment. The commenter also
recommended that we revise Sec. 397.1 by clarifying that nothing in
this part supersedes the requirements of 34 CFR 361.55 regarding semi-
annual and annual review of individuals in extended employment or other
employment under special certificates issued under section 14(c) of the
FLSA.
Discussion: We appreciate the commenter's time and consideration in
reviewing this section and making substantive suggestions that would
assist DSUs in carrying out the intent of section 511. In particular,
the Secretary believes the proactive steps recommended by the commenter
offer potential ways in which DSUs could increase the number of youth
and other individuals with disabilities considering subminimum wage
employment who become known to the DSUs, thereby significantly
impacting the DSU's ability to assist in limiting the use of subminimum
wages. That said, the Act does not require DSUs to seek out or solicit
youth and others with disabilities considering, or already employed at,
subminimum wages. Similarly, the Act does not require DSUs to track
youth with disabilities or others with disabilities, except for those
individuals who have become known to the DSU through the vocational
rehabilitation process or through activities required in Sec. Sec.
397.20, 397.30, 397.40 and 397.50. However, there is nothing in the Act
or these final regulations that would prohibit a DSU from working with
local educational agencies or other public agencies that may be able to
identify individuals seeking or working in subminimum wage employment,
for example, when implementing the requirements in section 101(a)(11)
of the Act, as amended by WIOA, and the final regulations in 34 CFR
361.22 related to coordination with education officials, 34 CFR 361.24
regarding cooperation and coordination with other entities, and the
documentation process requirements in final part 397. This could
increase the number of individuals known to the DSU and allow the DSU
to provide services, especially employment-related counselling and
guidance, earlier than it otherwise would.
While we encourage the DSUs and State and local educational
agencies to work together to identify these students and youth with
disabilities as early as possible, any referrals by educational
agencies that are subject to the confidentiality requirements of the
Family Education Rights and Privacy Act (FERPA) (20 U.S.C. 1232g(b) and
34 CFR 99.30 and 99.31) and/or the IDEA (20 U.S.C. 1417(c) and 34 CFR
300.622) would need to comply with the applicable confidentiality
standards. Although we are not revising the final regulations as
recommended, the Department will consider ways to incorporate some of
the suggestions into technical assistance to the DSUs.
The Secretary understands the recommendation to require the DSU to
ensure that youth with disabilities actually complete certain services,
in addition to providing documentation. However, the Secretary
disagrees that this is necessary. Under section 511(c)(1)(A) of the Act
and final Sec. 397.40(a), DSUs must provide certain information and
career counselling services to all individuals with disabilities, known
by the DSUs, who want to continue employment at subminimum wage. Upon
the completion of those services, the DSU must provide the individual
with documentation that the services were provided. As such, the
documentation ``ensures,'' as the commenter desired, that the services
were actually completed. Similarly, a youth with a disability must
complete certain services, such as transition and, as appropriate, pre-
employment transition services, prior to beginning work in subminimum
wage employment. Again, the DSUs and local educational agencies must
provide documentation that the youth has completed these services, thus
ensuring that the services were completed.
Finally, the Secretary agrees that nothing in this part supersedes
the requirements of final 34 CFR 361.55 regarding semi-annual and
annual review of individuals in extended employment or other employment
under special wage certificate provisions in section 14(c) of the FLSA.
We received similar suggestions to cross-reference and reconcile the
requirements under final 34 CFR 361.55 and final Sec. 397.40 to ensure
consistency
[[Page 55711]]
and avoid confusion about which requirements apply and the respective
responsibilities of the DSU under each provision. While the Secretary
understands the concerns, such revisions are not necessary or
appropriate. The DSUs must satisfy their responsibilities under both
final 34 CFR 361.55 and final Sec. 397.40. These sections implement
requirements under separate titles in the Act and apply to different--
although sometimes intersecting--populations. We discuss these
requirements of final 34 CFR 361.55 more fully in the Analysis of
Comments and Changes section earlier in this preamble and those in
final Sec. 397.40 in a following section.
Changes: None.
Jurisdiction (Sec. 397.2)
Jurisdiction of the Departments of Education and Labor
Comments: One commenter agreed that proposed Sec. 397.2 is
consistent with the statutory authority granted to the Department. The
commenter noted that the Department has the authority to regulate the
actions of State educational agencies and collect data, citing
Executive Order 11761 (To Facilitate Coordination of Federal Education
Programs), and, therefore, has the authority to impose documentation
requirements; to impose requirements for educational agencies, as
detailed in proposed Sec. Sec. 397.2(a)(1) and (2); and to regulate
the actions of State and local educational agencies with regard to
subminimum wage placements as detailed in proposed Sec. 397.2(a)(3).
The same commenter agreed with proposed Sec. 397.2(b), which
states that nothing in this part will be construed to grant the
Department or its grantees jurisdiction over requirements set forth in
the FLSA. The commenter added that, although the Department of Labor
has the authority to grant entities section 14(c) certificates allowing
subminimum wage employment to individuals with disabilities, the
Department has the authority to regulate, and thus restrict, the
placement of individuals with disabilities in subminimum wage
employment as it relates to public schools.
Another commenter stated that the Department has express legal
authority to administer funding for the VR program under the Act and to
oversee services by local school districts under the Individuals with
Disabilities Education Act (IDEA). The commenter urged the Department
to assume a central enforcement role over programs that facilitate
employment outcomes for youth with disabilities, something which,
according to the commenter, was lacking in the proposed regulations.
Other commenters stated that the Department should take a more
proactive and vigorous role in enforcement, working collaboratively
with the Department of Labor's Wage and Hour Division to enforce fully
and meaningfully the requirements of section 511 of the Act, including
provisions under which both Departments have overlapping jurisdiction.
Similarly, several commenters viewed the enforcement of section 511 of
the Act as a shared responsibility between the Departments of Education
and Labor.
Several commenters expressed concerns about the enforcement of
section 511, including the concern that entities holding section 14(c)
certificates would continue their current practices and not comply with
requirements under the Act. Some commenters suggested the Department
require entities holding special wage certificates to refer youth and
other individuals with disabilities to the DSU or educational agency.
Many commenters recognized that these entities are subject to
enforcement action from the Department of Labor and may have their
certificates revoked under 29 CFR 525.17.
Similarly, since section 511 of the Act is entitled ``limitations
on the use of subminimum wage,'' one commenter suggested that there is
a legal basis under WIOA for the Department of Labor to revoke section
14(c) certificates for violations of section 511 of the Act, which
these final regulations should require. The same commenter stated that
after the effective date of section 511 on July 22, 2016, when an
entity holding a section 14(c) certificate hires a person with a
disability who is age 24 or younger without completing the required
steps in section 511(a)(2)(B) of the Act, the entity should face
enforcement action from the Departments of Labor and Education under
both the FLSA and the Act, as amended by WIOA. Without vigorous
enforcement by both Departments, particularly the Department of
Education, the commenter suggested that entities holding section 14(c)
certificates would view the responsibility for meeting the requirements
under section 511 of the Act as resting with the DSUs.
Discussion: The Secretary appreciates the many comments and
recommendations about jurisdiction and enforcement. In response to the
many comments received, the Department consulted further on the matter
with the Department of Labor's Wage and Hour Division. Although the
Secretary understands the various concerns expressed, both the
Departments of Education and Labor agree that under FLSA and WIOA, the
authority to administer and enforce Federal requirements governing the
payment of subminimum wages by entities holding special wage
certificates under section 14(c) of the FLSA resides with the Secretary
of Labor. The Secretary of Labor administers and enforces the minimum
wage and overtime requirements of the FLSA, issues and revokes
subminimum wage certificates, and remedies unauthorized payment of
subminimum wages. See 29 U.S.C. 206, 207, and 214(c); 29 CFR part 525.
Section 511 states that its provisions ``shall be construed in a manner
consistent with the provisions of the Fair Labor Standards Act of 1938
(29 U.S.C. 201 et seq.), as amended before or after the effective date
of this Act.'' Accordingly, if an employer fails to comply with the
section 511 criteria for payment of a subminimum wage, the Secretary of
Labor would take enforcement action pursuant to the FLSA in the same
manner as he would against any other employer who failed to satisfy the
requirements of the FLSA. The Secretary of Labor has delegated his
authority to administer the FLSA to the Department of Labor's Wage and
Hour Division.
The Secretary agrees with commenters who called for greater
collaboration between the Department and the Department of Labor's Wage
and Hour Division to ensure that the requirements of section 511 of the
Act are enforced fully and meaningfully. Additionally, the Secretary
agrees that the provisions of section 511 are dependent on the DSUs and
educational agencies knowing the identities of individuals seeking
employment or who are already employed at subminimum wage. However,
despite the recommendations made by commenters, there is no statutory
authority for the Department to require entities holding special wage
certificates to refer youth and other individuals with disabilities to
the DSU or educational agency. Section 511 of the Act does not grant
the Department the authority to impose this or any other requirement on
entities holding special wage certificates under the FLSA. Recognizing
the importance of these requirements, the Secretary proposed part 397,
taking the initiative to regulate on those provisions for which the
Department is solely responsible. Under section 511 of the Act, the
Department has the authority to
[[Page 55712]]
regulate the activities and services that must be provided to an
individual before the individual is eligible for, or may continue work
compensated at a subminimum wage. Additionally, the Department has the
authority to regulate how documentation of these actions is provided by
the DSU to the individual with a disability, including the
documentation process developed by the DSU in consultation with the
State educational agency. We have revised final Sec. 397.2(a)(1) to
specify the Department's jurisdiction over the documentation process.
Lastly, while States, not the Department, have oversight of services by
local school districts under the IDEA, the Department has the authority
under section 511 of the Act to prohibit State and local educational
agencies from entering into a contract or other arrangement with
certain entities for the purpose of operating a program under which a
youth with a disability is engaged in work compensated at a subminimum
wage. The Department has enforcement authority over State and local
educational agencies that violate this prohibition.
Contrary to the opinion of some commenters, the Department of Labor
rather than the Department has enforcement authority and jurisdiction
over entities holding special wage certificates, including the
suspension or revocation of these certificates. Despite recommendations
that we require the Department of Labor to revoke violators' section
14(c) certificates if entities are found to be in violation of section
511, the statute does not authorize the Department of Education to do
so; any suspension or revocation and any related regulations must be
undertaken and promulgated by the Department of Labor.
Changes: We have revised final Sec. 397.2(a)(1) to state that the
Department has jurisdiction over the documentation process developed by
the DSU in consultation with the State educational agency.
Interplay of the Other WIOA Rulemakings
Comments: One commenter noted that the Department of Labor's NPRM
covering programs authorized under titles I and III of WIOA, as well as
the joint NPRM issued by the Departments of Education and Labor for the
workforce development system, did not address section 511 or the
Department of Labor's enforcement of the documentation requirements for
hiring or retaining individuals with disabilities in subminimum wage
employment.
Discussion: In response to the comment regarding the lack of
mention of section 511's requirements or the Department of Labor's
enforcement responsibilities either in its program-specific NPRM (80 FR
20690 (April 16, 2015)) or in the joint NPRM issued by the Departments
of Education and Labor (80 FR 20574 (April 16, 2015)), the Secretary
believes it would not have been appropriate to do so for two reasons.
First, the joint NPRM focuses solely on jointly administered
requirements imposed by title I of WIOA on the Department of Education
and the Department of Labor's Employment and Training Administration.
The explicit requirements set forth in title I make both the Department
and the Department of Labor's Employment and Training Administration
equally responsible for administering and monitoring all jointly
administered requirements governing the workforce development system.
Section 511, on the other hand, imposes requirements on State and
local educational agencies and DSUs administered by the Department,
that are separate and distinct from the restrictions imposed on
entities holding section 14(c) certificates that fall under the
exclusive purview of the Department of Labor's Wage and Hour Division.
There is nothing in section 511 of the Act that shifts the
responsibility for enforcement under the FLSA either to the Department
exclusively or to the Department jointly with the Department of Labor.
In fact, section 511(b)(3) of the Act requires that section 511 be
construed in a manner that is consistent with the FLSA. Therefore, the
Department of Labor retains the authority to enforce all minimum wage
and subminimum wage requirements for entities holding special wage
certificates.
Second, the Department of Labor's program-specific NPRM focuses
solely on program-specific requirements imposed by titles I and III of
WIOA. Section 511, on the other hand, is contained in title V of the
Act, which is contained in title IV of WIOA. As such, the provisions of
section 511 would not have been appropriate for the Department of
Labor's program-specific NPRM. Moreover, the enforcement authority in
section 511 that belongs to the Department of Labor resides with a
different division, specifically the Wage and Hour Division, than that
covered by the Department of Labor's program-specific NPRM. Rules
required under the FLSA related to the provisions of section 511 are
the responsibility of the Department of Labor.
Changes: None.
Reviewing Documentation
Comments: Many commenters suggested that the final regulations
specify timelines for reviewing documentation. One commenter stated
that proposed Sec. 397.2 does not address enforcement, either by DSUs
or the Department of Labor, for the failure of section 14(c)
certificate holders to maintain required documentation. The commenter
also stated that it is unclear whether the Department of Labor has the
ability to revoke a license for a workshop that fails to keep the
required documentation under final Sec. Sec. 397.20, 397.30, and
397.40.
Several commenters emphasized the importance of enforcing the
document review process. They suggested that the DSU or its contractor
authorized to review individual documentation maintained by entities
holding section 14(c) certificates have an enforcement mechanism to
address deficiencies and violations. These commenters urged the
Department to take a stronger stand to ensure that corrective actions
can be taken by the DSU or its contractor. Another commenter requested
that the final regulations define the consequences for non-compliance.
One commenter suggested that the DSU should be required to report
deficiencies to the Department of Labor or the Client Assistance
Program (CAP).
Some commenters stated that DSUs are not enforcement or compliance
agencies and requested clarification regarding enforcement authority in
the documentation review process. One commenter agreed that while it
was clear in the proposed regulations that the Department of Labor
oversees entities holding section 14(c) certificates and the payment of
subminimum wages to individuals with disabilities, further
clarification of the DSU's role and scope was required. Without it, the
DSU might become the ``de facto'' organization responsible for policing
subminimum wage certificates rather than providing guidance and
technical assistance.
One commenter urged that the final regulations task the Department
of Labor with enforcing provisions related to the review of
documentation since it already monitors entities holding special wage
certificates and reviews employee documentation, unlike DSUs. If the
final regulations also include the remedy of revoking an entity's 14(c)
certificate for failure to maintain the required documentation for
individuals employed at subminimum wage, the Department of Labor has
the capacity to implement that remedy. In the view of the commenter,
imposing an
[[Page 55713]]
enforcement obligation on the DSUs would be burdensome and likely
result in no enforcement at all.
Discussion: Many commenters suggested final part 397 include
timelines for the review of documentation. Section 511(e)(2)(B) of the
Act imposes no specific requirements on when, how often, or how reviews
must be done. Rather, the statute states that the reviews will be
conducted at a time and in a manner as necessary, consistent with
regulations established by the DSU or the Secretary of Labor.
Therefore, under section 511(e)(2)(B) of the Act, requirements
governing the reviews, including whether or when they must be done, are
beyond the scope of these final regulations.
Although some commenters requested that we provide the DSU or its
contractor an enforcement mechanism for addressing documentation
deficiencies and violations by entities holding section 14(c)
certificates, the Secretary lacks the statutory authority to do as the
commenters suggest. Likewise, the Secretary lacks the statutory
authority to define the consequences for non-compliance by entities
holding special wage certificates under the FLSA, which rests with the
Department of Labor, or to require the DSU to report non-compliance by
these entities to the Department of Labor or to the CAP. Having said
this, nothing in section 511 prohibits a DSU from informing the
Department of Labor's Wage and Hour Division of non-compliance it finds
during any documentation review and doing so may assist in supporting
the Department of Labor's efforts in monitoring compliance. A more
detailed discussion of this issue is presented in the Review of
Documentation (Sec. 397.50) section later in this preamble. As
discussed under the CAP and PAIR (Protection and Advocacy of Individual
Rights) section, the reporting of non-compliance to the CAP is not
authorized.
We acknowledge that reviewing individual documentation held by the
entities holding special wage certificates, as authorized by section
511(e)(2)(B) of the Act, may be regarded as burdensome to DSUs. Section
511 does not require that DSUs conduct these reviews. Rather section
511(e)(2)(B) merely subjects entities holding section 14(c)
certificates to these reviews in an effort to ensure that the intent of
section 511 is being fulfilled. These reviews may be conducted in a
manner and at such time as is deemed necessary, consistent with a DSU's
or the Department of Labor's regulations. While the Secretary agrees
with the comment that the Department of Labor is experienced with
conducting these reviews, the Secretary does not have the statutory
authority to require that the Department of Labor be solely responsible
for the documentation reviews. Section 511(e)(2)(B) of the Act clearly
grants authority to the DSUs to conduct these reviews as well.
Changes: None.
CAP and PAIR
Comments: Many commenters suggested that CAPs and PAIR programs
have jurisdiction for reviewing compliance with section 511. To ensure
that required activities are completed and are meaningful (i.e., not
just checklist actions), some commenters recommended that the CAP or
the PAIR agency be empowered to represent students and others with
disabilities employed at subminimum wages under section 511. Commenters
emphasized that, given the role of CAPs in the new requirements in
sections 113 and 511 of the Act, the regulations should define this
role and provide the CAPs the authority and ability to monitor and
effectively advocate for individuals with disabilities. The commenters
noted that the CAPs have access to workers in sheltered workshops and
their records, regardless of whether they are VR program consumers. The
commenters endorsed the need for independent advocates to ensure that
DSUs and entities adhere to the requirements of section 511 to make the
most of the opportunity presented in the Act to improve the employment
of individuals with disabilities.
One commenter requested that we require that the protection and
advocacy systems have access to any entity covered under sections 113
and 511 of the Act to monitor for rights and safety compliance, which
includes the ability to speak with individuals with disabilities
privately and to access records with the consent of an individual
service recipient, parent, or guardian. Additionally, the commenter
suggested that we require CAP staff with similar access to advise
individuals employed by an entity holding a section 14(c) certificate
of their rights and, with consent, to access their records.
Discussion: With respect to the comments regarding the CAPs,
section 112(a) of the Act, as amended by WIOA, specifically requires
CAPs to inform and advise clients and client-applicants of all
available benefits under the Act, including under section 511. Clients
or client-applicants, as defined in final 34 CFR 370.6(b) for purposes
of the CAP, are individuals seeking or receiving services under the
Act, including individuals seeking or receiving services under section
511. Upon the request of clients or client-applicants, CAPs may assist
and advocate for them, including by pursuing legal, administrative, or
other appropriate remedies to protect their rights and ensure access to
the services under the Act.
Although several commenters expressed concerns that the proposed
regulations did not provide CAP and PAIR programs with the authority to
access records and conduct monitoring, the Secretary does not agree
that CAP or PAIR programs have the authority to access records in the
manner the commenter suggests. The advocacy provided by CAPs, whether
individual or systemic, must be at the request of clients or client-
applicants and must be solely for the purpose of protecting their
rights or to facilitate their access to services under the Act. In
representing the client or client-applicant upon that individual's
request, CAPs could access relevant records of individuals with
disabilities under section 511 of the Act, so long as they follow the
requirements of the holder of those records, which typically require
the informed written consent of the client or client-applicant.
PAIR programs have limited monitoring authority. PAIR programs
provide advocacy and legal services to protect the rights of
individuals with disabilities who are not eligible for services from
other components of the protection and advocacy system and whose
concerns are beyond the scope of the CAP. Since section 112 of the Act
specifically authorizes the CAP to assist individuals with disabilities
receiving services under section 511, such activities would fall
outside the scope of the PAIR programs.
Despite the suggestion that independent advocates ensure that DSUs
and entities adhere to the requirements of section 511 to make the most
of the opportunity presented in the Act to improve the employment of
individuals with disabilities, there is no statutory basis to require
independent advocates to take on this role. There is no mention of
independent advocates in section 511 of the Act, and these entities are
not within the purview of the Department. Having said this, there is
nothing in section 511 to preclude a DSU or the Department of Labor
from contracting with an independent advocate to conduct reviews of
documentation.
On the other hand, section 112 of the Act, as amended by WIOA, does
not authorize CAPs to engage in advocacy for the sole purpose of
gaining general access to records or conducting monitoring. Since
section 112 of the
[[Page 55714]]
Act, as amended by WIOA, references the applicability of the
requirements of the CAP to section 511 already, we do not believe that
additional language is needed in final part 397. The Department has,
however, made minor revisions to final 34 CFR part 370 to clarify that
CAPs may advocate on behalf of clients or client-applicants requesting
assistance with issues arising under section 511. Final 34 CFR part 370
is published elsewhere in this issue of the Federal Register.
Changes: None.
Rules of Construction (Sec. 397.3)
Comments: A few commenters requested that we revise Sec. 397.3 to
emphasize that nothing in section 511 or final part 397 changes or
affects a State's obligations under the U.S. Supreme Court's 1999
Olmstead decision, subsequent U.S. Department of Justice enforcement
actions, or the rules established for home- and community-based
services by the U.S. Department of Health and Human Services' Center
for Medicare and Medicaid Services (CMS).
Discussion: Section 511 and final part 397 are consistent with the
Olmstead decision and other requirements for community- and home-based
services. Under each of the requirements mentioned by the commenters,
services must be provided in the community to the extent possible.
Section 511 gives individuals every opportunity possible to obtain
competitive integrated employment by requiring that youth with
disabilities receive certain services before beginning employment at
subminimum wages and that individuals with disabilities of any age
receive certain services every six months for the first year of
subminimum wage employment and annually thereafter as long as
subminimum wage employment continues.
Moreover, under section 511(b)(1) of the Act, nothing in section
511 is to be construed as changing the purpose of the Act, which is to
empower individuals with disabilities to maximize their opportunities
to achieve competitive integrated employment, nor is section 511 to be
construed as promoting subminimum wage. Final Sec. 397.3 sets forth
the ``rules of construction'' consistent with those set forth in
section 511(b) of the Act. Paragraphs (a) and (b) of final Sec. 397.3
promote opportunities for competitive integrated employment for
individuals with disabilities. Therefore, the Secretary declines to
make the suggested revision.
Changes: None.
What regulations apply? (Sec. 397.4)
Comments: None.
Discussion: Although we received no comments specific to proposed
Sec. 397.4, we received several comments about various provisions in
part 397 regarding informed choice and confidentiality. Specifically,
we received comments asking whether an individual with a disability has
the right to refuse to participate in activities required by section
511 of the Act and part 397. As the Secretary has stated throughout
this preamble, an individual has the right to exercise informed choice
regarding participation in the activities required by this part. The
Secretary has revised final Sec. 397.4(b) to highlight 34 CFR 361.52
as being applicable to final part 397.
In addition, we received comments asking whether the DSU could
provide documentation to a family member of an individual with a
disability. A DSU must protect all personal information regarding an
individual in its possession, pursuant to final 34 CFR 361.38. To
highlight this requirement, we have revised final Sec. 397.4(b) to
specifically mention the confidentiality requirements of final 34 CFR
361.38.
In addition to these specific changes in final part 397, we also
made conforming changes in final 34 CFR part 361 to make clear that
final 34 CFR 361.38 and 361.52 apply to applicants and recipients of
services. In so doing, we ensure that individuals receiving services
required by part 397, regardless of whether they have applied for or
been determined eligible for vocational rehabilitation services, are
still protected by the confidentiality and informed choice
requirements. These changes were discussed in the preamble to final
part 361 in Part B of the Analysis of Comments.
Changes: We have revised final Sec. 397.4(b) to highlight final 34
CFR 361.38 and 34 CFR 361.52 as being applicable to final part 397.
What definitions apply? (Sec. 397.5)
Comments: A few commenters suggested that the Department provide
specific definitions for the terms ``self-advocacy,'' ``self-
determination,'' and ``peer mentoring training opportunities'' to
ensure integrity and reflect the intent of section 511. One commenter
requested a definition for ``certain information.'' Another commenter
asked whether the term ``special wage certificate'' in proposed Sec.
397.5(c)(2) included all types of section 14(c) certificates issued by
the Department of Labor (e.g., business certificate holders and patient
workers) among those certificate-holding entities that must comply with
section 511 of the Act. The commenter also asked that we clarify in
Sec. 397.5(d) whether ``entity'' includes associated businesses
affiliated with a section 14(c) certificate holder, such as a non-
profit community rehabilitation program that has a for-profit business
in the same location.
Discussion: We appreciate the commenters' recommendations for
additional definitions; however, we use these terms in part 397 as they
are commonly understood, just as they are used in section 511 of the
Act. Attempting to define these terms could cause us to inadvertently
define the terms too broadly or too narrowly. This is of particular
concern both because we would be defining these terms after the comment
period has ended, without the benefit of public input, and because this
is a new statutory provision, and we do not yet have institutional
experience with how DSUs may implement them in this context.
As commonly understood, ``peer mentoring'' generally involves
individuals with disabilities providing guidance, counseling, and
advice to other individuals with disabilities based upon their own
experiences and training and the experiences of others they know.
``Self-advocacy'' generally involves developing the skills, knowledge,
and confidence to stand up for oneself and using appropriate means to
obtain one's goals. Finally, ``self-determination'' generally means
having the abilities, attitudes, skills, and opportunities to play an
active and prominent role in living and planning one's life and future.
Neither final part 397 nor section 511 of the Act includes the phrase
``certain information.''
Next, ``special wage certificate'' applies to all entities holding
section 14(c) certificates, including work centers (also known as
community rehabilitation programs), hospital/residential care centers
(facilities that employ patient workers), business establishments that
are not a work center or an employer of patient workers, and School
Work Experience Programs (SWEP). All must comply with section 511 of
the Act, which provides for no exceptions and refers simply to entities
holding special wage certificates issued under section 14(c) of the
FLSA.
Whether ``entity,'' as defined in final Sec. 397.5(d), includes
associated businesses affiliated with a section 14(c) certificate
holder depends upon individual circumstances. As defined, ``entity''
refers to any employer who holds a special wage certificate issued
under section 14(c) of the FLSA.
[[Page 55715]]
Therefore, the factors to consider include, but are not limited to,
whether the associated business is separately incorporated, operates
under the same or a separate special wage certificate described in
section 14(c) of the FLSA, employs or jointly employs as defined in the
FLSA, individuals with disabilities at subminimum wages, shares
subminimum wage employees with the section 14(c) certificate holder, or
operates as a contractor or subcontractor for the section 14(c)
certificate holder. The for-profit nature of an associated business of
a non-profit is not a determining factor since both may hold a special
wage certificate under the FLSA.
Changes: None.
Coordinated Documentation Process (Sec. 397.10)
Comments: Most commenters on proposed Sec. 397.10 supported the
requirement that the DSU, in consultation with the State educational
agency, develop a process, or utilize an existing process to document
the completion of required activities under section 511 of the Act by
youth with disabilities prior to seeking or entering subminimum wage
employment. A few commenters strongly supported using the DSU's formal
interagency agreement with the State educational agency required by 34
CFR 361.22(b) as the mechanism to develop a robust documentation
process, and a few commenters requested that final Sec. 397.10 reflect
the role of the State Rehabilitation Council in this process. One
commenter suggested that we require the interagency agreement to
include a requirement that students and parents or guardians be
provided training on subminimum wage employment. One commenter
recommended that we require the interagency agreements to be developed
with local educational agencies, in addition to State educational
agencies. In addition, the commenter recommended that interagency
agreements that specify data sharing requirements be developed with
State agencies serving individuals with intellectual and developmental
disabilities as well. The commenter suggested that the interagency
agreements indicate how each agency will ensure compliance with the
requirements in this section.
Several commenters recommended that the Department provide guidance
detailing the documentation and collaboration requirements of DSUs,
educational agencies, and other entities under section 511. Similarly,
one commenter requested that we include more specific language in the
regulations regarding the types of documentation that would be
acceptable, emphasizing that guidance should be sufficient to ensure
that documentation is complete and meets the intent of section 511 of
the Act. Some stated that proposed Sec. 397.10 focused heavily on
compliance with the documentation requirements, and not the
congressional intent of limiting the use of subminimum wages.
Many commenters expressed concerns about the 90-day time frame for
providing documentation to youth with disabilities in proposed Sec.
397.10(c)(2) and recommended shorter time frames, such as 30 or 45
days. They noted that allowing the DSU up to 90 days to provide
documentation to youth with disabilities after completing each of the
required activities, which may or may not take place concurrently,
could result in prolonged delays for such youth seeking to enter
subminimum wage employment since there are several steps and multiple
activities in the process that the youth must complete.
One commenter asked the Department to define ``completed'' in
proposed Sec. 397.10(b)(2)(i), stating that transition services are
typically ongoing and may continue until a student graduates from high
school. The same commenter posed a series of additional questions about
proposed Sec. 397.10(b)(2)(ii). The commenter asked about what
constitutes documentation; the level of detail required; requirements
for the rigor and quality of the activities; the need for signatures,
dates, descriptions and settings of activities; information about the
location or setting of activities; and the DSU's obligations if the
educational agency fails to provide documentation of transition
activities or such activities are deemed substandard.
One commenter urged the Department to include a new paragraph in
Sec. 397.10 or, alternatively, in Sec. 397.50, to require the DSU to
retain copies of documentation required by this part and to provide
this documentation for review by the CAP or a protection and advocacy
agency.
One commenter remarked that documentation of required activities
denotes completion of these activities without regard to consumer
choice to participate, whereas other commenters requested clarification
of what documentation would be required if an individual, exercising
informed choice, refuses vocational rehabilitation services.
Finally, one commenter asked for clarification regarding whether a
documentation process between the DSU and the State educational agency
must be developed and what documentation is required in those States
that prohibit subminimum wages for individuals with disabilities.
Alternatively, the commenter suggested that emphasis should be placed
upon tracking services in the regulations regardless of whether a
subminimum wage prohibition exists.
Discussion: We appreciate the many comments we received regarding
the documentation process. Compliance with the documentation process
requirements is intended to result in limiting the use of subminimum
wages. The Secretary agrees that the formal interagency agreement
between the DSU and the State educational agency provides an optimal
mechanism to develop and describe the documentation process required in
final Sec. 397.10, and the Department appreciates the strong support
we received from commenters on this point. As noted by the commenters,
final 34 CFR 361.22(b)(5) requires the DSU and State educational agency
to develop a formal interagency agreement that, at a minimum, provides
for coordination necessary to satisfy documentation requirements set
forth in final Sec. 397.10. Under final 34 CFR 361.20(c) and (d), the
State Rehabilitation Council (SRC) must provide input into the VR
services portion of the Unified or Combined State Plan, and the DSU
must actively consult with the SRC, if it has a Council, on its
policies and procedures governing the provision of vocational
rehabilitation services. The functions of the SRC in final 34 CFR
361.17(h) support Council involvement in developing the coordinated
documentation process. Therefore, the Secretary does not believe it
necessary to specifically state the role of the SRC in the
documentation process in final Sec. 397.10.
While the Secretary agrees that students and parents or guardians
can benefit from training about subminimum wage employment, the Act
does not require the formal interagency agreement to include such a
requirement. To add it would be inconsistent with the statutorily
required actions that must be taken by either the DSU or the State
educational agency with regard to the documentation process.
Nonetheless, nothing in the Act precludes the DSU and State educational
agency from including a training requirement in the formal interagency
agreement.
Similarly, we do not believe it necessary to require, in final part
397, the DSU to enter into interagency agreements with local
educational
[[Page 55716]]
agencies and State agencies serving individuals with intellectual and
developmental disabilities, because final 34 CFR 361.24(f) and (g)
provide for the DSU to enter into cooperative agreements and engage in
interagency collaboration with these State agencies. These cooperative
agreements could provide a mechanism for addressing, as appropriate,
the requirements in final Sec. 397.10 and promote data sharing. The
Secretary encourages the DSUs, local educational agencies, and State
agencies serving individuals with developmental and intellectual
disabilities to work collaboratively to identify individuals with
disabilities, particularly youth with disabilities, who are considering
or who are already engaged in subminimum wage employment.
The Secretary agrees that further operational guidance regarding
the requirements for collaboration, development, and implementation of
the documentation process is warranted. Therefore, the Department's
Office of Special Education and Rehabilitative Services intends to
collaborate with the Department of Labor's Wage and Hour Division in
issuing guidance about implementing the requirements in final part 397,
particularly the documentation process. This guidance will help to
ensure that the documentation process works smoothly within already-
established procedures for the DSUs and State and local educational
agencies, especially with regard to the protection of personally
identifiable information, while also enabling efficient and effective
reviews of any such documentation by the Department of Labor.
Final Sec. Sec. 397.10 and 397.30 specify the documentation
requirements. Final Sec. 397.20 describes the activities for which
documentation must be provided, all of which are familiar to DSUs and
local educational agencies and should pose no additional administrative
burden. Each DSU has case management practices for documenting various
steps in the vocational rehabilitation process, such as eligibility and
ineligibility determinations, the individualized plan for employment,
the provision of vocational rehabilitation services (including pre-
employment transition services), and case closure. State educational
agencies also have methods for documenting transition services provided
to students under the IDEA. In developing the documentation process,
each DSU, in coordination with the State educational agency, has
flexibility to determine the most appropriate procedures for
documenting required activities and for timely provision of the
documentation to youth with disabilities upon their completion of the
required activities.
As proposed, Sec. 397.10(c)(2) required the DSU to provide the
documentation of the completion of each of the required actions in
Sec. Sec. 397.20 and 397.30 to a youth as soon as possible, but no
later than 90 days, following the completion of each of the actions. We
understand the concerns raised by commenters, and we want to emphasize
that we anticipate DSUs and State educational agencies will develop a
process whereby the documentation in most instances will be provided
either concurrently with the completion of the activity or very shortly
thereafter, and we encourage them to do so.
For example, DSUs typically provide documentation of eligibility or
ineligibility determinations to the individual within a very short time
after the decision is made. Similarly, DSUs typically provide a copy of
the individualized plan for employment to the individual at the time
both parties sign the document. With regard to providing services, such
as pre-employment transition services or transition services, we
anticipate that the DSUs and schools will develop a streamlined
approach for transmittal of the documentation by the DSU to the youth.
We proposed a period of up to 90 days to be consistent with other
time frames in the vocational rehabilitation process and to enable DSUs
to obtain documentation from local educational agency personnel who may
not be available due to extenuating circumstances. It was never the
Department's intent to delay the provision of the required
documentation to any individual seeking subminimum wage employment.
After considerable deliberation and balancing competing interests while
not imposing undue burden on the DSUs or schools, the Secretary has
modified the time frame in these final regulations. Final Sec.
397.10(c)(2) requires the DSU to provide the requisite documentation,
including documentation received from the local educational agency, to
the youth within 45 calendar days of completion of the activity.
For example, if a student completes a required activity provided by
the local educational agency, the documentation must be transmitted to
the DSU and provided to the youth all within 45 calendar days. However,
if, due to extenuating circumstances additional time is needed,
documentation must be provided to the youth within 90 calendar days
after completion of the activity. As provided in final Sec.
397.10(c)(2)(i)(B), this exception for extenuating circumstances is a
limited exception that would cover circumstances such as, the
unexpected absence of the individual necessary to provide the
documentation, or a natural disaster. That said, DSUs and State
educational agencies could establish a shorter time frame in their
documentation processes.
We recognize that providing transition services, as well as pre-
employment transition services, may be ongoing for students with
disabilities. For example, under the IDEA, a student with a disability
may receive transition services until the student graduates from high
school with a regular diploma or exceeds the age of eligibility for a
free appropriate public education. Similarly, students with
disabilities may receive pre-employment transition services under the
Act for as long as the student remains in an educational program and
meets the definition of a ``student with a disability'' under final 34
CFR 361.5(c)(51). For purposes of final Sec. 397.10(b)(2)(i), the
local educational agency must, consistent with confidentiality
requirements of FERPA and/or the IDEA, provide the DSU documentation of
transition services when a student has completed all transition
services in the individualized education program. The final regulations
do not contain a definition of ``completion,'' as suggested by
commenters, because the definition would vary widely depending on the
activity. The Secretary will provide more guidance in the general
operational guidance for the documentation process required by section
511 and final part 397.
Section 511 of the Act does not address what constitutes
documentation, the level of detail required, requirements related to
the rigor and quality of the activities, the need for signatures,
dates, descriptions and settings of activities, information about the
location or setting of activities, and the DSU's obligations if the
education agency fails to provide documentation of transition
activities or such activities are deemed substandard. Some of these
issues are best left to the DSU and State educational agency to
negotiate when developing the interagency agreement or the
documentation process to maximize State flexibility and accommodate the
unique needs within a State. However, the Secretary agrees that some
guidance would be helpful. Therefore, the Secretary has revised final
Sec. 397.10(a) to state that the documentation process must address
both the actual production and transmittal of documentation.
[[Page 55717]]
Again, the transmittal of all documentation by the educational agency
to the DSU must comply with the confidentiality requirements of FERPA
and the IDEA.
In addition, the Secretary has revised final Sec. 397.10(a) by
adding three new paragraphs. Final Sec. 397.10(a)(1) establishes
minimum requirements for information to be contained in the
documentation of determinations made or the completion of an activity.
Final Sec. 397.10(a)(2) establishes minimum requirements for
information that must be contained in documentation in the event that a
youth, or his or her parent or guardian, exercises informed choice and
refuses to participate in an activity required by section 511 of the
Act or final part 397. Final Sec. 397.10(a)(3) requires the DSU to
retain a copy of all required documentation provided to the youth. The
DSU must retain this documentation just as it would any other
documentation in its case management system, and the documentation must
be retained in accordance with the requirements of 2 CFR 200.333, which
governs record retention for all Federal grantees.
In using an existing process or developing a new documentation
process, the DSU and the State educational agency may wish to consider
questions such as those posed by the commenter but not addressed in
these final regulations. In addition, the Secretary has revised final
Sec. 397.10(b)(2)(i) to require the educational agency to provide the
documentation to the DSU. The Secretary has also added a new
requirement in final Sec. 397.10(c)(3) that the DSU provide, when
transmitting documentation of the last determination made or activity
completed, a cover sheet that itemizes all documentation provided to
the youth. The Secretary hopes that these additions will assist DSUs
and State educational agencies in developing a streamlined
documentation process that will enable the expedient completion and
transmittal of the documentation to the youth, and allow for the
expedient review of the documentation, if a review is conducted by the
DSU or the Wage and Hour Division of the Department of Labor.
Additionally, for the reasons discussed in the section titled
Jurisdiction (Sec. 397.2), any access to these records by CAPs or
protection and advocacy systems is subject to the requirements of
sections 112 and 509 of the Act, respectively, and implementing final
regulations in 34 CFR part 370 and 34 CFR part 381.
Although section 511 of the Act and final part 397 establish
prerequisites for a youth with a disability to work in subminimum wage
employment, as with any vocational rehabilitation service, the youth
with a disability, or his or her parent or guardian, as applicable, may
exercise informed choice and refuse to participate. If a youth chooses
not to participate in the activities required by section 511 of the Act
and final part 397, or chooses to opt out of the vocational
rehabilitation process entirely, such a choice will impact the
permissibility of the youth to work at subminimum wage and preclude him
or her from obtaining subminimum wage employment given the limitations
imposed by section 511 of the Act and final part 397. Accordingly, DSUs
should inform youth with disabilities and/or their guardians of the
youth's ineligibility for subminimum wage employment if he or she
refuses to participate in the required activities. As discussed
previously, final Sec. 397.10(a)(2) establishes documentation
requirements for when a youth refuses to participate in the required
activities. Meeting these requirements demonstrates the DSU's
compliance under section 511 and final part 397. The Secretary believes
it is appropriate to establish an even shorter time frame for the
transmittal of documentation demonstrating the youth's refusal to
participate in required activities under final part 397 because there
should be few administrative reasons for delay. Thus, in this
circumstance, final Sec. 397.10(b)(2)(ii) requires that the
documentation be provided to the youth, within 10 calendar days of the
youth's refusal.
In a State that prohibits the payment of subminimum wages to
individuals with disabilities, the DSU and the State educational agency
still must develop a documentation process in accordance with final
Sec. 397.10, although it may be used infrequently. This documentation
would be necessary if a youth with a disability seeks subminimum wage
employment in another State that does not prohibit subminimum wages.
Finally, the Department, upon further review, notes that the
documentation of pre-employment transition services in final Sec.
397.10(b)(1) refers to a ``student with a disability'' rather than a
``youth with a disability'' because only a student with a disability
may receive pre-employment transition services. Further, the section
states more directly that the appropriate school official responsible
for providing transition services will provide the DSU documentation of
completion of appropriate transition services under the IDEA.
Changes: We made several changes to final Sec. 397.10. First, we
revised final Sec. 397.10(a) to state that the documentation process
must cover both the production and transmittal of the documentation.
The process must ensure all confidentiality requirements of FERPA and
the IDEA are satisfied.
Second, we revised final Sec. 397.10(a) by adding three
paragraphs. Final Sec. 397.10(a)(1) establishes minimum information
that must be contained in documentation of a youth's completion of
required activities. Final Sec. 397.10(a)(2) establishes the minimum
information that must be contained in documentation when a youth
refuses to participate in the required activities. Final Sec.
397.10(a)(3) requires the DSU to retain copies of all documentation
required by final part 397.
We revised final Sec. 397.10(b)(1) to clarify that we are
referring to a ``student with a disability'' with regard to the
documentation of the completion of appropriate pre-employment
transition services. We also revised Sec. 397.10(b)(2)(i) to clarify
that the appropriate school official responsible for the provision of
transition services must provide the DSU documentation of completion of
appropriate transition services under the IDEA. We revised final Sec.
397.10(c)(2) by adding two new paragraphs. Final Sec. 397.10(c)(2)(i)
requires the DSU to provide all requisite documentation to the youth
within 45 calendar days of the determination or the completion of the
required activities, unless extenuating circumstances make additional
time necessary. In that case, the documentation must be provided to the
youth within 90 calendar days of the determination or completion of the
activity or service. The final regulations also provide examples of
what could constitute extenuating circumstances necessitating the
additional time. Final Sec. 397.10(c)(2)(ii) requires the DSU to
provide documentation of the youth's refusal to participate in required
activities within 10 calendar days of the refusal. Lastly, final Sec.
397.10(c)(3) was added to require the DSU to provide a coversheet that
itemizes all documentation provided to the youth when transmitting
documentation of the last determination made or activity completed.
[[Page 55718]]
Responsibilities of a DSU to Youth With Disabilities Who Are Known To
Be Seeking Subminimum Wage Employment (Sec. 397.20)
Reasonable Period of Time
Comments: Most commenters on this section recommended changes in
proposed Sec. 397.20(a)(2)(ii)(B) and proposed Sec. 397.20(b)(3)(i)
related to the determination that a youth with a disability is not able
to achieve the employment goal specified in his or her individualized
plan for employment, other than supported employment, after working
toward the goal for a reasonable period of time with appropriate
supports and vocational rehabilitation services. The commenters
recommended that, for these youth, the reasonable period of time be
consistent with, or no less than, the time period provided in proposed
Sec. 397.20(b)(3)(ii) for individuals with disabilities whose
specified employment goal is in supported employment. A few commenters
recommended defining the time frame for ``reasonable period of time''
for all youth, regardless of whether they were seeking supported
employment outcomes or other outcomes, as 36 months or up to four years
since the DSU is being allowed to provide up to four years of extended
services for youth in supported employment. The commenters stated that
limiting the length of time the DSU can devote to helping youth with
disabilities achieve competitive integrated employment creates barriers
to the policy of maximizing steps to facilitate attaining competitive
integrated employment and requested that the Department amend the
proposed rule to designate a minimum, not maximum, period of time
during which DSUs must assist youth with disabilities to attain
integrated employment outcomes, including supported employment. Citing
the low participation rate of individuals with disabilities in the
labor force, coupled with the significant barriers to employment faced
by these individuals, one commenter recommended a minimum of three
years as the appropriate amount of time for youth with disabilities to
work toward competitive integrated employment before considering
segregated work and subminimum wage employment. This commenter stated
that, without a minimum time frame, the proposed regulations offer
little to prevent youth from continuing to settle for subminimum wage
employment. Some premised their suggestion of extending the time frame
to four years based upon the DSU being allowed to provide up to four
years of extended services for youth in supported employment. On the
other hand, one commenter suggested that, consistent with the provision
of supported employment services, in no case should the reasonable
period of time exceed two years.
Suggesting that the distinctions in ``reasonable period of time''
between those youth with supported employment goals and those with
other employment goals prove more confusing than helpful, a few
commenters supported language that reflects an individualized approach
for defining ``reasonable period of time'' for all youth, including
those individuals in supported employment. One commenter stated that,
without uniform time frames for both youth with disabilities seeking
supported employment outcomes and youth seeking other competitive
integrated employment outcomes, DSUs may circumvent the necessary level
of effort needed in working with individuals by simply writing an
individualized plan for employment that does not include the goal of
supported employment.
Discussion: We appreciate the many comments we received about
defining ``reasonable period of time'' before closing a service record
as unsuccessful when a youth has been pursuing, through an
individualized plan for employment, an employment outcome (as defined
under final 34 CFR 361.5(c)(15)), other than in supported employment.
Although many commenters requested a specified time frame--of
anywhere from 24 months, to coincide with that for the provision of
supported employment services, to up to four years to coincide with the
amount of time allowed for the provision of extended services for a
youth with a disability--we believe that a ``reasonable period of
time'' must take into account the disability-related and vocational
needs of the individual, as well as the anticipated length of time
required to complete the services identified in the individualized plan
for employment to achieve an employment outcome. The time frame for
providing supported employment services is prescribed in section 7(39)
of the Act, as amended by WIOA, and final 34 CFR 361.5(c)(54), but the
Act does not limit the amount of time for providing any other
vocational rehabilitation service. Therefore, we believe that it is not
in the best interest of individuals with disabilities to limit the time
for providing vocational rehabilitation services other than supported
employment services. To do so might unnecessarily restrict the amount
of time an individual may need to complete the services necessary to
achieve an employment outcome in competitive integrated employment.
We understand the concerns expressed by many of the commenters
about limitations on the amount of time the DSU may devote to assisting
youth with disabilities to achieve competitive integrated employment,
especially if someone is not seeking supported employment. We also
understand the desire to provide a minimum time, rather than a maximum
time, during which the DSU may help youth with disabilities attain
employment outcomes, including supported employment. However, we
believe that with allowable extensions, and based upon the needs of the
individual and the individual's disability, DSUs have the flexibility
to provide all services and supports necessary for an individual to
achieve competitive integrated employment in a reasonable time prior to
closing the individual's service record as unsuccessful.
Changes: None.
Requirements for Closure
Comments: A few commenters recommended that we revise proposed
Sec. 397.20(a)(2)(ii)(C) to reference 34 CFR 361.47(10) rather than
the more general 34 CFR 361.47 when addressing the requirements for
closure of the service record of a youth with a disability. The
commenters stated that under 34 CFR 361.47(10), the vocational
rehabilitation counselor will not accidentally classify the youth with
a disability as having achieved competitive integrated employment,
when, in fact, the youth has obtained subminimum wage employment. One
commenter also suggested that this change would serve as a reminder to
vocational rehabilitation counselors that a placement of a youth with a
disability in a subminimum wage environment is less desirable than a
placement into competitive integrated employment.
Discussion: We do not agree with the recommendation that we revise
proposed Sec. 397.20(a)(2)(ii)(C) to reference final 34 CFR
361.47(10), rather than the more general final 34 CFR 361.47, when
addressing the requirements for closure of a service record for a youth
with a disability. Final 34 CFR 361.47 contains other requirements, and
limiting the reference to final 34 CFR 361.47(10) could provide the
impression that other requirements do not apply. We anticipate that the
discussion in part 361 of these regulations found elsewhere in this
issue of the Federal Register regarding ``competitive
[[Page 55719]]
integrated employment'' and ``employment outcome'' will serve to
clarify that employment at subminimum wages is not a successful outcome
for purposes of the VR program.
Changes: None.
Pre-employment Transition Services
Comments: Several commenters provided comments about the DSU's
responsibility to document completed pre-employment transition
services. One commenter asked that the final regulations specifically
prohibit the use of segregated settings such as sheltered workshops for
providing pre-employment transition services, regardless of whether
these settings pay subminimum wages. Given that this section applies to
youth with disabilities, a commenter requested clarification regarding
how youth with disabilities who are age 24 or younger, who are not
students with disabilities, may be provided pre-employment transition
services that are, by definition, provided to students with
disabilities. The commenter stated that although a youth with a
disability who is no longer a student may have received pre-employment
transition services, or transition services under the IDEA, a DSU would
find it challenging to document the services after the youth has left
the education system. As an alternative, the commenter suggested that
we make an exception to the definition of ``pre-employment transition
services'' for the purpose of proposed Sec. 397.20 to include all
youth in the provision and documentation of pre-employment transition
services. Another commenter stated that it would be overly burdensome
to track all individuals receiving pre-employment transition services
and their activities in order to provide documentation to those few
considering subminimum wage employment. The commenter recommended
removing the requirement for documentation of pre-employment transition
services from proposed Sec. 397.20(a)(1).
One commenter was concerned that proposed Sec. 397.20 served as a
loophole for the education system to continue to view subminimum wage
employment as a viable alternative and suggested that the final
regulations be strengthened by specifying that youth must be provided
exposure to, and opportunities for, experiences such as integrated
work-based learning programs, summer jobs, summer volunteering, and
summer internships to enable them to make an informed choice to pursue
subminimum wage employment.
Discussion: As discussed in the Analysis of Comments and Changes
section for part 361 earlier in this preamble, we do not have the
authority to prohibit the use of segregated settings, such as sheltered
workshops, for providing pre-employment transition services. That being
said, assessment services and pre-employment transition services are to
be carried out in an integrated setting to the maximum extent possible
in accordance with final 34 CFR 361.5(c)(5) and final 34 CFR
361.48(a)(2), respectively.
We understand the confusion created by proposed Sec. 397.20(a)(1),
which covered the documentation of completed pre-employment transition
services that must be provided to youth by the DSU, when, in fact, pre-
employment transition services are provided to students with
disabilities, not to all youth with disabilities. We have revised this
paragraph to clarify that documentation for the completion of pre-
employment transition services applies to students with disabilities.
We have made further revisions for the documentation of the completion
of transition services under the IDEA, which the DSU is also
responsible for providing to youth once the local educational agency
has provided such documentation to the DSU.
We disagree with the commenter's alternative suggestion of making
an exception to the definition of ``pre-employment transition
services'' in final 34 CFR 361.5(c)(42) to include all youth for
purposes of this part, as that would be inconsistent with section 113
of the Act.
We understand that a DSU would find it challenging to obtain
documentation of services after a youth has left the education system;
however, educational systems must maintain records of the provision of
transition services to students provided through an individualized
education program.
We appreciate the commenter's concern about the burden of tracking
individuals receiving pre-employment transition services and their
activities in order to provide documentation to a few individuals that
might seek subminimum wage employment. The commenter recommended
removing the requirement from final Sec. 397.20(a)(1). However, this
would be inconsistent with section 511(d)(2)(a) of the Act.
We agree that youth with disabilities may find integrated work
based learning programs, summer jobs, summer volunteering, and summer
internships valuable and these experiences could better enable them to
make an informed choice of whether to pursue subminimum wage
employment. However, we do not believe that embedding this language in
the regulations in part 397 would strengthen the final regulations, as
they already incorporate the requirements to document the completion of
pre-employment transition services and/or transition services for youth
with disabilities, which include these activities.
Finally, we made a technical change in the title of this section,
replacing ``considering'' with ``seeking'' to be consistent with Sec.
397.30. ``Seeking'' more appropriately describes those youth who have
determined that they would like to pursue subminimum wage employment.
Changes: We added Sec. 397.20(a)(1)(i) and (ii) to require DSUs to
document completion of transition services under the IDEA in addition
to completion of pre-employment transition services under the VR
program. Additionally, we inserted ``a student with a disability'' in
final Sec. 397.20(a)(1)(i) because pre-employment transition services
are available only to students with disabilities. Finally, we replaced
the word ``considering'' with ``seeking'' in the title of this section
to be consistent with the title in Sec. 397.30.
Other Comments
Comments: A commenter posed a series of questions and concerns
about how to serve eligible VR consumers who might be contemplating
subminimum wage employment if there is a lag time or lack of supported
employment providers or customized employment and the consequences to
consumers and families, as well as DSUs, if an individual chooses to
opt out of the vocational rehabilitation process.
Other commenters asked whether the employment goal specified in the
individualized plan for employment needs to be consistent with
competitive integrated employment when considering the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
interests and informed choice. Also, they asked what the expectations
are around the determination of ineligibility, including how many work
experiences must be provided and how long to pursue supported
employment after the 24-month period or customized employment when
resources for long-term supports are not available. Finally, commenters
asked how to consider an individual's geographic area when providing
referrals to Federal and State programs and other resources that offer
employment-related services and supports designed to enable the
individual to explore, discover, experience, and attain competitive
integrated employment.
[[Page 55720]]
Discussion: We understand that commenters have concerns and
questions about the responsibilities of DSUs in this section. Limited
resources and available providers of services, including providers of
long-term supports, provide a challenge for DSUs as they work to locate
services that will assist individuals with disabilities in achieving
competitive integrated employment or supported employment. Without
sufficient service providers or resources, a youth may choose to opt
out of the VR process entirely, precluding him or her from achieving
even subminimum wage employment given the limitations imposed by
section 511 of the Act and final part 397. In the event a youth opts
out of the vocational rehabilitation process because of a lack of
resources in the community, there would be no consequences for the DSU
under this part.
The specified employment goal must be consistent with the general
goal of competitive integrated employment when considering the
individual's strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice in accordance with section
102(b)(4) of the Act, as amended by WIOA, and final 34 CFR 361.46(a).
The answers to the other questions posed by the commenter are dependent
upon circumstances and require the judgment of the DSU and the
vocational rehabilitation counselor in consideration of the consumer's
choice and needs.
Changes: None.
Responsibilities of a Local Educational Agency to Youth With
Disabilities Who Are Known To Be Seeking Subminimum Wage Employment
(Sec. 397.30)
Comments: Commenters recommended several changes to proposed Sec.
397.30 regarding the responsibilities of a local educational agency to
youth with disabilities seeking subminimum wage employment. Several
commenters recommended that we require the local educational agency to
retain copies of documentation that a youth has completed transition
services and to make this documentation available for review by the CAP
or a protection and advocacy system. A few commenters also recommended
that the phrase ``who are known to be seeking subminimum wage
employment'' or, alternatively, ``who are known to be'' be deleted from
the title of proposed Sec. 397.30, presumably to include all youth
with disabilities under the responsibilities of the local educational
agency in this part, not just those seeking subminimum wage employment.
Commenters also recommended that the language indicating that a local
educational agency may provide a youth with a disability documentation
of transitions services received under the IDEA be changed to indicate
that this is not optional, but a requirement. Finally, one commenter
offered additional language that a local educational agency is
responsible for referring youth with disabilities considering
subminimum wage employment as a transition outcome to the designated
State unit in order to complete the requirements under proposed Sec.
397.20.
Discussion: We appreciate all of the comments and suggestions on
this section. While the suggestion to require local educational
agencies to retain copies of documentation that a youth has completed
transition services is unnecessary given the requirements of 2 CFR
200.333, we understand the concerns expressed. After much
consideration, the Secretary has revised final Sec. 397.30 to require
the educational agency to retain a copy of all documentation provided
to the DSU in accordance with 2 CFR 200.333. This requirement in final
Sec. 397.30(d) should pose no additional burden to the local
educational agencies because the agencies are already subject to
Federal record retention requirements. Final Sec. 397.30(d) is
consistent with a similar provision in final Sec. 397.10(c), thereby
ensuring consistency between the DSU and local educational agencies for
purposes of the documentation process. Similarly, the Secretary has
revised final Sec. 397.30(a) to state that the documentation
transmitted to the DSU must comply with the confidentiality
requirements of FERPA and the IDEA. Additionally, final Sec. 397.30 is
revised to establish minimum information content requirements for the
documentation to be provided to the DSU upon completion of the
transition services under the IDEA or the youth's refusal to
participate in those activities. In addition, the Secretary has also
added a new paragraph in final Sec. 397.30 to require a time frame for
the transmittal of the documentation to the DSU--of no more than 30
calendar days after completion of the transition service, or no more
than 60 calendar days after completion of the transition service if
additional time is needed due to extenuating circumstances, or within 5
calendar days of the youth refusal to participate. This gives the DSU
the time necessary to transmit the documentation to the youth within
the time required by final Sec. 397.10(c).
In addition, final Sec. 397.30(c)(2) requires educational
personnel, when transmitting documentation of the last service or
activity completed by the youth to the DSU, to provide a coversheet
that itemizes all documentation transmitted to the DSU regarding that
youth. In so doing, the DSU will have a checklist to ensure receipt of
each documentation, thereby ensuring the youth obtains all necessary
documentation. These additional provisions are necessary to ensure
consistency between the DSU and the local educational agencies in the
documentation process. All of these changes are consistent with those
made in final Sec. 397.10.
As previously discussed in other sections of this part, the CAP and
protection and advocacy systems already have access to records in
accordance with their governing statutes and regulations and section
511 of the Act does not expand this access.
We disagree with the recommendation to remove the phrase ``who are
known to be seeking subminimum wage employment'' or, alternatively,
``who are known to be'' from the title in final Sec. 397.30. The
provisions relate directly to youth who are contemplating or seeking
subminimum wage employment, and local educational agencies have
knowledge of these individuals in meeting the IDEA requirements for
transition services in the individualized education program in 20
U.S.C. 1414(d)(1)(A)(i)(VIII)(aa)-(bb).
In considering the commenter who recommended making it mandatory
for the local educational agency to provide documentation of the
completion of required activities to the student, upon further review,
the Department has determined that providing documentation of completed
activities by the local educational agency directly to a youth with a
disability seeking subminimum wage employment is not mandatory, and we
are removing this language in the final regulation to be more
consistent with the statute and final Sec. 397.10. The documentation
must be provided by the local education agency to the DSU in accordance
with section 511(d)(2)(ii) and (iii).
The local educational agency, in accordance with the requirements
in section 511(d)(2) and the documentation process developed by the DSU
in consultation with the State educational agency, must provide
documentation to the DSU. The DSU is then responsible under section
511(d)(2)(A)(iii) to provide this documentation to the student with a
disability. Final Sec. Sec. 397.10 and 397.30 make this requirement
clear and ensure
[[Page 55721]]
consistency with specific statutory requirements.
While we agree that it is in the best interest of a student with a
disability considering subminimum wage employment to be referred by a
local educational agency to the DSU in order to complete the
requirements under final Sec. 397.20, we believe that this is best
left to the DSU and the State educational agency to negotiate when
developing the interagency agreement required by 34 CFR 361.22.
Nevertheless, we believe that this practice represents the type of
coordination and cooperation that should exist between DSUs and local
educational agencies and enables collaboration with the student with a
disability to provide a complete program of services that may result in
an employment outcome in competitive integrated employment. See a more
detailed discussion of this issue earlier in this preamble. Regardless,
once the DSU receives documentation of completed transition activities
from the local educational agency, then the individual will become
known to the DSU, and thus ``referred.''
Changes: We have revised final Sec. 397.30 in several ways. We
have revised final Sec. 397.30(a) by deleting the language stating
that a local educational agency may provide documentation to a youth of
the completion of actions described in Sec. 397.20(a) and inserting in
its place language that the local educational agency must provide the
DSU with such documentation in accordance with section 511(d)(2). We
also stated that the documentation must be transmitted in a manner that
complies with the confidentiality requirements of FERPA and the IDEA.
We added final Sec. 397.30(b), which establishes minimum content
requirements for the documentation that must be transmitted by the
local educational agency to the DSU. We added final Sec. 397.30(c),
which establishes the time frame under which a local educational agency
must provide the DSU with required documentation and requires the local
educational agency to retain a copy of all documentation provided to
the DSU under this part. Final Sec. 397.30(c)(2) requires educational
personnel to transmit a coversheet to the DSU that itemizes all
documentation provided to the DSU regarding the youth. This coversheet
is to be provided when the educational personnel transmits
documentation of the last activity completed by the youth. Lastly, we
added final Sec. 397.30(d), which establishes the timeline in which
documentation must be transmitted by the educational agency to the DSU.
Contracting Prohibition on Educational Agencies (Sec. 397.31)
Comments: A few commenters supported proposed Sec. 397.31. A few
commenters also suggested that the Department of Labor has the
responsibility to oversee the DSUs and State educational agencies to
ensure that subminimum wage employment is not being used
inappropriately.
Most commenters expressed concern that the proposed regulation was
being interpreted by educational agencies and DSUs to mean that an
entity that holds a section 14(c) certificate is automatically
prohibited from providing any service paid for by local and State
educational agencies and that this was not the intent of section
511(b)(2) of the Act. The commenters requested that we clarify that
State and local educational agencies may contract with entities holding
section 14(c) certificates such as community rehabilitation programs
for other purposes, including transition and pre-employment transition
services that are beneficial to students with disabilities and
supported by parents of these individuals. One commenter asked whether
proposed Sec. 397.31 eliminates the ability of local educational
agencies to contract with holders of section 14(c) certificates for the
provision of internships and work-based tryouts, among other services.
One commenter mentioned that in rural States or areas, the
availability of services may be limited to providers who hold special
wage certificates, thus provisions in part 397 should not preclude
students from accessing the expertise section 14(c) certificate holders
have in assisting people into competitive integrated employment.
Additionally, a commenter strongly emphasized the desire to sustain
a wide range of quality rehabilitation services for youth with
disabilities and believed that restricting the legitimate engagement of
State educational agencies with section 14(c) certificate holders would
result in a reduction of service availability, and curtail learning
opportunities and services available to youth with disabilities.
A commenter asked whether schools may contract with providers that
offer subminimum wage and minimum wage services when the only service
being contracted for would be opportunities paid at minimum wage.
A few commenters suggested that the regulatory language as proposed
should not be modified to suggest that some types of contracts between
an educational agency and an entity using section 14(c) certificates
are permissible. A few others expressed support for the regulation but
suggested that the language should clearly indicate that States cannot
engage at all in any contracts for any vocational rehabilitation
services with agencies that pay subminimum wages.
One commenter emphasized that the types of jobs students with
disabilities are introduced to during high school correlate to the
types of jobs they will obtain following graduation. They therefore
supported proposed Sec. 397.31, which reduces students' exposure to
subminimum wage employment and increases students' opportunities for
obtaining competitive integrated employment. Similarly, another
commenter stated that limiting the opportunity for inadvertent slotting
into subminimum wage employment is a step in the right direction for
students with disabilities toward achieving competitive integrated
employment. One commenter, citing research predicting post-school
employment, suggested that all work-related activities to prepare
individuals with disabilities for jobs and careers should happen in
realistic integrated environments, not in segregated workplaces or
where an individual is paid a subminimum wage.
A few commenters suggested that the formal interagency agreement
between the DSU and the State educational agency in proposed 34 CFR
361.22 prohibit contracts or arrangements with, or referrals to,
programs in which youth with disabilities are employed at subminimum
wages. Commenters also recommended inserting the requirement for
referrals in proposed Sec. 397.31.
Other commenters suggested inserting the word ``sub-contract''
between ``contract'' and ``other arrangements'' to align proposed Sec.
397.31 with the language in section 511(a) of the Act regarding
entities, including contractors and subcontractors of entities.
Additionally, many of these commenters also requested that the
prohibition be extended to local and State educational agencies that
operate a program where a youth with a disability is engaged in
subminimum wage employment. A few commenters were unclear about the
term ``other arrangement'' and interpreted this as not specifically
prohibiting referrals to programs employing youth with disabilities at
subminimum wages.
A number of commenters requested either that the Department issue
guidance to local and State educational agencies clarifying that the
contracting prohibitions only apply to contracts for the purposes of
operating a program under which a youth with disabilities is
[[Page 55722]]
employed at subminimum wage. In the alternative, the commenters
suggested that the Department require State educational agencies to
issue clear policy directives to local educational agencies regarding
the prohibition on State and local educational agencies contracting
with section 14(c) certificate holders in order to pay individuals
subminimum wages. In addition, commenters asked that the Department add
additional language regarding the responsibilities of State educational
agencies to enforce this provision.
Discussion: We appreciate the support for proposed Sec. 397.31. We
disagree with the recommendation that the Department of Labor should
have oversight responsibility for the DSUs and the State educational
agencies to ensure that subminimum wage employment is not being used
inappropriately. Rather, both the Departments of Education and Labor
have responsibilities for oversight under section 511. Specifically,
the Department has sole responsibility for overseeing all requirements
under section 511 and final part 397 that relate to requirements that
fall under its purview, such as the documentation process and the
prohibition against a State or local educational agency entering into a
contract with an entity holding a special wage certificate for the
purpose of operating a program in which a youth is compensated for work
at subminimum wage. The Department of Labor, on the other hand, has
sole responsibility for overseeing requirements that fall under its
purview, such as those related to entities holding special wage
certificates paying individuals with disabilities subminimum wages
without the requirements of section 511 of the Act and final part 397
being met. There is no statutory authority for the Department to compel
the Department of Labor to oversee entities, such as the DSUs and
educational agencies, that are under the Department's purview.
We appreciate the significance of the contracting prohibition in
section 511(b)(2) of the Act and the comments received in response to
proposed Sec. 397.31 seeking clarification and making recommendations.
We agree with the substantial number of commenters that this section
does not preclude State and local educational agencies from contracting
with entities holding section 14(c) certificates, such as community
rehabilitation programs, for purposes other than operating a program
for youth under which work is compensated at a subminimum wage. In
other words, nothing in section 511(b)(2) of the Act or final Sec.
397.31 precludes a State or local educational agency from contracting
with an entity, even if that entity holds a special wage certificate
under section 14(c) of the FLSA, for another purpose, including the
provision of transition and pre-employment transition services that are
beneficial to students with disabilities, so long as they are not paid
subminimum wage if compensation is provided. Pre-employment transition
services under final 34 CFR 361.48(a) and assessment services provided
to vocational rehabilitation consumers must be provided in integrated
settings to the maximum extent possible. Further, nothing in section
511(b)(2) of the Act or final Sec. 397.31 prohibits a State or local
educational agency from contracting with an entity holding a special
wage certificate for the purpose of operating a program in which the
youth is paid at or above minimum wage. A State or local educational
agency, prior to entering into such a contract, must ensure that the
youth will be paid at least minimum wage. Only in doing this can the
local or State educational agency ensure its compliance with section
511(b)(2) and final Sec. 397.31. It is not necessary to revise final
Sec. 397.31 because the regulation mirrors the statute and states that
the prohibition is against contracting for ``the purpose'' of operating
a program for youth under which work is compensated at a subminimum
wage.
The Department also agrees with commenters who regard the
contracting prohibition as a step toward limiting the progression of
students and transition-age youth into subminimum wage employment,
since it seeks to limit the exposure of these individuals to settings
that pay subminimum wages. Final Sec. 397.31 raises expectations for
both youth with disabilities and their families, and redirects them
toward experiences leading to competitive integrated employment in the
community.
While we understand the commenters' desire to align the language in
final Sec. 397.31 with section 511(a) of the Act, which references
entities holding special wage certificates as well as their contractors
and subcontractors, we disagree that it is necessary to specifically
mention ``subcontractors'' in these final regulations. Final Sec.
397.31 prohibits the State or local educational agency from entering
into a contract or other arrangement with an ``entity, as defined in
Sec. 397.5(d)'' for the purpose of operating a program in which the
youth is engaged in work compensated at a subminimum wage. Final Sec.
397.5(d) defines ``entity'' as an employer, or a contractor or
subcontractor of that employer, that holds a special wage certificate
described in section 14(c) of the FLSA. Therefore, contractors and
subcontractors of the employer holding the special wage certificate are
already included in that definition, making specific reference to
contractors and subcontractors unnecessary. The reference to ``other
arrangements'' in both section 511(b)(2) and final Sec. 397.31 refers
to any other type of agreement (other than a contract), such as a
memorandum of understanding or subcontract, through which the State or
local educational agency makes arrangements with entities operating
programs in which youth with disabilities are paid subminimum wages
under section 14(c) of the FLSA. The term allows for a broad
interpretation of the relationships that might exist between a local or
State educational agency and an entity, as well as the types of
agreements they may enter into to establish those relationships,
including sub-contracts. For purposes of the requirements and
limitations in final part 397 (including the contracting prohibition in
final Sec. 397.31), a local or State educational agency that holds a
section 14(c) certificate to operate a program in which a youth with a
disability is engaged in work compensated at a subminimum wage is
treated in the same manner as any other entity holding a special wage
certificate under section 14(c) of the FLSA.
We agree that the interagency agreement between the DSU and State
educational agency, as described in 34 CFR 361.22, should include
reference to the prohibition in final Sec. 397.31. Therefore, 34 CFR
361.22(b)(6), both proposed and final, requires the interagency
agreement to include an assurance that neither the State or local
educational agency will enter into a contract or other arrangement for
the purpose of operating a program in which youth with disabilities are
engaged in work compensated at a subminimum wage. Thus, final 34 CFR
361.22(b)(6) ensures consistency between the interagency agreement
required under that part and the requirements of final Sec. 397.31.
The Secretary disagrees with the recommendation to revise final
Sec. 397.31 to prohibit local or State educational agencies from
making referrals to entities holding special wage certificates. As
discussed previously, as well as in detail in the preamble to final 34
CFR part 361, the Act does not prohibit services such as assessments,
pre-employment transition services, and other services from being
provided by
[[Page 55723]]
entities holding special wage certificates under section 14(c) of the
FLSA. However, the Act requires that each of these services be
provided, to the maximum extent possible, in integrated settings. We
wish to point out that entities holding special wage certificates under
section 14(c) of the FLSA, also include businesses, in addition to
community rehabilitation programs, that operate in integrated settings
in the community. The focus of the prohibition in final Sec. 397.31 is
the payment of subminimum wages to youth with disabilities-not the
setting in which the work is performed. Therefore, there is nothing in
the Act to prohibit a State or local educational agency from making a
referral to such entity, so long as the purpose of the referral is not
for the payment of subminimum wages to the youth with a disability.
With regard to the request that final Sec. 397.31 be revised to
specify that the State educational agency is responsible for enforcing
final Sec. 397.31, the Secretary disagrees that such change is
necessary. First, the Department will be enforcing this provision
through its regular monitoring activities. Second, the prohibition
applies to both the State and local educational agencies; therefore, it
would not be appropriate for the State educational agency to enforce a
requirement against itself. As stated above, the Department intends to
issue operating guidance to the States regarding the implementation of
the requirements of final part 397, including the prohibition contained
in final Sec. 397.31.
Changes: None.
Responsibilities of a DSU for Individuals Regardless of Age in
Subminimum Wage Employment (Sec. 397.40)
Counseling, Information and Referral Services
Comments: Many commenters expressed support for the provision of
services by DSUs described in proposed Sec. 397.40 for individuals
employed at a subminimum wage, regardless of age. Many were encouraged
by the requirement for ongoing information and referral, as well as,
career counseling and the potential benefit that it could bring to
consumers in the future. Others suggested that proposed Sec. 397.40
require information be provided to family members and/or caregivers as
appropriate, in addition to the individual. Still others asked that
this section require the provision of benefits counseling so that
individuals would understand the impact and benefits, rather than the
perceived barriers, of moving out of subminimum wage employment into
competitive integrated employment. A few indicated that it is
imperative that any career counseling provide participants with
information on Federal and State programs that continue healthcare and
income supports to individuals with disabilities who engage in the
workforce.
A few commenters expressed concerns related to the requirement to
provide information and career counseling-related services to adults
working in subminimum wage jobs, suggesting that the requirement places
pressure on DSU staff and fiscal resources due to the sheer numbers of
these individuals, and could impact the ability to serve all eligible
individuals in the State through the VR program without implementing an
order of selection.
Another commenter asked whether the services described in proposed
Sec. 397.40 were for all individuals or just those individuals that
have been served by the DSU.
Regarding required intervals for providing information and referral
and career counseling, many commenters provided requests for
clarification and recommendations related to the semi-annual and annual
intervals for providing these services to individuals in subminimum
wage employment. Several recommended referencing and reconciling the
requirements under proposed Sec. 397.40 with those under proposed 34
CFR 361.55 related to semi-annual and annual reviews for individuals in
extended employment or subminimum wage employment.
A few commenters sought clarification regarding the individuals to
be served and whether there were differences in the requirements for
youth and other individuals with disabilities. One commenter asked
whether entities were to refer every subminimum wage employee for
career counseling by January of 2017 or whether this section only
applies to individuals who become employed in subminimum wage after the
effective date of section 511, July 22, 2016, citing that, either way,
the workload would be significant.
Another commenter questioned why these services were available
every six months for the first year of employment only, suggesting that
the more often individuals received career counseling and information
and referral services, the more likely that the individual would become
comfortable with the idea of future competitive integrated employment.
Discussion: We appreciate the support for, and extensive comments
and recommendations received in response to, proposed Sec. 397.40.
Section 511 of the Act does not require that the DSU provide the
information to the family or caregivers, as well as to the individual
with a disability. As a recipient of services from a DSU, the
individual with a disability would be protected by the provisions in
final 34 CFR 361.38, governing the protection, use, and release of
personal information, and other Federal and State privacy laws and
regulations. For this reason, we lack the statutory authority to make
the recommended change in final Sec. 397.40. However, if an individual
chooses to include family members and caregivers in such activities,
nothing would prohibit DSUs or their contractors from doing so with the
informed consent of the individual. On the other hand, if a parent,
other family member, or another individual has power of attorney for or
guardianship over, or has any other legal authority to act as the
individual's representative, the DSU could provide the information to
that representative in accordance with the laws governing that
representation.
We agree with commenters that income-based benefits counseling
would be beneficial to individuals with disabilities who are employed
at subminimum wage. There is no prohibition in section 511 against
providing benefits counseling as a part of information and referral or
career counseling. The Secretary believes that information provided as
part of benefits counseling could enable individuals with disabilities
to have the information they need to understand the full opportunities
provided by competitive integrated employment. For this reason, the
Secretary has revised final Sec. 397.40(a) by adding paragraph (4) to
specify that career counseling and information and referral services
may include benefits counseling, particularly with regard to the
interplay between earned income and income-based financial, medical,
and other benefits.
We understand the concerns and challenges with meeting the
requirements under this section due to the potentially large numbers of
individuals to be served on an annual or semi-annual basis. DSUs may
contract these services to help mitigate the demands upon the DSU staff
and resources. We also recognize these additional activities could
impact a State's needs and decisions regarding order of selection.
However, section 511 is explicit about the activities that must be
performed by the DSU with regard to individuals with disabilities
employed
[[Page 55724]]
at subminimum wage. Therefore, there is no statutory basis to limit the
DSU's responsibilities under final Sec. 397.40, which is consistent
with section 511(c) of the Act.
To clarify, the services under this section are for any individual
in subminimum wage employment, not just individuals who have been
applicants or recipients of services under the VR program or who have
been served by the DSU under another program administered by that
agency.
With respect to career counseling, and whether requirements for
information and referral and career counseling differ between youth and
other individuals with disabilities, all are required. The timing for
the semi-annual provision of career counseling and information and
referral services applies only for an individual with a disability who
begins employment at subminimum wage on or after the effective date of
section 511 (July 22, 2016). This means, for example, that an
individual who begins employment at subminimum wage on July 30, 2016,
must receive the first provision of the semi-annual career counselling
and information and referral services no later than January 30, 2017,
and the second provision of the semi-annual services no later than July
30, 2017, and the annual set of services no later than July 30, of each
year thereafter for as long as the individual maintains subminimum wage
employment. For individuals who were already employed at subminimum
wage when section 511 takes effect (July 22, 2016), the individual must
receive career counseling and information and referral services at
least once a year. Neither the statute nor these final regulations
dictate when those annual reviews must be done. This is a matter for
the entity holding the special wage certificate and/or the DSU to
determine in terms of what works best within their operations. However,
the Secretary clarifies here that all individuals employed at
subminimum wage must have received the requisite first annual career
counseling and information and referral services no later than July 22,
2017, and annually thereafter by that date. Consistent with the Act,
all individuals employed at subminimum wage, regardless of date of
employment, must receive career counseling by at least one year after
the effective date of section 511.
We agree that frequent career counseling and guidance activities
may assist individuals in subminimum wage employment to consider
competitive integrated employment. Although the Act requires DSUs to
provide these career counseling and information and referral services
on a semi-annual basis for the first year of employment and annually
thereafter, nothing in the Act prohibits a DSU from providing these
services on a more frequent basis. The specific requirements for youth,
and the semi-annual and annual counseling and information and referral
requirements, along with the documentation requirements, as required by
the statute become effective on July 22, 2016. The Secretary has
revised final Sec. 397.40(c) to make these requirements related to the
required intervals more clear.
Changes: In final Sec. 397.40(a), we added paragraph (4) to
specify that the career counseling and information and referral
services a DSU must provide may include benefits counseling,
particularly with regard to the interplay between earned income and
income-based financial, medical, and other benefits. We made revisions
to final Sec. 397.40(c) to provide that the required intervals for
providing services under final Sec. Sec. 397.40(a) and (b) will be
calculated based upon the date the individual becomes known to the DSU.
We revised final Sec. 397.40(c) to clarify when the required services
are due for both individuals hired at subminimum wage on or after the
effective date of the statute and also for individuals hired at
subminimum wage prior to that date. As part of the revisions to final
Sec. 397.40(c), we specified in paragraphs (c)(3)(i) and (ii) that
DSUs are responsible for providing the required services only when that
individual becomes ``known'' to the DSU, and we specified what it means
to become ``known.''
Identification and Referral of Individuals
Comments: Several commenters requested that the phrase ``who are
known'' be clarified, defined, or replaced with more specific language.
A few thought that the language in proposed Sec. 397.40(a)(2) was
vague, limiting, or misleading and could be interpreted to mean it
applies only to individuals who have been through the vocational
rehabilitation process or who have been referred by the CAP.
A few commenters suggested that language be added mandating
interagency agreements with the State educational agency, the State
intellectual and developmental disabilities agency, and any other
appropriate agency serving individuals who may be in subminimum wage
employment to identify and refer individuals considering, or currently
in, subminimum wage employment to the DSU. This suggestion aligned with
other commenters who advocated a more expansive and proactive strategy
by the DSU to identify all individuals who are contemplating or are
currently in subminimum wage, which one commenter described as similar
to ``child find'' under the IDEA. One commenter urged that a subsection
be added to final 34 CFR 361.29(a)(1)(i) and (b) requiring the
comprehensive statewide assessment under the VR program include
information about individuals who are working in segregated and
subminimum wage jobs for employers using section 14(c) certificates.
One commenter asked whether the DSU was required to track an
individual working in a sheltered workshop setting who contacted the
agency for independent living services.
Another commenter asked whether proposed Sec. 397.40 establishes
an affirmative requirement or expectation that DSUs or their
contractors seek out individuals in subminimum wage employment, noting
the potential issue of confidentiality between the individual and the
employer.
A commenter suggested adding language that would require that any
entity holding a section 14(c) certificate failing to refer an
individual to the DSU have its section 14(c) certificate suspended
until it has been documented that all employees working at subminimum
wage have been referred to the DSU.
Some commenters suggested that coordination and guidance from the
Federal Departments on the identification issues would be helpful.
Discussion: The use of the phrase ``who are known'' in several
sections of these regulations highlights that the DSU must be aware
that an individual with a disability is employed at the subminimum wage
level in order to provide the services required by section 511 of the
Act and final part 397, including the services and activities required
by final Sec. 397.40. Such awareness may be made through the self-
identification by the individual with a disability, the vocational
rehabilitation process, cooperative or coordinated activities with
other agencies, or referral to the DSU, including referral by employing
entities. Otherwise, there is no mandate in section 511 of the Act for
the DSUs to seek out or solicit these individuals. To impose such a
requirement in these final regulations would be extremely burdensome on
the DSUs because of the thousands of entities holding special wage
certificates under section 14(c) of the FLSA. It would not be practical
or reasonable to expect or require the DSU to take on the role of
seeking out individuals with disabilities who are
[[Page 55725]]
employed at subminimum wage. Moreover, confidentiality laws and
regulations would prohibit the automatic release of personal
information about the individual with a disability to the DSU without
the written consent of the individual.
Furthermore, there is no statutory mandate for entities holding
section 14(c) certificates to refer to the DSU employees or individuals
with disabilities seeking to enter subminimum wage employment.
We considered using the words ``who are referred'' instead of ``who
are known,'' but that phrase implied an active referral process
required by other entities, all of whom are outside of the Department's
purview. The phrase ``who are known'' allows for any method of
identifying individuals to the DSU and clarifies there is no mandate
that the DSU seek out or solicit individuals with disabilities employed
at subminimum wage. In final Sec. 397.40(a)(2), we are including
``self-referred'' in the list detailing examples of how the DSU knows
of an individual. The Secretary has also added a paragraph in final
Sec. 397.40(c)(3)(ii) to clarify when an individual with a disability
becomes ``known'' to the DSU.
While we agree that there is benefit in identifying individuals
with disabilities in subminimum wage employment or those potentially
seeking such employment, through interagency agreements with other
State agencies such as the State educational agency, the State
intellectual and developmental disabilities agency, and any other
appropriate agency, we cannot require other agencies to make these
referrals because section 511 does not impose any requirements on most
of the agencies suggested by the commenters. State and local
educational agencies will be providing, in effect, a referral when they
transmit documentation to the DSU demonstrating the completion of
transition and other services by students with disabilities. As stated
in an earlier section of this preamble, we have encouraged DSUs and
various other State and local agencies with whom they have
relationships for cooperation and coordination of services, to include
provisions in their interagency agreements related to the referral of
individuals employed at subminimum wage. We do not believe it is
appropriate to amend these final regulations to require such provisions
because these matters are best left to the States to determine what
meets their unique needs and circumstances. We expect that DSUs will
use the opportunity as they develop relationships and agreements
through the coordination and cooperative agreements set out in final 34
CFR 361.24 to seek cross-agency referrals.
With regard to entities holding 14(c) certificates under the FLSA,
all authority to impose requirements (e.g., consequences for failure to
comply including suspension or revocation of the special wage
certificate) rests with the Department of Labor and are beyond the
scope of these final regulations.
We appreciate the question from the commenter who asked whether the
DSU is required to track an individual who is employed in a sheltered
workshop setting at subminimum wage, and who contacted the agency for
independent living services. While such is not specifically required by
statute, section 511 of the Act requires the DSU to provide certain
services and/or documentation to individuals with disabilities,
including youth with disabilities, who are seeking (for purposes of
youth with disabilities only) or maintaining subminimum wage employment
(for individuals with disabilities of any age). The Secretary has
interpreted, for purposes of final part 397, and stated throughout this
preamble, that the DSU must provide these required services or
documentation to any individual with a disability whom it knows is
seeking or maintaining employment at subminimum wage, not only
individuals who have participated in the VR program or been referred by
the CAP. As stated above, the DSU can know of these individuals in a
variety of ways, including through the programs it administers, such as
the VR program or the independent living programs. Therefore, if the
DSU knows of an individual through the independent living program and
knows that individual is seeking or maintaining subminimum wage
employment, the DSU must provide the services and documentation
required by section 511 of the Act and final part 397, including the
requirements of final Sec. 397.40.
We address the comment that we add requirements to the
comprehensive statewide assessment to include information about
individuals who are working in segregated and subminimum wage jobs for
employers using section 14(c) certificates in the Analysis of Comments
and Changes section for 34 CFR part 361, under the discussion of 34 CFR
361.29, earlier in this preamble.
It is anticipated that joint guidance from the Departments of
Education and Labor is forthcoming and will address, among other
aspects of WIOA, the limitations on use of subminimum wage if the
required services and documentation have not been provided. In the
meantime, the expectation is that, at every opportunity, DSUs will
identify individuals with disabilities seeking employment or who are
currently employed at a subminimum wage.
Changes: We revised final Sec. 397.40(a)(2) to include ``self-
referral'' and added a paragraph in final Sec. 397.40(c)(3)(ii) to
clarify when an individual with a disability becomes ``known'' to the
DSU.
Financial Interest
Comments: With regard to self-advocacy, self-determination, and
peer mentoring training opportunities, several commenters requested
clarification related to ``financial interest'' and what entities may
not provide these services. One commenter proposed language that
specifically includes the entity that employs the individual at
subminimum wages among those entities deemed to have a financial
interest for the purpose of this section. Some commenters asked that we
clarify that an entity providing subminimum wage employment to an
individual may not provide self-advocacy, self-determination, and peer
mentoring training opportunities to the individual.
A few commenters recommended that the Department further clarify
that an entity that holds a section 14(c) certificate, but does not
have a financial interest in the outcome of the individual, may provide
the services required under section 511(c)(1). Some of those commenters
expressed concern that an overly restrictive interpretation would have
a detrimental impact on rural areas with few providers.
Several commenters regarded section 14(c) certificate holders as
clearly having a ``financial interest'' and therefore, should be
precluded from providing services required under this section. Although
these entities may not have an immediate financial interest in the
employment outcome of the individual, some commenters viewed them as
having a definite interest in encouraging the individual to apply for
vocational rehabilitation services in anticipation of being selected at
a later time to provide employment or supported employment services.
Several commenters suggested that if the DSU contracts with public
and private service providers to provide the services required for
individuals who are currently in subminimum wage employment, rather
than provide the services directly, language be added to proposed Sec.
397.40 in the final regulations that explicitly and specifically
prohibits section 14(c) certificate holders from providing these
[[Page 55726]]
services, to avoid what the commenters perceived as a clear conflict of
interest for these entities. In this scenario, commenters emphasized
that employers would have a financial interest in the outcome of these
services and would not be positioned to provide adequate or objective
career counseling.
Discussion: With regard to self-advocacy, self-determination, and
peer mentoring training opportunities, several commenters requested
clarification of ``financial interest'' and what entities may not
provide these services. Based upon the comments and our assessment, we
have determined that all entities holding special wage certificates
under section 14(c), irrespective of whether any employ the individual
receiving the services, have a financial interest or a potential future
financial interest in providing these services. Therefore, these
entities may not be used to provide these services. The Secretary
believes that many organizations and providers are available and are
already providing self-advocacy, self-determination, and peer mentoring
training services, such as the centers for independent living (CILs) in
each State. Although some commenters have expressed concern about the
potentially detrimental impact on rural areas with few providers, the
Secretary believes that virtual and electronic technology allows access
to these services even if the provider is not physically located in a
particular rural area.
We agree with the several commenters who suggested that if the DSU
contracts with public and private service providers to provide the
services required for individuals who are currently in subminimum wage
employment, rather than provide the services directly itself, then the
services may be provided, so long as the service providers are not
section 14(c) certificate holders. We have added language in final
Sec. 397.40, therefore, that prohibits section 14(c) certificate
holders from providing these services.
Changes: We inserted language in final Sec. 397.40(e) stating that
a contractor providing the services on behalf of the DSU may not be an
entity holding a special wage certificate under section 14(c) of the
FLSA as defined in final Sec. 397.5(d).
Time Frames and Documentation Requirements
Comments: One commenter recommended that the Department set a time
frame for providing documentation of the completion of activities under
proposed Sec. 397.40 to individuals with disabilities in subminimum
wage employment, suggesting that this would circumvent resource-
intensive disputes and inconsistencies in the interpretation of
timeliness.
Discussion: Upon the suggestion of commenters, we include a
specific time period for providing documentation of the completion of
activities under final Sec. 397.40 to individuals with disabilities in
subminimum wage employment. This time frame is consistent with that in
Sec. 397.10 for the provision of documentation to youth with
disabilities, thereby ensuring consistency between all provisions in
final part 397 related to documentation. Similarly, the Secretary has
revised final Sec. 397.40 to set minimal content requirements for the
documentation that must be provided to the individual demonstrating
completion of the career counseling and information and referral
services. Again, this new regulatory text is consistent with that
contained in final Sec. 397.10 and Sec. 397.30.
Changes: We have included a time frame in final Sec. 397.40(d) of
no later than 45 calendar days after completion of the required
activities or services for the DSU to provide documentation of
activities in this section to individuals with disabilities; however,
where extenuating circumstances exist, the DSU can have up to 90
calendar days after completion of the required activities or services.
We also added final Sec. 397.40(d)(1)(ii) to provide a time frame of
10 calendar days for DSUs to provide this documentation to an
individual who has refused to participate in a required activity. We
also added final Sec. 397.40(d)(2) and (3) to specify minimum content
requirements for the documentation DSUs must provide to individuals,
including individuals who refuse to participate in a required activity.
We added final Sec. 397.40(d)(4) requiring DSUs to retain a copy of
all documentation required by part 397, in a manner consistent with 2
CFR 200.333.
Clarifications
Comments: One commenter asked for an explanation as to why the DSU
is only required to provide individuals in subminimum wage employment
with self-advocacy, self-determination, and peer mentoring training
opportunities, all of which are fundamental to achieving independence
and self-sufficiency, if the employer holding a section 14(c)
certificate has fifteen or fewer employees.
Clarification was sought by a few commenters regarding how proposed
part 397 would impact clients of the DSU who are being paid subminimum
wages in a community rehabilitation program as part of their training
under an individualized plan for employment. Additionally, a commenter
asked if the DSU may contract with businesses to perform a service in a
workshop, for a limited time, as part of the individual's
individualized plan for employment.
Discussion: The requirement that the DSU must provide individuals
in subminimum wage employment with self-advocacy, self-determination,
and peer mentoring training opportunities only when the employer
holding a section 14(c) certificate has fifteen or fewer employees is
consistent with the requirement of section 511(c)(3) of the Act.
Employers holding a section 14(c) certificate that have more than
fifteen employees are responsible for ensuring that individuals in
subminimum wage employment are provided self-advocacy, self-
determination, and peer mentoring training opportunities in accordance
with section 511(c)(1)(B) of the Act. This provision removes the burden
that would otherwise be experienced by small businesses as a result of
these requirements by having the DSU provide the services instead.
The Secretary does not believe that final part 397 would impact
clients of the DSU who receive a training stipend that is below minimum
wage for work performed in a community rehabilitation program as part
of their training under an individualized plan for employment. That
being said, we encourage that all training and assessment take place in
an integrated setting to the maximum extent possible to reinforce the
expectation under the Act that all individuals with disabilities, given
the proper training and supports, can achieve competitive integrated
employment. However, neither section 511 of the Act nor final part 397
prohibits a DSU from entering into a contract with a business in which
clients in training receive a training stipend that is below minimum
wage. Unlike the prohibition against these contracts for State and
local educational agencies, such a prohibition for DSUs would go beyond
the scope of section 511 of the Act and these final regulations. We
wish to emphasize, however, that section 511(b)(2) of the Act and final
Sec. 397.31 address contracting prohibitions for State and local
educational agencies entering into contracts with entities holding
section 14(c) certificates for the purpose of operating a program for
youth in which work is compensated at a subminimum wage. In this case,
work associated with a work experience, work adjustment training and
extended employment, or other activities for which work is
[[Page 55727]]
compensated must be at or above the minimum wage.
Changes: None.
Review of Documentation (Sec. 397.50)
Comments: One commenter on proposed Sec. 397.50 recommended that
we clarify the review process and the necessary documentation required.
Most commenters responding to proposed Sec. 397.50 regarding the
role of the DSU in the review of individual documentation maintained by
entities, as defined in proposed Sec. 397.5(d) under this part, stated
that the proposed regulation did not include sufficient language to
provide for any enforcement mechanism, should the DSU discover that
documentation does not exist or is not sufficient. Some commenters
asked that an enforcement mechanism be included, reflecting, at a
minimum, the requirement that the DSU report documentation deficiencies
to the Department of Labor for action, or to the CAP. Some commenters
suggested that, although the proposed regulation establishes a much
needed opportunity to review individual documentation, it does not
indicate what actions, including authorized corrective actions or
revocation of section 14(c) certificates, may be taken if deficiencies
are identified by the DSU or its contractor.
Several commenters recommended that we remove the proposed language
that allows a contractor working for the DSU to conduct documentation
reviews of section 14(c) certificate holders, viewing this as
conflicting with section 511. They suggested that if the final
regulations continue to allow contractors to conduct documentation
reviews, that additional language be added that specifies parameters
for such contractors, including a prohibition of the use of
organizations that are section 14(c) certificate holders to conduct
such reviews.
Several commenters requested that specified timelines for the
review of documentation be added to enhance enforcement, and that
language be added to specify that the CAP and protection and advocacy
system have jurisdiction in reviewing compliance with Section 511
requirements.
A few commenters requested that we clarify whether the review of
documentation by the DSU is a requirement, and if so, noted that the
DSUs do not have the resources or expertise to conduct such reviews,
suggesting that the reviews are best conducted by the agency
responsible for the administration of the special wage certificate.
Another commenter shared concerns about the record-keeping
responsibilities and the supporting documentation for monitoring
purposes. Other commenters had questions and concerns pertaining to
whether the DSU can make a blanket documentation of an entity, or if
requests to review documentation must be made on an individual basis.
Commenters recommended that the final regulations task the Department
of Labor with the responsibility for documentation reviews based upon
its experience with reviewing and monitoring entities for compliance
with section 14(c) of the FLSA.
Discussion: We appreciate the comments regarding the need to review
documentation of individuals who are employed at subminimum wage,
consistent with the requirements in section 511. The commenters raise
many important issues that necessitate clarification. As we discussed
in an earlier section of the preamble for final part 397, neither
section 511(e)(2)(B) of the Act nor final Sec. 397.50 requires either
the DSU or the Department of Labor to review documentation maintained
by entities holding special wage certificates. Rather, both section
511(e)(2)(B) of the Act and final Sec. 397.50 subject those entities
to a review of documentation should the DSU or the Department of Labor
conduct such reviews. We appreciate the concerns expressed by
commenters about the strategies, responsibilities, resources, and
expertise required to conduct documentation reviews. However, there is
no statutory basis to task the Department of Labor, Wage and Hour
Division, with this exclusive responsibility even though it has more
experience in conducting reviews of entities involving documentation of
compliance with section 14(c) under the FLSA. As noted previously,
section 511(e)(2)(B) of the Act and final Sec. Sec. 397.50 specify
that both the DSU and the Department of Labor have authority to conduct
these reviews. Therefore, to task only the Department of Labor with
this responsibility in these final regulations would be inconsistent
with the statute. While we understand the concerns about lack of
resources, we disagree that the DSUs do not have sufficient expertise
to conduct the reviews. In fact, much of the documentation to be
reviewed would be that generated by the DSU itself and, therefore,
would be familiar to the DSU. Moreover, we do not believe it is
necessary to revise final Sec. 397.50 to identify the documentation to
be reviewed during a review under this section because the
documentation that must be reviewed is set out in these regulations in
final Sec. Sec. 397.10, 397.20, 397.30, and 397.40. Given the intent
of section 511 to limit the use of subminimum wage, the Secretary
believes that DSUs, in conjunction with the Department of Labor may
have an impact on the degree to which youth and other individuals with
disabilities seek or maintain employment at subminimum wage through the
documentation review process and the requirements set out elsewhere in
this section.
Because there is no requirement that these reviews be done, neither
the statute nor these final regulations establish a time frame for the
reviews. Section 511(e)(B) of the Act provides that the reviews are to
be done ``at such a time'' as may be necessary to fulfill the intent of
section 511. Therefore, the timing of any such reviews must be
determined by the DSU or the Department of Labor as either deems
necessary.
We disagree with commenters that the DSU should report violations
discovered during a review of documentation to the CAP. As previously
discussed, the applicability of final part 397 to CAPs and protection
and advocacy systems must be consistent with their responsibilities
under their respective authorizing statutes and regulations. Monitoring
and oversight activities are beyond the scope of the CAP's authority
under section 112 of the Act. Therefore, we do not believe it is
appropriate to include any specific language regarding their authority
or jurisdiction in these final regulations.
We also appreciate the many comments and suggested regulatory
language submitted by a variety of commenters related to the DSU's role
in the review of documentation. We agree that enforcement measures and
consequences for non-compliance are important; however, section 511 of
the Act does not include specific enforcement authority for DSUs and to
include such measures in the final regulations would be inconsistent
with the Act. Enforcement of section 14(c) of the Fair Labor Standards
Act rests with the Department of Labor, Wage and Hour Division.
Additionally, consequences for non-compliance with the requirements for
documentation prior to hiring youth with disabilities or continuing to
employ individuals with disabilities of any age and the retention of
documentation records by entities under section 511 also rests with the
Department of Labor, Wage and Hour Division. Although section 511 does
not require DSUs to report documentation
[[Page 55728]]
deficiencies to the Department of Labor, Wage and Hour Division for
action, the Secretary agrees with commenters that such reporting would
be consistent with the purpose of final part 397.
Similarly, if a parent or an individual with a disability brings an
instance of non-compliance with the documentation or other requirements
of section 511 to the attention of the DSU, we would encourage the DSU
to report this to the Department of Labor, Wage and Hour Division as
well. Therefore, the Secretary has revised final Sec. 397.50 by adding
a new paragraph (b) to specify that DSUs should report deficiencies to
the Department of Labor's Wage and Hour Division. The Secretary has
intentionally used ``should'' rather than ``must'' because there is no
requirement that the DSUs conduct reviews and, there is no mechanism
for enforcement for failing to report deficiencies. We also want to
emphasize that the Secretary purposely used ``should'' rather than
``may'' to signal that the Department strongly encourages DSUs to
report such deficiencies whenever they are found.
We disagree with commenters that the use of a contractor working
for the DSU to conduct documentation reviews of section 14(c)
certificate holders is inconsistent with section 511. In fact, section
511(e)(2)(B) refers to ``representatives working directly for'' the DSU
or Department of Labor. If the authority to conduct reviews were
limited to DSU or Department of labor personnel, the statute would have
used such wording. Use of the words ``representative working directly
for'' the DSU or Department of labor implies that it could be agency
staff or contractors for those agencies. We agree, however, that if a
contractor is working on behalf of the DSU to review documentation, the
contractor may not be an entity holding a special wage certificate
under section 14(c) of the FLSA. We believe that this is consistent
with the intent of section 511 of the Act and, therefore, we include
this language in final Sec. 397.50(a).
Changes: We have revised final Sec. 397.50 by adding a new
paragraph (b) and redesignating the proposed language as paragraph (a).
We have inserted additional language in final Sec. 397.50(a) stating
that the contractor may not be an entity holding a special wage
certificate under section 14(c) of the FLSA. Final Sec. 397.50(b)
states that DSUs should report deficiencies noted during documentation
reviews to the Department of Labor's Wage and Hour Division.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This regulatory action is a significant regulatory action subject
to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We also have determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
We have assessed the potential costs and benefits of this
regulatory action. The potential costs associated with the regulations
are those resulting from statutory requirements and those we have
determined as necessary for administering these programs effectively
and efficiently. Elsewhere in this section under the Paperwork
Reduction Act of 1995, we identify and explain burdens specifically
associated with information collection requirements.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, we have determined that
the benefits would justify the costs.
Need for Regulatory Action
Executive Order 12866 emphasizes that ``Federal agencies should
promulgate only such regulations as are required by law, are necessary
to interpret the law, or are made necessary by compelling public need,
such as material failures of private markets to protect or improve the
health and safety of the public, the environment, or the well-being of
the American people.'' The Department's goal in regulating is to
incorporate the provisions of the Act, as amended by WIOA, into the
Department's regulations governing the VR program and Supported
Employment program in parts 361 and 363, respectively, as well as to
clarify, update, and improve these final regulations. This final
regulatory action is also necessary to establish a new part 397 to
implement specific provisions of section 511 of the Act, as added by
WIOA, which fall under the purview of the Secretary. Section 511 of the
Act, in general, places limitations on the use of
[[Page 55729]]
subminimum wages for individuals with disabilities.
Response to Comments on Reporting Burden Estimates VR Services Portion
of the Unified or Combined State Plan Time Estimated for Submission
Comments: One commenter stated that the time estimated for
compiling the VR services portion of the Unified or Combined State plan
is not accurate, given all the new requirements under the Act, as
amended by WIOA, for collaboration with other entities, providing
training and technical assistance to employers, providing pre-
employment transition services to students with disabilities, changes
to CSPD requirements, and the new requirements in section 511 of the
Act.
Discussion: We appreciate the concerns expressed by the commenter
regarding the estimated burden associated with developing and
submitting the VR services portion of the Unified or Combined State
plan. The estimated additional burden represents the hours needed by a
DSU to compile and submit information as part of the VR services
portion of the Unified or Combined State plan describing how the DSU is
implementing new VR program requirements under WIOA, not the time the
DSU engages in the actual implementation of the various activities
described in the plan. Consequently, we believe the estimated burden is
accurate.
Changes: None.
Reports; Standards and Indicators
The Department received numerous comments on the burden associated
with new data collection and reporting requirements under this rule and
the joint rule implementing the performance accountability system for
the core programs under section 116 of WIOA. Most of these commenters
stated that we underestimated the costs of new data collection and
reporting requirements in the Summary of Potential Costs and Benefits
section of the Regulatory Impact Analysis for these rules. In
particular, commenters raised concerns about estimates of the amount of
time needed for the collection of new data and the quarterly reporting
of individual data on open and closed service records, as well as the
cost of changes to State management information systems.
Data Collection
Comments: In the NPRM, the Department estimated that it would take
15 minutes per vocational rehabilitation counselor to collect the new
data required under WIOA. Several commenters stated that we
underestimated the burden for collecting new data. One commenter
asserted that this estimate did not allow adequate time for counselors
to collect the new data. Another commenter suggested that a more
accurate estimate of the time required is 15 minutes per open service
record and not per counselor. Several commenters indicated the burden
for data collection should be based upon varying estimates for the
total amount of minutes to collect this data, based on an individual
service record basis, including 15, 30, 60, and 120 minutes per service
record.
Discussion: Upon further review, we have determined that time per
data element provides a better estimate of the additional burden
associated with the collection of new data required under WIOA,
including the requirements in Sec. 361.40 of these final regulations.
As a result of this change in methodology the estimated annual burden
for the collection of new data elements has increased significantly
from the estimate in the NPRM. Specifically, we now estimate the burden
for the collection of new data elements to be reported in the
Individual Service Report (RSA-911) at one minute per data element.
Additional information on the calculation of this burden estimate is
provided in the Summary of Potential Costs and Benefits section of this
Regulatory Impact Analysis under the subheading Reports; Standards and
Indicators.
Changes: The estimated burden associated with the collection of new
data in the RSA-911 Service Report discussed under the Summary of
Potential Costs and Benefits of this final regulation (see Reports;
Standards and Indicators) is calculated based on an average of one
minute per data element.
Data Reporting
Comments: In the NPRM, the Department estimated that it would take
an additional 50 hours per year per DSU to submit the RSA-911 data file
due to the need to report all open service record data quarterly rather
than closed service records annually. Several commenters stated that we
underestimated the burden related to the change in reporting for the
RSA-911, including our estimate of the number of hours it currently
takes to prepare the current annual submission of the RSA-911 report.
One commenter suggested that if it currently takes an average of 50
hours to submit the RSA-911 data file annually, it should take 200
hours to produce the four required quarterly reports because the staff
time required to generate and verify the data is the same as it is for
an annual report. However, another commenter stated that it will take
150 hours per quarter for an annual total of 600 hours to report RSA-
911 data. Still another commenter said that due to the increase in
complexity of the RSA-911 reporting, it would be appropriate to
recalculate the quarterly burden for submitting the RSA-911 report as
400 hours, instead of 50 hours. One commenter claimed that its staff
spent approximately 1,000 staff hours preparing the current annual RSA-
911 report.
Discussion: We disagree that the hours needed to submit the RSA-911
file of data open records on a quarterly basis will require at least
four times as many hours as the previous annual submission of data on
closed records. DSUs spend an extensive amount of time each year
analyzing and revising their closed record data prior to reporting.
However, under these regulations, DSUs are expected to report a
quarterly ``snapshot'' of their open case data, a process that will be
much less labor intensive for each submission. States are expected to
maintain accurate and timely data in their case management systems.
These data should be quickly and efficiently exported via reporting
software to generate the RSA-911 report each quarter. However, we
recognize that States may incur some additional burden in ensuring the
quality of the new data to be reported and thus have increased the
estimated quarterly RSA-911 data submission burden.
Changes: The estimated annual burden for the submission of the RSA-
911 data file on a quarterly basis has been increased from an average
of 100 hours (25 hours per quarter), as estimated in the NPRM, to 120
hours (30 hours per quarter) per DSU.
Changes to State DSU Information Systems
Comments: Several commenters stated that the Department
underestimated the burden associated with updating and modifying agency
case management systems. One commenter stated that its cost estimate
for making the required changes to the agency's case management system
to collect new data and report open service record data on a quarterly
basis vastly exceeds the Department's estimate of $31,000. Another
commenter noted that the burden estimates omit any mention of the costs
to train staff and monitor data quality during implementation, and to
build or change data collection instruments and processes that may be
needed to collect information directly from participants post-exit.
Three
[[Page 55730]]
commenters specifically provided cost estimates for modifying their
information systems to collect and report the additional data required
by WIOA of $200,000 to $500,000, $1,000,000 to $2,000,000, and
$6,311,040. One commenter indicated there will be additional costs to
update the agency's data collection software, which includes
interfacing with a centralized data collection database at the State
level, as well as several State and Federal databases. Three commenters
indicated that DSUs will incur additional costs to modify, develop and
maintain information technology systems to capture the required data.
Another commenter cited costs for modifying systems to capture new or
modified data elements and building automation to link vocational
rehabilitation service records to Unemployment Insurance wage data for
the reporting of employment or earnings.
Discussion: In response to the comments regarding the burden
associated with the reporting of data in accordance with final Sec.
361.40 and as a result of further Departmental review, we have
increased the burden estimate for modifying and maintaining agency
information systems to collect and report the required new data. We
recognize that modifications to agency case management systems
necessitated by the redesigned RSA-911 will vary widely because
agencies themselves range in size, the sophistication of their
information technology systems, and how the system is supported. We are
also aware that in addition to modifying their systems, agencies will
incur increased labor and contractual costs to maintain their systems.
The Department has taken these factors into consideration in
calculating burden estimates for this final regulation and the joint
final regulations. Additional information on the calculation of these
burden estimates is provided in the Summary of Potential Costs and
Benefits section of this Regulatory Impact Analysis under the
subheading Reports; Standards and Indicators.
Changes: The Department has expanded its analysis and revised its
burden estimates associated with modifying and maintaining agency
information systems under the Summary of Potential Costs and Benefits
of these final regulations (see subheading Reports; Standards and
Indicators) to reflect State variation.
Proration of Burden
Comments: None.
Discussion: DSUs will report data required by section 101(a)(10)(C)
of the Act, as amended by WIOA, under these final regulations and by
section 116 of WIOA under the joint final regulations through the RSA-
911. To more appropriately reflect the costs attributable to these two
rules, we have prorated the burden based on an analysis of all new WIOA
data elements to be reported through the RSA-911. Using this
methodology, the Department estimates that approximately 64 percent of
the increase in burden is related to these final regulations, while 36
percent is related to the joint final regulations.
Changes: Estimates of the total increase in burden for the
collection and reporting of new data are prorated to reflect the 64
percent of burden attributed to requirements under these final
regulations.
Summary of Potential Costs and Benefits
The Secretary believes the changes made by WIOA implemented through
these final regulations will improve the programs covered in this final
regulatory action and will yield substantial benefits in terms of
program management, efficiency, and effectiveness. The Secretary
believes that the final regulations represent the least burdensome way
to implement the amendments to the Act made by WIOA. Due to the number
of regulatory changes, our analysis focuses solely on new requirements
imposed by WIOA, organized in the following manner. First, we discuss
the potential costs and benefits related to implementing changes to the
VR program under section A that specifically relate to: competitive
integrated employment and employment outcomes, pre-employment
transition services and transition services, and additional VR program
provisions. Second, we discuss the potential costs and benefits related
to implementing changes to the Supported Employment program under
section B. Finally, we discuss the costs and benefits pertaining to
implementing requirements of section 511 of the Act that fall under the
purview of the Department under section C.
Where possible, the Department derived estimates by comparing the
costs and benefits incurred under existing program regulations against
the benefits and costs associated with implementing requirements
contained in these final regulations. The Department also made an
effort, when feasible, to quantify and monetize the benefits and costs
of the final regulations. When unable to quantify benefits and costs--
for example, due to data limitations--we describe them qualitatively.
In accordance with the regulatory analysis guidance contained in OMB
Circular A-4 and consistent with the Department's practices in previous
rulemakings, this regulatory analysis focuses on the likely
consequences (benefits and costs that accrue to individuals with
disabilities) of these final regulations. In this analysis, the
Department also considers the transfer of benefits from one group to
another that do not affect total resources available to the VR program
and Supported Employment program. However, in a number of instances,
the Department is unable to quantify these transfers due to limitations
of the data it currently collects.
This Regulatory Impact Analysis presents the Department's estimate
of the additional labor and other costs and benefits associated with
the implementation of the provisions in these final regulations. In
estimating DSU labor costs for this analysis, we use Bureau of Labor
Statistics (BLS) data on mean hourly wage rate for State employees, as
well as data on employer compensation costs to calculate loaded wage
factors.1 2 Loaded wage factors account for non-wage factors
such as health and retirement benefits. We then multiplied the loaded
wage factor by each occupational category's wage rate to calculate an
hourly compensation rate used throughout this analysis to estimate the
labor costs for each provision. For DSU personnel, we used a loaded
wage factor of 1.57, which represents the ratio of average total
compensation to average wages.\3\
---------------------------------------------------------------------------
\1\ Bureau of Labor Statistics. (2014-2015). May 2014-2015
national industry-specific occupational employment and wage
estimates: NAICS 999200--State government, excluding schools and
hospitals (OES designation). Retrieved from: http://www.bls.gov/oes/current/naics4_999200.htm.
\2\ Bureau of Labor Statistics. (2016). 2015). 2014 Employer
Costs for Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm.
The Department calculated this value using data from Table 3.
``Employer Costs per Hour Worked for Employee Compensation and Costs
as a Percent of Total Compensation: State and Local Government
Workers, by Major Occupational and Industry Group.'' Wages and
salaries for all workers. Average Series ID CMU3020000000000D,
CMU3020000000000P. To calculate the average wage and salary in 2014-
2015 of $21,2228.41, we averaged the wage and salaries for all
workers provided in March, June, September, and December releases.
\3\ The State and local loaded wage factor was applied to all
non-Federal employees. Discerning the number of State and local-
sector employees and private-sector employees at the local level is
difficult; therefore, the Departments used the State and local-
sector loaded wage factor (1.5657) instead of the private-sector
wage factor (1.43) for all non-Federal employees to avoid
underestimating the costs.
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For Federal employees we use wage rates from the Office of
Personnel
[[Page 55731]]
Management's (OPM) Salary Table for the 2015 General Schedule for
Federal employees.\4\ For Federal employees, we used a loaded wage
factor of 1.63 based on internal data from DOL.
---------------------------------------------------------------------------
\4\ The wage rate for Federal employees is based on Step 5 of
the General Schedule (Source: OPM, 2014-2015, ``Salary Table for the
2014-2015 General Schedule''). Retrieved from: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2014/GS_h.pdf.
---------------------------------------------------------------------------
A. Vocational Rehabilitation Program
Competitive Integrated Employment and Employment Outcomes
The Act, as amended by WIOA, emphasizes the achievement of
competitive integrated employment by individuals with disabilities,
including those with the most significant disabilities. Congress added
a new term and accompanying definition to the Act--``competitive
integrated employment,'' which represents, in general, a consolidation
of two existing regulatory terms and their definitions--``competitive
employment'' and ``integrated setting.'' In implementing the new term
and its definition in these final regulations, we replaced the existing
regulatory term and definition of ``competitive employment'' with the
new term ``competitive integrated employment,'' by mirroring the
statute and incorporating relevant critical criteria from the existing
regulatory definition of ``integrated setting.'' Because this change is
more technical than substantive, and given that the substance of the
definition already existed in two separate definitions, we believe this
particular change will have no significant impact on the VR program,
thereby resulting in no added cost burden to DSUs.
In addition to implementing the new term and definition of
``competitive integrated employment'' in these final regulations, we
also have revised the regulatory definition of ``employment outcome.''
While the Act, as amended by WIOA, made only technical changes to the
statutory definition of ``employment outcome,'' the Secretary believes
a regulatory change is necessary in light of other amendments made by
WIOA throughout the Act that emphasize the achievement of competitive
integrated employment under the VR program and Supported Employment
program. Consequently, the Secretary defines ``employment outcome'' in
these final regulations as an outcome in competitive integrated
employment or supported employment, thereby eliminating uncompensated
employment (e.g., homemakers and unpaid family workers), which had been
permitted to date as a matter of the Secretary's discretion, from the
scope of employment outcomes for purposes of the VR program. The
Secretary believes the regulatory definition of ``employment outcome''
in final Sec. 361.5(c)(15) is consistent with all amendments to the
Act made by WIOA, from the purpose of the Act to the addition of
section 511. With the change to the definition of ``employment
outcome,'' individuals with disabilities requiring homemaker or other
unpaid family worker services will need to obtain those services, more
appropriately, from independent living and other programs serving
individuals with disabilities, not the VR program.
It is difficult to quantify the extent to which the change to the
definition of ``employment outcome'' in these final regulations, which
has the effect of eliminating homemakers and unpaid family workers from
its scope, will affect VR program costs nationally due to a number of
highly variable factors. For example, it is not known whether
individuals who previously had achieved homemaker outcomes or would
seek such outcomes will choose to pursue competitive integrated
employment through the VR program in the future, or seek services from
other resources, such as those available from independent living,
aging, or other programs serving individuals with disabilities. Based
on data reported by DSUs through the RSA-911 for the period beginning
in fiscal year (FY) 1980 and ending in FY 2015, the percentage of
individuals exiting the VR program as homemakers nationally declined
significantly from 15 percent of all individuals achieving an
employment outcome in FY 1980 to 1.7 percent in FY 2015 (representing
3,257 of the 186,209 total employment outcomes that year). While the
national percentage of homemaker outcomes compared to all employment
outcomes is small, some DSUs have a greater percentage of homemaker
outcomes than others, particularly those serving only individuals who
are blind and visually impaired. In FY 2015, the 24 DSUs that only
provided services to individuals who are blind and visually impaired
reported that 885 of the 6,442 employment outcomes in that year, or
about 13.7 percent, were homemaker outcomes. DSUs that serve
individuals with disabilities other than those with blindness and
visual impairments reported 480 homemaker outcomes in that year, or 0.5
percent of the 96,404 employment outcomes. In addition, the 32 DSUs
that serve individuals with all disabilities reported 1,892 homemaker
outcomes in FY 2015, representing 2.3 percent of their total 83,362
employment outcomes.
The average cost per employment outcome, including the average cost
per homemaker outcome, can be calculated based on data reported by DSUs
in the RSA-911 on the cost of purchased services for individuals
exiting the VR program with an employment outcome. In FY 2015, the
average cost per homemaker outcome for the VR program was $6,574, while
the comparable average cost per employment outcome for all individuals
exiting the VR program with an employment outcome that year was $5,627.
It is possible that this higher average cost is because individuals
obtaining a homemaker outcome generally require more intensive services
or costly equipment because the nature or severity of their
disabilities have prevented them from pursuing competitive integrated
employment. However, there may be other factors that increase the
average cost of these outcomes. For example, it may be that some of
these individuals originally had a goal of competitive employment, but
after receiving services for an intensive or long period of time
without obtaining such an outcome, they may have chosen to change their
goal. Further analysis is needed to identify the factors that
contribute to the average higher cost of homemaker closures.
Given current information reported to the Department by DSUs, we
are not able to predict how many individuals who would have possibly
had a homemaker outcome might now choose to seek competitive integrated
employment. However, for the purpose of providing a gross estimate of
these costs, we assume that approximately one-fourth (814) of the
number of individuals who exited the VR program with a homemaker
outcome will choose a goal of competitive integrated employment and
continue to seek services through the VR program. We also assume that
obtaining competitive integrated employment for these individuals may
be more expensive than the current cost for obtaining a homemaker
outcome, but also assume it is unlikely that the average costs for
providing services to these individuals would exceed more than 150
percent of their current costs (or approximately 175 percent of the
average cost per employment outcome for all agencies in FY 2015). As
such, we estimate that the additional cost to DSUs to provide VR
services to those individuals who previously would have exited the
program with homemaker outcomes will not exceed $3,287 per outcome, or
about
[[Page 55732]]
$2,675,618 per year for all DSUs. Alternatively, assuming that about 75
percent of the number of individuals who would have otherwise attained
a homemaker outcome will no longer seek services from DSUs (2,443), at
an average cost of $6,574, there will be a savings of $16,060,282 to
the VR program. Based on these assumptions, we estimate an overall net
savings to the VR program of approximately $13,384,664.
We recognize that the change in the definition of ``employment
outcome'' could potentially increase the demand for services from
independent living and other programs, such as the Independent Living
Services for Older Individuals Who Are Blind (OIB) program and other
programs for aging individuals or persons with disabilities, that can
provide services similar to those that such individuals would have
previously sought from the VR program. We also recognize that meeting
this potential increase in demand may result in a cost transfer to
other Federal, State, and local programs. However, without additional
information, such as the likelihood of how many consumers would access
which programs, we cannot provide sound quantifiable estimates of
potential cost transfers at this time.
For illustrative purposes we provide a quantitative description of
the potential cost transfer to the OIB program resulting from the
change in the definition of ``employment outcome'' in these final
regulations. RSA-911 data show that 75.6 percent of individuals with a
homemaker outcome in FY 2015 were individuals with blindness and visual
impairments. In addition, 49 percent (1,208) of such individuals with a
homemaker outcome were age 55 or older at application. We expect many
of the individuals in the upper age range of this subgroup will be
referred to and receive services through the OIB program. However,
considering the differences in the focus of the VR and OIB programs and
that a number of individuals with homemaker outcomes may have received
employment-related services for a long period of time without obtaining
a competitive integrated employment outcome, we expect the average cost
per individual served for this population under the OIB program will be
significantly lower than the average cost under the VR program.
Assuming 75 percent of such individuals were to receive services from
the OIB program at an average annual cost of $1,500 per individual, the
annual cost transfer would be approximately $1.4 million. To assist
States in meeting the increased demand for OIB services, including
assistance in reducing the impact of the change in the definition of
``employment outcome'' in these final regulations for those States that
have typically reported higher numbers of homemaker outcomes, the
Administration's FY 2017 Budget Request includes a $2 million increase
for the OIB program.
Pre-Employment Transition Services and Transition Services
The Act, as amended by WIOA, places heightened emphasis on the
provision of pre-employment transition services and other transition
services to students and youth with disabilities, as applicable. As a
result, the Secretary makes numerous amendments in these final VR
program regulations to implement new statutory requirements. A few of
those changes are relevant to this discussion.
Final Sec. 361.65(a)(3) requires DSUs to reserve at least 15
percent of the State's VR allotment for the provision of pre-employment
transition services to students with disabilities who are eligible or
potentially eligible for vocational rehabilitation services. Based on a
total of $3.024 billion in VR grant funds awarded to States from FY
2015 appropriations, the total amount of funds required to be reserved
for pre-employment transition services is $453.6 million. Overall, this
reservation of funds will decrease the amounts available to support
other authorized activities that State agencies provide through the VR
program and result in a transfer of benefits from the VR eligible
individuals a State agency may have historically served to students
with disabilities in need of pre-employment transition services.
Additionally, under final Sec. 361.65(a)(3)(ii)(B), States may not
include administrative costs associated with the provision of pre-
employment transition services in the calculation or use of that
reserved amount. We are unable to estimate the potential increase in
DSU administrative costs that may arise from implementation of new
section 113 of the Act or the required reservation of funds at this
time. However, to implement these requirements, DSUs will need to
dedicate resources to: (1) Ensure that the 15 percent minimum is
reserved from the State's VR program allotment; (2) track the provision
of pre-employment transition services to ensure the reserved funds were
spent solely on allowable services specified in section 113 of the Act,
as added by WIOA, and its implementing regulation in final Sec.
361.48(a) and not on administrative costs; and (3) provide for
administrative costs related to pre-employment transition services with
non-reserved VR program funds.
Second, section 113 of the Act, as added by WIOA, requires DSUs to
provide pre-employment transition services to students with
disabilities who are eligible or potentially eligible for vocational
rehabilitation services. In final Sec. 361.48(a), ``potentially
eligible'' means all students with disabilities who satisfy the
definition in final Sec. 361.5(c)(51), regardless of whether they have
applied, and been determined eligible, for the VR program. The
Secretary believes this interpretation is consistent with congressional
intent and the stated desires of some DSUs and other stakeholders
expressed through comments.
Although pre-employment transition services are a new category of
services identified in the Act, many of these services historically
were provided under the broader category of transition services.
Therefore, the provision of these services is not new to DSUs. However,
until the enactment of WIOA, all such services were provided only to
those students with disabilities who had been determined eligible for
the VR program. Consequently, providing pre-employment transition
services to all students with disabilities under final Sec. 361.48(a)
will likely increase staff time and resources spent on the provision of
these services.
We are unable to provide a quantitative estimate of the impact of
this requirement on DSUs at this time because we do not currently have
data on the number of students with disabilities that will be referred
for such services or adequate data on the cost of providing pre-
employment transition services. In the future, information provided by
the State in the VR services portion of the Unified or Combined State
plan and RSA data collections, such as the revised RSA-911, should
assist the Department in assessing the impact of the pre-employment
transition service requirements.
In general, the extent of the impact of the reservation on a
particular State will likely depend on the extent to which it has been
providing transition services that are now specified under section 113
as pre-employment transition services to students with disabilities.
DSUs that have provided extensive transition services to students with
disabilities, including services that would meet the definition of pre-
employment transition services, are likely to see less transfer of
benefits among individuals served. For State agencies that have not
provided these services or have only provided these services to a small
extent, there may be more extensive transfers of
[[Page 55733]]
services and benefits of the VR program among individuals (i.e., to
students with disabilities and away from other individuals who
otherwise would have been served). We are extremely limited in our
ability to estimate the annual amount that State agencies have spent in
providing similar services to eligible individuals prior to the
implementation of section 113 of the Act that would have met the
definition of a student with a disability because we do not collect the
necessary annual data under the currently approved RSA-911 report.
Under the current RSA-911, DSUs report individual level data in the
year in which the service record is closed and the information reported
on services and service costs are cumulative over the duration of the
service record. In addition, while DSUs may directly provide many of
the pre-employment transition services with VR staff, only the cost of
services purchased by the agency on behalf of an individual are
reported under the current RSA-911. Further, the pre-employment
transition services that States are required to provide to students
with disabilities are not specifically reported in the service
categories of the currently approved RSA-911.
However, for illustrative purposes, FY 2015 data on closed service
records reported in the RSA-911 (the most recent year for which full
data are available) for youth who were between the ages of 16 and 21 at
the time of application do provide some limited insight into the amount
spent on purchased services for the service categories that DSUs would
have most likely reported the receipt of services similar to pre-
employment transition services. Although, the reservation requirement
went into effect in FY 2015, we believe that it is still an appropriate
base year since youth whose service records were closed in that year
were not likely to have been affected by the new requirement.
DSUs reported service record closures in the FY 2015 RSA-911 for
98,454 youth who were between the ages of 16 and 21 at application and
total purchase service costs of about $526.5 million (including about
$11.6 million in title VI Supported Employment funds) for such youth.
Because reporting is limited to closed cases, we are unable to
determine the amount of the purchased services actually expended in FY
2015. However, at least 85 percent of these purchases were for
categories of service that would not include pre-employment transition
services as defined in final Sec. 361.5(c)(42) (e.g., postsecondary
education, assessment, diagnosis and treatment, and on-the-job
supports). Similarly, for the subset of youth whose service records
were closed in FY 2015 that were in secondary education and had an IEP
or were receiving services under section 504 at the time of application
to the VR program (53,734 students), about 82 percent of the $245
million in reported purchased services for this group were for
categories of service that would not meet the statutory definition of
pre-employment transition services.
While it is important to note that RSA data show significant
variation in the number and amount of funds spent for this age group
among State agencies, available information indicates that many State
agencies will experience challenges in meeting the new reservation
requirement and will need to develop and implement aggressive
strategies in order to expend these funds in the initial years of
implementation.
Further, we recognize that the FY 2015 data include only those
students with disabilities who had applied and been determined eligible
for VR services and that under these final regulations DSUs will
provide pre-employment transition services to students with
disabilities who may not have applied or been determined eligible for
the VR program. These final regulations also clarify that, in addition
to secondary education, the term ``students with disabilities''
includes students in postsecondary or other recognized education
programs that meet the age and other requirements contained in final
Sec. 361.5(c)(51).
Therefore, we anticipate that many DSUs will need to serve a larger
number of students with disabilities in order to expend the reserved
funds than they had prior to the passage of WIOA, thereby increasing
the potential total value of the benefits transferred as a result of
final Sec. 361.48(a).
Fiscal reports submitted by DSUs appear to confirm the early
challenges DSUs are having in spending these funds. FY 2015 fourth
quarter Federal Financial (SF-425) reports document that in total, DSUs
expended 33.6 percent of the $453.6 million that were required to be
reserved for pre-employment transition services based on final FY 2015
State VR grant awards. Provided that States matched their Federal VR
grant funds, the remaining amount of the required reservation would
have been carried over for obligation and liquidation in FY 2016.
Despite these challenges, we are optimistic that as States
implement the strategies described in the VR services portion of their
Unified or Combined State plans to address the needs of students with
disabilities for pre-employment transition services consistent with
Sec. 361.29 (a)(4) (e.g., working with employers to provide
opportunities for work-based learning experiences (including
internships, short-term employment, apprenticeships, and fellowships),
as required under final Sec. 361.32(b), and coordinating with schools
to ensure the provision of pre-employment transition services for
students with disabilities as required under final Sec. 361.48(a)(4)),
they will adopt policies and practices that enable them to effectively
spend the funds reserved for this purpose to improve employment
outcomes for students with disabilities.
Third, section 103(b)(7) of the Act, as added by WIOA, and in its
implementing regulation in final Sec. 361.49(a)(7) permit DSUs to
provide transition services to groups of youth and students with
disabilities regardless of whether they have applied, and been
determined eligible, for the VR program. Such services to groups were
not permitted prior to the passage of WIOA. The regulation benefits
DSUs in two significant ways by: (1) Giving them the ability to serve
groups of youth and students with disabilities simultaneously, who may
need only basic generalized services (i.e., 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), thereby reducing the
amount of funds expended per individual; and (2) reducing
administrative burden on the DSUs, as well as the burden on students or
youth with disabilities and their families, by not having to engage in
processes for determining eligibility, conducting assessments, and
developing individualized plans for employment. However, we are unable
to quantify the impact of this regulatory provision due to the
variability in the number of individuals who may seek out these
services nationally, the degree to which individuals will require these
services within each State, and the services that will be provided in
each State.
Additional Vocational Rehabilitation Program Provisions VR Services
Portion of the Unified or Combined State Plan
Section 101(a)(1) of the Act, as amended by WIOA, requires the VR
State plan, which has been a stand-alone State plan, to be submitted as
a VR services portion of a Unified or Combined State plan for all six
core programs of the workforce development system, including the VR
program.
[[Page 55734]]
Requirements related to the submission of Unified or Combined State
plans take effect in July 2016. Discussion of the burden associated
with new Unified or Combined State plan requirements affecting all core
programs, including the VR program, will be addressed in the Regulatory
Impact Analysis for the joint final regulations published elsewhere in
this issue of the Federal Register. This Regulatory Impact Analysis
focuses solely on the impact of new requirements affecting the VR
services portion of the Unified or Combined State plan and not any plan
requirement that affects all core programs.
In preparing for the transition to the submission of Unified or
Combined State plans every four years, with modifications submitted
every two years of the four-year plan, the final regulations no longer
require DSUs to submit particular reports and updates annually, but,
rather, at such time and in such manner as determined by the Secretary
as required in final Sec. 361.29. This flexibility allows for VR
program-specific reporting to be done in a manner consistent with those
for the Unified or Combined State plan under section 102 or 103 of
WIOA, thus avoiding additional burden or costs to DSUs through the
submission of separate reports annually or whenever updates are made.
Section 101(a) of the Act, as amended by WIOA, requires DSUs to
include additional descriptive information in the VR services portion
of the Unified or Combined State plan. Therefore, final Sec. 361.29
requires DSUs to describe in the VR services portion of the Unified or
Combined State plan: (1) The results of the comprehensive statewide
needs assessment with respect to the needs of students and youth with
disabilities for pre-employment transition services and other
transition services, as appropriate; (2) goals and priorities to
address these needs; and (3) strategies for the achievement of these
goals. Final Sec. 361.24(c) also requires that the VR services portion
of the Unified or Combined State plan include a description of how the
DSU will work with employers to identify competitive integrated
employment and career exploration opportunities, in order to facilitate
the provision of VR services, including pre-employment transition
services and transition services for youth and students with
disabilities, as applicable. Final Sec. 361.24(g) further requires
that the VR services portion of the Unified or Combined State plan
contain a description of collaboration with the State agency
responsible for administering the State Medicaid plan under title XIX
of the Social Security Act, the State agency responsible for providing
services for individuals with developmental disabilities, and the State
agency responsible for providing mental health services, to develop
opportunities for community-based employment in integrated settings, to
the greatest extent practicable. As a result, DSUs will be required to
expend additional effort in the development of these descriptions in
the VR services portion of the Unified or Combined State plan beyond
the 25 hours previously estimated for the development and submission of
the entire stand-alone VR State plan, now the VR services portion of
the Unified or Combined State plan. We estimate that DSUs will require
an additional five hours for the development of these descriptions, for
a total of 30 hours (25 hours previous burden plus 5 hours new
additional burden) per DSU, or 2,400 hours for all 80 DSUs. The average
hourly compensation rate of $54.21--based on data obtained from the
Bureau of Labor Statistics for State social and community service
managers (e.g., field services manager or other program manager
responsible for development of the VR services portion of the Unified
or Combined State plan) and the loaded wage factor--is more consistent
with State rates of pay than the $22.00 per hour wage rate used to
calculate costs from the most recent State plan information collection
extension. At an hourly compensation rate of $54.21, each DSU would
expend $271 in additional costs for the five hours needed to develop
the new descriptions required for the VR services portion of the
Unified or Combined State plan, resulting in a total of $21,684 and 400
additional hours for all 80 DSUs. Despite the additional costs incurred
by all 80 DSUs in the development and submission of the State plan, we
believe that the additional burden is more accurate and outweighed by
the benefit to the public through a more comprehensive understanding of
the activities DSUs engage in to assist individuals with disabilities
to obtain the skills necessary to achieve competitive integrated
employment in job-driven careers.
Order of Selection
Final Sec. 361.36(a)(3)(v) implements section 101(a)(5) of the
Act, as amended by WIOA, by permitting DSUs, at their discretion, to
serve eligible individuals who require specific services or equipment
to maintain employment, regardless of whether they are receiving VR
services under an order of selection. DSUs implementing an order of
selection are not required to use this authority; rather, they may
choose to do so based on agency policy, or the availability of
financial and staff resources. Under final Sec. 361.36(a)(3)(v), DSUs
implementing an order of selection must state in the VR services
portion of the Unified or Combined State plan that they have elected to
exercise this discretion, thereby signaling a decision to serve
eligible individuals who otherwise might have been placed on a waiting
list under the State's order of selection, and who are at risk of
losing their employment. This change will increase flexibility for a
State managing its resources. While a State that elects to implement
this authority could prevent an individual from losing employment by
avoiding a delay in services, DSUs doing so would potentially need to
reallocate resources to cover expenditures for services or equipment
for individuals who meet the qualifications of this provision and fall
outside an open priority category of the DSU's order of selection.
For FY 2015, the VR State plans of 35 of the 80 DSUs (44 percent)
documented that the agency had established an order of selection, one
agency more than in FY 2014. This total includes two of the 24 DSUs
serving only individuals who are blind and visually impaired and 33 of
the 56 other DSUs. Based on data reported through the RSA-911 in FY
2015, nationwide, 20.4 percent of the individuals whose service records
were closed and who received services were employed at application,
with an average cost of purchased services of $4,617. In addition,
according to data reported through the VR program Cumulative Caseload
(RSA-113) report, 30,311 individuals nationwide were on a waiting list
for VR services at the beginning of FY 2015 due to the implementation
of an order of selection. Assuming that 20.4 percent of the 30,311
individuals on the waiting list could potentially benefit from the
provision of services and equipment to maintain employment (which
assumes individuals on a waiting list are just as likely to be employed
at the time of application as individuals whose records were closed and
received services), a possible 6,183 individuals could benefit from
this regulatory change, for a total cost of $28,546,911 across all 80
DSUs. This figure represents the potential reallocation of resources to
cover the cost of services for individuals who, prior to enactment of
WIOA, may not have received them, and away from eligible individuals
who would have received services based on a DSU's order of selection
policy.
[[Page 55735]]
However, the implementation of an order of selection by a DSU may
differ from year to year, as well as within a given fiscal year. In
fact, not all DSUs that indicate they have established order of
selections as part of their State plans actually implement those orders
or report that they had individuals on waiting lists during the year.
For example, 63 percent of such agencies (22 of 35) reported that they
had individuals on a waiting list in FY 2015. In addition, we are
unable to predict which DSUs that have implemented an order of
selection will choose this option. The degree to which individuals will
be referred for this service could vary widely among DSUs, as could the
level of services or equipment that an individual may need to maintain
employment.
Reports; Standards and Indicators
Final Sec. 361.40 implements changes to reporting requirements in
section 116(b) in title I of WIOA and section 101(a)(10) of the Act, as
amended by WIOA. Final Sec. 361.40 does not list the actual data to be
reported, rather, it requires the collection and reporting of the
information specified in sections 13, 14, and 101(a)(10) of the Act.
New requirements under section 101(a)(10) include the reporting of data
on the number of: Individuals with open service records and the types
of services these individuals are receiving (including supported
employment services); students with disabilities receiving pre-
employment transition services; and individuals referred to the State
VR program by one-stop operators and individuals referred to such one-
stop operators by DSUs. The RSA-911 is revised as described in the
information collection published for a 30-day public comment period at
FR Document 2016-09713 consistent with the requirements in final Sec.
361.40.
Final Sec. 361.40 also requires States to report the data
necessary to assess DSU performance on the standards and indicators
subject to the performance accountability provisions described in
section 116 of WIOA. The common performance accountability measures
apply to all core programs of the workforce development system,
including the VR program, and are implemented in part 677 of the joint
regulations and set forth in subpart E of part 361. The impact and
analysis of the joint regulations governing the common performance
accountability system are addressed in the regulatory action for the
joint regulations published elsewhere in this issue of the Federal
Register.
In response to the comments regarding the burden associated with
the collection of data under final Sec. 361.40, described in the
Comments section of this Regulatory Impact Analysis, and as a result of
further Departmental review, we have adjusted the burden estimates as
described here.
We have increased the estimated burden for the collection of the
new data required by section 101(a)(10), including data required to
assess State agency performance under section 106 of the Act by
recalculating the estimates using the time DSUs will spend collecting
these additional data elements. We estimate that on average it will
take DSU staff one minute per data element to collect the new required
data.
For the first year of data collection, DSUs will incur greater data
collection burden than in subsequent years. As required by statute, the
WIOA performance accountability system goes into effect July 1, 2016.
All participants who are still receiving services (have not exited) by
the start of program year (PY) 2016 become WIOA participants and will
be counted and tracked in accordance with the WIOA performance
requirements set forth in section 116 of WIOA. The final RSA-911
Information Collection Request (ICR) will include new and/or revised
data elements and definitions as necessary to provide alignment with
the WIOA Participant Individual Record Layout (PIRL) and comply with
new requirements under the Act as amended by WIOA.
In order to meet the requirements in final Sec. 361.40, DSUs will
need to collect additional information for new applicants and VR
consumers as well as current eligible individuals who, as of the
effective date of section 116 of title I (July 1, 2016), met the
definition of ``participant,'' as that term is defined under the joint
final regulations implementing the jointly administered performance
accountability system requirements of section 116 of title I of WIOA
published elsewhere in this issue of the Federal Register.
DSUs are at varying stages of revising their case management
systems consistent with the new joint data specifications described in
the PIRL and the new elements required under title I of the Act as
proposed in the ICR, published in the Federal Register on April 27,
2016 (81 FR 24888).
Based on data reported by DSUs through the Quarterly Caseload
Report (RSA 113) for FYs 2014 and 2015, we estimate that in the first
year of data collection DSUs will in total incur a minimum of about
800,000 hours of additional burden to collect new data for VR consumers
(an average of 10,000 to 11,250 per DSU), including participants and
reportable individuals in the VR system at the beginning of FY 2016,
individuals who will be determined eligible during the first year of
data collection, students with disabilities who are receiving pre-
employment transition services and data needed for subminimum wage
determinations under section 511 of the Act.
Based on data reported through the RSA-113 for FY 2015 and the
proportion of new VR-specific data elements to all new data elements
required by WIOA (64 percent), we estimate that DSUs will spend a total
of approximately 512,000 hours collecting the new VR-specific data
elements, or an average of 6,400 hours per DSU in the first year of
data collection. We further estimate that vocational rehabilitation
counselors will complete 50 percent of data collection activities for
new VR-specific data elements, and that vocational rehabilitation
technicians or similar personnel will complete the remaining 50
percent.
Using an hourly compensation rate of $36.66 for vocational
rehabilitation counselors (wage rate based on State-employed
rehabilitation counselors), the estimated cost for 50 percent of the
data collection burden (256,000 hours) is $9,384,960. Using an hourly
compensation rate of $28.29 for vocational rehabilitation assistants or
equivalent positions (wage rate based on State-employed social and
human service assistants \5\ plus the loaded wage factor), the
estimated cost for the remaining 50 percent of the data collection
burden is $7,242,240. Consequently, we estimate that the total
additional cost for all 80 DSUs to collect the new VR program-specific
data elements is $16,627,200, or an average of $207,840 per DSU for the
initial year of data collection.
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\5\ Bureau of Labor Statistics. (2015) May 2015 national
industry-specific occupational employment and wage estimates: NAICS
999200--State government, excluding schools and hospitals (OES
designation). Retrieved from: http://www.bls.gov/oes/current/oes211093.htm.
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For the second and subsequent years of data collection under these
final regulations, we estimate that in total DSUs will incur about
200,000 hours of additional burden per year under WIOA. For new VR-
specific data elements, we estimate 128,000 hours, or an average of
1,600 hours of additional annual burden per DSU, in the second and
subsequent years of data collection. Using the same strategy to
calculate the costs for the first year of data collection, we estimate
that the total additional
[[Page 55736]]
annual cost for all 80 DSUs to collect the new VR program-specific data
elements is $4,156,800, or an average of $51,960 per DSU for the second
and subsequent years of data collection. The remaining portion of the
burden for new data collection attributed to the performance
accountability requirements in section 116 of title I of WIOA
($10,558,080 or $131,976 per DSU) is included in the Regulatory Impact
Analysis for the final joint regulations, published elsewhere in this
issue of the Federal Register.
As described in the discussion of comments on this Regulatory
Impact Analysis, we estimate an average of 70 additional burden hours
per year, or a total of 120 hours per year (30 hours per quarter), for
each DSU to submit the RSA-911 data file of open case service records
on a quarterly basis. As a result, the estimated total number of hours
needed for the submission of the data file for 80 agencies will
increase from 4,000 to 9,600 hours, resulting in an increase of 5,600
hours. Using an average hourly compensation rate of $57.02 (wages based
on State-employed database administrators), the estimated additional
cost for all 80 DSUs to submit the RSA-911 data file of open service
records on a quarterly basis is $319,312. The estimated additional cost
per DSU is $3,991.
The total additional VR-specific burden hours for both collection
and submission of required data will be 6,470 hours per DSU (6,400 data
collection hours and 70 data submission hours), or a total of 517,600
hours for all 80 DSUs. The estimated total additional VR program-
specific cost for both collection and submission per DSU is $211,831,
with a total additional burden cost of $16,946,512 for all 80 DSUs.
DSUs will also incur additional costs related to programming and
modifications of their case management systems to collect and report
new VR program-specific data required under section 101(a)(10) of the
Act. Additional burden related to the programming of case management
systems as a result of the redesigned RSA-911 will vary widely because
DSUs range in size and the sophistication of their information
technology systems.
Upon further Departmental review since the publication of the NPRM,
including the review of comments summarized in the Comments section of
this Regulatory Impact Analysis, we have adjusted the estimates
associated with the modification of DSU data systems. The adjusted
estimates are based on: The apportionment of the data elements in the
RSA-911 necessitated by the requirements of section 116 of WIOA and
section 101(a)(10) of the Act, as amended by WIOA; adjustments to the
wage rates for DSU personnel; and updated information regarding the
variation in the level of effort required by DSUs to modify and
maintain their data systems.
Although we estimate that each DSU will require computer systems
analysts for this one-time task, the related burden for changing a
State's case management system has been broken down to reflect the
variation among the 80 DSUs with respect to their size and updated
information regarding the number of DSUs that modify and maintain their
case management and reporting systems and those that contract for these
services. Roughly 30 of the 80 DSUs use case management and reporting
systems purchased from software providers who are responsible for
maintaining and updating the software. We estimate these 30 DSUs will
require two computer systems analysts to spend 150 hours integrating
the software changes into their own State systems, resulting in 300
hours per DSU, or a total of 9,000 hours in additional burden for all
30 DSUs. Of the remaining 50 DSUs that do not have agreements with a
software provider to maintain and update software, five of these
agencies are categorized as large agencies (more than 5,000 employment
outcomes) and 45 of these agencies are categorized as small to medium-
sized agencies (less than 1,000 employment outcomes, and between 1,000
and 5,000 employment outcomes, respectively). We estimate the five
large agencies will require five computer systems analysts to spend
1,000 hours each to maintain and update agency software (for a total of
5,000 hours per agency), while the 45 small to medium-sized agencies
will require two staff members to spend 1,000 hours each to maintain
and update the software (for a total of 2,000 hours per agency) in
order to make the necessary software changes. As a result, we estimate
that the large agencies will need a total of 25,000 total hours and the
small to medium-size agencies will need 90,000 hours, for a total of
115,000 hours for the 50 agencies to maintain and update computer
software. Combining these estimates with the 9,000 hours for the 30
agencies that we believe will only have to integrate the software
changes their providers are contracted to make, the total burden
estimate for all 80 agencies is 124,000 hours. The VR program-specific
burden (prorated at 64 percent of total burden) is estimated at 79,360
hours. We estimate that the cost burden for all 80 agencies to maintain
and update their computer software based on a total of 79,360 VR-
specific hours and an hourly compensation rate of $56.17 for State-
employed computer systems analysts, will be $4,457,651. The balance of
the burden in modifying agency data systems associated with the common
data reporting requirements under title I of WIOA (36 percent) is
included in the Regulatory Impact Analysis of the joint final
regulations published elsewhere in this issue of the Federal Register.
In addition to maintaining and updating software, 48 agencies that
utilize vendor supplied case management software will incur additional
software licensing or user fees. Our discussions with case management
software vendors informed our revised estimate of the average cost of
$700.00 per user annually for software licensing or user fees, which
will include a 20 percent increase due to new WIOA requirements,
resulting in $140 of additional costs per user. Information obtained in
discussions with case management software vendors also resulted in an
estimate of approximately 6,600 users in States served by vendor
systems. We estimate an additional total software licensing or user
costs related to new WIOA requirements of $924,000. After adjusting
this cost to reflect only the VR program-specific burden (64 percent),
we estimate that the 48 States will incur an additional $591,360 in
licensing or user fees, or $12,320 per agency.
Finally, the 80 DSUs will be required to train vocational
rehabilitation counselors regarding the new data reporting
requirements. To estimate this labor cost, we assume an average of 62
vocational rehabilitation counselors per agency and 8 hours of training
per counselor. Using an hourly compensation rate of $36.66 per
vocational rehabilitation counselor, the estimated labor costs for
vocational rehabilitation counselors to receive training on collecting
the new data is $1,454,669 for all 80 agencies, or $18,183 per agency.
We estimate that development of the training materials and
methodologies will require 1 staff trainer 8 hours per agency. Using
the social and community service manager hourly compensation rate
($54.21) as a proxy for the staff trainer, the total cost for
development of the training is $34,694, or $434 per agency. The total
cost for development of the training and vocational rehabilitation
counselor participation in the training is $1,489,363. Since we are
estimating that approximately 64 percent of the burden related to
performance accountability is VR-specific burden, the estimated cost
[[Page 55737]]
will be $953,192 for all 80 agencies, or $11,915 per agency.
Including all of the associated costs with the maintenance and
updating of software ($4,457,651), licensing fees ($591,360), and
agency staff training ($953,192), the estimated aggregate VR program-
specific burden for all 80 agencies is $6,002,203, which does not
include the additional initial year combined RSA-911 data collection
and submission burden of $16,946,512 because that burden estimate was
described separately above.
At the Federal level, RSA will develop its performance
accountability and data analysis capacity using new staff positions. We
estimate that it will take two full-time data management specialist
positions, one at a GS-13 Step 5 and one at a GS-14 Step 5, to complete
the necessary database programming requirements. With an hourly
compensation rate of $64.71 for the GS-13 position and $76.48 for the
GS-14 position, the total cost for software development is $293,675.
Since we are estimating that approximately 64 percent of the burden
related to performance accountability is VR-specific burden, the
estimated cost will be $187,952.
We believe that these data collection and reporting costs are
outweighed by the benefits to the VR program because the new
information to be reported and having access to more timely information
on individuals currently participating in the VR program will better
enable the Department and its Federal partners to assess the
performance of the program and monitor the implementation of WIOA,
particularly as it relates to key policy changes, such as the provision
of pre-employment transition services and the integration of the VR
program in the workforce development system.
Extended Evaluation
Final Sec. Sec. 361.41 and 361.42 remove requirements related to
extended evaluation because the Act, as amended by WIOA, no longer
includes references to such evaluations. Instead, a DSU must use trial
work experiences when conducting an exploration of an individual with a
significant disability's abilities, capabilities, and capacity to
perform in work situations. These revisions streamline the eligibility
determination process for all applicants whose ability to benefit from
VR services is in question.
VR program data collected by the Department do not distinguish
between individuals who had a trial work experience and those that had
an extended evaluation. However, RSA-911 data show that 4,924
individuals exited from the VR program during or after trial work
experiences or extended evaluations in FY 2015. DSUs expended a total
of $4,126,785 on the provision of services to these individuals for an
average cost of $838 per individual. Because we are unable to estimate
how many of the 4,924 individuals were in extended evaluation, as
opposed to trial work experiences, we cannot quantify either the
current costs or the potential change in costs for this specific group
of individuals. Based on the monitoring of DSUs, we note that the use
of these services varies among DSUs, mainly due to variations in
opportunities for individuals to participate in trial work experiences,
and the extent to which DSUs historically utilized extended evaluation.
We believe that the benefits of streamlining the eligibility
determination process for applicants whose ability to benefit from VR
services is in question and ensuring that ineligibility determinations
are based on a full assessment of the capacity of an applicant to
perform in realistic work settings outweighs the costs of removing the
limited exception to trial work experiences.
Time Frame for Completing the Individualized Plan for Employment
Final Sec. 361.45 implements section 102(b) of the Act, as amended
by WIOA, by requiring DSUs to develop individualized plans for
employment as soon as possible, but not later than 90 days after the
date of determination of eligibility, unless the DSU and the eligible
individual agree to the extension of that deadline to a specific date
by which the individualized plan for employment must be completed. Due
to variations in current DSU timelines for the development of the
individualized plan for employment, the establishment of a 90-day
timeframe by WIOA will ensure consistency across the VR program
nationally and the timely delivery of services, thereby improving DSU
performance and the achievement of successful employment outcomes by
individuals with disabilities.
We are unable to quantify potential additional costs to DSUs to
develop individualized plans for employment within 90 days of an
eligibility determination due to the variance in timelines currently in
place. It is likely that DSUs that have had prolonged timelines beyond
90 days prior to the enactment of WIOA could experience a change in
annual expenditure patterns. For example, if larger numbers of
individuals, with approved individualized plans for employment, begin
to receive VR services at an earlier time than had historically been
the case, an agency will expend its funds at a faster rate. However,
while the overall cost per individual served is not likely to be
affected by this provision, the average time before some DSUs incur
expenses related to the development of, and provision of VR services
under, individualized plans for employment could be shortened,
resulting in a shift in the outlay of program funds for services sooner
than in previous years. Therefore, in any given fiscal year, the outlay
of program funds for these DSUs could be higher. While costs over the
life of the service record should not be affected, some DSUs could find
it necessary to implement an order of selection due to the transfer of
costs that would have been incurred in a subsequent fiscal year to the
current fiscal year. As always, DSUs are encouraged to conduct planning
that incorporates programmatic and fiscal elements to make projections
and assessments of VR program resources and the number of individuals
served, using management tools including order of selection, as
appropriate.
The Establishment, Development, or Improvement of Assistive Technology
Demonstration, Loan, Reutilization, or Financing Programs
Section 103(b)(8) of the Act, as added by WIOA, permits a DSU to
establish, develop, or improve assistive technology demonstration,
loan, reutilization, or financing programs. Thus, final Sec.
361.49(a)(8) permits DSUs to establish, develop, or improve these
assistive technology programs in coordination with activities
authorized under the Assistive Technology Act of 1998, to promote
access to assistive technology for individuals with disabilities and
employers. This regulation reflects the integral role assistive
technology plays in the vocational rehabilitation and employment of
individuals with disabilities. We are not able to quantify additional
costs associated with this provision due to the variable nature of the
specific assistive technology needs of individuals with disabilities,
and the availability of assistive technology demonstration, loan,
reutilization, or financing programs within each State.
Maintenance of Effort Requirements
Section 111(a) of the Act, as amended by WIOA, and final Sec.
361.62(a) require the Secretary to reduce a State's annual VR program
award to satisfy a maintenance of effort (MOE) deficit in any prior
year. Before the enactment of WIOA, the Secretary could only reduce
[[Page 55738]]
the subsequent year's grant to satisfy an MOE deficit from the
preceding fiscal year. If an MOE deficit was discovered after it was
too late to reduce the succeeding year's grant, the Secretary was
required to seek recovery through an audit disallowance, whereby the
State repaid the deficit amount with non-Federal funds.
Because the Secretary is now able to reduce any subsequent year's
VR program grant for any prior year's MOE deficit, DSUs benefit as they
are no longer required to repay MOE shortfalls with non-Federal funds,
thereby increasing the availability of non-Federal funds, in those
instances, for obligation as match under the VR program. Since FY 2010,
two States were required to pay a total of $791,342 in non-Federal
funds for MOE penalties because their MOE shortfall was not known prior
to the awarding of Federal funds in the year after the MOE deficit.
Consequently, these funds were unavailable to be used as matching funds
for the VR program in the year they were paid. On the other hand, the
new authority could have resulted in the deduction of the $791,342 MOE
penalties from a Federal award that was not limited to the year
immediately following the year with the MOE deficit.
B. The Supported Employment Program
Services to Youth With the Most Significant Disabilities in Supported
Employment
Section 603(d) of the Act, as amended by WIOA, and final Sec.
363.22 require DSUs to reserve 50 percent of their State Supported
Employment Services Program grant allotment to provide supported
employment services, including extended services, to youth with the
most significant disabilities. This new requirement is consistent with
the heightened emphasis throughout the Act on the provision of services
to youth with disabilities, especially those with the most significant
disabilities, and is consistent with the final VR program regulations
in part 361, since the Supported Employment program is supplemental to
that program.
In addition, section 606(b) of the Act, as amended by WIOA, and
final Sec. 363.23 require States to provide a 10 percent match for the
50 percent of the Supported Employment allotment reserved for the
provision of supported employment services, including extended
services, to youth with the most significant disabilities. Prior to the
enactment of WIOA, there was no match requirement under the Supported
Employment program.
Finally, section 604 of the Act, as amended by WIOA, and final
Sec. 363.4(b) permit DSUs to provide extended services, for a period
not to exceed four years, to youth with the most significant
disabilities. DSUs may use the reserved funds to provide these extended
services, as well as supported employment services, to youth with the
most significant disabilities. Prior to the enactment of WIOA, DSUs
were not permitted to provide extended services to any individual,
including youth with the most significant disabilities.
After setting aside funds to assist in carrying out section 21 of
the Act, the FY 2015 Federal appropriation provided $27,272,520 for
distribution to DSUs under the Supported Employment State Grants
program. Assuming States were able to provide the required 10 percent
non-Federal match for the available Supported Employment formula grant
funds in FY 2015, the 50 percent reservation would result in the
dedication of $13,636,260 for supported employment services, including
extended services, to youth with the most significant disabilities.
Conversely, the reserved funds would not be available for the provision
of supported employment services to individuals who are not youth with
the most significant disabilities, and may be viewed as a transfer of
title VI funds from these individuals to youth with the most
significant disabilities. The 10 percent match requirement would
generate $1,515,140 in non-Federal funds for supported employment
services, including extended services, for youth with the most
significant disabilities. The match requirement represents additional
non-Federal funds that States must expend in order to obligate and
expend the Federal funds reserved for youth with the most significant
disabilities. If the appropriation increases in future years, the match
requirement would result in additional supported employment resources
for youth with the most significant disabilities. However, States will
have to identify additional non-Federal resources in order to match the
Federal funds reserved for this purpose.
Finally, as stated above, DSUs may provide extended services to
youth with the most significant disabilities, whereas prior to the
enactment of WIOA such services were not permitted for individuals of
any age. Under the Act, as amended by WIOA, DSUs still may not provide
extended services to individuals with the most significant disabilities
who are not also youth with the most significant disabilities. Since
extended services have not previously been an authorized activity with
the use of VR program or supported employment program funds, this
change could have a significant impact on States by creating a funding
source for these services that previously was not available. However,
because this is not a service that was previously permitted under
either the VR program or the Supported Employment program, the
Department has no data on which to quantify the impact this new
requirement will have on States.
Extension of Time for the Provision of Supported Employment Services
Section 7(39) of the Act, as amended by WIOA, and final Sec.
361.5(c)(54) amend the definition of ``supported employment'' to permit
the provision of supported employment services for a period up to 24
months, rather than the previous 18 months. Although contained in part
361, the definition of supported employment services applies to both
the VR program and Supported Employment program. DSUs have the
authority to exceed this time period under special circumstances if
jointly agreed to by the individual and the vocational rehabilitation
counselor.
The change will benefit individuals with the most significant
disabilities who require ongoing support services for a longer period
of time to achieve stability in the employment setting, prior to full
transition to extended services. This provision could result in DSUs
using more resources under both the VR program and Supported Employment
program to provide ongoing services.
DSUs typically have not provided ongoing support services for a
full 18 months for a majority of their consumers. In FY 2015, 13,652
individuals achieved supported employment outcomes within 21 months
following the development of the individualized plans for employment,
which period we assume could include the provision of supported
employment services for a full 18 months and a minimum period of 90
days prior to program closure. Of these individuals, 9,592, or
approximately 70.2 percent, achieved supported employment outcomes
within 12 months. While we anticipate that most individuals may not
need supported employment services for the full 24 months, in FY 2015,
1,783 individuals achieved supported employment outcomes within a
period ranging from 21 months to 27 months of the development of the
individualized plan for employment. DSUs in total expended $13,237,902
on purchased services for these individuals, or an average of $7,425
per individual.
[[Page 55739]]
Assuming this period includes the provision of supported employment
services for a full 24 months and a minimum period of 90 days prior to
program closure, we estimate that an approximate number of individuals
would benefit from the provision of supported employment services for
an additional six months and that DSUs would incur similar costs for
the provision of these services as a result of the regulatory change.
Limitations on Supported Employment Administrative Costs
Section 603(c) of the Act, as amended by WIOA, and final Sec.
363.51(b) reduce the maximum amount of a State's grant allotment under
the Supported Employment program that can be used for administrative
costs from 5 percent of the State's grant allotment to 2.5 percent. As
a result, a larger portion of Federal Supported Employment funds must
be spent on the provision of supported employment services, including
extended services to youth with the most significant disabilities,
rather than administrative costs. However, any administrative costs
incurred beyond the 2.5 percent limit on the use of Supported
Employment funds may be paid for with VR program funds.
Based upon the $27,272,520 allotted to States under the Supported
Employment program in FY 2015, the total allowable amount of these
Federal funds that could be used to support administrative costs would
be reduced by half, from $1,363,626 to $681,813. Thus, for those DSUs
that have typically used more than 2.5 percent of their Supported
Employment program allotment to cover administrative costs, the change
would provide a small increase in the amount of funds available for the
provision of services to individuals with the most significant
disabilities pursuing a supported employment outcome. DSUs may shift
these excess costs to the VR program since it does not have a cap on
the amount of funds that can be spent on administrative costs under
that program. We cannot estimate the impact of this shift on the VR
program because DSUs do not report data showing the amount of VR
program funds spent on administrative costs for the Supported
Employment program.
C. Limitations on the Use of Subminimum Wage
Section 511 of the Act, as added by WIOA, imposes limitations on
the payment of subminimum wages by employers who hold special wage
certificates under the Fair Labor Standards Act. These statutory
requirements take effect on July 22, 2016.
Pursuant to section 511 of the Act, as added by WIOA, final Sec.
397.10 requires the DSU, in consultation with the State educational
agency, to develop a process, or utilize an existing process, that
ensures individuals with disabilities, including youth with
disabilities, receive documentation demonstrating completion of the
various activities required by section 511. Final Sec. Sec. 397.20 and
397.30 establish the documentation that the DSUs and local educational
agencies, as appropriate, must provide to demonstrate an individual's
completion of the various activities required by section 511(a)(2) of
the Act. These include completing pre-employment transition services
under final Sec. 361.48(a) and the determination under an application
for VR services under final Sec. Sec. 361.42 and 361.43. Final Sec.
397.40 establishes the documentation that the DSUs must provide to
individuals with disabilities upon the completion of certain
information and career counseling-related services, as required by
section 511(c) of the Act. We are not able to quantify the costs to the
DSUs related to the provision of this required documentation because
the number of youth and other individuals who potentially could receive
services under part 397 will vary widely from State to State. In
addition, there exists no reliable national data on which to base a
calculation of costs. However, DSUs generate documentation throughout
the vocational rehabilitation process that may meet the requirements of
final Sec. Sec. 397.20 and 397.30, including written notification of a
consumer's eligibility or ineligibility, copies of individualized plans
for employment and subsequent amendments, and written notification when
the consumer's record is closed. As a result, the use of this
documentation to meet section 511 requirements should not result in
significant additional burden to DSUs.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require the public to
respond to a collection of information unless it displays a valid OMB
control number. The valid OMB control numbers assigned to collections
of information in these final regulations are: 1205-0522 (Required
Elements for Submission of the Unified or Combined State Plan and Plan
Modifications under the Workforce Innovation and Opportunity Act),
1820-0013 (Cumulative Case Report), 1820-0017 (Annual Vocational
Rehabilitation Program/Cost Report), 1820-0508 (VR Case Service
Report), 1820-0563 (Annual Report of Appeals), 1820-0693 (Program
Improvement Plan), and 1820-0694 (VR Program Corrective Action Plan).
WIOA made several significant changes that affect the VR program
collections of information. These substantive changes will be submitted
to OMB with the final regulations.
Required Elements for Submission of the Unified or Combined State Plan
and Plan Modifications Under the Workforce Innovation and Opportunity
Act (1205-0522)
Section 101(a) of the Act, as amended by WIOA, adds new content
requirements to the State plan, which is now submitted as the VR
services portion of the Unified or Combined State Plan under section
102 or 103 of title I of WIOA. As a result, these information
collection requirements are contained in the Required Elements for
Submission of the Unified or Combined State Plan and Plan
Modifications, and we will discontinue the VR State Plan (OMB 1820-
0500). In the NPRM, we described the substantive changes to the content
of the VR State Plan, now collected under the VR services portion and
supported employment supplement of the Unified or Combined State Plan
(OMB control number 1205-0522), caused by final Sec. Sec. 361.10,
361.18, 361.24, 361.29, and 361.36, along with final Sec. Sec. 363.10
and 363.11. In addition, the form includes previously approved
information collection requirements related to a number of regulations
that remained unchanged as a result of the amendments to the Act,
including Sec. Sec. 361.12, 361.13, 361.15, 361.16, 361.17, 361.19,
361.20, 361.21, 361.22, 361.23, 361.25, 361.26, 361.27, 361.30, 361.31,
361.34, 361.35, 361.37, 361.40, 361.46, 361.51, 361.52, 361.53, and
361.55. We have made no changes in the content of the VR services
portion of the Unified or Combined State Plan and supported employment
supplement since publication of the NPRM.
In the NPRM, we increased the estimated time for each DSU to
prepare and submit the VR services portion of the Unified or Combined
State Plan and its supported employment supplement from 25 to 30 hours
annually.
In addition, the total cost of this data collection increased due
to the proposed adjustment to the average hourly wage rate of State
personnel used to estimate the annual burden for this data collection
from $22.00 to $39.78, so that wage rates are consistent with data
reported by the Bureau of Labor Statistics. As a result of these
changes, we estimated in the NPRM a total annual burden of 2,400 hours
(30 hours for each of the 80 respondents), at
[[Page 55740]]
$39.78 per hour, for a total annual cost of $95,472.00. Since
publication of the NPRM, we have adjusted the total annual estimated
cost burden for submission of the VR services portion of the Unified or
Combined State Plan due to further adjustments in the average hourly
wage rate for State personnel responsible for the submission of the
form of $54.21 based on data from the Bureau of Labor Statistics, for a
total of $130,104 for all 80 agencies.
VR Case Service Report (1820-0508)
The VR Case Service Report is used to collect annual individual
level data on the individuals that have exited the VR program,
including individuals receiving services with funds provided under the
Supported Employment program. Sections 101(a)(10) and 607 of the Act
contain data reporting requirements under the VR program and Supported
Employment program, respectively. WIOA amends these sections to require
States to report additional data describing the individuals served and
the services provided through these programs. In addition, WIOA amends
section 106 of the Act by requiring that the standards and indicators
used to assess the performance of the VR program be consistent with the
performance accountability measures for the core programs of the
workforce development system established under section 116 of WIOA. We
described in the NPRM the substantive changes made to final Sec. Sec.
361.40 and 363.52 that cause substantive changes to the active and OMB-
approved data collection under 1820-0508--the VR Case Service Report
(RSA-911). Since publication of the NPRM, we have made no substantive
changes to the RSA-911 as a result of changes in these final
regulations or the joint final regulations governing the performance
accountability system published elsewhere in this issue of the Federal
Register. However, since the NPRM, we have modified the RSA-911 to
incorporate changes in the data collected through the joint ICR. In
addition, we have revised the layout of the form in response to
comments to better align the collection of specific data elements with
the VR process and to clarify the data needed to track the provision of
pre-employment transition services and the achievement of supported
employment outcomes.
In the NPRM, we increased the estimated burden for the submission
of the RSA-911 caused by the reporting of the data for both open and
closed cases on a quarterly basis. We estimated the total annual
reporting burden to be 8,000 hours at $33.63 per hour (a rate more
consistent with the rate reported through the Bureau of Labor
Statistics for State-employed database administrators), for a total
annual cost of $269,040.
As described in the Regulatory Impact Analysis section of these
final regulations, we have increased the estimated burden associated
with the RSA-911 since publication of the NPRM for several reasons. We
now include in the estimated burden the time needed for both collection
and submission of the data. Previous burden estimates were based only
on the time needed to prepare and submit the RSA-911. In addition, we
have changed the method used to estimate the time needed to collect the
data from a total of 15 minutes per vocational rehabilitation counselor
to one minute for each new data element in the form. We also have
revised the estimated hours associated with the submission of the data
on a quarterly basis from a total of 100 per year to a total of 120
hours (30 hours per quarter). Finally, we now estimate that 64 percent
of the new data elements are required by substantive changes to the VR
program-specific requirements in section 101(a)(10) of the Act and the
remaining 36 percent are required by section 116 of WIOA. We have
prorated the estimated burden for the collection of the new data
elements based on these percentages. As a result of these changes, the
total additional VR-specific burden hours for both collection and
submission of required data is 6,470 hours per VR agency (6,400 data
collection hours and 70 data submission hours), or a total of 517,600
hours for all 80 VR agencies. The estimated total additional VR
program-specific cost for both collection and submission per VR agency
is $211,831, with a total additional burden cost of $16,946,512 for all
80 VR agencies.
Intergovernmental Review
These programs are subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for these programs.
Assessment of Educational Impact
In 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.
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 parts 361, 363, and 397 may have
federalism implications and encouraged State and local elected
officials to review and provide comments on the proposed regulations.
In the Public Comment section of this preamble, we discuss any comments
we received on this subject.
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by the Department.
(Catalog of Federal Domestic Assistance Numbers: 84.126A State
Vocational Rehabilitation Services program; and 84.187 State
Supported Employment Services program)
List of Subjects
34 CFR Part 361
Administrative practice and procedure, Grant programs-education,
Grant programs-social programs, Reporting and recordkeeping
requirements, Vocational rehabilitation.
[[Page 55741]]
34 CFR Part 363
Grant programs-education, Grant programs-social programs, Manpower
training programs, Reporting and recordkeeping requirements, Vocational
rehabilitation.
34 CFR Part 397
Individuals with disabilities, Reporting and recordkeeping
requirements, Students, Vocational rehabilitation, Youth.
Dated: June 30, 2016.
John B. King, Jr.,
Secretary of Education.
The Secretary of Education amends 34 CFR chapter III as follows:
0
1. Part 361 is revised to read as follows:
PART 361--STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
Subpart A--General
Sec.
361.1 Purpose.
361.2 Eligibility for a grant.
361.3 Authorized activities.
361.4 Applicable regulations.
361.5 Applicable definitions.
Subpart B--State Plan and Other Requirements for Vocational
Rehabilitation Services
361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.
Administration
361.12 Methods of administration.
361.13 State agency for administration.
361.14 Substitute State agency.
361.15 Local administration.
361.16 Establishment of an independent commission or a State
Rehabilitation Council.
361.17 Requirements for a State Rehabilitation Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 Public participation requirements.
361.21 Consultations regarding the administration of the vocational
rehabilitation services portion of the Unified or Combined State
Plan.
361.22 Coordination with education officials.
361.23 [Reserved]
361.24 Cooperation and coordination with other entities.
361.25 Statewideness.
361.26 Waiver of statewideness.
361.27 Shared funding and administration of joint programs.
361.28 Third-party cooperative arrangements involving funds from
other public agencies.
361.29 Statewide assessment; annual estimates; annual State goals
and priorities; strategies; and progress reports.
361.30 Services to American Indians.
361.31 Cooperative agreements with private nonprofit organizations.
361.32 Provision of training and services for employers.
361.33 [Reserved]
361.34 Supported employment State plan supplement.
361.35 Innovation and expansion activities.
361.36 Ability to serve all eligible individuals; order of selection
for services.
361.37 Information and referral programs.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports; Evaluation standards and performance indicators.
Provision and Scope of Services
361.41 Processing referrals and applications.
361.42 Assessment for determining eligibility and priority for
services.
361.43 Procedures for ineligibility determination.
361.44 Closure without eligibility determination.
361.45 Development of the individualized plan for employment.
361.46 Content of the individualized plan for employment.
361.47 Record of services.
361.48 Scope of vocational rehabilitation services for individuals
with disabilities.
361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
361.50 Written policies governing the provision of services for
individuals with disabilities.
361.51 Standards for facilities and providers of services.
361.52 Informed choice.
361.53 Comparable services and benefits.
361.54 Participation of individuals in cost of services based on
financial need.
361.55 Semi-annual and annual review of individuals in extended
employment and other employment under special certificate provisions
of the Fair Labor Standards Act.
361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
361.57 Review of determinations made by designated State unit
personnel.
Subpart C--Financing of State Vocational Rehabilitation Programs
361.60 Matching requirements.
361.61 Limitation on use of funds for construction expenditures.
361.62 Maintenance of effort requirements.
361.63 Program income.
361.64 Obligation of Federal funds.
361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
Subparts D-F--[Reserved]
Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c), unless otherwise noted.
Subpart A--General
Sec. 361.1 Purpose.
Under the State Vocational Rehabilitation Services Program, the
Secretary provides grants to assist States in operating statewide
comprehensive, coordinated, effective, efficient, and accountable
vocational rehabilitation programs, each of which is--
(a) An integral part of a statewide workforce development system;
and
(b) Designed to assess, plan, develop, and provide vocational
rehabilitation services for individuals with disabilities, consistent
with their unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice so that they
may prepare for and engage in competitive integrated employment and
achieve economic self-sufficiency.
(Authority: Sections 12(c) and 100(a) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 720(a))
Sec. 361.2 Eligibility for a grant.
Any State that submits to the Secretary a vocational rehabilitation
services portion of the Unified or Combined State Plan that meets the
requirements of section 101(a) of the Act and this part is eligible for
a grant under this program.
(Authority: Section 101(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a))
Sec. 361.3 Authorized activities.
The Secretary makes payments to a State to assist in--
(a) The costs of providing vocational rehabilitation services under
the vocational rehabilitation services portion of the Unified or
Combined State Plan; and
(b) Administrative costs under the vocational rehabilitation
services portion of the Unified or Combined State Plan, including one-
stop infrastructure costs.
(Authority: Sections 12(c) and 111(a)(1) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 731(a)(1))
Sec. 361.4 Applicable regulations.
The following regulations apply to this program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 76 (State-Administered Programs).
(2) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(3) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
[[Page 55742]]
(5) 34 CFR part 82 (New Restrictions on Lobbying).
(b) The regulations in this part 361.
(c) 2 CFR part 190 (OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement)) as adopted in 2 CFR part
3485.
(d) 2 CFR part 200 (Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards) as adopted in 2
CFR part 3474, except the requirements to accept third-party in-kind
contributions to meet cost-sharing or matching requirements, as
otherwise authorized under 2 CFR 200.306(b).
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.5 Applicable definitions.
The following definitions apply to this part:
(a) Definitions in EDGAR 77.1.
(b) Definitions in 2 CFR part 200, subpart A.
(c) The following definitions:
(1) Act means the Rehabilitation Act of 1973, as amended (29 U.S.C.
701 et seq.).
(2) Administrative costs under the vocational rehabilitation
services portion of the Unified or Combined State Plan means
expenditures incurred in the performance of administrative functions
under the vocational rehabilitation program carried out under this
part, including expenses related to program planning, development,
monitoring, and evaluation, including, but not limited to, expenses
for--
(i) Quality assurance;
(ii) Budgeting, accounting, financial management, information
systems, and related data processing;
(iii) Providing information about the program to the public;
(iv) Technical assistance and support services to other State
agencies, private nonprofit organizations, and businesses and
industries, except for technical assistance and support services
described in Sec. 361.49(a)(4);
(v) The State Rehabilitation Council and other advisory committees;
(vi) Professional organization membership dues for designated State
unit employees;
(vii) The removal of architectural barriers in State vocational
rehabilitation agency offices and State-operated rehabilitation
facilities;
(viii) Operating and maintaining designated State unit facilities,
equipment, and grounds, as well as the infrastructure of the one-stop
system;
(ix) Supplies;
(x) Administration of the comprehensive system of personnel
development described in Sec. 361.18, including personnel
administration, administration of affirmative action plans, and
training and staff development;
(xi) Administrative salaries, including clerical and other support
staff salaries, in support of these administrative functions;
(xii) Travel costs related to carrying out the program, other than
travel costs related to the provision of services;
(xiii) Costs incurred in conducting reviews of determinations made
by personnel of the designated State unit, including costs associated
with mediation and impartial due process hearings under Sec. 361.57;
and
(xiv) Legal expenses required in the administration of the program.
(Authority: Sections 7(1) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(1) and 709(c))
(3) Applicant means an individual who submits an application for
vocational rehabilitation services in accordance with Sec.
361.41(b)(2).
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(4) Appropriate modes of communication means specialized aids and
supports that enable an individual with a disability to comprehend and
respond to information that is being communicated. Appropriate modes of
communication include, but are not limited to, the use of interpreters,
open and closed captioned videos, specialized telecommunications
services and audio recordings, Brailled and large print materials,
materials in electronic formats, augmentative communication devices,
graphic presentations, and simple language materials.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(5) Assessment for determining eligibility and vocational
rehabilitation needs means, as appropriate in each case--
(i)(A) A review of existing data--
(1) To determine if an individual is eligible for vocational
rehabilitation services; and
(2) To assign priority for an order of selection described in Sec.
361.36 in the States that use an order of selection; and
(B) To the extent necessary, the provision of appropriate
assessment activities to obtain necessary additional data to make the
eligibility determination and assignment;
(ii) To the extent additional data are necessary to make a
determination of the employment outcomes and the nature and scope of
vocational rehabilitation services to be included in the individualized
plan for employment of an eligible individual, a comprehensive
assessment to determine the unique strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice,
including the need for supported employment, of the eligible
individual. This comprehensive assessment--
(A) Is limited to information that is necessary to identify the
rehabilitation needs of the individual and to develop the
individualized plan 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 Sec. 361.36 for the individual; and
(2) Information that can be provided by the individual and, if
appropriate, by the family of the individual;
(C) May include, to the degree needed to make such a determination,
an assessment of the personality, interests, interpersonal skills,
intelligence and related functional capacities, educational
achievements, work experience, vocational aptitudes, personal and
social adjustments, and employment opportunities of the individual and
the medical, psychiatric, psychological, and other pertinent
vocational, educational, cultural, social, recreational, and
environmental factors that affect the employment and rehabilitation
needs of the individual;
(D) May include, to the degree needed, an appraisal of the patterns
of work behavior of the individual and services needed for the
individual to acquire occupational skills and to develop work
attitudes, work habits, work tolerance, and social and behavior
patterns necessary for successful job performance, including the use of
work in real job situations to assess and develop the capacities of the
individual to perform adequately in a work environment; and
(E) To the maximum extent possible, relies on information obtained
from experiences in integrated employment settings in the community and
in other integrated community settings;
(iii) Referral, for the provision of rehabilitation technology
services to the individual, to assess and develop the
[[Page 55743]]
capacities of the individual to perform in a work environment; and
(iv) An exploration of the individual's abilities, capabilities,
and capacity to perform in work situations, which must be assessed
periodically during trial work experiences, including experiences in
which the individual is provided appropriate supports and training.
(Authority: Sections 7(2) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(2) and 709(c))
(6) Assistive technology terms--(i) Assistive technology has the
meaning given such term in section 3 of the Assistive Technology Act of
1998 (29 U.S.C. 3002).
(ii) Assistive technology device has the meaning given such term in
section 3 of the Assistive Technology Act of 1998, except that the
reference in such section to the term individuals with disabilities
will be deemed to mean more than one individual with a disability as
defined in paragraph (20)(A) of the Act.
(iii) Assistive technology service has the meaning given such term
in section 3 of the Assistive Technology Act of 1998, except that the
reference in such section to the term--
(A) Individual with a disability will be deemed to mean an
individual with a disability, as defined in paragraph (20)(A) of the
Act; and
(B) Individuals with disabilities will be deemed to mean more than
one such individual.
(Authority: Sections 7(3) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(3) and 709(c))
(7) Community rehabilitation program--(i) Community rehabilitation
program means a program that provides directly or facilitates the
provision of one or more of the following vocational rehabilitation
services to individuals with disabilities to enable those individuals
to maximize their opportunities for employment, including career
advancement:
(A) Medical, psychiatric, psychological, social, and vocational
services that are provided under one management.
(B) Testing, fitting, or training in the use of prosthetic and
orthotic devices.
(C) Recreational therapy.
(D) Physical and occupational therapy.
(E) Speech, language, and hearing therapy.
(F) Psychiatric, psychological, and social services, including
positive behavior management.
(G) Assessment for determining eligibility and vocational
rehabilitation needs.
(H) Rehabilitation technology.
(I) Job development, placement, and retention services.
(J) Evaluation or control of specific disabilities.
(K) Orientation and mobility services for individuals who are
blind.
(L) Extended employment.
(M) Psychosocial rehabilitation services.
(N) Supported employment services and extended services.
(O) Customized employment.
(P) Services to family members if necessary to enable the applicant
or eligible individual to achieve an employment outcome.
(Q) Personal assistance services.
(R) Services similar to the services described in paragraphs
(c)(7)(i)(A) through (Q) of this section.
(ii) For the purposes of this definition, program means an agency,
organization, or institution, or unit of an agency, organization, or
institution, that provides directly or facilitates the provision of
vocational rehabilitation services as one of its major functions.
(Authority: Section 7(4) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(4))
(8) Comparable services and benefits--(i) Comparable services and
benefits means services and benefits, including accommodations and
auxiliary aids and services, that are--
(A) Provided or paid for, in whole or in part, by other Federal,
State, or local public agencies, by health insurance, or by employee
benefits;
(B) Available to the individual at the time needed to ensure the
progress of the individual toward achieving the employment outcome in
the individual's individualized plan for employment in accordance with
Sec. 361.53; and
(C) Commensurate to the services that the individual would
otherwise receive from the designated State vocational rehabilitation
agency.
(ii) For the purposes of this definition, comparable services and
benefits do not include awards and scholarships based on merit.
(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))
(9) Competitive integrated employment means work that--
(i) Is performed on a full-time or part-time basis (including self-
employment) and for which an individual is compensated at a rate that-
(A) Is not less than the higher of the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
or the rate required under the applicable State or local minimum wage
law for the place of employment;
(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
(iii) Presents, as appropriate, opportunities for advancement that
are similar to those for other employees who are not individuals with
disabilities and who have similar positions.
(Authority: Sections 7(5) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(5) and 709(c))
(10) Construction of a facility for a public or nonprofit community
rehabilitation program means--
(i) The acquisition of land in connection with the construction of
a new building for a community rehabilitation program;
(ii) The construction of new buildings;
(iii) The acquisition of existing buildings;
(iv) The expansion, remodeling, alteration, or renovation of
existing buildings;
(v) Architect's fees, site surveys, and soil investigation, if
necessary, in
[[Page 55744]]
connection with the acquisition of land or existing buildings, or the
construction, expansion, remodeling, or alteration of community
rehabilitation facilities;
(vi) The acquisition of initial fixed or movable equipment of any
new, newly acquired, newly expanded, newly remodeled, newly altered, or
newly renovated buildings that are to be used for community
rehabilitation program purposes; and
(vii) Other direct expenditures appropriate to the construction
project, except costs of off-site improvements.
(Authority: Sections 7(6) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(6) and 709(c))
(11) Customized employment means competitive integrated employment,
for an individual with a significant disability, that is--
(i) Based on an individualized determination of the unique
strengths, needs, and interests of the individual with a significant
disability;
(ii) Designed to meet the specific abilities of the individual with
a significant disability and the business needs of the employer; and
(iii) Carried out through flexible strategies, such as--
(A) Job exploration by the individual; and
(B) Working with an employer to facilitate placement, including--
(1) Customizing a job description based on current employer needs
or on previously unidentified and unmet employer needs;
(2) Developing a set of job duties, a work schedule and job
arrangement, and specifics of supervision (including performance
evaluation and review), and determining a job location;
(3) Using a professional representative chosen by the individual,
or if elected self-representation, to work with an employer to
facilitate placement; and
(4) Providing services and supports at the job location.
(Authority: Section 7(7) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(7) and 709(c))
(12) Designated State agency or State agency means the sole State
agency, designated, in accordance with Sec. 361.13(a), to administer,
or supervise the local administration of, the vocational rehabilitation
services portion of the Unified or Combined State Plan. The term
includes the State agency for individuals who are blind, if designated
as the sole State agency with respect to that part of the Unified or
Combined State Plan relating to the vocational rehabilitation of
individuals who are blind.
(Authority: Sections 7(8)(A) and 101(a)(2)(A) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(8)(A) and 721(a)(2)(A))
(13) Designated State unit or State unit means either--
(i) The State vocational rehabilitation bureau, division, or other
organizational unit that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities and that is responsible for the administration of the
vocational rehabilitation program of the State agency, as required
under Sec. 361.13(b); or
(ii) The State agency that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities.
(Authority: Sections 7(8)(B) and 101(a)(2)(B) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(8)(B) and 721(a)(2)(B))
(14) Eligible individual means an applicant for vocational
rehabilitation services who meets the eligibility requirements of Sec.
361.42(a).
(Authority: Sections 7(20)(A) and 102(a)(1) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(20)(A) and 722(a)(1))
(15) Employment outcome means, with respect to an individual,
entering, advancing in, or retaining full-time or, if appropriate,
part-time competitive integrated employment, as defined in paragraph
(c)(9) of this section (including customized employment, self-
employment, telecommuting, or business ownership), or supported
employment as defined in paragraph (c)(53) of this section, that is
consistent with an individual's unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice.
Note to paragraph (c)(15): A designated State unit may continue
services to individuals with uncompensated employment goals on their
approved individualized plans for employment prior to September 19,
2016 until June 30, 2017, unless a longer period of time is required
based on the needs of the individual with the disability, as
documented in the individual's service record.
(Authority: Sections 7(11), 12(c), 100(a)(2), and 102(b)(4)(A) of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(11),
709(c), 720(a)(2), and 722(b)(4)(A))
(16) Establishment, development, or improvement of a public or
nonprofit community rehabilitation program means--
(i) The establishment of a facility for a public or nonprofit
community rehabilitation program, as defined in paragraph (c)(17) of
this section, to provide vocational rehabilitation services to
applicants or eligible individuals;
(ii) Staffing, if necessary to establish, develop, or improve a
public or nonprofit community rehabilitation program for the purpose of
providing vocational rehabilitation services to applicants or eligible
individuals, for a maximum period of four years, with Federal financial
participation available at the applicable matching rate for the
following levels of staffing costs:
(A) 100 percent of staffing costs for the first year;
(B) 75 percent of staffing costs for the second year;
(C) 60 percent of staffing costs for the third year; and
(D) 45 percent of staffing costs for the fourth year; and
(iii) Other expenditures and activities related to the
establishment, development, or improvement of a public or nonprofit
community rehabilitation program that are necessary to make the program
functional or increase its effectiveness in providing vocational
rehabilitation services to applicants or eligible individuals, but are
not ongoing operating expenses of the program.
(Authority: Sections 7(12) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(12) and 709(c))
(17) Establishment of a facility for a public or nonprofit
community rehabilitation program means--
(i) The acquisition of an existing building and, if necessary, the
land in connection with the acquisition, if the building has been
completed in all respects for at least one year prior to the date of
acquisition and the Federal share of the cost of acquisition is not
more than $300,000;
(ii) The remodeling or alteration of an existing building, provided
the estimated cost of remodeling or alteration does not exceed the
appraised value of the existing building;
(iii) The expansion of an existing building, provided that--
(A) The existing building is complete in all respects;
(B) The total size in square footage of the expanded building,
notwithstanding the number of expansions, is not greater than twice the
size of the existing building;
(C) The expansion is joined structurally to the existing building
and does not constitute a separate building; and
(D) The costs of the expansion do not exceed the appraised value of
the existing building;
(iv) Architect's fees, site survey, and soil investigation, if
necessary in
[[Page 55745]]
connection with the acquisition, remodeling, alteration, or expansion
of an existing building; and
(v) The acquisition of fixed or movable equipment, including the
costs of installation of the equipment, if necessary to establish,
develop, or improve a community rehabilitation program.
(Authority: Sections 7(12) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(12) and 709(c))
(18) Extended employment means work in a non-integrated or
sheltered setting for a public or private nonprofit agency or
organization that provides compensation in accordance with the Fair
Labor Standards Act.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(19) Extended services means ongoing support services and other
appropriate services that are--
(i) Needed to support and maintain an individual with a most
significant disability including a youth with a most significant
disability, in supported employment;
(ii) Organized or made available, singly or in combination, in such
a way as to assist an eligible individual in maintaining supported
employment;
(iii) Based on the needs of an eligible individual, as specified in
an individualized plan for employment;
(iv) Provided by a State agency, a private nonprofit organization,
employer, or any other appropriate resource, after an individual has
made the transition from support from the designated State unit; and
(v) Provided to a youth with a most significant disability by the
designated State unit in accordance with requirements set forth in this
part and part 363 for a period not to exceed four years, or at such
time that a youth reaches age 25 and no longer meets the definition of
a youth with a disability under paragraph (c)(58) of this section,
whichever occurs first. The designated State unit may not provide
extended services to an individual with a most significant disability
who is not a youth with a most significant disability.
(Authority: Sections 7(13), 12(c), and 604(b) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(13), 709(c), and 795i(b))
(20) Extreme medical risk means a probability of substantially
increasing functional impairment or death if medical services,
including mental health services, are not provided expeditiously.
(Authority: Sections 12(c) and 101(a)(8)(A)(i)(III) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
721(a)(8)(A)(i)(III))
(21) Fair hearing board means a committee, body, or group of
persons established by a State prior to January 1, 1985, that--
(i) Is authorized under State law to review determinations made by
personnel of the designated State unit that affect the provision of
vocational rehabilitation services; and
(ii) Carries out the responsibilities of the impartial hearing
officer in accordance with the requirements in Sec. 361.57(j).
(Authority: Sections 12(c) and 102(c)(6) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 722(c)(6))
(22) Family member, for purposes of receiving vocational
rehabilitation services in accordance with Sec. 361.48(b)(9), means an
individual--
(i) Who either--
(A) Is a relative or guardian of an applicant or eligible
individual; or
(B) Lives in the same household as an applicant or eligible
individual;
(ii) Who has a substantial interest in the well-being of that
individual; and
(iii) Whose receipt of vocational rehabilitation services is
necessary to enable the applicant or eligible individual to achieve an
employment outcome.
(Authority: Sections 12(c) and 103(a)(19) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(19))
(23) Governor means a chief executive officer of a State.
(Authority: Section 7(15) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(15))
(24) Impartial hearing officer--(i) Impartial hearing officer means
an individual who--
(A) Is not an employee of a public agency (other than an
administrative law judge, hearing examiner, or employee of an
institution of higher education);
(B) Is not a member of the State Rehabilitation Council for the
designated State unit;
(C) Has not been involved previously in the vocational
rehabilitation of the applicant or recipient of services;
(D) Has knowledge of the delivery of vocational rehabilitation
services, the vocational rehabilitation services portion of the Unified
or Combined State Plan, and the Federal and State regulations governing
the provision of services;
(E) Has received training with respect to the performance of
official duties; and
(F) Has no personal, professional, or financial interest that could
affect the objectivity of the individual.
(ii) An individual is not considered to be an employee of a public
agency for the purposes of this definition solely because the
individual is paid by the agency to serve as a hearing officer.
(Authority: Sections 7(16) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(16) and 709(c))
(25) Indian; American Indian; Indian American; Indian Tribe--(i) In
general. The terms ``Indian'', ``American Indian'', and ``Indian
American'' mean an individual who is a member of an Indian tribe and
include a Native and a descendant of a Native, as such terms are
defined in subsections (b) and (r) of section 3 of the Alaska Native
Claims Settlement Act (43 U.S.C. 1602).
(ii) Indian tribe. The term ``Indian tribe'' means any Federal or
State Indian tribe, band, rancheria, pueblo, colony, or community,
including any Alaska 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)).
(Authority: Section 7(19) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(19))
(26) Individual who is blind means a person who is blind within the
meaning of applicable State law.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(27) Individual with a disability, except as provided in paragraph
(c)(28) of this section, means an individual--
(i) Who has a physical or mental impairment;
(ii) Whose impairment constitutes or results in a substantial
impediment to employment; and
(iii) Who can benefit in terms of an employment outcome from the
provision of vocational rehabilitation services.
(Authority: Section 7(20)(A) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(20)(A))
(28) Individual with a disability, for purposes of Sec. Sec.
361.5(c)(13), 361.13(a), 361.13(b)(1), 361.17(a), (b), (c), and (j),
361.18(b), 361.19, 361.20, 361.23(b)(2), 361.29(a) and (d)(8), and
361.51(b), means an individual--
(i) Who has a physical or mental impairment that substantially
limits one or more major life activities;
(ii) Who has a record of such an impairment; or
[[Page 55746]]
(iii) Who is regarded as having such an impairment.
(Authority: Section 7(20)(B) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(20)(B))
(29) Individual with a most significant disability means an
individual with a significant disability who meets the designated State
unit's criteria for an individual with a most significant disability.
These criteria must be consistent with the requirements in Sec.
361.36(d)(1) and (2).
(Authority: Sections 7(21)(E) and 101(a)(5)(C) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(21)(E) and 721(a)(5)(C))
(30) Individual with a significant disability means an individual
with a disability--
(i) Who has a severe physical or mental impairment that seriously
limits one or more functional capacities (such as mobility,
communication, self-care, self-direction, interpersonal skills, work
tolerance, or work skills) in terms of an employment outcome;
(ii) Whose vocational rehabilitation can be expected to require
multiple vocational rehabilitation services over an extended period of
time; and
(iii) Who has one or more physical or mental disabilities resulting
from amputation, arthritis, autism, blindness, burn injury, cancer,
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease,
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental
illness, multiple sclerosis, muscular dystrophy, musculo-skeletal
disorders, neurological disorders (including stroke and epilepsy),
spinal cord conditions (including paraplegia and quadriplegia), sickle
cell anemia, intellectual disability, specific learning disability,
end-stage renal disease, or another disability or combination of
disabilities determined on the basis of an assessment for determining
eligibility and vocational rehabilitation needs to cause comparable
substantial functional limitation.
(Authority: Section 7(21)(A) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(21)(A))
(31) Individual's representative means any representative chosen by
an applicant or eligible individual, as appropriate, including a
parent, guardian, other family member, or advocate, unless a
representative has been appointed by a court to represent the
individual, in which case the court-appointed representative is the
individual's representative.
(Authority: Sections 7(22) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(22) and 709(c))
(32) Integrated setting means--
(i) With respect to the provision of services, a setting typically
found in the community in which applicants or eligible individuals
interact with non-disabled individuals other than non-disabled
individuals who are providing services to those applicants or eligible
individuals; and
(ii) With respect to an employment outcome, means a setting--
(A) Typically found in the community; and
(B) Where the employee with a disability interacts, for the purpose
of performing the duties of the position, with other employees within
the particular work unit and the entire work site, and, as appropriate
to the work performed, other persons (e.g., customers and vendors) who
are not individuals with disabilities (not including supervisory
personnel or individuals who are providing services to such employee)
to the same extent that employees who are not individuals with
disabilities and who are in comparable positions interact with these
persons.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
(33) Local workforce development board means a local board, as
defined in section 3 of the Workforce Innovation and Opportunity Act.
(Authority: Section 7(25) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(25))
(34) Maintenance means monetary support provided to an individual
for expenses, such as food, shelter, and clothing, that are in excess
of the normal expenses of the individual and that are necessitated by
the individual's participation in an assessment for determining
eligibility and vocational rehabilitation needs or the individual's
receipt of vocational rehabilitation services under an individualized
plan for employment.
(Authority: Sections 12(c) and 103(a)(7) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(7))
(i) Examples: The following are examples of expenses that would
meet the definition of maintenance. The examples are illustrative, do
not address all possible circumstances, and are not intended to
substitute for individual counselor judgment.
Example 1: The cost of a uniform or other suitable clothing
that is required for an individual's job placement or job-seeking
activities.
Example 2: The cost of short-term shelter that is required in
order for an individual to participate in assessment activities or
vocational training at a site that is not within commuting distance
of an individual's home.
Example 3: The initial one-time costs, such as a security
deposit or charges for the initiation of utilities, that are
required in order for an individual to relocate for a job placement.
(ii) [Reserved]
(35) Mediation means the act or process of using an independent
third party to act as a mediator, intermediary, or conciliator to
assist persons or parties in settling differences or disputes prior to
pursuing formal administrative or other legal remedies. Mediation under
the program must be conducted in accordance with the requirements in
Sec. 361.57(d) by a qualified and impartial mediator as defined in
Sec. 361.5(c)(43).
(Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 722(c)(4))
(36) Nonprofit, with respect to a community rehabilitation program,
means a community rehabilitation program carried out by a corporation
or association, no part of the net earnings of which inures, or may
lawfully inure, to the benefit of any private shareholder or individual
and the income of which is exempt from taxation under section 501(c)(3)
of the Internal Revenue Code of 1986.
(Authority: Section 7(26) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(26))
(37) Ongoing support services, as used in the definition of
supported employment, means services that--
(i) Are needed to support and maintain an individual with a most
significant disability, including a youth with a most significant
disability, in supported employment;
(ii) Are identified based on a determination by the designated
State unit of the individual's need as specified in an individualized
plan for employment;
(iii) Are furnished by the designated State unit from the time of
job placement until transition to extended services, unless post-
employment services are provided following transition, and thereafter
by one or more extended services providers throughout the individual's
term of employment in a particular job placement;
(iv) Include an assessment of employment stability and provision of
specific services or the coordination of services at or away from the
worksite that are needed to maintain stability based on--
[[Page 55747]]
(A) At a minimum, twice-monthly monitoring at the worksite of each
individual in supported employment; or
(B) If under specific circumstances, especially at the request of
the individual, the individualized plan for employment provides for
off-site monitoring, twice monthly meetings with the individual;
(v) Consist of--
(A) Any particularized assessment supplementary to the
comprehensive assessment of rehabilitation needs described in paragraph
(c)(5)(ii) of this section;
(B) The provision of skilled job trainers who accompany the
individual for intensive job skill training at the work site;
(C) Job development and training;
(D) Social skills training;
(E) Regular observation or supervision of the individual;
(F) Follow-up services including regular contact with the
employers, the individuals, the parents, family members, guardians,
advocates or authorized representatives of the individuals, and other
suitable professional and informed advisors, in order to reinforce and
stabilize the job placement;
(G) Facilitation of natural supports at the worksite;
(H) Any other service identified in the scope of vocational
rehabilitation services for individuals, described in Sec. 361.48(b);
or
(I) Any service similar to the foregoing services.
(Authority: Sections 7(27) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(27) and 709(c))
(38) Personal assistance services means a range of services,
including, among other things, training in managing, supervising, and
directing personal assistance services, provided by one or more
persons, that are--
(i) Designed to assist an individual with a disability to perform
daily living activities on or off the job that the individual would
typically perform without assistance if the individual did not have a
disability;
(ii) Designed to increase the individual's control in life and
ability to perform everyday activities on or off the job;
(iii) Necessary to the achievement of an employment outcome; and
(iv) Provided only while the individual is receiving other
vocational rehabilitation services. The services may include training
in managing, supervising, and directing personal assistance services.
(Authority: Sections 7(28), 12(c), 102(b)(4)(B)(i)(I)(bb), and
103(a)(9) of the Rehabilitation Act of 1973, as amended; 29 U.S.C.
705(28), 709(c), 722(b)(4)(B)(i)(I)(bb), and 723(a)(9))
(39) Physical and mental restoration services means--
(i) Corrective surgery or therapeutic treatment that is likely,
within a reasonable period of time, to correct or modify substantially
a stable or slowly progressive physical or mental impairment that
constitutes a substantial impediment to employment;
(ii) Diagnosis of and treatment for mental or emotional disorders
by qualified personnel in accordance with State licensure laws;
(iii) Dentistry;
(iv) Nursing services;
(v) Necessary hospitalization (either inpatient or outpatient care)
in connection with surgery or treatment and clinic services;
(vi) Drugs and supplies;
(vii) Prosthetic and orthotic devices;
(viii) Eyeglasses and visual services, including visual training,
and the examination and services necessary for the prescription and
provision of eyeglasses, contact lenses, microscopic lenses, telescopic
lenses, and other special visual aids prescribed by personnel who are
qualified in accordance with State licensure laws;
(ix) Podiatry;
(x) Physical therapy;
(xi) Occupational therapy;
(xii) Speech or hearing therapy;
(xiii) Mental health services;
(xiv) Treatment of either acute or chronic medical complications
and emergencies that are associated with or arise out of the provision
of physical and mental restoration services, or that are inherent in
the condition under treatment;
(xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial
kidneys, and supplies; and
(xvi) Other medical or medically related rehabilitation services.
(Authority: Sections 12(c) and 103(a)(6) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(6))
(40) Physical or mental impairment means--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculo-skeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and
endocrine; or
(ii) Any mental or psychological disorder such as intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))
(41) Post-employment services means one or more of the services
identified in Sec. 361.48(b) that are provided subsequent to the
achievement of an employment outcome and that are necessary for an
individual to maintain, regain, or advance in employment, consistent
with the individual's unique strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice.
(Authority: Sections 12(c) and 103(a)(20) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(20))
Note to paragraph (c)(41): Post-employment services are intended
to ensure that the employment outcome remains consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice. These
services are available to meet rehabilitation needs that do not
require a complex and comprehensive provision of services and, thus,
should be limited in scope and duration. If more comprehensive
services are required, then a new rehabilitation effort should be
considered. Post-employment services are to be provided under an
amended individualized plan for employment; thus, a re-determination
of eligibility is not required. The provision of post-employment
services is subject to the same requirements in this part as the
provision of any other vocational rehabilitation service. Post-
employment services are available to assist an individual to
maintain employment, e.g., the individual's employment is
jeopardized because of conflicts with supervisors or co-workers, and
the individual needs mental health services and counseling to
maintain the employment, or the individual requires assistive
technology to maintain the employment; to regain employment, e.g.,
the individual's job is eliminated through reorganization and new
placement services are needed; and to advance in employment, e.g.,
the employment is no longer consistent with the individual's unique
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice.
(42) Pre-employment transition services means the required
activities and authorized activities specified in Sec. 361.48(a)(2)
and (3).
(Authority: Sections 7(30) and 113(b) and (c) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(30) and 733(b) and (c))
(43) Qualified and impartial mediator--(i) Qualified and impartial
mediator means an individual who--
(A) Is not an employee of a public agency (other than an
administrative law judge, hearing examiner, employee
[[Page 55748]]
of a State office of mediators, or employee of an institution of higher
education);
(B) Is not a member of the State Rehabilitation Council for the
designated State unit;
(C) Has not been involved previously in the vocational
rehabilitation of the applicant or recipient of services;
(D) Is knowledgeable of the vocational rehabilitation program and
the applicable Federal and State laws, regulations, and policies
governing the provision of vocational rehabilitation services;
(E) Has been trained in effective mediation techniques consistent
with any State-approved or -recognized certification, licensing,
registration, or other requirements; and
(F) Has no personal, professional, or financial interest that could
affect the individual's objectivity during the mediation proceedings.
(ii) An individual is not considered to be an employee of the
designated State agency or designated State unit for the purposes of
this definition solely because the individual is paid by the designated
State agency or designated State unit to serve as a mediator.
(Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 722(c)(4))
(44) Rehabilitation engineering means the systematic application of
engineering sciences to design, develop, adapt, test, evaluate, apply,
and distribute technological solutions to problems confronted by
individuals with disabilities in functional areas, such as mobility,
communications, hearing, vision, and cognition, and in activities
associated with employment, independent living, education, and
integration into the community.
(Authority: Sections 7(32) and (12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(32) and 709(c))
(45) Rehabilitation technology means the systematic application of
technologies, engineering methodologies, or scientific principles to
meet the needs of, and address the barriers confronted by, individuals
with disabilities in areas that include education, rehabilitation,
employment, transportation, independent living, and recreation. The
term includes rehabilitation engineering, assistive technology devices,
and assistive technology services.
(Authority: Section 7(32) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(32))
(46) Reservation means a Federal or State Indian reservation, a
public domain Indian allotment, a former Indian reservation in
Oklahoma, and land held by incorporated Native groups, regional
corporations, and village corporations under the provisions of the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); or a
defined area of land recognized by a State or the Federal Government
where there is a concentration of tribal members and on which the
tribal government is providing structured activities and services.
(Authority: Section 121(e) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 741(e))
(47) Sole local agency means a unit or combination of units of
general local government or one or more Indian tribes that has the sole
responsibility under an agreement with, and the supervision of, the
State agency to conduct a local or tribal vocational rehabilitation
program, in accordance with the vocational rehabilitation services
portion of the Unified or Combined State Plan.
(Authority: Section 7(24) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(24))
(48) State means any of the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, the United States Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
(Authority: Section 7(34) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(34))
(49) State workforce development board means a State workforce
development board, as defined in section 3 of the Workforce Innovation
and Opportunity Act (29 U.S.C. 3102).
(Authority: Section 7(35) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(35))
(50) Statewide workforce development system means a workforce
development system, as defined in section 3 of the Workforce Innovation
and Opportunity Act (29 U.S.C. 3102).
(Authority: Section 7(36) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(36))
(51) Student with a disability--(i) Student with a disability
means, in general, an individual with a disability in a secondary,
postsecondary, or other recognized education program who--
(A)(1) Is not younger than the earliest age for the provision of
transition services under section 614(d)(1)(A)(i)(VIII) of the
Individuals with Disabilities Education Act (20 U.S.C.
1414(d)(1)(A)(i)(VIII)); or
(2) If the State involved elects to use a lower minimum age for
receipt of pre-employment transition services under this Act, is not
younger than that minimum age; and
(B)(1) Is not older than 21 years of age; or
(2) If the State law for the State provides for a higher maximum
age for receipt of services under the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.), is not older than that maximum
age; and
(C)(1) Is eligible for, and receiving, special education or related
services under Part B of the Individuals with Disabilities Education
Act (20 U.S.C. 1411 et seq.); or
(2) Is a student who is an individual with a disability, for
purposes of section 504.
(ii) Students with disabilities means more than one student with a
disability.
(Authority: Sections 7(37) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(37) and 709(c))
(52) Substantial impediment to employment means that a physical or
mental impairment (in light of attendant medical, psychological,
vocational, educational, communication, and other related factors)
hinders an individual from preparing for, entering into, engaging in,
advancing in, or retaining employment consistent with the individual's
abilities and capabilities.
(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))
(53) Supported employment--(i) Supported employment means
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, and customized,
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 disabilities,
need intensive supported employment services and extended services
after the transition from support provided by the designated State
unit, in order to perform this work.
[[Page 55749]]
(ii) For purposes of this part, an individual with a most
significant disability, whose supported employment in an integrated
setting does not satisfy the criteria of competitive integrated
employment, as defined in paragraph (c)(9) of this section is
considered to be working on a short-term basis toward competitive
integrated employment so long as the individual can reasonably
anticipate achieving competitive integrated employment--
(A) Within six months of achieving a supported employment outcome;
or
(B) In limited circumstances, 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.
(Authority: Sections 7(38), 12(c), and 602 of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 705(38), 709(c), and 795g)
(54) Supported employment services means ongoing support services,
including customized employment, and other appropriate services needed
to support and maintain an individual with a most significant
disability, including a youth with a most significant disability, in
supported employment that are--
(i) Organized and made available, singly or in combination, in such
a way as to assist an eligible individual to achieve competitive
integrated employment;
(ii) Based on a determination of the needs of an eligible
individual, as specified in an individualized plan for employment;
(iii) Provided by the designated State unit for a period of time
not to exceed 24 months, unless under special circumstances the
eligible individual and the rehabilitation counselor jointly agree to
extend the time to achieve the employment outcome identified in the
individualized plan for employment; and
(iv) Following transition, as post-employment services that are
unavailable from an extended services provider and that are necessary
to maintain or regain the job placement or advance in employment.
(Authority: Sections 7(39), 12(c), and 103(a)(16) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(39), 709(c),
and 723(a)(16))
(55) Transition services means a coordinated set of activities for
a student or youth with a disability--
(i) Designed within an outcome-oriented process that promotes
movement from school to post-school activities, including postsecondary
education, vocational training, 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) and 103(a)(15) and (b)(7) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
723(a)(15) and (b)(7))
(56) Transportation means travel and related expenses that are
necessary to enable an applicant or eligible individual to participate
in a vocational rehabilitation service, including expenses for training
in the use of public transportation vehicles and systems.
(Authority: Sections 12(c) and 103(a)(8) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(8))
(i) Examples. The following are examples of expenses that would
meet the definition of transportation. The examples are purely
illustrative, do not address all possible circumstances, and are not
intended as substitutes for individual counselor judgment.
Example 1: Travel and related expenses for a personal care
attendant or aide if the services of that person are necessary to
enable the applicant or eligible individual to travel to participate
in any vocational rehabilitation service.
Example 2: The purchase and repair of vehicles, including vans,
but not the modification of these vehicles, as modification would be
considered a rehabilitation technology service.
Example 3: Relocation expenses incurred by an eligible
individual in connection with a job placement that is a significant
distance from the eligible individual's current residence.
(ii) [Reserved]
(57) Vocational rehabilitation services--(i) If provided to an
individual, means those services listed in Sec. 361.48; and
(ii) If provided for the benefit of groups of individuals, means
those services listed in Sec. 361.49.
(Authority: Sections 7(40) and 103 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(40) and 723)
(58) Youth with a disability--(i) Youth with a disability means an
individual with a disability who is not--
(A) Younger than 14 years of age; and
(B) Older than 24 years of age.
(ii) Youth with disabilities means more than one youth with a
disability.
(Authority: Section 7(42) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(42))
Subpart B--State Plan and Other Requirements for Vocational
Rehabilitation Services
Sec. 361.10 Submission, approval, and disapproval of the State plan.
(a) Purpose. (1) To be eligible to receive funds under this part
for a fiscal year, a State must submit, and have approved, a vocational
rehabilitation services portion of a Unified or Combined State Plan in
accordance with section 102 or 103 of the Workforce Innovation and
Opportunity Act.
(2) The vocational rehabilitation services portion of the Unified
or Combined State Plan must satisfy all requirements set forth in this
part.
(b) Separate part relating to the vocational rehabilitation of
individuals who are blind. If a separate State agency administers or
supervises the administration of a separate part of the vocational
rehabilitation services portion of the Unified or Combined State Plan
relating to the vocational rehabilitation of individuals who are blind,
that part of the vocational rehabilitation services portion of the
Unified or Combined State Plan must separately conform to all
applicable requirements under this part.
(c) Public participation. Prior to the adoption of any substantive
policies or procedures specific to the provision of vocational
rehabilitation services under the vocational rehabilitation services
portion of the Unified or Combined State Plan, including making any
substantive amendment to those policies and procedures, the designated
State agency must conduct public meetings throughout the State, in
accordance with the requirements of Sec. 361.20.
(d) [Reserved]
(e) Submission of policies and procedures. The State is not
required to
[[Page 55750]]
submit policies, procedures, or descriptions required under this part
that have been previously submitted to the Secretary and that
demonstrate that the State meets the requirements of this part,
including any policies, procedures, or descriptions submitted under
this part that are in effect on July 22, 2014.
(f) Due process. If the Secretary disapproves the vocational
rehabilitation services portion of the Unified or Combined State Plan,
the Secretary will follow these procedures:
(1) Informal resolution. Prior to disapproving the vocational
rehabilitation services portion of the Unified or Combined State Plan,
the Secretary attempts to resolve disputes informally with State
officials.
(2) Notice. If, after reasonable effort has been made to resolve
the dispute, no resolution has been reached, the Secretary provides
notice to the State agency of the intention to disapprove the
vocational rehabilitation services portion of the Unified or Combined
State Plan and of the opportunity for a hearing.
(3) State plan hearing. If the State agency requests a hearing, the
Secretary designates one or more individuals, either from the
Department or elsewhere, not responsible for or connected with the
administration of this program, to conduct a hearing in accordance with
the provisions of 34 CFR part 81, subpart A.
(4) Initial decision. The hearing officer issues an initial
decision in accordance with 34 CFR 81.41.
(5) Petition for review of an initial decision. The State agency
may seek the Secretary's review of the initial decision in accordance
with 34 CFR part 81.
(6) Review by the Secretary. The Secretary reviews the initial
decision in accordance with 34 CFR 81.43.
(7) Final decision of the Department. The final decision of the
Department is made in accordance with 34 CFR 81.44.
(8) Judicial review. A State may appeal the Secretary's decision to
disapprove the vocational rehabilitation services portion of the
Unified or Combined State Plan by filing a petition for review with the
United States Court of Appeals for the circuit in which the State is
located, in accordance with section 107(d) of the Act.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 101(a) and (b) and 107(d) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 721(a) and (b) and 727(d); and 20
U.S.C. 1231g(a))
Sec. 361.11 Withholding of funds.
(a) Basis for withholding. The Secretary may withhold or limit
payments under section 111 or 603(a) of the Act, as provided by section
107(c) of the Act, if the Secretary determines that--
(1) The vocational rehabilitation services portion of the Unified
or Combined State Plan, including the supported employment supplement,
has been so changed that it no longer conforms with the requirements of
this part or part 363; or
(2) In the administration of the vocational rehabilitation services
portion of the Unified or Combined State Plan there is a failure to
comply substantially with any provision of such plan or with an
evaluation standard or performance indicator established under section
106 of the Act.
(b) Informal resolution. Prior to withholding or limiting payments
in accordance with this section, the Secretary attempts to resolve
disputed issues informally with State officials.
(c) Notice. If, after reasonable effort has been made to resolve
the dispute, no resolution has been reached, the Secretary provides
notice to the State agency of the intention to withhold or limit
payments and of the opportunity for a hearing.
(d) Withholding hearing. If the State agency requests a hearing,
the Secretary designates one or more individuals, either from the
Department or elsewhere, not responsible for or connected with the
administration of this program, to conduct a hearing in accordance with
the provisions of 34 CFR part 81, subpart A.
(e) Initial decision. The hearing officer issues an initial
decision in accordance with 34 CFR 81.41.
(f) Petition for review of an initial decision. The State agency
may seek the Secretary's review of the initial decision in accordance
with 34 CFR 81.42.
(g) Review by the Secretary. The Secretary reviews the initial
decision in accordance with 34 CFR 81.43.
(h) Final decision of the Department. The final decision of the
Department is made in accordance with 34 CFR 81.44.
(i) Judicial review. A State may appeal the Secretary's decision to
withhold or limit payments by filing a petition for review with the
United States Court of Appeals for the circuit in which the State is
located, in accordance with section 107(d) of the Act.
(Authority: Sections 12(c), 101(b), and 107(c) and (d) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(b) and
727(c) and (d))
Administration
Sec. 361.12 Methods of administration.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that the State agency, and the
designated State unit if applicable, employs methods of administration
found necessary by the Secretary for the proper and efficient
administration of the plan and for carrying out all functions for which
the State is responsible under the plan and this part. These methods
must include procedures to ensure accurate data collection and
financial accountability.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(6) and (a)(10)(A) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
721(a)(6) and (a)(10)(A))
Sec. 361.13 State agency for administration.
(a) Designation of State agency. The vocational rehabilitation
services portion of the Unified or Combined State Plan must designate a
State agency as the sole State agency to administer the vocational
rehabilitation services portion of the Unified or Combined State Plan,
or to supervise its administration in a political subdivision of the
State by a sole local agency, in accordance with the following
requirements:
(1) General. Except as provided in paragraphs (a)(2) and (3) of
this section, the vocational rehabilitation services portion of the
Unified or Combined State Plan must provide that the designated State
agency is one of the following types of agencies:
(i) A State agency that is primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities; or
(ii) A State agency that includes a vocational rehabilitation unit
as provided in paragraph (b) of this section.
(2) American Samoa. In the case of American Samoa, the vocational
rehabilitation services portion of the Unified or Combined State Plan
must designate the Governor.
(3) Designated State agency for individuals who are blind. If a
State commission or other agency that provides assistance or services
to individuals who are blind is authorized under State law to provide
vocational rehabilitation services to individuals who are blind, and
this commission or agency is primarily concerned with vocational
rehabilitation or includes a vocational rehabilitation unit as provided
in paragraph (b) of this section, the vocational rehabilitation
services portion of the Unified or Combined State Plan may designate
that agency as the sole State agency to
[[Page 55751]]
administer the part of the plan under which vocational rehabilitation
services are provided for individuals who are blind or to supervise its
administration in a political subdivision of the State by a sole local
agency.
(b) Designation of State unit--(1) General. If the designated State
agency is not of the type specified in paragraph (a)(1)(i) of this
section or if the designated State agency specified in paragraph (a)(3)
of this section is not primarily concerned with vocational
rehabilitation or vocational and other rehabilitation of individuals
with disabilities, the vocational rehabilitation services portion of
the Unified or Combined State Plan must assure that the agency (or each
agency if two agencies are designated) includes a vocational
rehabilitation bureau, division, or unit that--
(i) Is primarily concerned with vocational rehabilitation or
vocational and other rehabilitation of individuals with disabilities
and is responsible for the administration of the State agency's
vocational rehabilitation program under the vocational rehabilitation
services portion of the Unified or Combined State Plan;
(ii) Has a full-time director who is responsible for the day-to-day
operations of the vocational rehabilitation program;
(iii) Has a staff, at least 90 percent of whom are employed full
time on the rehabilitation work of the organizational unit;
(iv) Is located at an organizational level and has an
organizational status within the State agency comparable to that of
other major organizational units of the agency; and
(v) Has the sole authority and responsibility described within the
designated State agency in paragraph (a) of this section to expend
funds made available under the Act in a manner that is consistent with
the purpose of the Act.
(2) In the case of a State that has not designated a separate State
agency for individuals who are blind, as provided for in paragraph
(a)(3) of this section, the State may assign responsibility for the
part of the vocational rehabilitation services portion of the Unified
or Combined State Plan under which vocational rehabilitation services
are provided to individuals who are blind to one organizational unit of
the designated State agency and may assign responsibility for the rest
of the plan to another organizational unit of the designated State
agency, with the provisions of paragraph (b)(1) of this section
applying separately to each of these units.
(c) Responsibility for administration--(1) Required activities. At
a minimum, the following activities are the responsibility of the
designated State unit or the sole local agency under the supervision of
the State unit:
(i) All decisions affecting eligibility for vocational
rehabilitation services, the nature and scope of available services,
and the provision of these services.
(ii) The determination to close the record of services of an
individual who has achieved an employment outcome in accordance with
Sec. 361.56.
(iii) Policy formulation and implementation.
(iv) The allocation and expenditure of vocational rehabilitation
funds.
(v) Participation as a partner in the one-stop service delivery
system established under title I of the Workforce Innovation and
Opportunity Act, in accordance with 20 CFR part 678.
(2) Non-delegable responsibility. The responsibility for the
functions described in paragraph (c)(1) of this section may not be
delegated to any other agency or individual.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(2) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a)(2))
Sec. 361.14 Substitute State agency.
(a) General provisions. (1) If the Secretary has withheld all
funding from a State under Sec. 361.11, the State may designate
another agency to substitute for the designated State agency in
carrying out the State's program of vocational rehabilitation services.
(2) Any public or nonprofit private organization or agency within
the State or any political subdivision of the State is eligible to be a
substitute agency.
(3) The substitute agency must submit a vocational rehabilitation
services portion of the Unified or Combined State Plan that meets the
requirements of this part.
(4) The Secretary makes no grant to a substitute agency until the
Secretary approves its plan.
(b) Substitute agency matching share. The Secretary does not make
any payment to a substitute agency unless it has provided assurances
that it will contribute the same matching share as the State would have
been required to contribute if the State agency were carrying out the
vocational rehabilitation program.
(Authority: Section 107(c)(3) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 727(c)(3))
Sec. 361.15 Local administration.
(a) If the vocational rehabilitation services portion of the
Unified or Combined State Plan provides for the administration of the
plan by a local agency, the designated State agency must--
(1) Ensure that each local agency is under the supervision of the
designated State unit and is the sole local agency as defined in Sec.
361.5(c)(47) that is responsible for the administration of the program
within the political subdivision that it serves; and
(2) Develop methods that each local agency will use to administer
the vocational rehabilitation program, in accordance with the
vocational rehabilitation services portion of the Unified or Combined
State Plan.
(b) A separate local agency serving individuals who are blind may
administer that part of the plan relating to vocational rehabilitation
of individuals who are blind, under the supervision of the designated
State unit for individuals who are blind.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 7(24) and 101(a)(2)(A) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(24) and 721(a)(2)(A))
Sec. 361.16 Establishment of an independent commission or a State
Rehabilitation Council.
(a) General requirement. Except as provided in paragraph (b) of
this section, the vocational rehabilitation services portion of the
Unified or Combined State Plan must contain one of the following two
assurances:
(1) An assurance that the designated State agency is an independent
State commission that--
(i) Is responsible under State law for operating, or overseeing the
operation of, the vocational rehabilitation program in the State and is
primarily concerned with vocational rehabilitation or vocational and
other rehabilitation services, in accordance with Sec.
361.13(a)(1)(i);
(ii) Is consumer-controlled by persons who--
(A) Are individuals with physical or mental impairments that
substantially limit major life activities; and
(B) Represent individuals with a broad range of disabilities,
unless the designated State unit under the direction of the commission
is the State agency for individuals who are blind;
(iii) Includes family members, advocates, or other representatives
of individuals with mental impairments; and
(iv) Conducts the functions identified in Sec. 361.17(h)(4).
[[Page 55752]]
(2) An assurance that--
(i) The State has established a State Rehabilitation Council
(Council) that meets the requirements of Sec. 361.17;
(ii) The designated State unit, in accordance with Sec. 361.29,
jointly develops, agrees to, and reviews annually State goals and
priorities and jointly submits to the Secretary annual reports of
progress with the Council;
(iii) The designated State unit regularly consults with the Council
regarding the development, implementation, and revision of State
policies and procedures of general applicability pertaining to the
provision of vocational rehabilitation services;
(iv) The designated State unit transmits to the Council--
(A) All plans, reports, and other information required under this
part to be submitted to the Secretary;
(B) All policies and information on all practices and procedures of
general applicability provided to or used by rehabilitation personnel
providing vocational rehabilitation services under this part; and
(C) Copies of due process hearing decisions issued under this part
and transmitted in a manner to ensure that the identity of the
participants in the hearings is kept confidential; and
(v) The vocational rehabilitation services portion of the Unified
or Combined State Plan, and any revision to the vocational
rehabilitation services portion of the Unified or Combined State Plan,
includes a summary of input provided by the Council, including
recommendations from the annual report of the Council, the review and
analysis of consumer satisfaction described in Sec. 361.17(h)(4), and
other reports prepared by the Council, and the designated State unit's
response to the input and recommendations, including its reasons for
rejecting any input or recommendation of the Council.
(b) Exception for separate State agency for individuals who are
blind. In the case of a State that designates a separate State agency
under Sec. 361.13(a)(3) to administer the part of the vocational
rehabilitation services portion of the Unified or Combined State Plan
under which vocational rehabilitation services are provided to
individuals who are blind, the State must either establish a separate
State Rehabilitation Council for each agency that does not meet the
requirements in paragraph (a)(1) of this section or establish one State
Rehabilitation Council for both agencies if neither agency meets the
requirements of paragraph (a)(1) of this section.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 101(a)(21) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(21))
Sec. 361.17 Requirements for a State Rehabilitation Council.
If the State has established a Council under Sec. 361.16(a)(2) or
(b), the Council must meet the following requirements:
(a) Appointment. (1) The members of the Council must be appointed
by the Governor or, in the case of a State that, under State law, vests
authority for the administration of the activities carried out under
this part in an entity other than the Governor (such as one or more
houses of the State legislature or an independent board), the chief
officer of that entity.
(2) The appointing authority must select members of the Council
after soliciting recommendations from representatives of organizations
representing a broad range of individuals with disabilities and
organizations interested in individuals with disabilities. In selecting
members, the appointing authority must consider, to the greatest extent
practicable, the extent to which minority populations are represented
on the Council.
(b) Composition--(1) General. Except as provided in paragraph
(b)(3) of this section, the Council must be composed of at least 15
members, including--
(i) At least one representative of the Statewide Independent Living
Council, who must be the chairperson or other designee of the Statewide
Independent Living Council;
(ii) At least one representative of a parent training and
information center established pursuant to section 682(a) of the
Individuals with Disabilities Education Act;
(iii) At least one representative of the Client Assistance Program
established under part 370 of this chapter, who must be the director of
or other individual recommended by the Client Assistance Program;
(iv) At least one qualified vocational rehabilitation counselor
with knowledge of and experience with vocational rehabilitation
programs who serves as an ex officio, nonvoting member of the Council
if employed by the designated State agency;
(v) At least one representative of community rehabilitation program
service providers;
(vi) Four representatives of business, industry, and labor;
(vii) Representatives of disability groups that include a cross
section of--
(A) Individuals with physical, cognitive, sensory, and mental
disabilities; and
(B) Representatives of individuals with disabilities who have
difficulty representing themselves or are unable due to their
disabilities to represent themselves;
(viii) Current or former applicants for, or recipients of,
vocational rehabilitation services;
(ix) In a State in which one or more projects are funded under
section 121 of the Act (American Indian Vocational Rehabilitation
Services), at least one representative of the directors of the projects
in such State;
(x) At least one representative of the State educational agency
responsible for the public education of students with disabilities who
are eligible to receive services under this part and part B of the
Individuals with Disabilities Education Act;
(xi) At least one representative of the State workforce development
board; and
(xii) The director of the designated State unit as an ex officio,
nonvoting member of the Council.
(2) Employees of the designated State agency. Employees of the
designated State agency may serve only as nonvoting members of the
Council. This provision does not apply to the representative appointed
pursuant to paragraph (b)(1)(iii) of this section.
(3) Composition of a separate Council for a separate State agency
for individuals who are blind. Except as provided in paragraph (b)(4)
of this section, if the State establishes a separate Council for a
separate State agency for individuals who are blind, that Council
must--
(i) Conform with all of the composition requirements for a Council
under paragraph (b)(1) of this section, except the requirements in
paragraph (b)(1)(vii), unless the exception in paragraph (b)(4) of this
section applies; and
(ii) Include--
(A) At least one representative of a disability advocacy group
representing individuals who are blind; and
(B) At least one representative of an individual who is blind, has
multiple disabilities, and has difficulty representing himself or
herself or is unable due to disabilities to represent himself or
herself.
(4) Exception. If State law in effect on October 29, 1992 requires
a separate Council under paragraph (b)(3) of this section to have fewer
than 15 members, the separate Council is in compliance with the
composition requirements in paragraphs (b)(1)(vi) and (viii) of this
section if it includes at least one representative who meets the
requirements for each of those paragraphs.
(c) Majority. (1) A majority of the Council members must be
individuals
[[Page 55753]]
with disabilities who meet the requirements of Sec. 361.5(c)(28) and
are not employed by the designated State unit.
(2) In the case of a separate Council established under Sec.
361.16(b), a majority of the Council members must be individuals who
are blind and are not employed by the designated State unit.
(d) Chairperson. (1) The chairperson must be selected by the
members of the Council from among the voting members of the Council,
subject to the veto power of the Governor; or
(2) In States in which the Governor does not have veto power
pursuant to State law, the appointing authority described in paragraph
(a)(1) of this section must designate a member of the Council to serve
as the chairperson of the Council or must require the Council to
designate a member to serve as chairperson.
(e) Terms of appointment. (1) Each member of the Council must be
appointed for a term of no more than three years, and each member of
the Council, other than a representative identified in paragraph
(b)(1)(iii) or (ix) of this section, may serve for no more than two
consecutive full terms.
(2) A member appointed to fill a vacancy occurring prior to the end
of the term for which the predecessor was appointed must be appointed
for the remainder of the predecessor's term.
(3) The terms of service of the members initially appointed must
be, as specified by the appointing authority as described in paragraph
(a)(1) of this section, for varied numbers of years to ensure that
terms expire on a staggered basis.
(f) Vacancies. (1) A vacancy in the membership of the Council must
be filled in the same manner as the original appointment, except the
appointing authority as described in paragraph (a)(1) of this section
may delegate the authority to fill that vacancy to the remaining
members of the Council after making the original appointment.
(2) No vacancy affects the power of the remaining members to
execute the duties of the Council.
(g) Conflict of interest. No member of the Council may cast a vote
on any matter that would provide direct financial benefit to the member
or the member's organization or otherwise give the appearance of a
conflict of interest under State law.
(h) Functions. The Council must, after consulting with the State
workforce development board--
(1) Review, analyze, and advise the designated State unit regarding
the performance of the State unit's responsibilities under this part,
particularly responsibilities related to--
(i) Eligibility, including order of selection;
(ii) The extent, scope, and effectiveness of services provided; and
(iii) Functions performed by State agencies that affect or
potentially affect the ability of individuals with disabilities in
achieving employment outcomes under this part;
(2) In partnership with the designated State unit--
(i) Develop, agree to, and review State goals and priorities in
accordance with Sec. 361.29(c); and
(ii) Evaluate the effectiveness of the vocational rehabilitation
program and submit reports of progress to the Secretary in accordance
with Sec. 361.29(e);
(3) Advise the designated State agency and the designated State
unit regarding activities carried out under this part and assist in the
preparation of the vocational rehabilitation services portion of the
Unified or Combined State Plan and amendments to the plan,
applications, reports, needs assessments, and evaluations required by
this part;
(4) To the extent feasible, conduct a review and analysis of the
effectiveness of, and consumer satisfaction with--
(i) The functions performed by the designated State agency;
(ii) The vocational rehabilitation services provided by State
agencies and other public and private entities responsible for
providing vocational rehabilitation services to individuals with
disabilities under the Act; and
(iii) The employment outcomes achieved by eligible individuals
receiving services under this part, including the availability of
health and other employment benefits in connection with those
employment outcomes;
(5) Prepare and submit to the Governor and to the Secretary no
later than 90 days after the end of the Federal fiscal year an annual
report on the status of vocational rehabilitation programs operated
within the State and make the report available to the public through
appropriate modes of communication;
(6) To avoid duplication of efforts and enhance the number of
individuals served, coordinate activities with the activities of other
councils within the State, including the Statewide Independent Living
Council established under chapter 1, title VII of the Act, the advisory
panel established under section 612(a)(21) of the Individuals with
Disabilities Education Act, the State Developmental Disabilities
Planning Council described in section 124 of the Developmental
Disabilities Assistance and Bill of Rights Act, the State mental health
planning council established under section 1914(a) of the Public Health
Service Act, and the State workforce development board, and with the
activities of entities carrying out programs under the Assistive
Technology Act of 1998;
(7) Provide for coordination and the establishment of working
relationships between the designated State agency and the Statewide
Independent Living Council and centers for independent living within
the State; and
(8) Perform other comparable functions, consistent with the purpose
of this part, as the Council determines to be appropriate, that are
comparable to the other functions performed by the Council.
(i) Resources. (1) The Council, in conjunction with the designated
State unit, must prepare a plan for the provision of resources,
including staff and other personnel, that may be necessary and
sufficient for the Council to carry out its functions under this part.
(2) The resource plan must, to the maximum extent possible, rely on
the use of resources in existence during the period of implementation
of the plan.
(3) Any disagreements between the designated State unit and the
Council regarding the amount of resources necessary to carry out the
functions of the Council must be resolved by the Governor, consistent
with paragraphs (i)(1) and (2) of this section.
(4) The Council must, consistent with State law, supervise and
evaluate the staff and personnel that are necessary to carry out its
functions.
(5) Those staff and personnel that are assisting the Council in
carrying out its functions may not be assigned duties by the designated
State unit or any other agency or office of the State that would create
a conflict of interest.
(j) Meetings. The Council must--
(1) Convene at least four meetings a year in locations determined
by the Council to be necessary to conduct Council business. The
meetings must be publicly announced, open, and accessible to the
general public, including individuals with disabilities, unless there
is a valid reason for an executive session; and
(2) Conduct forums or hearings, as appropriate, that are publicly
announced, open, and accessible to the public, including individuals
with disabilities.
(k) Compensation. Funds appropriated under title I of the Act,
except funds to carry out sections 112 and 121 of the Act, may be used
to compensate and reimburse the expenses
[[Page 55754]]
of Council members in accordance with section 105(g) of the Act.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 105 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 725)
Sec. 361.18 Comprehensive system of personnel development.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must describe the procedures and activities the
State agency will undertake to establish and maintain a comprehensive
system of personnel development designed to ensure an adequate supply
of qualified rehabilitation personnel, including professionals and
paraprofessionals, for the designated State unit. If the State agency
has a State Rehabilitation Council, this description must, at a
minimum, specify that the Council has an opportunity to review and
comment on the development of plans, policies, and procedures necessary
to meet the requirements of paragraphs (b) through (d) of this section.
This description must also conform with the following requirements:
(a) Personnel and personnel development data system. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must describe the development and maintenance of a system by the State
agency for collecting and analyzing on an annual basis data on
qualified personnel needs and personnel development, in accordance with
the following requirements:
(1) Data on qualified personnel needs must include--
(i) The number of personnel who are employed by the State agency in
the provision of vocational rehabilitation services in relation to the
number of individuals served, broken down by personnel category;
(ii) The number of personnel currently needed by the State agency
to provide vocational rehabilitation services, broken down by personnel
category; and
(iii) Projections of the number of personnel, broken down by
personnel category, who will be needed by the State agency to provide
vocational rehabilitation services in the State in five years based on
projections of the number of individuals to be served, including
individuals with significant disabilities, the number of personnel
expected to retire or leave the field, and other relevant factors.
(2) Data on personnel development must include--
(i) A list of the institutions of higher education in the State
that are preparing vocational rehabilitation professionals, by type of
program;
(ii) The number of students enrolled at each of those institutions,
broken down by type of program; and
(iii) The number of students who graduated during the prior year
from each of those institutions with certification or licensure, or
with the credentials for certification or licensure, broken down by the
personnel category for which they have received, or have the
credentials to receive, certification or licensure.
(b) Plan for recruitment, preparation, and retention of qualified
personnel. The vocational rehabilitation services portion of the
Unified or Combined State Plan must describe the development, updating,
and implementation of a plan to address the current and projected needs
for personnel who are qualified in accordance with paragraph (c) of
this section. The plan must identify the personnel needs based on the
data collection and analysis system described in paragraph (a) of this
section and must provide for the coordination and facilitation of
efforts between the designated State unit and institutions of higher
education and professional associations to recruit, prepare, and retain
personnel who are qualified in accordance with paragraph (c) of this
section, including personnel from minority backgrounds and personnel
who are individuals with disabilities.
(c) Personnel standards. (1) The vocational rehabilitation services
portion of the Unified or Combined State Plan must include the State
agency's policies and describe--
(i) Standards that are consistent with any national or State-
approved or recognized certification, licensing, or registration
requirements, or, in the absence of these requirements, other
comparable requirements (including State personnel requirements) that
apply to the profession or discipline in which that category of
personnel is providing vocational rehabilitation services; and
(ii) The establishment and maintenance of education and experience
requirements, to ensure that the personnel have a 21st-century
understanding of the evolving labor force and the needs of individuals
with disabilities, including requirements for--
(A)(1) Attainment of a baccalaureate degree in a field of study
reasonably related to vocational rehabilitation, to indicate a level of
competency and skill demonstrating basic preparation in a field of
study such as vocational rehabilitation counseling, social work,
psychology, disability studies, business administration, human
resources, special education, supported employment, customized
employment, economics, or another field that reasonably prepares
individuals to work with consumers and employers; and
(2) Demonstrated paid or unpaid experience, for not less than one
year, consisting of--
(i) Direct work with individuals with disabilities in a setting
such as an independent living center;
(ii) Direct service or advocacy activities that provide such
individual with experience and skills in working with individuals with
disabilities; or
(iii) Direct experience in competitive integrated employment
environments as an employer, as a small business owner or operator, or
in self-employment, or other experience in human resources or
recruitment, or experience in supervising employees, training, or other
activities; or
(B) Attainment of a master's or doctoral degree in a field of study
such as vocational rehabilitation counseling, law, social work,
psychology, disability studies, business administration, human
resources, special education, management, public administration, or
another field that reasonably provides competence in the employment
sector, in a disability field, or in both business-related and
rehabilitation-related fields; and
(2) As used in this section--
(i) Profession or discipline means a specific occupational
category, including any paraprofessional occupational category, that--
(A) Provides rehabilitation services to individuals with
disabilities;
(B) Has been established or designated by the State unit; and
(C) Has a specified scope of responsibility.
(ii) Ensuring that personnel have a 21st-century understanding of
the evolving labor force and the needs of individuals with disabilities
means that personnel have specialized training and experience that
enables them to work effectively with individuals with disabilities to
assist them to achieve competitive integrated employment and with
employers who hire such individuals. Relevant personnel skills include,
but are not limited to--
(A) Understanding the functional limitations of various
disabilities and the vocational implications of functional limitations
on employment, especially with regard to individuals whose disabilities
may require specialized services or groups of individuals with
disabilities who
[[Page 55755]]
comprise an increasing proportion of the State VR caseloads, such as
individuals with traumatic brain injury, post-traumatic stress
syndrome, mental illnesses, autism, blindness or deaf-blindness;
(B) Vocational assessment tools and strategies and the
interpretation of vocational assessment results, including, when
appropriate, situational and work-based assessments and analysis of
transferrable work skills;
(C) Counseling and guidance skills, including individual and group
counseling and career guidance;
(D) Effective use of practices leading to competitive integrated
employment, such as supported employment, customized employment,
internships, apprenticeships, paid work experiences, etc.;
(E) Case management and employment services planning, including
familiarity and use of the broad range of disability, employment, and
social services programs in the state and local area, such as
independent living programs, Social Security work incentives, and the
Social Security Administration`s Ticket-to-Work program;
(F) Caseload management, including familiarity with effective
caseload management practices and the use of any available automated or
information technology resources;
(G) In-depth knowledge of labor market trends, occupational
requirements, and other labor market information that provides
information about employers, business practices, and employer personnel
needs, such as data provided by the Bureau of Labor Statistics and the
Department of Labor's O*NET occupational system;
(H) The use of labor market information for vocational
rehabilitation counseling, vocational planning, and the provision of
information to consumers for the purposes of making informed choices,
business engagement and business relationships, and job development and
job placement;
(I) The use of labor market information to support building and
maintaining relationships with employers and to inform delivery of job
development and job placement activities that respond to today's labor
market;
(J) Understanding the effective utilization of rehabilitation
technology and job accommodations;
(K) Training in understanding the provisions of the Americans with
Disabilities Act and other employment discrimination and employment-
related laws;
(L) Advocacy skills to modify attitudinal and environmental
barriers to employment for individuals with disabilities, including
those with the most significant disabilities;
(M) Skills to address cultural diversity among consumers,
particularly affecting workplace settings, including racial and ethnic
diversity and generational differences; and
(N) Understanding confidentiality and ethical standards and
practices, especially related to new challenges in use of social media,
new partnerships, and data sharing.
(d) Staff development. (1) The vocational rehabilitation services
portion of the Unified or Combined State Plan must include the State
agency's policies and describe the procedures and activities the State
agency will undertake to ensure that all personnel employed by the
State unit receive appropriate and adequate training, including a
description of--
(i) A system of staff development for rehabilitation professionals
and paraprofessionals within the State unit, particularly with respect
to assessment, vocational counseling, job placement, and rehabilitation
technology, including training implemented in coordination with
entities carrying out State programs under section 4 of the Assistive
Technology Act of 1998 (29 U.S.C. 3003);
(ii) Procedures for acquiring and disseminating to rehabilitation
professionals and paraprofessionals within the designated State unit
significant knowledge from research and other sources; and
(iii) Policies and procedures relating to the establishment and
maintenance of standards to ensure that personnel, including
rehabilitation professionals and paraprofessionals, needed within the
designated State unit to carry out this part are appropriately and
adequately prepared and trained.
(2) The specific training areas for staff development must be based
on the needs of each State unit and may include, but are not limited
to--
(i) Training regarding the Workforce Innovation and Opportunity Act
and the amendments it made to the Rehabilitation Act of 1973;
(ii) Training with respect to the requirements of the Americans
with Disabilities Act, the Individuals with Disabilities Education Act,
and Social Security work incentive programs, including programs under
the Ticket to Work and Work Incentives Improvement Act of 1999,
training to facilitate informed choice under this program, and training
to improve the provision of services to culturally diverse populations;
and
(iii) Activities related to--
(A) Recruitment and retention of qualified rehabilitation
personnel;
(B) Succession planning; and
(C) Leadership development and capacity building.
(e) Personnel to address individual communication needs. The
vocational rehabilitation services portion of the Unified or Combined
State Plan must describe how the designated State unit includes among
its personnel, or obtains the services of--
(1) Individuals able to communicate in the native languages of
applicants, recipients of services, and eligible individuals who have
limited English proficiency; and
(2) Individuals able to communicate with applicants, recipients of
services, and eligible individuals in appropriate modes of
communication.
(f) Coordination with personnel development under the Individuals
with Disabilities Education Act. The vocational rehabilitation services
portion of the Unified or Combined State Plan must describe the
procedures and activities the State agency will undertake to coordinate
its comprehensive system of personnel development under the Act with
personnel development under the Individuals with Disabilities Education
Act.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(7) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(7))
Sec. 361.19 Affirmative action for individuals with disabilities.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that the State agency takes affirmative
action to employ and advance in employment qualified individuals with
disabilities covered under and on the same terms and conditions as
stated in section 503 of the Act.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(6)(B) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(6)(B))
Sec. 361.20 Public participation requirements.
(a) Conduct of public meetings. (1) The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
prior to the adoption of any substantive policies or procedures
governing the provision of vocational rehabilitation services under the
Unified or Combined State Plan, the
[[Page 55756]]
designated State agency conducts public meetings throughout the State
to provide the public, including individuals with disabilities, an
opportunity to comment on the policies or procedures.
(2) For purposes of this section, substantive changes to the
policies or procedures governing the provision of vocational
rehabilitation services that would require the conduct of public
meetings are those that directly impact the nature and scope of the
services provided to individuals with disabilities, or the manner in
which individuals interact with the designated State agency or in
matters related to the delivery of vocational rehabilitation services.
Examples of substantive changes include, but are not limited to--
(i) Any changes to policies or procedures that fundamentally alter
the rights and responsibilities of individuals with disabilities in the
vocational rehabilitation process;
(ii) Organizational changes to the designated State agency or unit
that would likely affect the manner in which services are delivered;
(iii) Any changes that affect the nature and scope of vocational
rehabilitation services provided by the designated State agency or
unit;
(iv) Changes in formal or informal dispute procedures;
(v) The adoption or amendment of policies instituting an order of
selection; and
(vi) Changes to policies and procedures regarding the financial
participation of eligible individuals.
(3) Non-substantive, e.g., administrative changes that would not
require the need for public hearings include:
(i) Internal procedures that do not directly affect individuals
receiving vocational rehabilitation services, such as payment
processing or personnel procedures;
(ii) Changes to the case management system that only affect
vocational rehabilitation personnel;
(iii) Changes in indirect cost allocations, internal fiscal review
procedures, or routine reporting requirements;
(iv) Minor revisions to vocational rehabilitation procedures or
policies to correct production errors, such as typographical and
grammatical mistakes; and
(v) Changes to contract procedures that do not affect the delivery
of vocational rehabilitation services.
(b) Notice requirements. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that the
designated State agency, prior to conducting the public meetings,
provides appropriate and sufficient notice throughout the State of the
meetings in accordance with--
(1) State law governing public meetings; or
(2) In the absence of State law governing public meetings,
procedures developed by the designated State agency in consultation
with the State Rehabilitation Council.
(c) Summary of input of the State Rehabilitation Council. The
vocational rehabilitation services portion of the Unified or Combined
State Plan must provide a summary of the input of the State
Rehabilitation Council, if the State agency has a Council, into the
vocational rehabilitation services portion of the Unified or Combined
State Plan and any amendment to that portion of the plan, in accordance
with Sec. 361.16(a)(2)(v).
(d) Special consultation requirements. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must assure that the State agency actively consults with the director
of the Client Assistance Program, the State Rehabilitation Council, if
the State agency has a Council, and, as appropriate, Indian tribes,
tribal organizations, and native Hawaiian organizations on its policies
and procedures governing the provision of vocational rehabilitation
services under the vocational rehabilitation services portion of the
Unified or Combined State Plan.
(e) Appropriate modes of communication. The State unit must provide
to the public, through appropriate modes of communication, notices of
the public meetings, any materials furnished prior to or during the
public meetings, and the policies and procedures governing the
provision of vocational rehabilitation services under the vocational
rehabilitation services portion of the Unified or Combined State Plan.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c), 101(a)(16)(A), and 105(c)(3) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(16)(A), and 725(c)(3))
Sec. 361.21 Consultations regarding the administration of the
vocational rehabilitation services portion of the Unified or Combined
State plan.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that, in connection with matters of
general policy arising in the administration of the vocational
rehabilitation services portion of the Unified or Combined State Plan,
the designated State agency takes into account the views of--
(a) Individuals and groups of individuals who are recipients of
vocational rehabilitation services or, as appropriate, the individuals'
representatives;
(b) Personnel working in programs that provide vocational
rehabilitation services to individuals with disabilities;
(c) Providers of vocational rehabilitation services to individuals
with disabilities;
(d) The director of the Client Assistance Program; and
(e) The State Rehabilitation Council, if the State has a Council.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 101(a)(16)(B) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 721(a)(16)(B))
Sec. 361.22 Coordination with education officials.
(a) Plans, policies, and procedures. (1) The vocational
rehabilitation services portion of the Unified or Combined State Plan
must contain plans, policies, and procedures for coordination between
the designated State agency and education officials responsible for the
public education of students with disabilities that are designed to
facilitate the transition of students with disabilities from the
receipt of educational services, including pre-employment transition
services, in school to the receipt of vocational rehabilitation
services under the responsibility of the designated State agency.
(2) These plans, policies, and procedures in paragraph (a)(1) of
this section must provide for the development and approval of an
individualized plan for employment in accordance with Sec. 361.45 as
early as possible during the transition planning process and not later
than the time a student with a disability determined to be eligible for
vocational rehabilitation services leaves the school setting or, if the
designated State unit is operating under an order of selection, before
each eligible student with a disability able to be served under the
order leaves the school setting.
(b) Formal interagency agreement. The vocational rehabilitation
services portion of the Unified or Combined State Plan must include
information on a formal interagency agreement with the State
educational agency that, at a minimum, provides for--
(1) Consultation and technical assistance, which may be provided
[[Page 55757]]
using alternative means for meeting participation (such as video
conferences and conference calls), to assist educational agencies in
planning for the transition of students with disabilities from school
to post-school activities, including pre-employment transition services
and other vocational rehabilitation services;
(2) Transition planning by personnel of the designated State agency
and educational agency personnel for students with disabilities that
facilitates the development and implementation of their individualized
education programs (IEPs) under section 614(d) of the Individuals with
Disabilities Education Act;
(3) The roles and responsibilities, including financial
responsibilities, of each agency, including provisions for determining
State lead agencies and qualified personnel responsible for transition
services and pre-employment transition services;
(4) Procedures for outreach to and identification of students with
disabilities who are in need of transition services and pre-employment
transition services. Outreach to these students should occur as early
as possible during the transition planning process and must include, at
a minimum, a description of the purpose of the vocational
rehabilitation program, eligibility requirements, application
procedures, and scope of services that may be provided to eligible
individuals;
(5) Coordination necessary to satisfy documentation requirements
set forth in 34 CFR part 397 with regard to students and youth with
disabilities who are seeking subminimum wage employment; and
(6) Assurance that, in accordance with 34 CFR 397.31, neither the
State educational agency nor the local educational agency will enter
into a contract or other arrangement with an entity, as defined in 34
CFR 397.5(d), for the purpose of operating a program under which a
youth with a disability is engaged in work compensated at a subminimum
wage.
(c) Construction. Nothing in this part will be construed to reduce
the obligation under the Individuals with Disabilities Education Act
(20 U.S.C. 1400 et seq.) of a local educational agency or any other
agency to provide or pay for any transition services that are also
considered special education or related services and that are necessary
for ensuring a free appropriate public education to children with
disabilities within the State involved.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c), 101(a)(11)(D), 101(c), and 511 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(11)(D), 721(c), and 794g)
Sec. 361.23 [Reserved]
Sec. 361.24 Cooperation and coordination with other entities.
(a) Interagency cooperation. The vocational rehabilitation services
portion of the Unified or Combined State Plan must describe the
designated State agency's cooperation with and use of the services and
facilities of Federal, State, and local agencies and programs,
including the State programs carried out under section 4 of the
Assistive Technology Act of 1998 (29 U.S.C. 3003), programs carried out
by the Under Secretary for Rural Development of the Department of
Agriculture, noneducational agencies serving out-of-school youth, and
State use contracting programs, to the extent that such Federal, State,
and local agencies and programs are not carrying out activities through
the statewide workforce development system.
(b) Coordination with the Statewide Independent Living Council and
independent living centers. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that the
designated State unit, the Statewide Independent Living Council
established under title VII, chapter 1, part B of the Act, and the
independent living centers established under title VII, Chapter 1, Part
C of the Act have developed working relationships and coordinate their
activities.
(c) Coordination with Employers. The vocational rehabilitation
services portion of the Unified or Combined State Plan must describe
how the designated State unit will work with employers to identify
competitive integrated employment opportunities and career exploration
opportunities, in order to facilitate the provision of--
(1) Vocational rehabilitation services; and
(2) Transition services for youth with disabilities and students
with disabilities, such as pre-employment transition services.
(d) Cooperative agreement with recipients of grants for services to
American Indians--(1) General. In applicable cases, the vocational
rehabilitation services portion of the Unified or Combined State Plan
must assure that the designated State agency has entered into a formal
cooperative agreement with each grant recipient in the State that
receives funds under part C of the Act (American Indian Vocational
Rehabilitation Services).
(2) Contents of formal cooperative agreement. The agreement
required under paragraph (d)(1) of this section must describe
strategies for collaboration and coordination in providing vocational
rehabilitation services to American Indians who are individuals with
disabilities, including--
(i) Strategies for interagency referral and information sharing
that will assist in eligibility determinations and the development of
individualized plans for employment;
(ii) Procedures for ensuring that American Indians who are
individuals with disabilities and are living on or near a reservation
or tribal service area are provided vocational rehabilitation services;
(iii) Strategies for the provision of transition planning by
personnel of the designated State unit, the State educational agency,
and the recipient of funds under part C of the Act, that will
facilitate the development and approval of the individualized plan for
employment under Sec. 361.45; and
(iv) Provisions for sharing resources in cooperative studies and
assessments, joint training activities, and other collaborative
activities designed to improve the provision of services to American
Indians who are individuals with disabilities.
(e) Reciprocal referral services between two designated State units
in the same State. If there is a separate designated State unit for
individuals who are blind, the two designated State units must
establish reciprocal referral services, use each other's services and
facilities to the extent feasible, jointly plan activities to improve
services in the State for individuals with multiple impairments,
including visual impairments, and otherwise cooperate to provide more
effective services, including, if appropriate, entering into a written
cooperative agreement.
(f) Cooperative agreement regarding individuals eligible for home
and community-based waiver programs. The vocational rehabilitation
services portion of the Unified or Combined State Plan must include an
assurance that the designated State unit has entered into a formal
cooperative agreement with the State agency responsible for
administering the State Medicaid plan under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) and the State agency with primary
responsibility for providing services and supports for individuals with
intellectual disabilities and individuals with developmental
disabilities, with respect to the delivery of vocational rehabilitation
services, including
[[Page 55758]]
extended services, for individuals with the most significant
disabilities who have been determined to be eligible for home and
community-based services under a Medicaid waiver, Medicaid State plan
amendment, or other authority related to a State Medicaid program.
(g) Interagency cooperation. The vocational rehabilitation services
portion of the Unified or Combined State Plan shall describe how the
designated State agency will collaborate with the State agency
responsible for administering the State Medicaid plan under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.), the State agency
responsible for providing services for individuals with developmental
disabilities, and the State agency responsible for providing mental
health services, to develop opportunities for community-based
employment in integrated settings, to the greatest extent practicable.
(h) Coordination with assistive technology programs. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must include an assurance that the designated State unit, and the lead
agency and implementing entity (if any) designated by the Governor of
the State under section 4 of the Assistive Technology Act of 1998 (29
U.S.C. 3003), have developed working relationships and will enter into
agreements for the coordination of their activities, including the
referral of individuals with disabilities to programs and activities
described in that section.
(i) Coordination with ticket to work and self-sufficiency program.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must include an assurance that the designated State
unit will coordinate activities with any other State agency that is
functioning as an employment network under the Ticket to Work and Self-
Sufficiency Program established under section 1148 of the Social
Security Act (42 U.S.C. 1320b-19).
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(11) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(11))
Sec. 361.25 Statewideness.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that services provided under the
vocational rehabilitation services portion of the Unified or Combined
State Plan will be available in all political subdivisions of the
State, unless a waiver of statewideness is requested and approved in
accordance with Sec. 361.26.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(4) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a)(4))
Sec. 361.26 Waiver of statewideness.
(a) Availability. The State unit may provide services in one or
more political subdivisions of the State that increase services or
expand the scope of services that are available statewide under the
vocational rehabilitation services portion of the Unified or Combined
State Plan if--
(1) The non-Federal share of the cost of these services is met from
funds provided by a local public agency, including funds contributed to
a local public agency by a private agency, organization, or individual;
(2) The services are likely to promote the vocational
rehabilitation of substantially larger numbers of individuals with
disabilities or of individuals with disabilities with particular types
of impairments; and
(3) For purposes other than those specified in Sec.
361.60(b)(3)(i) and consistent with the requirements in Sec.
361.60(b)(3)(ii), the State includes in its vocational rehabilitation
services portion of the Unified or Combined State Plan, and the
Secretary approves, a waiver of the statewideness requirement, in
accordance with the requirements of paragraph (b) of this section.
(b) Request for waiver. The request for a waiver of statewideness
must--
(1) Identify the types of services to be provided;
(2) Contain a written assurance from the local public agency that
it will make available to the State unit the non-Federal share of
funds;
(3) Contain a written assurance that State unit approval will be
obtained for each proposed service before it is put into effect; and
(4) Contain a written assurance that all other requirements of the
vocational rehabilitation services portion of the Unified or Combined
State Plan, including a State's order of selection requirements, will
apply to all services approved under the waiver.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(4) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 721(a)(4))
Sec. 361.27 Shared funding and administration of joint programs.
(a) If the vocational rehabilitation services portion of the
Unified or Combined State Plan provides for the designated State agency
to share funding and administrative responsibility with another State
agency or local public agency to carry out a joint program to provide
services to individuals with disabilities, the State must submit to the
Secretary for approval a plan that describes its shared funding and
administrative arrangement.
(b) The plan under paragraph (a) of this section must include--
(1) A description of the nature and scope of the joint program;
(2) The services to be provided under the joint program;
(3) The respective roles of each participating agency in the
administration and provision of services; and
(4) The share of the costs to be assumed by each agency.
(c) If a proposed joint program does not comply with the
statewideness requirement in Sec. 361.25, the State unit must obtain a
waiver of statewideness, in accordance with Sec. 361.26.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(2)(A) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(2)(A))
Sec. 361.28 Third-party cooperative arrangements involving funds from
other public agencies.
(a) The designated State unit may enter into a third-party
cooperative arrangement for providing or contracting for the provision
of vocational rehabilitation services with another State agency or a
local public agency that is providing part or all of the non-Federal
share in accordance with paragraph (c) of this section, if the
designated State unit ensures that--
(1) The services provided by the cooperating agency are not the
customary or typical services provided by that agency but are new
services that have a vocational rehabilitation focus or existing
services that have been modified, adapted, expanded, or reconfigured to
have a vocational rehabilitation focus;
(2) The services provided by the cooperating agency are only
available to applicants for, or recipients of, services from the
designated State unit;
(3) Program expenditures and staff providing services under the
cooperative arrangement are under the administrative supervision of the
designated State unit; and
(4) All requirements of the vocational rehabilitation services
portion of the Unified or Combined State Plan, including a State's
order of selection,
[[Page 55759]]
will apply to all services provided under the cooperative arrangement.
(b) If a third party cooperative arrangement does not comply with
the statewideness requirement in Sec. 361.25, the State unit must
obtain a waiver of statewideness, in accordance with Sec. 361.26.
(c) The cooperating agency's contribution toward the non-Federal
share required under the arrangement, as set forth in paragraph (a) of
this section, may be made through:
(1) Cash transfers to the designated State unit;
(2) Certified personnel expenditures for the time cooperating
agency staff spent providing direct vocational rehabilitation services
pursuant to a third-party cooperative arrangement that meets the
requirements of this section. Certified personnel expenditures may
include the allocable portion of staff salary and fringe benefits based
upon the amount of time cooperating agency staff directly spent
providing services under the arrangement; and
(3) other direct expenditures incurred by the cooperating agency
for the sole purpose of providing services under this section pursuant
to a third-party cooperative arrangement that--
(i) Meets the requirements of this section;
(ii) Are verifiable as being incurred under the third-party
cooperative arrangement; and
(iii) Do not meet the definition of third-party in-kind
contributions under 2 CFR 200.96.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.29 Statewide assessment; annual estimates; annual State
goals and priorities; strategies; and progress reports.
(a) Comprehensive statewide assessment. (1) The vocational
rehabilitation services portion of the Unified or Combined State Plan
must include--
(i) The results of a comprehensive, statewide assessment, jointly
conducted by the designated State unit and the State Rehabilitation
Council (if the State unit has a Council) every three years. Results of
the assessment are to be included in the vocational rehabilitation
portion of the Unified or Combined State Plan, submitted in accordance
with the requirements of Sec. 361.10(a) and the joint regulations of
this part. The comprehensive needs assessment must describe the
rehabilitation needs of individuals with disabilities residing within
the State, particularly the vocational rehabilitation services needs
of--
(A) Individuals with the most significant disabilities, including
their need for supported employment services;
(B) Individuals with disabilities who are minorities and
individuals with disabilities who have been unserved or underserved by
the vocational rehabilitation program carried out under this part;
(C) Individuals with disabilities served through other components
of the statewide workforce development system as identified by those
individuals and personnel assisting those individuals through the
components of the system; and
(D) Youth with disabilities, and students with disabilities,
including
(1) Their need for pre-employment transition services or other
transition services; and
(2) An assessment of the needs of individuals with disabilities for
transition services and pre-employment transition services, and the
extent to which such services provided under this part are coordinated
with transition services provided under the Individuals with
Disabilities Education Act (20 U.S.C. 1400 et seq.) in order to meet
the needs of individuals with disabilities.
(ii) An assessment of the need to establish, develop, or improve
community rehabilitation programs within the State.
(2) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the State will submit to the
Secretary a report containing information regarding updates to the
assessments under paragraph (a) of this section for any year in which
the State updates the assessments at such time and in such manner as
the Secretary determines appropriate.
(b) Annual estimates. The vocational rehabilitation services
portion of the Unified or Combined State Plan must include, and must
assure that the State will submit a report to the Secretary (at such
time and in such manner determined appropriate by the Secretary) that
includes, State estimates of--
(1) The number of individuals in the State who are eligible for
services under this part;
(2) The number of eligible individuals who will receive services
provided with funds provided under this part and under part Sec. 363,
including, if the designated State agency uses an order of selection in
accordance with Sec. 361.36, estimates of the number of individuals to
be served under each priority category within the order;
(3) The number of individuals who are eligible for services under
paragraph (b)(1) of this section, but are not receiving such services
due to an order of selection; and
(4) The costs of the services described in paragraph (b)(2) of this
section, including, if the designated State agency uses an order of
selection, the service costs for each priority category within the
order.
(c) Goals and priorities--(1) In general. The vocational
rehabilitation services portion of the Unified or Combined State Plan
must identify the goals and priorities of the State in carrying out the
program.
(2) Council. The goals and priorities must be jointly developed,
agreed to, reviewed annually, and, as necessary, revised by the
designated State unit and the State Rehabilitation Council, if the
State unit has a Council.
(3) Submission. The vocational rehabilitation services portion of
the Unified or Combined State Plan must assure that the State will
submit to the Secretary a report containing information regarding
revisions in the goals and priorities for any year in which the State
revises the goals and priorities at such time and in such manner as
determined appropriate by the Secretary.
(4) Basis for goals and priorities. The State goals and priorities
must be based on an analysis of--
(i) The comprehensive statewide assessment described in paragraph
(a) of this section, including any updates to the assessment;
(ii) The performance of the State on the standards and indicators
established under section 106 of the Act; and
(iii) Other available information on the operation and the
effectiveness of the vocational rehabilitation program carried out in
the State, including any reports received from the State Rehabilitation
Council under Sec. 361.17(h) and the findings and recommendations from
monitoring activities conducted under section 107 of the Act.
(5) Service and outcome goals for categories in order of selection.
If the designated State agency uses an order of selection in accordance
with Sec. 361.36, the vocational rehabilitation services portion of
the Unified or Combined State Plan must identify the State's service
and outcome goals and the time within which these goals may be achieved
for individuals in each priority category within the order.
(d) Strategies. The vocational rehabilitation services portion of
the Unified or Combined State Plan must describe the strategies the
State will use
[[Page 55760]]
to address the needs identified in the assessment conducted under
paragraph (a) of this section and achieve the goals and priorities
identified in paragraph (c) of this section, including--
(1) The methods to be used to expand and improve services to
individuals with disabilities, including how a broad range of assistive
technology services and assistive technology devices will be provided
to those individuals at each stage of the rehabilitation process and
how those services and devices will be provided to individuals with
disabilities on a statewide basis;
(2) The methods to be used to improve and expand vocational
rehabilitation services for students with disabilities, including the
coordination of services designed to facilitate the transition of such
students from the receipt of educational services in school to
postsecondary life, including the receipt of vocational rehabilitation
services under the Act, postsecondary education, employment, and pre-
employment transition services;
(3) Strategies developed and implemented by the State to address
the needs of students and youth with disabilities identified in the
assessments described in paragraph (a) of this section and strategies
to achieve the goals and priorities identified by the State to improve
and expand vocational rehabilitation services for students and youth
with disabilities on a statewide basis;
(4) Strategies to provide pre-employment transition services;
(5) Outreach procedures to identify and serve individuals with
disabilities who are minorities and individuals with disabilities who
have been unserved or underserved by the vocational rehabilitation
program;
(6) As applicable, the plan of the State for establishing,
developing, or improving community rehabilitation programs;
(7) Strategies to improve the performance of the State with respect
to the evaluation standards and performance indicators established
pursuant to section 106 of the Act and section 116 of Workforce
Innovation and Opportunity Act; and
(8) Strategies for assisting other components of the statewide
workforce development system in assisting individuals with
disabilities.
(e) Evaluation and reports of progress. (1) The vocational
rehabilitation services portion of the Unified or Combined State Plan
must include--
(i) The results of an evaluation of the effectiveness of the
vocational rehabilitation program; and
(ii) A joint report by the designated State unit and the State
Rehabilitation Council, if the State unit has a Council, to the
Secretary on the progress made in improving the effectiveness of the
program from the previous year. This evaluation and joint report must
include--
(A) An evaluation of the extent to which the goals and priorities
identified in paragraph (c) of this section were achieved;
(B) A description of the strategies that contributed to the
achievement of the goals and priorities;
(C) To the extent to which the goals and priorities were not
achieved, a description of the factors that impeded that achievement;
and
(D) An assessment of the performance of the State on the standards
and indicators established pursuant to section 106 of the Act.
(2) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the designated State unit and
the State Rehabilitation Council, if the State unit has a Council, will
jointly submit to the Secretary a report that contains the information
described in paragraph (e)(1) of this section at such time and in such
manner the Secretary determines appropriate.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(15) and (25) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 721(a)(15) and (25))
Sec. 361.30 Services to American Indians.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must assure that the designated State agency
provides vocational rehabilitation services to American Indians who are
individuals with disabilities residing in the State to the same extent
as the designated State agency provides vocational rehabilitation
services to other significant populations of individuals with
disabilities residing in the State.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 101(a)(13) and 121(b)(3) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 721(a)(13) and 741(b)(3))
Sec. 361.31 Cooperative agreements with private nonprofit
organizations.
The vocational rehabilitation services portion of the Unified or
Combined State Plan must describe the manner in which cooperative
agreements with private nonprofit vocational rehabilitation service
providers will be established.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(24)(B) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(24)(B))
Sec. 361.32 Provision of training and services for employers.
The designated State unit may expend payments received under this
part to educate and provide services to employers who have hired or are
interested in hiring individuals with disabilities under the vocational
rehabilitation program, including--
(a) Providing training and technical assistance to employers
regarding the employment of individuals with disabilities, including
disability awareness, and the requirements of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and other
employment-related laws;
(b) Working with employers to--
(1) Provide opportunities for work-based learning experiences
(including internships, short-term employment, apprenticeships, and
fellowships);
(2) Provide opportunities for pre-employment transition services,
in accordance with the requirements under Sec. 361.48(a);
(3) Recruit qualified applicants who are individuals with
disabilities;
(4) Train employees who are individuals with disabilities; and
(5) Promote awareness of disability-related obstacles to continued
employment.
(c) Providing consultation, technical assistance, and support to
employers on workplace accommodations, assistive technology, and
facilities and workplace access through collaboration with community
partners and employers, across States and nationally, to enable the
employers to recruit, job match, hire, and retain qualified individuals
with disabilities who are recipients of vocational rehabilitation
services under this part, or who are applicants for such services; and
(d) Assisting employers with utilizing available financial support
for hiring or accommodating individuals with disabilities.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 109 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 728A)
Sec. 361.33 [Reserved]
Sec. 361.34 Supported employment State plan supplement.
(a) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the State has an acceptable
plan under
[[Page 55761]]
part 363 of this chapter that provides for the use of funds under that
part to supplement funds under this part for the cost of services
leading to supported employment.
(b) The supported employment plan, including any needed revisions,
must be submitted as a supplement to the vocational rehabilitation
services portion of the Unified or Combined State Plan submitted under
this part.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 101(a)(22) and 606 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 721(a)(22) and 795k)
Sec. 361.35 Innovation and expansion activities.
(a) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the State will reserve and use
a portion of the funds allotted to the State under section 110 of the
Act--
(1) For the development and implementation of innovative approaches
to expand and improve the provision of vocational rehabilitation
services to individuals with disabilities, particularly individuals
with the most significant disabilities, including transition services
for students and youth with disabilities and pre-employment transition
services for students with disabilities, consistent with the findings
of the comprehensive statewide assessment of the rehabilitation needs
of individuals with disabilities under Sec. 361.29(a) and the State's
goals and priorities under Sec. 361.29(c);
(2) To support the funding of the State Rehabilitation Council, if
the State has a Council, consistent with the resource plan identified
in Sec. 361.17(i); and
(3) To support the funding of the Statewide Independent Living
Council, consistent with the Statewide Independent Living Council
resource plan prepared under Section 705(e)(1) of the Act.
(b) The vocational rehabilitation services portion of the Unified
or Combined State Plan must--
(1) Describe how the reserved funds will be used; and
(2) Include a report describing how the reserved funds were used.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(18) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a) (18))
Sec. 361.36 Ability to serve all eligible individuals; order of
selection for services.
(a) General provisions--(1) The designated State unit either must
be able to provide the full range of services listed in section 103(a)
of the Act and Sec. 361.48, as appropriate, to all eligible
individuals or, in the event that vocational rehabilitation services
cannot be provided to all eligible individuals in the State who apply
for the services, include in the vocational rehabilitation services
portion of the Unified or Combined State Plan the order to be followed
in selecting eligible individuals to be provided vocational
rehabilitation services.
(2) The ability of the designated State unit to provide the full
range of vocational rehabilitation services to all eligible individuals
must be supported by a determination that satisfies the requirements of
paragraph (b) or (c) of this section and a determination that, on the
basis of the designated State unit's projected fiscal and personnel
resources and its assessment of the rehabilitation needs of individuals
with significant disabilities within the State, it can--
(i) Continue to provide services to all individuals currently
receiving services;
(ii) Provide assessment services to all individuals expected to
apply for services in the next fiscal year;
(iii) Provide services to all individuals who are expected to be
determined eligible in the next fiscal year; and
(iv) Meet all program requirements.
(3) If the designated State unit is unable to provide the full
range of vocational rehabilitation services to all eligible individuals
in the State who apply for the services, the vocational rehabilitation
services portion of the Unified or Combined State Plan must--
(i) Show the order to be followed in selecting eligible individuals
to be provided vocational rehabilitation services;
(ii) Provide a justification for the order of selection;
(iii) Identify service and outcome goals and the time within which
the goals may be achieved for individuals in each priority category
within the order, as required under Sec. 361.29(c)(5);
(iv) Assure that--
(A) In accordance with criteria established by the State for the
order of selection, individuals with the most significant disabilities
will be selected first for the provision of vocational rehabilitation
services; and
(B) Individuals who do not meet the order of selection criteria
will have access to services provided through the information and
referral system established under Sec. 361.37; and
(v) State whether the designated State unit will elect to serve, in
its discretion, eligible individuals (whether or not the individuals
are receiving vocational rehabilitation services under the order of
selection) who require specific services or equipment to maintain
employment, notwithstanding the assurance provided pursuant to
paragraph (3)(iv)(A) of this section.
(b) Basis for assurance that services can be provided to all
eligible individuals. (1) For a designated State unit that determined,
for the current fiscal year and the preceding fiscal year, that it is
able to provide the full range of services, as appropriate, to all
eligible individuals, the State unit, during the current fiscal and
preceding fiscal year, must have in fact--
(i) Provided assessment services to all applicants and the full
range of services, as appropriate, to all eligible individuals;
(ii) Made referral forms widely available throughout the State;
(iii) Conducted outreach efforts to identify and serve individuals
with disabilities who have been unserved or underserved by the
vocational rehabilitation system; and
(iv) Not delayed, through waiting lists or other means,
determinations of eligibility, the development of individualized plans
for employment for individuals determined eligible for vocational
rehabilitation services, or the provision of services for eligible
individuals for whom individualized plans for employment have been
developed.
(2) For a designated State unit that was unable to provide the full
range of services to all eligible individuals during the current or
preceding fiscal year or that has not met the requirements in paragraph
(b)(1) of this section, the determination that the designated State
unit is able to provide the full range of vocational rehabilitation
services to all eligible individuals in the next fiscal year must be
based on--
(i) A demonstration that circumstances have changed that will allow
the designated State unit to meet the requirements of paragraph (a)(2)
of this section in the next fiscal year, including--
(A) An estimate of the number of and projected costs of serving, in
the next fiscal year, individuals with existing individualized plans
for employment;
(B) The projected number of individuals with disabilities who will
apply for services and will be determined eligible in the next fiscal
year and the projected costs of serving those individuals;
(C) The projected costs of administering the program in the next
fiscal year, including, but not limited to, costs of staff salaries and
benefits,
[[Page 55762]]
outreach activities, and required statewide studies; and
(D) The projected revenues and projected number of qualified
personnel for the program in the next fiscal year.
(ii) Comparable data, as relevant, for the current or preceding
fiscal year, or for both years, of the costs listed in paragraphs
(b)(2)(i)(A) through (C) of this section and the resources identified
in paragraph (b)(2)(i)(D) of this section and an explanation of any
projected increases or decreases in these costs and resources; and
(iii) A determination that the projected revenues and the projected
number of qualified personnel for the program in the next fiscal year
are adequate to cover the costs identified in paragraphs (b)(2)(i)(A)
through (C) of this section to ensure the provision of the full range
of services, as appropriate, to all eligible individuals.
(c) Determining need for establishing and implementing an order of
selection. (1) The designated State unit must determine, prior to the
beginning of each fiscal year, whether to establish and implement an
order of selection.
(2) If the designated State unit determines that it does not need
to establish an order of selection, it must reevaluate this
determination whenever changed circumstances during the course of a
fiscal year, such as a decrease in its fiscal or personnel resources or
an increase in its program costs, indicate that it may no longer be
able to provide the full range of services, as appropriate, to all
eligible individuals, as described in paragraph (a)(2) of this section.
(3) If a designated State unit establishes an order of selection,
but determines that it does not need to implement that order at the
beginning of the fiscal year, it must continue to meet the requirements
of paragraph (a)(2) of this section, or it must implement the order of
selection by closing one or more priority categories.
(d) Establishing an order of selection--(1) Basis for order of
selection. An order of selection must be based on a refinement of the
three criteria in the definition of individual with a significant
disability in section 7(21)(A) of the Act and Sec. 361.5(c)(30).
(2) Factors that cannot be used in determining order of selection
of eligible individuals. An order of selection may not be based on any
other factors, including--
(i) Any duration of residency requirement, provided the individual
is present in the State;
(ii) Type of disability;
(iii) Age, sex, race, color, or national origin;
(iv) Source of referral;
(v) Type of expected employment outcome;
(vi) The need for specific services except those services provided
in accordance with 361.36(a)(3)(v), or anticipated cost of services
required by an individual; or
(vii) The income level of an individual or an individual's family.
(e) Administrative requirements. In administering the order of
selection, the designated State unit must--
(1) Implement the order of selection on a statewide basis;
(2) Notify all eligible individuals of the priority categories in a
State's order of selection, their assignment to a particular category,
and their right to appeal their category assignment;
(3) Continue to provide services to any recipient who has begun to
receive services irrespective of the severity of the individual's
disability as follows--
(i) The designated State unit must continue to provide pre-
employment transition services to students with disabilities who were
receiving such services prior to being determined eligible for
vocational rehabilitation services; and
(ii) The designated State unit must continue to provide to an
eligible individual all needed services listed on the individualized
plan for employment if the individual had begun receiving such services
prior to the effective date of the State's order of selection; and
(4) Ensure that its funding arrangements for providing services
under the vocational rehabilitation services portion of the Unified or
Combined State Plan, including third-party arrangements and awards
under the establishment authority, are consistent with the order of
selection. If any funding arrangements are inconsistent with the order
of selection, the designated State unit must renegotiate these funding
arrangements so that they are consistent with the order of selection.
(f) State Rehabilitation Council. The designated State unit must
consult with the State Rehabilitation Council, if the State unit has a
Council, regarding the--
(1) Need to establish an order of selection, including any
reevaluation of the need under paragraph (c)(2) of this section;
(2) Priority categories of the particular order of selection;
(3) Criteria for determining individuals with the most significant
disabilities; and
(4) Administration of the order of selection.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(d); 101(a)(5); 101(a)(12); 101(a)(15)(A),
(B) and (C); 101(a)(21)(A)(ii); and 504(a) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(d), 721(a)(5), 721(a)(12),
721(a)(15)(A), (B) and (C); 721(a)(21)(A)(ii), and 794(a))
Sec. 361.37 Information and referral programs.
(a) General provisions. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that--
(1) The designated State agency will implement an information and
referral system adequate to ensure that individuals with disabilities,
including eligible individuals who do not meet the agency's order of
selection criteria for receiving vocational rehabilitation services if
the agency is operating on an order of selection, are provided accurate
vocational rehabilitation information and guidance (which may include
counseling and referral for job placement) using appropriate modes of
communication to assist them in preparing for, securing, retaining,
advancing in, or regaining employment; and
(2) The designated State agency will refer individuals with
disabilities to other appropriate Federal and State programs, including
other components of the statewide workforce development system.
(b) The designated State unit must refer to appropriate programs
and service providers best suited to address the specific
rehabilitation, independent living and employment needs of an
individual with a disability who makes an informed choice not to pursue
an employment outcome under the vocational rehabilitation program, as
defined in Sec. 361.5(c)(15). Before making the referral required by
this paragraph, the State unit must--
(1) Consistent with Sec. 361.42(a)(4)(i), explain to the
individual that the purpose of the vocational rehabilitation program is
to assist individuals to achieve an employment outcome as defined in
Sec. 361.5(c)(15);
(2) Consistent with Sec. 361.52, provide the individual with
information concerning the availability of employment options, and of
vocational rehabilitation services, to assist the individual to achieve
an appropriate employment outcome;
(3) Inform the individual that services under the vocational
rehabilitation program can be provided to eligible individuals in an
extended employment setting if necessary for purposes of training or
otherwise preparing for employment in an integrated setting;
[[Page 55763]]
(4) Inform the individual that, if he or she initially chooses not
to pursue an employment outcome as defined in Sec. 361.5(c)(15), he or
she can seek services from the designated State unit at a later date
if, at that time, he or she chooses to pursue an employment outcome;
and
(5) Refer the individual, as appropriate, to the Social Security
Administration in order to obtain information concerning the ability of
individuals with disabilities to work while receiving benefits from the
Social Security Administration.
(c) Criteria for appropriate referrals. In making the referrals
identified in paragraph (a)(2) of this section, the designated State
unit must--
(1) Refer the individual to Federal or State programs, including
programs carried out by other components of the statewide workforce
development system, best suited to address the specific employment
needs of an individual with a disability; and
(2) Provide the individual who is being referred--
(i) A notice of the referral by the designated State agency to the
agency carrying out the program;
(ii) Information identifying a specific point of contact within the
agency to which the individual is being referred; and
(iii) Information and advice regarding the most suitable services
to assist the individual to prepare for, secure, retain, or regain
employment.
(d) Order of selection. In providing the information and referral
services under this section to eligible individuals who are not in the
priority category or categories to receive vocational rehabilitation
services under the State's order of selection, the State unit must
identify, as part of its reporting under section 101(a)(10) of the Act
and Sec. 361.40, the number of eligible individuals who did not meet
the agency's order of selection criteria for receiving vocational
rehabilitation services and did receive information and referral
services under this section.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 7(11), 12(c), 101(a)(5)(E), 101(a)(10)(C)(ii),
and 101(a)(20) of the Rehabilitation Act of 1973, as amended; 29
U.S.C. 705(11), 709(c), 721(a)(5)(E), 721(a)(10)(C)(ii), and
721(a)(20))
Sec. 361.38 Protection, use, and release of personal information.
(a) General provisions. (1) The State agency and the State unit
must adopt 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 designated
State unit and receiving entity under paragraphs (d) and (e)(1) of this
section, which addresses the requirements in this section;
(ii) All applicants and recipients of services 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 and recipients of services or their
representatives are informed about the State unit's need to collect
personal information and the policies governing its use, including--
(A) Identification of the authority under which information is
collected;
(B) Explanation of the principal purposes for which the State unit
intends to use or release the information;
(C) Explanation of whether providing requested information to the
State unit is mandatory or voluntary and the effects of not providing
requested information;
(D) Identification of those situations in which the State unit
requires or does not require informed written consent of the individual
before information may be released; and
(E) Identification of other agencies to which information is
routinely released;
(iv) An explanation of State policies and procedures affecting
personal information will be provided to each individual in that
individual's native language or through the appropriate mode of
communication; and
(v) These policies and procedures provide no fewer protections for
individuals than State laws and regulations.
(2) The State unit may establish reasonable fees to cover
extraordinary costs of duplicating records or making extensive searches
and must establish policies and procedures governing access to records.
(b) State program use. All personal information in the possession
of the State agency or the designated State unit must be used only for
the purposes directly connected with the administration of the
vocational rehabilitation program. Information containing identifiable
personal information may not be shared with advisory or other bodies
that do not have official responsibility for administration of the
program. In the administration of the program, the State unit may
obtain personal information from service providers and cooperating
agencies under assurances that the information may not be further
divulged, except as provided under paragraphs (c), (d), and (e) of this
section.
(c) Release to applicants and recipients of services. (1) Except as
provided in paragraphs (c)(2) and (3) of this section, if requested in
writing by an applicant or recipient of services, the State unit must
make all requested information in that individual's record of services
accessible to and must release the information to the individual or the
individual's representative in a timely manner.
(2) Medical, psychological, or other information that the State
unit determines may be harmful to the individual may not be released
directly to the individual, but must be provided to the individual
through a third party chosen by the individual, which may include,
among others, an advocate, a family member, or a qualified medical or
mental health professional, unless a representative has been appointed
by a court to represent the individual, in which case the information
must be released to the court-appointed representative.
(3) If personal information has been obtained from another agency
or organization, it may be released only by, or under the conditions
established by, the other agency or organization.
(4) An applicant or recipient of services who believes that
information in the individual's record of services is inaccurate or
misleading may request that the designated State unit amend the
information. If the information is not amended, the request for an
amendment must be documented in the record of services, consistent with
Sec. 361.47(a)(12).
(d) Release for audit, evaluation, and research. Personal
information may be released to an organization, agency, or individual
engaged in audit, evaluation, or research only for purposes directly
connected with the administration of the vocational rehabilitation
program or for purposes that would significantly improve the quality of
life for applicants and recipients of services 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;
[[Page 55764]]
(2) The information will be released only to persons officially
connected with the audit, evaluation, or research;
(3) The information will not be released to the involved
individual;
(4) The information will be managed in a manner to safeguard
confidentiality; and
(5) The final product will not reveal any personal identifying
information without the informed written consent of the involved
individual or the individual's representative.
(e) Release to other programs or authorities. (1) Upon receiving
the informed written consent of the individual or, if appropriate, the
individual's representative, the State unit may release personal
information to another agency or organization, 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 State unit
determines may be harmful to the individual may be released if the
other agency or organization assures the State unit that the
information will be used only for the purpose for which it is being
provided and will not be further released to the individual.
(3) The State unit must release personal information if required by
Federal law or regulations.
(4) The State unit must release personal information in response to
investigations in connection with law enforcement, fraud, or abuse,
unless expressly prohibited by Federal or State laws or regulations,
and in response to an order issued by a judge, magistrate, or other
authorized judicial officer.
(5) The State unit also may release personal information in order
to protect the individual or others if the individual poses a threat to
his or her safety or to the safety of others.
(Authority: Sections 12(c) and 101(a)(6)(A) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(6)(A))
Sec. 361.39 State-imposed requirements.
The designated State unit must, upon request, identify those
regulations and policies relating to the administration or operation of
its vocational rehabilitation program that are State-imposed, including
any regulations or policy based on State interpretation of any Federal
law, regulation, or guideline.
(Authority: Section 17 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 714)
Sec. 361.40 Reports; Evaluation standards and performance indicators.
(a) Reports. (1) The vocational rehabilitation services portion of
the Unified or Combined State Plan must assure that the designated
State agency will submit reports, including reports required under
sections 13, 14, and 101(a)(10) of the Act--
(i) In the form and level of detail and at the time required by the
Secretary regarding applicants for and eligible individuals receiving
services, including students receiving pre-employment transition
services in accordance with Sec. 361.48(a); and
(ii) In a manner that provides a complete count (other than the
information obtained through sampling consistent with section
101(a)(10)(E) of the Act) of the applicants and eligible individuals
to--
(A) Permit the greatest possible cross-classification of data; and
(B) Protect the confidentiality of the identity of each individual.
(2) The designated State agency must comply with any requirements
necessary to ensure the accuracy and verification of those reports.
(b) [Reserved]
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c), 101(a)(10)(A) and (F), and 106 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C.
709(c),721(a)(10)(A) and (F), and 726)
Provision and Scope of Services
Sec. 361.41 Processing referrals and applications.
(a) Referrals. The designated State unit must establish and
implement standards for the prompt and equitable handling of referrals
of individuals for vocational rehabilitation services, including
referrals of individuals made through the one-stop service delivery
systems under section 121 of the Workforce Innovation and Opportunity
Act. The standards must include timelines for making good faith efforts
to inform these individuals of application requirements and to gather
information necessary to initiate an assessment for determining
eligibility and priority for services.
(b) Applications. (1) Once an individual has submitted an
application for vocational rehabilitation services, including
applications made through common intake procedures in one-stop centers
under section 121 of the Workforce Innovation and Opportunity Act, an
eligibility determination must be made within 60 days, unless--
(i) Exceptional and unforeseen circumstances beyond the control of
the designated State unit preclude making an eligibility determination
within 60 days and the designated State unit and the individual agree
to a specific extension of time; or
(ii) An exploration of the individual's abilities, capabilities,
and capacity to perform in work situations is carried out in accordance
with Sec. 361.42(e).
(2) An individual is considered to have submitted an application
when the individual or the individual's representative, as
appropriate--
(i)(A) Has completed and signed an agency application form;
(B) Has completed a common intake application form in a one-stop
center requesting vocational rehabilitation services; or
(C) Has otherwise requested services from the designated State
unit;
(ii) Has provided to the designated State unit information
necessary to initiate an assessment to determine eligibility and
priority for services; and
(iii) Is available to complete the assessment process.
(3) The designated State unit must ensure that its application
forms are widely available throughout the State, particularly in the
one-stop centers under section 121 of the Workforce Innovation and
Opportunity Act.
(Authority: Sections 12(c), 101(a)(6)(A), and 102(a)(6) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(6)(A), and 722(a)(6))
Sec. 361.42 Assessment for determining eligibility and priority for
services.
In order to determine whether an individual is eligible for
vocational rehabilitation services and the individual's priority under
an order of selection for services (if the State is operating under an
order of selection), the designated State unit must conduct an
assessment for determining eligibility and priority for services. The
assessment must be conducted in the most integrated setting possible,
consistent with the individual's needs and informed choice, and in
accordance with the following provisions:
(a) Eligibility requirements--(1) Basic requirements. The
designated State unit's determination of an applicant's eligibility for
vocational rehabilitation services must be based only on the following
requirements:
(i) A determination by qualified personnel that the applicant has a
physical or mental impairment;
(ii) A determination by qualified personnel that the applicant's
physical or mental impairment constitutes or results in a substantial
impediment to employment for the applicant; and
(iii) A determination by a qualified vocational rehabilitation
counselor
[[Page 55765]]
employed by the designated State unit that the applicant requires
vocational rehabilitation services to prepare for, secure, retain,
advance in, or regain employment that is consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interest, and informed choice. For purposes of
an assessment for determining eligibility and vocational rehabilitation
needs under this part, an individual is presumed to have a goal of an
employment outcome.
(2) Presumption of benefit. The designated State unit must presume
that an applicant who meets the eligibility requirements in paragraphs
(a)(1)(i) and (ii) of this section can benefit in terms of an
employment outcome.
(3) Presumption of eligibility for Social Security recipients and
beneficiaries. (i) Any applicant who has been determined eligible for
Social Security benefits under title II or title XVI of the Social
Security Act is--
(A) Presumed eligible for vocational rehabilitation services under
paragraphs (a)(1) and (2) of this section; and
(B) Considered an individual with a significant disability as
defined in Sec. 361.5(c)(29).
(ii) If an applicant for vocational rehabilitation services asserts
that he or she is eligible for Social Security benefits under title II
or title XVI of the Social Security Act (and, therefore, is presumed
eligible for vocational rehabilitation services under paragraph
(a)(3)(i)(A) of this section), but is unable to provide appropriate
evidence, such as an award letter, to support that assertion, the State
unit must verify the applicant's eligibility under title II or title
XVI of the Social Security Act by contacting the Social Security
Administration. This verification must be made within a reasonable
period of time that enables the State unit to determine the applicant's
eligibility for vocational rehabilitation services within 60 days of
the individual submitting an application for services in accordance
with Sec. 361.41(b)(2).
(4) Achievement of an employment outcome. Any eligible individual,
including an individual whose eligibility for vocational rehabilitation
services is based on the individual being eligible for Social Security
benefits under title II or title XVI of the Social Security Act, must
intend to achieve an employment outcome that is consistent with the
applicant's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice.
(i) The State unit is responsible for informing individuals,
through its application process for vocational rehabilitation services,
that individuals who receive services under the program must intend to
achieve an employment outcome.
(ii) The applicant's completion of the application process for
vocational rehabilitation services is sufficient evidence of the
individual's intent to achieve an employment outcome, and no additional
demonstration on the part of the applicant is required for purposes of
satisfying paragraph (a)(4) of this section.
(5) Interpretation. Nothing in this section, including paragraph
(a)(3)(i), is to be construed to create an entitlement to any
vocational rehabilitation service.
(b) Interim determination of eligibility. (1) The designated State
unit may initiate the provision of vocational rehabilitation services
for an applicant on the basis of an interim determination of
eligibility prior to the 60-day period described in Sec. 361.41(b)(2).
(2) If a State chooses to make interim determinations of
eligibility, the designated State unit must--
(i) Establish criteria and conditions for making those
determinations;
(ii) Develop and implement procedures for making the
determinations; and
(iii) Determine the scope of services that may be provided pending
the final determination of eligibility.
(3) If a State elects to use an interim eligibility determination,
the designated State unit must make a final determination of
eligibility within 60 days of the individual submitting an application
for services in accordance with Sec. 361.41(b)(2).
(c) Prohibited factors. (1) The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that the
State unit will not impose, as part of determining eligibility under
this section, a duration of residence requirement that excludes from
services any applicant who is present in the State. The designated
State unit may not require the applicant to demonstrate a presence in
the State through the production of any documentation that under State
or local law, or practical circumstances, results in a de facto
duration of residence requirement.
(2) In making a determination of eligibility under this section,
the designated State unit also must ensure that--
(i) No applicant or group of applicants is excluded or found
ineligible solely on the basis of the type of disability; and
(ii) The eligibility requirements are applied without regard to
the--
(A) Age, sex, race, color, or national origin of the applicant;
(B) Type of expected employment outcome;
(C) Source of referral for vocational rehabilitation services;
(D) Particular service needs or anticipated cost of services
required by an applicant or the income level of an applicant or
applicant's family;
(E) Applicants' employment history or current employment status;
and
(F) Applicants' educational status or current educational
credential.
(d) Review and assessment of data for eligibility determination.
Except as provided in paragraph (e) of this section, the designated
State unit--
(1) Must base its determination of each of the basic eligibility
requirements in paragraph (a) of this section on--
(i) A review and assessment of existing data, including counselor
observations, education records, information provided by the individual
or the individual's family, particularly information used by education
officials, and determinations made by officials of other agencies; and
(ii) To the extent existing data do not describe the current
functioning of the individual or are unavailable, insufficient, or
inappropriate to make an eligibility determination, an assessment of
additional data resulting from the provision of vocational
rehabilitation services, including trial work experiences, assistive
technology devices and services, personal assistance services, and any
other support services that are necessary to determine whether an
individual is eligible; and
(2) Must base its presumption under paragraph (a)(3)(i) of this
section that an applicant who has been determined eligible for Social
Security benefits under title II or title XVI of the Social Security
Act satisfies each of the basic eligibility requirements in paragraph
(a) of this section on determinations made by the Social Security
Administration.
(e) Trial work experiences for individuals with significant
disabilities. (1) Prior to any determination that an individual with a
disability is unable to benefit from vocational rehabilitation services
in terms of an employment outcome because of the severity of that
individual's disability or that the individual is ineligible for
vocational rehabilitation services, the designated State unit must
conduct an exploration of the individual's abilities, capabilities, and
capacity to perform in realistic work situations.
(2)(i) The designated State unit must develop a written plan to
assess periodically the individual's abilities, capabilities, and
capacity to perform in competitive integrated work situations
[[Page 55766]]
through the use of trial work experiences, which must be provided in
competitive integrated employment settings to the maximum extent
possible, consistent with the informed choice and rehabilitation needs
of the individual.
(ii) Trial work experiences include supported employment, on-the-
job training, and other experiences using realistic integrated work
settings.
(iii) Trial work experiences must be of sufficient variety and over
a sufficient period of time for the designated State unit to determine
that--
(A) There is sufficient evidence to conclude that the individual
can benefit from the provision of vocational rehabilitation services in
terms of an employment outcome; or
(B) There is clear and convincing evidence that due to the severity
of the individual's disability, the individual is incapable of
benefitting from the provision of vocational rehabilitation services in
terms of an employment outcome; and
(iv) The designated State unit must provide appropriate supports,
including, but not limited to, assistive technology devices and
services and personal assistance services, to accommodate the
rehabilitation needs of the individual during the trial work
experiences.
(f) Data for determination of priority for services under an order
of selection. If the designated State unit is operating under an order
of selection for services, as provided in Sec. 361.36, the State unit
must base its priority assignments on--
(1) A review of the data that was developed under paragraphs (d)
and (e) of this section to make the eligibility determination; and
(2) An assessment of additional data, to the extent necessary.
(Authority: Sections 7(2), 12(c), 101(a)(12), 102(a), 103(a)(1),
103(a)(9), 103(a)(10), and 103(a)(14) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 705(2), 709(c), 721(a)(12), 722(a),
723(a)(1), 723(a)(9), 723(a)(10), and 723(a)(14))
Note to Sec. 361.42: Clear and convincing evidence means that
the designated State unit has a high degree of certainty before it
can conclude that an individual is incapable of benefiting from
services in terms of an employment outcome. The clear and convincing
standard constitutes the highest standard used in our civil system
of law and is to be individually applied on a case-by-case basis.
The term clear means unequivocal. For example, the use of an
intelligence test result alone would not constitute clear and
convincing evidence. Clear and convincing evidence might include a
description of assessments, including situational assessments and
supported employment assessments, from service providers who have
concluded that they would be unable to meet the individual's needs
due to the severity of the individual's disability. The
demonstration of ``clear and convincing evidence'' must include, if
appropriate, a functional assessment of skill development
activities, with any necessary supports (including assistive
technology), in real life settings. (S. Rep. No. 357, 102d Cong.,
2d. Sess. 37-38 (1992))
Sec. 361.43 Procedures for ineligibility determination.
If the State unit determines that an applicant is ineligible for
vocational rehabilitation services or determines that an individual
receiving services under an individualized plan for employment is no
longer eligible for services, the State unit must--
(a) Make the determination only after providing an opportunity for
full consultation with the individual or, as appropriate, with the
individual's representative;
(b) Inform the individual in writing, supplemented as necessary by
other appropriate modes of communication consistent with the informed
choice of the individual, of the ineligibility determination, including
the reasons for that determination, the requirements under this
section, and the means by which the individual may express and seek
remedy for any dissatisfaction, including the procedures for review of
State unit personnel determinations in accordance with Sec. 361.57;
(c) Provide the individual with a description of services available
from a client assistance program established under 34 CFR part 370 and
information on how to contact that program;
(d) Refer the individual--
(1) To other programs that are part of the one-stop service
delivery system under the Workforce Innovation and Opportunity Act that
can address the individual's training or employment-related needs; or
(2) To Federal, State, or local programs or service providers,
including, as appropriate, independent living programs and extended
employment providers, best suited to meet their rehabilitation needs,
if the ineligibility determination is based on a finding that the
individual has chosen not to pursue, or is incapable of achieving, an
employment outcome as defined in Sec. 361.5(c)(15).
(e) Review within 12 months and annually thereafter if requested by
the individual or, if appropriate, by the individual's representative
any ineligibility determination that is based on a finding that the
individual is incapable of achieving an employment outcome. This review
need not be conducted in situations in which the individual has refused
it, the individual is no longer present in the State, the individual's
whereabouts are unknown, or the individual's medical condition is
rapidly progressive or terminal.
(Authority: Sections 12(c) and 102(a)(5) and (c) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
722(a)(5)and (c))
Sec. 361.44 Closure without eligibility determination.
The designated State unit may not close an applicant's record of
services prior to making an eligibility determination unless the
applicant declines to participate in, or is unavailable to complete, an
assessment for determining eligibility and priority for services, and
the State unit has made a reasonable number of attempts to contact the
applicant or, if appropriate, the applicant's representative to
encourage the applicant's participation.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.45 Development of the individualized plan for employment.
(a) General requirements. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that--
(1) An individualized plan for employment meeting the requirements
of this section and Sec. 361.46 is developed and implemented in a
timely manner for each individual determined to be eligible for
vocational rehabilitation services or, if the designated State unit is
operating under an order of selection in accordance with Sec. 361.36,
for each eligible individual to whom the State unit is able to provide
services; and
(2) Services will be provided in accordance with the provisions of
the individualized plan for employment.
(b) Purpose. (1) The designated State unit must conduct an
assessment for determining vocational rehabilitation needs, if
appropriate, for each eligible individual or, if the State is operating
under an order of selection, for each eligible individual to whom the
State is able to provide services. The purpose of this assessment is to
determine the employment outcome, and the nature and scope of
vocational rehabilitation services to be included in the individualized
plan for employment.
(2) The individualized plan for employment must be designed to
achieve a specific employment outcome, as defined in Sec.
361.5(c)(15), that is selected by the individual consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities,
[[Page 55767]]
capabilities, interests, and informed choice.
(c) Required information. The State unit must provide the following
information to each eligible individual or, as appropriate, the
individual's representative, in writing and, if appropriate, in the
native language or mode of communication of the individual or the
individual's representative:
(1) Options for developing an individualized plan for employment.
Information on the available options for developing the individualized
plan for employment, including the option that an eligible individual
or, as appropriate, the individual's representative may develop all or
part of the individualized plan for employment--
(i) Without assistance from the State unit or other entity; or
(ii) With assistance from--
(A) A qualified vocational rehabilitation counselor employed by the
State unit;
(B) A qualified vocational rehabilitation counselor who is not
employed by the State unit;
(C) A disability advocacy organization; or
(D) Resources other than those in paragraph (c)(1)(ii)(A) through
(C) of this section.
(2) Additional information. Additional information to assist the
eligible individual or, as appropriate, the individual's representative
in developing the individualized plan for employment, including--
(i) Information describing the full range of components that must
be included in an individualized plan for employment;
(ii) As appropriate to each eligible individual--
(A) An explanation of agency guidelines and criteria for
determining an eligible individual's financial commitments under an
individualized plan for employment;
(B) Information on the availability of assistance in completing
State unit forms required as part of the individualized plan for
employment; and
(C) Additional information that the eligible individual requests or
the State unit determines to be necessary to the development of the
individualized plan for employment;
(iii) A description of the rights and remedies available to the
individual, including, if appropriate, recourse to the processes
described in Sec. 361.57; and
(iv) A description of the availability of a client assistance
program established under part 370 of this chapter and information on
how to contact the client assistance program.
(3) Individuals entitled to benefits under title II or XVI of the
Social Security Act. For individuals entitled to benefits under title
II or XVI of the Social Security Act on the basis of a disability or
blindness, the State unit must provide to the individual general
information on additional supports and assistance for individuals with
disabilities desiring to enter the workforce, including assistance with
benefits planning.
(d) Mandatory procedures. The designated State unit must ensure
that--
(1) The individualized plan for employment is a written document
prepared on forms provided by the State unit;
(2) The individualized plan for employment is developed and
implemented in a manner that gives eligible individuals the opportunity
to exercise informed choice, consistent with Sec. 361.52, in
selecting--
(i) The employment outcome, including the employment setting;
(ii) The specific vocational rehabilitation services needed to
achieve the employment outcome, including the settings in which
services will be provided;
(iii) The entity or entities that will provide the vocational
rehabilitation services; and
(iv) The methods available for procuring the services;
(3) The individualized plan for employment is--
(i) Agreed to and signed by the eligible individual or, as
appropriate, the individual's representative; and
(ii) Approved and signed by a qualified vocational rehabilitation
counselor employed by the designated State unit;
(4) A copy of the individualized plan for employment and a copy of
any amendments to the individualized plan for employment are provided
to the eligible individual or, as appropriate, to the individual's
representative, in writing and, if appropriate, in the native language
or mode of communication of the individual or, as appropriate, the
individual's representative;
(5) The individualized plan for employment is reviewed at least
annually by a qualified vocational rehabilitation counselor and the
eligible individual or, as appropriate, the individual's representative
to assess the eligible individual's progress in achieving the
identified employment outcome;
(6) The individualized plan for employment is amended, as
necessary, by the individual or, as appropriate, the individual's
representative, in collaboration with a representative of the State
unit or a qualified vocational rehabilitation counselor (to the extent
determined to be appropriate by the individual), if there are
substantive changes in the employment outcome, the vocational
rehabilitation services to be provided, or the providers of the
vocational rehabilitation services;
(7) Amendments to the individualized plan for employment do not
take effect until agreed to and signed by the eligible individual or,
as appropriate, the individual's representative and by a qualified
vocational rehabilitation counselor employed by the designated State
unit;
(8) The individualized plan for employment is amended, as
necessary, to include the postemployment services and service providers
that are necessary for the individual to maintain, advance in or regain
employment, consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice; and
(9) An individualized plan for employment for a student with a
disability is developed--
(i) In consideration of the student's individualized education
program or 504 services, as applicable; and
(ii) In accordance with the plans, policies, procedures, and terms
of the interagency agreement required under Sec. 361.22.
(e) Standards for developing the individualized plan for
employment. The individualized plan for employment must be developed as
soon as possible, but not later than 90 days after the date of
determination of eligibility, unless the State unit and the eligible
individual agree to the extension of that deadline to a specific date
by which the individualized plan for employment must be completed.
(f) Data for preparing the individualized plan for employment. (1)
Preparation without comprehensive assessment. To the extent possible,
the employment outcome and the nature and scope of rehabilitation
services to be included in the individual's individualized plan for
employment must be determined based on the data used for the assessment
of eligibility and priority for services under Sec. 361.42.
(2) Preparation based on comprehensive assessment.
(i) If additional data are necessary to determine the employment
outcome and the nature and scope of services to be included in the
individualized plan for employment of an eligible individual, the State
unit must conduct a comprehensive assessment of the unique strengths,
resources, priorities, concerns, abilities, capabilities,
[[Page 55768]]
interests, and informed choice, including the need for supported
employment services, of the eligible individual, in the most integrated
setting possible, consistent with the informed choice of the individual
in accordance with the provisions of Sec. 361.5(c)(5)(ii).
(ii) In preparing the comprehensive assessment, the State unit must
use, to the maximum extent possible and appropriate and in accordance
with confidentiality requirements, existing information that is current
as of the date of the development of the individualized plan for
employment, including information--
(A) Available from other programs and providers, particularly
information used by education officials and the Social Security
Administration;
(B) Provided by the individual and the individual's family; and
(C) Obtained under the assessment for determining the individual's
eligibility and vocational rehabilitation needs.
(Authority: Sections 7(2)(B), 101(a)(9), 102(b), and 103(a)(1) of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(2)(B),
721(a)(9), 722(b), and 723(a)(1))
Sec. 361.46 Content of the individualized plan for employment.
(a) Mandatory components. Regardless of the approach in Sec.
361.45(c)(1) that an eligible individual selects for purposes of
developing the individualized plan for employment, each individualized
plan for employment must--
(1) Include a description of the specific employment outcome, as
defined in Sec. 361.5(c)(15), that is chosen by the eligible
individual and is consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, career
interests, and informed choice consistent with the general goal of
competitive integrated employment (except that in the case of an
eligible individual who is a student or a youth with a disability, the
description may be a description of the individual's projected post-
school employment outcome);
(2) Include a description under Sec. 361.48 of--
(i) These specific rehabilitation services needed to achieve the
employment outcome, including, as appropriate, the provision of
assistive technology devices, assistive technology services, and
personal assistance services, including training in the management of
those services; and
(ii) In the case of a plan for an eligible individual that is a
student or youth with a disability, the specific transition services
and supports needed to achieve the individual's employment outcome or
projected post-school employment outcome.
(3) Provide for services in the most integrated setting that is
appropriate for the services involved and is consistent with the
informed choice of the eligible individual;
(4) Include timelines for the achievement of the employment outcome
and for the initiation of services;
(5) Include a description of the entity or entities chosen by the
eligible individual or, as appropriate, the individual's representative
that will provide the vocational rehabilitation services and the
methods used to procure those services;
(6) Include a description of the criteria that will be used to
evaluate progress toward achievement of the employment outcome; and
(7) Include the terms and conditions of the individualized plan for
employment, including, as appropriate, information describing--
(i) The responsibilities of the designated State unit;
(ii) The responsibilities of the eligible individual, including--
(A) The responsibilities the individual will assume in relation to
achieving the employment outcome;
(B) If applicable, the extent of the individual's participation in
paying for the cost of services; and
(C) The responsibility of the individual with regard to applying
for and securing comparable services and benefits as described in Sec.
361.53; and
(iii) The responsibilities of other entities as the result of
arrangements made pursuant to the comparable services or benefits
requirements in Sec. 361.53.
(b) Supported employment requirements. An individualized plan for
employment for an individual with a most significant disability for
whom an employment outcome in a supported employment setting has been
determined to be appropriate must--
(1) Specify the supported employment services to be provided by the
designated State unit;
(2) Specify the expected extended services needed, which may
include natural supports;
(3) Identify the source of extended services or, to the extent that
it is not possible to identify the source of extended services at the
time the individualized plan for employment is developed, include a
description of the basis for concluding that there is a reasonable
expectation that those sources will become available;
(4) Provide for periodic monitoring to ensure that the individual
is making satisfactory progress toward meeting the weekly work
requirement established in the individualized plan for employment by
the time of transition to extended services;
(5) Provide for the coordination of services provided under an
individualized plan for employment with services provided under other
individualized plans established under other Federal or State programs;
(6) To the extent that job skills training is provided, identify
that the training will be provided on site; and
(7) Include placement in an integrated setting for the maximum
number of hours possible based on the unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice of individuals with the most significant disabilities.
(c) Post-employment services. The individualized plan for
employment for each individual must contain, as determined to be
necessary, statements concerning--
(1) The expected need for post-employment services prior to closing
the record of services of an individual who has achieved an employment
outcome;
(2) A description of the terms and conditions for the provision of
any post-employment services; and
(3) If appropriate, a statement of how post-employment services
will be provided or arranged through other entities as the result of
arrangements made pursuant to the comparable services or benefits
requirements in Sec. 361.53.
(d) Coordination of services for students with disabilities. The
individualized plan for employment for a student with a disability must
be coordinated with the individualized education program or 504
services, as applicable, for that individual in terms of the goals,
objectives, and services identified in the education program.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 101(a)(8), 101(a)(9), and 102(b)(4) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 721(a)(8),
721(a)(9), and 722(b)(4))
Sec. 361.47 Record of services.
(a) The designated State unit must maintain for each applicant and
eligible individual a record of services that includes, to the extent
pertinent, the following documentation:
(1) If an applicant has been determined to be an eligible
individual, documentation supporting that
[[Page 55769]]
determination in accordance with the requirements under Sec. 361.42.
(2) If an applicant or eligible individual receiving services under
an individualized plan for employment has been determined to be
ineligible, documentation supporting that determination in accordance
with the requirements under Sec. 361.43.
(3) Documentation that describes the justification for closing an
applicant's or eligible individual's record of services if that closure
is based on reasons other than ineligibility, including, as
appropriate, documentation indicating that the State unit has satisfied
the requirements in Sec. 361.44.
(4) If an individual has been determined to be an individual with a
significant disability or an individual with a most significant
disability, documentation supporting that determination.
(5) If an individual with a significant disability requires an
exploration of abilities, capabilities, and capacity to perform in
realistic work situations through the use of trial work experiences to
determine whether the individual is an eligible individual,
documentation supporting the need for, and the plan relating to, that
exploration and documentation regarding the periodic assessments
carried out during the trial work experiences in accordance with the
requirements under Sec. 361.42(e).
(6) The individualized plan for employment, and any amendments to
the individualized plan for employment, consistent with the
requirements under Sec. 361.46.
(7) Documentation describing the extent to which the applicant or
eligible individual exercised informed choice regarding the provision
of assessment services and the extent to which the eligible individual
exercised informed choice in the development of the individualized plan
for employment with respect to the selection of the specific employment
outcome, the specific vocational rehabilitation services needed to
achieve the employment outcome, the entity to provide the services, the
employment setting, the settings in which the services will be
provided, and the methods to procure the services.
(8) In the event that an individual's individualized plan for
employment provides for vocational rehabilitation services in a non-
integrated setting, a justification to support the need for the non-
integrated setting.
(9) In the event that an individual obtains competitive employment,
verification that the individual is compensated at or above the minimum
wage and that the individual's wage and level of benefits are not less
than that customarily paid by the employer for the same or similar work
performed by non-disabled individuals in accordance with Sec.
361.5(c)(9)(i).
(10) In the event an individual achieves an employment outcome in
which the individual is compensated in accordance with section 14(c) of
the Fair Labor Standards Act or the designated State unit closes the
record of services of an individual in extended employment on the basis
that the individual is unable to achieve an employment outcome
consistent with Sec. 361.5(c)(15) or that an eligible individual
through informed choice chooses to remain in extended employment,
documentation of the results of the semi-annual and annual reviews
required under Sec. 361.55, of the individual's input into those
reviews, and of the individual's or, if appropriate, the individual's
representative's acknowledgment that those reviews were conducted.
(11) Documentation concerning any action or decision resulting from
a request by an individual under Sec. 361.57 for a review of
determinations made by designated State unit personnel.
(12) In the event that an applicant or eligible individual requests
under Sec. 361.38(c)(4) that documentation in the record of services
be amended and the documentation is not amended, documentation of the
request.
(13) In the event an individual is referred to another program
through the State unit's information and referral system under Sec.
361.37, including other components of the statewide workforce
development system, documentation on the nature and scope of services
provided by the designated State unit to the individual and on the
referral itself, consistent with the requirements of Sec. 361.37.
(14) In the event an individual's record of service is closed under
Sec. 361.56, documentation that demonstrates the services provided
under the individual's individualized plan for employment contributed
to the achievement of the employment outcome.
(15) In the event an individual's record of service is closed under
Sec. 361.56, documentation verifying that the provisions of Sec.
361.56 have been satisfied.
(b) The State unit, in consultation with the State Rehabilitation
Council if the State has a Council, must determine the type of
documentation that the State unit must maintain for each applicant and
eligible individual in order to meet the requirements in paragraph (a)
of this section.
(Authority: Sections 12(c), 101(a)(6), (9), (14), and (20) and
102(a), (b), and (d) of the Rehabilitation Act of 1973, as amended;
29 U.S.C. 709(c), 721(a)(6), (9), (14), and (20), and 722(a), (b),
and (d))
Sec. 361.48 Scope of vocational rehabilitation services for
individuals with disabilities.
(a) Pre-employment transition services. Each State must ensure that
the designated State unit, in collaboration with the local educational
agencies involved, provide, or arrange for the provision of, pre-
employment transition services for all students with disabilities, as
defined in Sec. 361.5(c)(51), in need of such services, without regard
to the type of disability, from Federal funds reserved in accordance
with Sec. 361.65, and any funds made available from State, local, or
private funding sources. Funds reserved and made available may be used
for the required, authorized, and pre-employment transition
coordination activities under paragraphs (2), (3) and (4) of this
section.
(1) Availability of services. Pre-employment transition services
must be made available Statewide to all students with disabilities,
regardless of whether the student has applied or been determined
eligible for vocational rehabilitation services.
(2) Required activities. The designated State unit must provide the
following pre-employment transition services:
(i) Job exploration counseling;
(ii) Work-based learning experiences, which may include in-school
or after school opportunities, or experience outside the traditional
school setting (including internships), that is provided in an
integrated environment in the community to the maximum extent possible;
(iii) Counseling on opportunities for enrollment in comprehensive
transition or postsecondary educational programs at institutions of
higher education;
(iv) Workplace readiness training to develop social skills and
independent living; and
(v) Instruction in self-advocacy (including instruction in person-
centered planning), which may include peer mentoring (including peer
mentoring from individuals with disabilities working in competitive
integrated employment).
(3) Authorized activities. Funds available and remaining after the
provision of the required activities described in paragraph (a)(2) of
this section may be used to improve the transition of students with
disabilities from school to postsecondary education or an employment
outcome by--
(i) Implementing effective strategies to increase the likelihood of
independent
[[Page 55770]]
living and inclusion in communities and competitive integrated
workplaces;
(ii) Developing and improving strategies for individuals with
intellectual disabilities and individuals with significant disabilities
to live independently; participate in postsecondary education
experiences; and obtain, advance in and retain competitive integrated
employment;
(iii) Providing instruction to vocational rehabilitation
counselors, school transition personnel, and other persons supporting
students with disabilities;
(iv) Disseminating information about innovative, effective, and
efficient approaches to achieve the goals of this section;
(v) Coordinating activities with transition services provided by
local educational agencies under the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.);
(vi) Applying evidence-based findings to improve policy, procedure,
practice, and the preparation of personnel, in order to better achieve
the goals of this section;
(vii) Developing model transition demonstration projects;
(viii) Establishing or supporting multistate or regional
partnerships involving States, local educational agencies, designated
State units, developmental disability agencies, private businesses, or
other participants to achieve the goals of this section; and
(ix) Disseminating information and strategies to improve the
transition to postsecondary activities of individuals who are members
of traditionally unserved and underserved populations.
(4) Pre-employment transition coordination. Each local office of a
designated State unit must carry out responsibilities consisting of--
(i) Attending individualized education program meetings for
students with disabilities, when invited;
(ii) Working with the local workforce development boards, one-stop
centers, and employers to develop work opportunities for students with
disabilities, including internships, summer employment and other
employment opportunities available throughout the school year, and
apprenticeships;
(iii) Working with schools, including those carrying out activities
under section 614(d) of the IDEA, to coordinate and ensure the
provision of pre-employment transition services under this section;
(iv) When invited, attending person-centered planning meetings for
individuals receiving services under title XIX of the Social Security
Act (42 U.S.C. 1396 et seq.); and
(b) Services for individuals who have applied for or been
determined eligible for vocational rehabilitation services. As
appropriate to the vocational rehabilitation needs of each individual
and consistent with each individual's individualized plan for
employment, the designated State unit must ensure that the following
vocational rehabilitation services are available to assist the
individual with a disability in preparing for, securing, retaining,
advancing in or regaining an employment outcome that is consistent with
the individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice:
(1) Assessment for determining eligibility and priority for
services by qualified personnel, including, if appropriate, an
assessment by personnel skilled in rehabilitation technology, in
accordance with Sec. 361.42.
(2) Assessment for determining vocational rehabilitation needs by
qualified personnel, including, if appropriate, an assessment by
personnel skilled in rehabilitation technology, in accordance with
Sec. 361.45.
(3) Vocational rehabilitation counseling and guidance, including
information and support services to assist an individual in exercising
informed choice in accordance with Sec. 361.52.
(4) Referral and other services necessary to assist applicants and
eligible individuals to secure needed services from other agencies,
including other components of the statewide workforce development
system, in accordance with Sec. Sec. 361.23, 361.24, and 361.37, and
to advise those individuals about client assistance programs
established under 34 CFR part 370.
(5) In accordance with the definition in Sec. 361.5(c)(39),
physical and mental restoration services, to the extent that financial
support is not readily available from a source other than the
designated State unit (such as through health insurance or a comparable
service or benefit as defined in Sec. 361.5(c)(10)).
(6) Vocational and other training services, including personal and
vocational adjustment training, advanced training in, but not limited
to, a field of science, technology, engineering, mathematics (including
computer science), medicine, law, or business); books, tools, and other
training materials, except that no training or training services in an
institution of higher education (universities, colleges, community or
junior colleges, vocational schools, technical institutes, or hospital
schools of nursing or any other postsecondary education institution)
may be paid for with funds under this part unless maximum efforts have
been made by the State unit and the individual to secure grant
assistance in whole or in part from other sources to pay for that
training.
(7) Maintenance, in accordance with the definition of that term in
Sec. 361.5(c)(34).
(8) Transportation in connection with the provision of any
vocational rehabilitation service and in accordance with the definition
of that term in Sec. 361.5(c)(57).
(9) Vocational rehabilitation services to family members, as
defined in Sec. 361.5(c)(23), of an applicant or eligible individual
if necessary to enable the applicant or eligible individual to achieve
an employment outcome.
(10) Interpreter services, including sign language and oral
interpreter services, for individuals who are deaf or hard of hearing
and tactile interpreting services for individuals who are deaf-blind
provided by qualified personnel.
(11) Reader services, rehabilitation teaching services, and
orientation and mobility services for individuals who are blind.
(12) Job-related services, including job search and placement
assistance, job retention services, follow-up services, and follow-
along services.
(13) Supported employment services in accordance with the
definition of that term in Sec. 361.5(c)(54).
(14) Personal assistance services in accordance with the definition
of that term in Sec. 361.5(c)(39).
(15) Post-employment services in accordance with the definition of
that term in Sec. 361.5(c)(42).
(16) Occupational licenses, tools, equipment, initial stocks, and
supplies.
(17) Rehabilitation technology in accordance with the definition of
that term in Sec. 361.5(c)(45), including vehicular modification,
telecommunications, sensory, and other technological aids and devices.
(18) Transition services for students and youth with disabilities,
that facilitate the transition from school to postsecondary life, such
as achievement of an employment outcome in competitive integrated
employment, or pre-employment transition services for students.
(19) Technical assistance and other consultation services to
conduct market analyses, develop business plans, and otherwise provide
resources, to the extent those resources are authorized to be provided
through the statewide workforce development system, to eligible
individuals who are pursuing
[[Page 55771]]
self-employment or telecommuting or establishing a small business
operation as an employment outcome.
(20) Customized employment in accordance with the definition of
that term in Sec. 361.5(c)(11).
(21) Other goods and services determined necessary for the
individual with a disability to achieve an employment outcome.
(Authority: Sections 7(37), 12(c), 103(a), and 113 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(37), 709(c),
723(a), and 733)
Sec. 361.49 Scope of vocational rehabilitation services for groups of
individuals with disabilities.
(a) The designated State unit may provide for the following
vocational rehabilitation services for the benefit of groups of
individuals with disabilities:
(1) The establishment, development, or improvement of a public or
other nonprofit community rehabilitation program that is used to
provide vocational rehabilitation services that promote integration
into the community and prepare individuals with disabilities for
competitive integrated employment, including supported employment and
customized employment, and under special circumstances, the
construction of a facility for a public or nonprofit community
rehabilitation program as defined in Sec. Sec. 361.5(c)(10),
361.5(c)(16) and 361.5(c)(17). Examples of special circumstances
include the destruction by natural disaster of the only available
center serving an area or a State determination that construction is
necessary in a rural area because no other public agencies or private
nonprofit organizations are currently able to provide vocational
rehabilitation services to individuals.
(2) Telecommunications systems that have the potential for
substantially improving vocational rehabilitation service delivery
methods and developing appropriate programming to meet the particular
needs of individuals with disabilities, including telephone,
television, video description services, satellite, tactile-vibratory
devices, and similar systems, as appropriate.
(3) Special services to provide nonvisual access to information for
individuals who are blind, including the use of telecommunications,
Braille, sound recordings, or other appropriate media; captioned
television, films, or video cassettes for individuals who are deaf or
hard of hearing; tactile materials for individuals who are deaf-blind;
and other special services that provide information through tactile,
vibratory, auditory, and visual media.
(4) Technical assistance to businesses that are seeking to employ
individuals with disabilities.
(5) In the case of any small business enterprise operated by
individuals with significant disabilities under the supervision of the
designated State unit, including enterprises established under the
Randolph-Sheppard program, management services and supervision provided
by the State unit along with the acquisition by the State unit of
vending facilities or other equipment, initial stocks and supplies, and
initial operating expenses, in accordance with the following
requirements:
(i) Management services and supervision includes inspection,
quality control, consultation, accounting, regulating, in-service
training, and related services provided on a systematic basis to
support and improve small business enterprises operated by individuals
with significant disabilities. Management services and supervision may
be provided throughout the operation of the small business enterprise.
(ii) Initial stocks and supplies includes those items necessary to
the establishment of a new business enterprise during the initial
establishment period, which may not exceed six months.
(iii) Costs of establishing a small business enterprise may include
operational costs during the initial establishment period, which may
not exceed six months.
(iv) If the designated State unit provides for these services, it
must ensure that only individuals with significant disabilities will be
selected to participate in this supervised program.
(v) If the designated State unit provides for these services and
chooses to set aside funds from the proceeds of the operation of the
small business enterprises, the State unit must maintain a description
of the methods used in setting aside funds and the purposes for which
funds are set aside. Funds may be used only for small business
enterprises purposes, and benefits that are provided to operators from
set-aside funds must be provided on an equitable basis.
(6) Consultation and technical assistance services to assist State
educational agencies and local educational agencies in planning for the
transition of students and youth with disabilities from school to
postsecondary life, including employment.
(7) Transition services to youth with disabilities and students
with disabilities who may not have yet applied or been determined
eligible for vocational rehabilitation services, for which a vocational
rehabilitation counselor works in concert with educational agencies,
providers of job training programs, providers of services under the
Medicaid program under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.), entities designated by the State to provide services for
individuals with developmental disabilities, centers for independent
living (as defined in section 702 of the Act), housing and
transportation authorities, workforce development systems, and
businesses and employers. These specific transition services are to
benefit a group of students with disabilities or youth with
disabilities and are not individualized services directly related to an
individualized plan for employment goal. Services may include, but are
not limited to, group tours of universities and vocational training
programs, employer or business site visits to learn about career
opportunities, career fairs coordinated with workforce development and
employers to facilitate mock interviews and resume writing, and other
general services applicable to groups of students with disabilities and
youth with disabilities.
(8) The establishment, development, or improvement of assistive
technology demonstration, loan, reutilization, or financing programs in
coordination with activities authorized under the Assistive Technology
Act of 1998 (29 U.S.C. 3001 et seq.) to promote access to assistive
technology for individuals with disabilities and employers.
(9) Support (including, as appropriate, tuition) for advanced
training in a field of science, technology, engineering, or mathematics
(including computer science), medicine, law, or business, provided
after an individual eligible to receive services under this title
demonstrates--
(i) Such eligibility;
(ii) Previous completion of a bachelor's degree program at an
institution of higher education or scheduled completion of such a
degree program prior to matriculating in the program for which the
individual proposes to use the support; and
(iii) Acceptance by a program at an institution of higher education
in the United States that confers a master's degree in a field of
science, technology, engineering, or mathematics (including computer
science), a juris doctor degree, a master of business administration
degree, or a doctor of medicine degree, except that--
(A) No training provided at an institution of higher education may
be paid for with funds under this program
[[Page 55772]]
unless maximum efforts have been made by the designated State unit to
secure grant assistance, in whole or in part, from other sources to pay
for such training; and
(B) Nothing in this paragraph prevents any designated State unit
from providing similar support to individuals with disabilities within
the State who are eligible to receive support under this title and who
are not served under this section.
(b) If the designated State unit provides for vocational
rehabilitation services for groups of individuals, it must--
(1) Develop and maintain written policies covering the nature and
scope of each of the vocational rehabilitation services it provides and
the criteria under which each service is provided; and
(2) Maintain information to ensure the proper and efficient
administration of those services in the form and detail and at the time
required by the Secretary, including the types of services provided,
the costs of those services, and, to the extent feasible, estimates of
the numbers of individuals benefiting from those services.
(Authority: Sections 12(c), 101(a)(6)(A), and 103(b) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6),
and 723(b))
Sec. 361.50 Written policies governing the provision of services for
individuals with disabilities.
(a) Policies. The State unit must develop and maintain written
policies covering the nature and scope of each of the vocational
rehabilitation services specified in Sec. 361.48 and the criteria
under which each service is provided. The policies must ensure that the
provision of services is based on the rehabilitation needs of each
individual as identified in that individual's individualized plan for
employment and is consistent with the individual's informed choice. The
written policies may not establish any arbitrary limits on the nature
and scope of vocational rehabilitation services to be provided to the
individual to achieve an employment outcome. The policies must be
developed in accordance with the following provisions:
(b) Out-of-State services. (1) The State unit may establish a
preference for in-State services, provided that the preference does not
effectively deny an individual a necessary service. If the individual
chooses an out-of-State service at a higher cost than an in-State
service, if either service would meet the individual's rehabilitation
needs, the designated State unit is not responsible for those costs in
excess of the cost of the in-State service.
(2) The State unit may not establish policies that effectively
prohibit the provision of out-of-State services.
(c) Payment for services. (1) The State unit must establish and
maintain written policies to govern the rates of payment for all
purchased vocational rehabilitation services.
(2) The State unit may establish a fee schedule designed to ensure
a reasonable cost to the program for each service, if the schedule is--
(i) Not so low as to effectively deny an individual a necessary
service; and
(ii) Not absolute and permits exceptions so that individual needs
can be addressed.
(3) The State unit may not place absolute dollar limits on specific
service categories or on the total services provided to an individual.
(d) Duration of services. (1) The State unit may establish
reasonable time periods for the provision of services provided that the
time periods are--
(i) Not so short as to effectively deny an individual a necessary
service; and
(ii) Not absolute and permit exceptions so that individual needs
can be addressed.
(2) The State unit may not establish absolute time limits on the
provision of specific services or on the provision of services to an
individual. The duration of each service needed by an individual must
be determined on an individual basis and reflected in that individual's
individualized plan for employment.
(e) Authorization of services. The State unit must establish
policies related to the timely authorization of services, including any
conditions under which verbal authorization can be given.
(Authority: Sections 12(c) and 101(a)(6) of the Rehabilitation Act
of 1973, as amended and 29 U.S.C. 709(c) and 721(a)(6))
Sec. 361.51 Standards for facilities and providers of services.
(a) Accessibility of facilities. The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
any facility used in connection with the delivery of vocational
rehabilitation services under this part meets program accessibility
requirements consistent with the requirements, as applicable, of the
Architectural Barriers Act of 1968, the Americans with Disabilities Act
of 1990, section 504 of the Act, and the regulations implementing these
laws.
(b) Affirmative action. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that
community rehabilitation programs that receive assistance under part B
of title I of the Act take affirmative action to employ and advance in
employment qualified individuals with disabilities covered under and on
the same terms and conditions as in section 503 of the Act.
(c) Special communication needs personnel. The designated State
unit must ensure that providers of vocational rehabilitation services
are able to communicate--
(1) In the native language of applicants and eligible individuals
who have limited English proficiency; and
(2) By using appropriate modes of communication used by applicants
and eligible individuals.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(6)(B) and (C) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and
721(a)(6)(B) and (C))
Sec. 361.52 Informed choice.
(a) General provision. The vocational rehabilitation services
portion of the Unified or Combined State Plan must assure that
applicants and recipients of services or, as appropriate, their
representatives are provided information and support services to assist
applicants and recipients of services in exercising informed choice
throughout the rehabilitation process consistent with the provisions of
section 102(d) of the Act and the requirements of this section.
(b) Written policies and procedures. The designated State unit, in
consultation with its State Rehabilitation Council, if it has a
Council, must develop and implement written policies and procedures
that enable an applicant or recipient of services to exercise informed
choice throughout the vocational rehabilitation process. These policies
and procedures must provide for--
(1) Informing each applicant and recipient of services (including
students with disabilities who are making the transition from programs
under the responsibility of an educational agency to programs under the
responsibility of the designated State unit and including youth with
disabilities), through appropriate modes of communication, about the
availability of and opportunities to exercise informed choice,
including the availability of support services for individuals with
cognitive or other disabilities who require assistance in exercising
informed choice throughout the vocational rehabilitation process;
(2) Assisting applicants and recipients of services in exercising
informed
[[Page 55773]]
choice in decisions related to the provision of assessment services;
(3) Developing and implementing flexible procurement policies and
methods that facilitate the provision of vocational rehabilitation
services and that afford recipients of services meaningful choices
among the methods used to procure vocational rehabilitation services;
(4) Assisting eligible individuals or, as appropriate, the
individuals' representatives, in acquiring information that enables
them to exercise informed choice in the development of their
individualized plans for employment with respect to the selection of
the--
(i) Employment outcome;
(ii) Specific vocational rehabilitation services needed to achieve
the employment outcome;
(iii) Entity that will provide the services;
(iv) Employment setting and the settings in which the services will
be provided; and
(v) Methods available for procuring the services; and
(5) Ensuring that the availability and scope of informed choice is
consistent with the obligations of the designated State agency under
this part.
(c) Information and assistance in the selection of vocational
rehabilitation services and service providers. In assisting an
applicant and eligible individual in exercising informed choice during
the assessment for determining eligibility and vocational
rehabilitation needs and during development of the individualized plan
for employment, the designated State unit must provide the individual
or the individual's representative, or assist the individual or the
individual's representative in acquiring, information necessary to make
an informed choice about the specific vocational rehabilitation
services, including the providers of those services, that are needed to
achieve the individual's employment outcome. This information must
include, at a minimum, information relating to the--
(1) Cost, accessibility, and duration of potential services;
(2) Consumer satisfaction with those services to the extent that
information relating to consumer satisfaction is available;
(3) Qualifications of potential service providers;
(4) Types of services offered by the potential providers;
(5) Degree to which services are provided in integrated settings;
and
(6) Outcomes achieved by individuals working with service
providers, to the extent that such information is available.
(d) Methods or sources of information. In providing or assisting
the individual or the individual's representative in acquiring the
information required under paragraph (c) of this section, the State
unit may use, but is not limited to, the following methods or sources
of information:
(1) Lists of services and service providers.
(2) Periodic consumer satisfaction surveys and reports.
(3) Referrals to other consumers, consumer groups, or disability
advisory councils qualified to discuss the services or service
providers.
(4) Relevant accreditation, certification, or other information
relating to the qualifications of service providers.
(5) Opportunities for individuals to visit or experience various
work and service provider settings.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c), 101(a)(19), 102(b)(2)(B), and 102(d) of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
721(a)(19), 722(b)(2)(B), and 722(d))
Sec. 361.53 Comparable services and benefits.
(a) Determination of availability. The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
prior to providing an accommodation or auxiliary aid or service or any
vocational rehabilitation services, except those services listed in
paragraph (b) of this section, to an eligible individual or to members
of the individual's family, the State unit must determine whether
comparable services and benefits, as defined in Sec. 361.5(c)(8),
exist under any other program and whether those services and benefits
are available to the individual unless such a determination would
interrupt or delay--
(1) The progress of the individual toward achieving the employment
outcome identified in the individualized plan for employment;
(2) An immediate job placement; or
(3) The provision of vocational rehabilitation services to any
individual who is determined to be at extreme medical risk, based on
medical evidence provided by an appropriate qualified medical
professional.
(b) Exempt services. The following vocational rehabilitation
services described in Sec. 361.48(b) are exempt from a determination
of the availability of comparable services and benefits under paragraph
(a) of this section:
(1) Assessment for determining eligibility and vocational
rehabilitation needs.
(2) Counseling and guidance, including information and support
services to assist an individual in exercising informed choice.
(3) Referral and other services to secure needed services from
other agencies, including other components of the statewide workforce
development system, if those services are not available under this
part.
(4) Job-related services, including job search and placement
assistance, job retention services, follow-up services, and follow-
along services.
(5) Rehabilitation technology, including telecommunications,
sensory, and other technological aids and devices.
(6) Post-employment services consisting of the services listed
under paragraphs (b)(1) through (5) of this section.
(c) Provision of services. (1) If comparable services or benefits
exist under any other program and are available to the individual at
the time needed to ensure the progress of the individual toward
achieving the employment outcome in the individual's individualized
plan for employment, the designated State unit must use those
comparable services or benefits to meet, in whole or part, the costs of
the vocational rehabilitation services.
(2) If comparable services or benefits exist under any other
program, but are not available to the individual at the time needed to
ensure the progress of the individual toward achieving the employment
outcome specified in the individualized plan for employment, the
designated State unit must provide vocational rehabilitation services
until those comparable services and benefits become available.
(d) Interagency coordination. (1) The vocational rehabilitation
services portion of the Unified or Combined State Plan must assure that
the Governor, in consultation with the entity in the State responsible
for the vocational rehabilitation program and other appropriate
agencies, will ensure that an interagency agreement or other mechanism
for interagency coordination takes effect between the designated State
vocational rehabilitation unit and any appropriate public entity,
including the State entity responsible for administering the State
Medicaid program, a public institution of higher education, and a
component of the statewide workforce development system, to ensure the
provision of vocational rehabilitation services, and,
[[Page 55774]]
if appropriate, accommodations or auxiliary aids and services, (other
than those services listed in paragraph (b) of this section) that are
included in the individualized plan for employment of an eligible
individual, including the provision of those vocational rehabilitation
services (including, if appropriate, accommodations or auxiliary aids
and services) during the pendency of any interagency dispute in
accordance with the provisions of paragraph (d)(3)(iii) of this
section.
(2) The Governor may meet the requirements of paragraph (d)(1) of
this section through--
(i) A State statute or regulation;
(ii) A signed agreement between the respective officials of the
public entities that clearly identifies the responsibilities of each
public entity for the provision of the services; or
(iii) Another appropriate mechanism as determined by the designated
State vocational rehabilitation unit.
(3) The interagency agreement or other mechanism for interagency
coordination must include the following:
(i) Agency financial responsibility. An identification of, or
description of a method for defining, the financial responsibility of
the designated State unit and other public entities for the provision
of vocational rehabilitation services, and, if appropriate,
accommodations or auxiliary aids and services other than those listed
in paragraph (b) of this section and a provision stating the financial
responsibility of the public entity for providing those services.
(ii) Conditions, terms, and procedures of reimbursement.
Information specifying the conditions, terms, and procedures under
which the designated State unit must be reimbursed by the other public
entities for providing vocational rehabilitation services, and
accommodations or auxiliary aids and services based on the terms of the
interagency agreement or other mechanism for interagency coordination.
(iii) Interagency disputes. Information specifying procedures for
resolving interagency disputes under the interagency agreement or other
mechanism for interagency coordination, including procedures under
which the designated State unit may initiate proceedings to secure
reimbursement from other public entities or otherwise implement the
provisions of the agreement or mechanism.
(iv) Procedures for coordination of services. Information
specifying policies and procedures for public entities to determine and
identify interagency coordination responsibilities of each public
entity to promote the coordination and timely delivery of vocational
rehabilitation services, and accommodations or auxiliary aids and
services, other than those listed in paragraph (b) of this section.
(e) Responsibilities under other law. (1) If a public entity (other
than the designated State unit) is obligated under Federal law (such as
the Americans with Disabilities Act, section 504 of the Act, or section
188 of the Workforce Innovation and Opportunity Act) or State law, or
assigned responsibility under State policy or an interagency agreement
established under this section, to provide or pay for any services
considered to be vocational rehabilitation services (e.g., interpreter
services under Sec. 361.48(j)), and, if appropriate, accommodations or
auxiliary aids and services other than those services listed in
paragraph (b) of this section, the public entity must fulfill that
obligation or responsibility through--
(i) The terms of the interagency agreement or other requirements of
this section;
(ii) Providing or paying for the service directly or by contract;
or
(iii) Other arrangement.
(2) If a public entity other than the designated State unit fails
to provide or pay for vocational rehabilitation services, and, if
appropriate, accommodations or auxiliary aids and services for an
eligible individual as established under this section, the designated
State unit must provide or pay for those services to the individual and
may claim reimbursement for the services from the public entity that
failed to provide or pay for those services. The public entity must
reimburse the designated State unit pursuant to the terms of the
interagency agreement or other mechanism described in paragraph (d) of
this section in accordance with the procedures established in the
agreement or mechanism pursuant to paragraph (d)(3)(ii) of this
section.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))
Sec. 361.54 Participation of individuals in cost of services based on
financial need.
(a) No Federal requirement. There is no Federal requirement that
the financial need of individuals be considered in the provision of
vocational rehabilitation services.
(b) State unit requirements. (1) The State unit may choose to
consider the financial need of eligible individuals or individuals who
are receiving services through trial work experiences under Sec.
361.42(e) for purposes of determining the extent of their participation
in the costs of vocational rehabilitation services, other than those
services identified in paragraph (b)(3) of this section.
(2) If the State unit chooses to consider financial need--
(i) It must maintain written policies--
(A) Explaining the method for determining the financial need of an
eligible individual; and
(B) Specifying the types of vocational rehabilitation services for
which the unit has established a financial needs test;
(ii) The policies must be applied uniformly to all individuals in
similar circumstances;
(iii) The policies may require different levels of need for
different geographic regions in the State, but must be applied
uniformly to all individuals within each geographic region; and
(iv) The policies must ensure that the level of an individual's
participation in the cost of vocational rehabilitation services is--
(A) Reasonable;
(B) Based on the individual's financial need, including
consideration of any disability-related expenses paid by the
individual; and
(C) Not so high as to effectively deny the individual a necessary
service.
(3) The designated State unit may not apply a financial needs test,
or require the financial participation of the individual--
(i) As a condition for furnishing the following vocational
rehabilitation services:
(A) Assessment for determining eligibility and priority for
services under Sec. 361.48(b)(1), except those non-assessment services
that are provided to an individual with a significant disability during
either an exploration of the individual's abilities, capabilities, and
capacity to perform in work situations through the use of trial work
experiences under Sec. 361.42(e).
(B) Assessment for determining vocational rehabilitation needs
under Sec. 361.48(b)(2).
(C) Vocational rehabilitation counseling and guidance under Sec.
361.48(b)(3).
(D) Referral and other services under Sec. 361.48(b)(4).
(E) Job-related services under Sec. 361.48(b)(12).
(F) Personal assistance services under Sec. 361.48(b)(14).
[[Page 55775]]
(G) Any auxiliary aid or service (e.g., interpreter services under
Sec. 361.48(b)(10), reader services under Sec. 361.48(b)(11)) that an
individual with a disability requires under section 504 of the Act (29
U.S.C. 794) or the Americans with Disabilities Act (42 U.S.C. 12101, et
seq.), or regulations implementing those laws, in order for the
individual to participate in the vocational rehabilitation program as
authorized under this part; or
(ii) As a condition for furnishing any vocational rehabilitation
service if the individual in need of the service has been determined
eligible for Social Security benefits under titles II or XVI of the
Social Security Act.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 361.55 Semi-annual and annual review of individuals in extended
employment and other employment under special certificate provisions of
the Fair Labor Standards Act.
(a) The vocational rehabilitation services portion of the Unified
or Combined State Plan must assure that the designated State unit
conducts a semi-annual review and reevaluation for the first two years
of such employment and annually thereafter, in accordance with the
requirements in paragraph (b) of this section for an individual with a
disability served under this part--
(1) Who has a record of service, as described in Sec. 361.47, as
either an applicant or eligible individual under the vocational
rehabilitation program; and
(2)(i) Who has achieved employment in which the individual is
compensated in accordance with section 14(c) of the Fair Labor
Standards Act; or
(ii) Who is in extended employment, including those individuals
whose record of service is closed while the individual is in extended
employment on the basis that the individual is unable to achieve an
employment outcome consistent with Sec. 361.5(c)(15) or that the
individual made an informed choice to remain in extended employment.
(b) For each individual with a disability who meets the criteria in
paragraph (a) of this section, the designated State unit must--
(1) Semi-annually review and reevaluate the status of each
individual for two years after the individual's record of services is
closed (and annually thereafter) to determine the interests,
priorities, and needs of the individual with respect to competitive
integrated employment or training for competitive integrated
employment;
(2) Enable the individual or, if appropriate, the individual's
representative to provide input into the review and reevaluation and
must document that input in the record of services, consistent with
Sec. 361.47(a)(10), with the individual's or, as appropriate, the
individual's representative's signed acknowledgment that the review and
reevaluation have been conducted; and
(3) Make maximum efforts, including identifying and providing
vocational rehabilitation services, reasonable accommodations, and
other necessary support services, to assist the individual in engaging
in competitive integrated employment as defined in Sec. 361.5(c)(9).
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Sections 12(c) and 101(a)(14) of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(14))
Sec. 361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
The record of services of an individual who has achieved an
employment outcome may be closed only if all of the following
requirements are met:
(a) Employment outcome achieved. The individual has achieved the
employment outcome that is described in the individual's individualized
plan for employment in accordance with Sec. 361.46(a)(1) and is
consistent with the individual's unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice.
(b) Employment outcome maintained. The individual has maintained
the employment outcome for an appropriate period of time, but not less
than 90 days, necessary to ensure the stability of the employment
outcome, and the individual no longer needs vocational rehabilitation
services.
(c) Satisfactory outcome. At the end of the appropriate period
under paragraph (b) of this section, the individual and the qualified
rehabilitation counselor employed by the designated State unit consider
the employment outcome to be satisfactory and agree that the individual
is performing well in the employment.
(d) Post-employment services. The individual is informed through
appropriate modes of communication of the availability of post-
employment services.
(Authority: Sections 12(c), 101(a)(6), and 106(a)(2) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6),
and 726(a)(2))
Sec. 361.57 Review of determinations made by designated State unit
personnel.
(a) Procedures. The designated State unit must develop and
implement procedures to ensure that an applicant or recipient of
services who is dissatisfied with any determination made by personnel
of the designated State unit that affects the provision of vocational
rehabilitation services may request, or, if appropriate, may request
through the individual's representative, a timely review of that
determination. The procedures must be in accordance with paragraphs (b)
through (k) of this section:
(b) General requirements. (1) Notification. Procedures established
by the State unit under this section must provide an applicant or
recipient or, as appropriate, the individual's representative notice
of--
(i) The right to obtain review of State unit determinations that
affect the provision of vocational rehabilitation services through an
impartial due process hearing under paragraph (e) of this section;
(ii) The right to pursue mediation under paragraph (d) of this
section with respect to determinations made by designated State unit
personnel that affect the provision of vocational rehabilitation
services to an applicant or recipient;
(iii) The names and addresses of individuals with whom requests for
mediation or due process hearings may be filed;
(iv) The manner in which a mediator or impartial hearing officer
may be selected consistent with the requirements of paragraphs (d) and
(f) of this section; and
(v) The availability of the client assistance program, established
under 34 CFR part 370, to assist the applicant or recipient during
mediation sessions or impartial due process hearings.
(2) Timing. Notice described in paragraph (b)(1) of this section
must be provided in writing--
(i) At the time the individual applies for vocational
rehabilitation services under this part;
(ii) At the time the individual is assigned to a category in the
State's order of selection, if the State has established an order of
selection under Sec. 361.36;
(iii) At the time the individualized plan for employment is
developed; and
(iv) Whenever vocational rehabilitation services for an individual
are reduced, suspended, or terminated.
(3) Evidence and representation. Procedures established under this
section must--
[[Page 55776]]
(i) Provide an applicant or recipient or, as appropriate, the
individual's representative with an opportunity to submit during
mediation sessions or due process hearings evidence and other
information that supports the applicant's or recipient's position; and
(ii) Allow an applicant or recipient to be represented during
mediation sessions or due process hearings by counsel or other advocate
selected by the applicant or recipient.
(4) Impact on provision of services. The State unit may not
institute a suspension, reduction, or termination of vocational
rehabilitation services being provided to an applicant or recipient,
including evaluation and assessment services and individualized plan
for employment development, pending a resolution through mediation,
pending a decision by a hearing officer or reviewing official, or
pending informal resolution under this section unless--
(i) The individual or, in appropriate cases, the individual's
representative requests a suspension, reduction, or termination of
services; or
(ii) The State agency has evidence that the services have been
obtained through misrepresentation, fraud, collusion, or criminal
conduct on the part of the individual or the individual's
representative.
(5) Ineligibility. Applicants who are found ineligible for
vocational rehabilitation services and previously eligible individuals
who are determined to be no longer eligible for vocational
rehabilitation services pursuant to Sec. 361.43 are permitted to
challenge the determinations of ineligibility under the procedures
described in this section.
(c) Informal dispute resolution. The State unit may develop an
informal process for resolving a request for review without conducting
mediation or a formal hearing. A State's informal process must not be
used to deny the right of an applicant or recipient to a hearing under
paragraph (e) of this section or any other right provided under this
part, including the right to pursue mediation under paragraph (d) of
this section. If informal resolution under this paragraph or mediation
under paragraph (d) of this section is not successful in resolving the
dispute within the time period established under paragraph (e)(1) of
this section, a formal hearing must be conducted within that same time
period, unless the parties agree to a specific extension of time.
(d) Mediation. (1) The State must establish and implement
procedures, as required under paragraph (b)(1)(ii) of this section, to
allow an applicant or recipient and the State unit to resolve disputes
involving State unit determinations that affect the provision of
vocational rehabilitation services through a mediation process that
must be made available, at a minimum, whenever an applicant or
recipient or, as appropriate, the individual's representative requests
an impartial due process hearing under this section.
(2) Mediation procedures established by the State unit under
paragraph (d) of this section must ensure that--
(i) Participation in the mediation process is voluntary on the part
of the applicant or recipient, as appropriate, and on the part of the
State unit;
(ii) Use of the mediation process is not used to deny or delay the
applicant's or recipient's right to pursue resolution of the dispute
through an impartial hearing held within the time period specified in
paragraph (e)(1) of this section or any other rights provided under
this part. At any point during the mediation process, either party or
the mediator may elect to terminate the mediation. In the event
mediation is terminated, either party may pursue resolution through an
impartial hearing;
(iii) The mediation process is conducted by a qualified and
impartial mediator, as defined in Sec. 361.5(c)(43), who must be
selected from a list of qualified and impartial mediators maintained by
the State--
(A) On a random basis;
(B) By agreement between the director of the designated State unit
and the applicant or recipient or, as appropriate, the recipient's
representative; or
(C) In accordance with a procedure established in the State for
assigning mediators, provided this procedure ensures the neutrality of
the mediator assigned; and
(iv) Mediation sessions are scheduled and conducted in a timely
manner and are held in a location and manner that is convenient to the
parties to the dispute.
(3) Discussions that occur during the mediation process must be
kept confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(4) An agreement reached by the parties to the dispute in the
mediation process must be described in a written mediation agreement
that is developed by the parties with the assistance of the qualified
and impartial mediator and signed by both parties. Copies of the
agreement must be sent to both parties.
(5) The costs of the mediation process must be paid by the State.
The State is not required to pay for any costs related to the
representation of an applicant or recipient authorized under paragraph
(b)(3)(ii) of this section.
(e) Impartial due process hearings. The State unit must establish
and implement formal review procedures, as required under paragraph
(b)(1)(i) of this section, that provide that--
(1) Hearing conducted by an impartial hearing officer, selected in
accordance with paragraph (f) of this section, must be held within 60
days of an applicant's or recipient 's request for review of a
determination made by personnel of the State unit that affects the
provision of vocational rehabilitation services to the individual,
unless informal resolution or a mediation agreement is achieved prior
to the 60th day or the parties agree to a specific extension of time;
(2) In addition to the rights described in paragraph (b)(3) of this
section, the applicant or recipient or, if appropriate, the
individual's representative must be given the opportunity to present
witnesses during the hearing and to examine all witnesses and other
relevant sources of information and evidence;
(3) The impartial hearing officer must--
(i) Make a decision based on the provisions of the approved
vocational rehabilitation services portion of the Unified or Combined
State Plan, the Act, Federal vocational rehabilitation regulations, and
State regulations and policies that are consistent with Federal
requirements; and
(ii) Provide to the individual or, if appropriate, the individual's
representative and to the State unit a full written report of the
findings and grounds for the decision within 30 days of the completion
of the hearing; and
(4) The hearing officer's decision is final, except that a party
may request an impartial review under paragraph (g)(1) of this section
if the State has established procedures for that review, and a party
involved in a hearing may bring a civil action under paragraph (i) of
this section.
(f) Selection of impartial hearing officers. The impartial hearing
officer for a particular case must be selected--
(1) From a list of qualified impartial hearing officers maintained
by the State unit. Impartial hearing officers included on the list must
be--
(i) Identified by the State unit if the State unit is an
independent commission; or
(ii) Jointly identified by the State unit and the State
Rehabilitation Council if the State has a Council; and
(2)(i) On a random basis; or
[[Page 55777]]
(ii) By agreement between the director of the designated State unit
and the applicant or recipient or, as appropriate, the individual's
representative.
(g) Administrative review of hearing officer's decision. The State
may establish procedures to enable a party who is dissatisfied with the
decision of the impartial hearing officer to seek an impartial
administrative review of the decision under paragraph (e)(3) of this
section in accordance with the following requirements:
(1) A request for administrative review under paragraph (g) of this
section must be made within 20 days of the mailing of the impartial
hearing officer's decision.
(2) Administrative review of the hearing officer's decision must be
conducted by--
(i) The chief official of the designated State agency if the State
has established both a designated State agency and a designated State
unit under Sec. 361.13(b); or
(ii) An official from the office of the Governor.
(3) The reviewing official described in paragraph (g)(2)(i) of this
section--
(i) Provides both parties with an opportunity to submit additional
evidence and information relevant to a final decision concerning the
matter under review;
(ii) May not overturn or modify the hearing officer's decision, or
any part of that decision, that supports the position of the applicant
or recipient unless the reviewing official concludes, based on clear
and convincing evidence, that the decision of the impartial hearing
officer is clearly erroneous on the basis of being contrary to the
approved vocational rehabilitation services portion of the Unified or
Combined State Plan, the Act, Federal vocational rehabilitation
regulations, or State regulations and policies that are consistent with
Federal requirements;
(iii) Makes an independent, final decision following a review of
the entire hearing record and provides the decision in writing,
including a full report of the findings and the statutory, regulatory,
or policy grounds for the decision, to the applicant or recipient or,
as appropriate, the individual's representative and to the State unit
within 30 days of the request for administrative review under paragraph
(g)(1) of this section; and
(iv) May not delegate the responsibility for making the final
decision under paragraph (g) of this section to any officer or employee
of the designated State unit.
(4) The reviewing official's decision under paragraph (g) of this
section is final unless either party brings a civil action under
paragraph (i) of this section.
(h) Implementation of final decisions. If a party brings a civil
action under paragraph (h) of this section to challenge the final
decision of a hearing officer under paragraph (e) of this section or to
challenge the final decision of a State reviewing official under
paragraph (g) of this section, the final decision of the hearing
officer or State reviewing official must be implemented pending review
by the court.
(i) Civil action. (1) Any party who disagrees with the findings and
decision of an impartial hearing officer under paragraph (e) of this
section in a State that has not established administrative review
procedures under paragraph (g) of this section and any party who
disagrees with the findings and decision under paragraph (g)(3)(iii) of
this section have a right to bring a civil action with respect to the
matter in dispute. The action may be brought in any State court of
competent jurisdiction or in a district court of the United States of
competent jurisdiction without regard to the amount in controversy.
(2) In any action brought under paragraph (i) of this section, the
court--
(i) Receives the records related to the impartial due process
hearing and the records related to the administrative review process,
if applicable;
(ii) Hears additional evidence at the request of a party; and
(iii) Basing its decision on the preponderance of the evidence,
grants the relief that the court determines to be appropriate.
(j) State fair hearing board. A fair hearing board as defined in
Sec. 361.5(c)(21) is authorized to carry out the responsibilities of
the impartial hearing officer under paragraph (e) of this section in
accordance with the following criteria:
(1) The fair hearing board may conduct due process hearings either
collectively or by assigning responsibility for conducting the hearing
to one or more members of the fair hearing board.
(2) The final decision issued by the fair hearing board following a
hearing under paragraph (j)(1) of this section must be made
collectively by, or by a majority vote of, the fair hearing board.
(3) The provisions of paragraphs (b)(1), (2), and (3) of this
section that relate to due process hearings and of paragraphs (e), (f),
(g), and (h) of this section do not apply to fair hearing boards under
this paragraph (j).
(k) Data collection. (1) The director of the designated State unit
must collect and submit, at a minimum, the following data to the
Secretary for inclusion each year in the annual report to Congress
under section 13 of the Act:
(i) A copy of the standards used by State reviewing officials for
reviewing decisions made by impartial hearing officers under this
section.
(ii) The number of mediations held, including the number of
mediation agreements reached.
(iii) The number of hearings and reviews sought from impartial
hearing officers and State reviewing officials, including the type of
complaints and the issues involved.
(iv) The number of hearing officer decisions that were not reviewed
by administrative reviewing officials.
(v) The number of hearing decisions that were reviewed by State
reviewing officials and, based on these reviews, the number of hearing
decisions that were--
(A) Sustained in favor of an applicant or recipient;
(B) Sustained in favor of the designated State unit;
(C) Reversed in whole or in part in favor of the applicant or
recipient; and
(D) Reversed in whole or in part in favor of the State unit.
(2) The State unit director also must collect and submit to the
Secretary copies of all final decisions issued by impartial hearing
officers under paragraph (e) of this section and by State review
officials under paragraph (g) of this section.
(3) The confidentiality of records of applicants and recipients
maintained by the State unit may not preclude the access of the
Secretary to those records for the purposes described in this section.
(Authority: Sections 12(c) and 102(c) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 722(c))
Subpart C--Financing of State Vocational Rehabilitation Programs
Sec. 361.60 Matching requirements.
(a) Federal share--(1) General. Except as provided in paragraph
(a)(2) of this section, the Federal share for expenditures made by the
State under the vocational rehabilitation services portion of the
Unified or Combined State Plan, including expenditures for the
provision of vocational rehabilitation services and the administration
of the vocational rehabilitation services portion of the Unified or
Combined State Plan, is 78.7 percent.
(2) Construction projects. The Federal share for expenditures made
for the construction of a facility for community rehabilitation program
purposes may
[[Page 55778]]
not be more than 50 percent of the total cost of the project.
(b) Non-Federal share--(1) General. Except as provided in paragraph
(b)(2) and (b)(3) of this section, expenditures made under the
vocational rehabilitation services portion of the Unified or Combined
State Plan to meet the non-Federal share under this section must be
consistent with the provisions of 2 CFR 200.306(b).
(2) Third party in-kind contributions. Third party in-kind
contributions specified in 2 CFR 200.306(b) may not be used to meet the
non-Federal share under this section.
(3) Contributions by private entities. Expenditures made from those
cash contributions provided by private organizations, agencies, or
individuals and that are deposited in the State agency's account or, if
applicable, sole local agency's account, in accordance with State law
prior to their expenditure and that are earmarked, under a condition
imposed by the contributor, may be used as part of the non-Federal
share under this section if the funds are earmarked for--
(i) Meeting in whole or in part the State's share for establishing
a community rehabilitation program or constructing a particular
facility for community rehabilitation program purposes;
(ii) Particular geographic areas within the State for any purpose
under the vocational rehabilitation services portion of the Unified or
Combined State Plan, other than those described in paragraph (b)(3)(i)
of this section, in accordance with the following criteria:
(A) Before funds that are earmarked for a particular geographic
area may be used as part of the non-Federal share, the State must
notify the Secretary that the State cannot provide the full non-Federal
share without using these funds.
(B) Funds that are earmarked for a particular geographic area may
be used as part of the non-Federal share without requesting a waiver of
statewideness under Sec. 361.26.
(C) Except as provided in paragraph (b)(3)(i) of this section, all
Federal funds must be used on a statewide basis consistent with Sec.
361.25, unless a waiver of statewideness is obtained under Sec.
361.26; and
(iii) Any other purpose under the vocational rehabilitation
services portion of the Unified or Combined State Plan, provided the
expenditures do not benefit in any way the donor, employee, officer, or
agent, any member of his or her immediate family, his or her partner,
an individual with whom the donor has a close personal relationship, or
an individual, entity, or organization with whom the donor shares a
financial or other interest. The Secretary does not consider a donor's
receipt from the State unit of a subaward or contract with funds
allotted under this part to be a benefit for the purposes of this
paragraph if the subaward or contract is awarded under the State's
regular competitive procedures.
(Authority: Sections 7(14), 12(c), 101(a)(3), 101(a)(4), and 104 of
the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(14),
709(c), 721(a)(3), 721(a)(4), and 724))
Example for paragraph (b)(3): Contributions may be earmarked in
accordance with Sec. 361.60(b)(3)(iii) for providing particular
services (e.g., rehabilitation technology services); serving
individuals with certain types of disabilities (e.g., individuals
who are blind), consistent with the State's order of selection, if
applicable; providing services to special groups that State or
Federal law permits to be targeted for services (e.g., students with
disabilities who are receiving special education services),
consistent with the State's order of selection, if applicable; or
carrying out particular types of administrative activities
permissible under State law. Contributions also may be restricted to
particular geographic areas to increase services or expand the scope
of services that are available statewide under the vocational
rehabilitation services portion of the Unified or Combined State
Plan in accordance with the requirements in Sec. 361.60(b)(3)(ii).
Sec. 361.61 Limitation on use of funds for construction expenditures.
No more than 10 percent of a State's allotment for any fiscal year
under section 110 of the Act may be spent on the construction of
facilities for community rehabilitation program purposes.
(Authority: Section 101(a)(17)(A) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(17)(A))
Sec. 361.62 Maintenance of effort requirements.
(a) General requirements. The Secretary reduces the amount
otherwise payable to a State for any fiscal year by the amount by which
the total expenditures from non-Federal sources under the vocational
rehabilitation services portion of the Unified or Combined State Plan
for any previous fiscal year were less than the total of those
expenditures for the fiscal year two years prior to that previous
fiscal year.
(b) Specific requirements for construction of facilities. If the
State provides for the construction of a facility for community
rehabilitation program purposes, the amount of the State's share of
expenditures for vocational rehabilitation services under the plan,
other than for the construction of a facility for community
rehabilitation program purposes or the establishment of a facility for
community rehabilitation purposes, must be at least equal to the
expenditures for those services for the second prior fiscal year.
(c) Separate State agency for vocational rehabilitation services
for individuals who are blind. If there is a separate part of the
vocational rehabilitation services portion of the Unified or Combined
State Plan administered by a separate State agency to provide
vocational rehabilitation services for individuals who are blind--
(1) Satisfaction of the maintenance of effort requirements under
paragraphs (a) and (b) of this section is determined based on the total
amount of a State's non-Federal expenditures under both parts of the
vocational rehabilitation services portion of the Unified or Combined
State Plan; and
(2) If a State fails to meet any maintenance of effort requirement,
the Secretary reduces the amount otherwise payable to the State for a
fiscal year under each part of the plan in direct proportion to the
amount by which non-Federal expenditures under each part of the plan in
any previous fiscal year were less than they were for that part of the
plan for the fiscal year 2 years prior to that previous fiscal year.
(d) Waiver or modification. (1) The Secretary may waive or modify
the maintenance of effort requirement in paragraph (a) of this section
if the Secretary determines that a waiver or modification is necessary
to permit the State to respond to exceptional or uncontrollable
circumstances, such as a major natural disaster or a serious economic
downturn, that--
(i) Cause significant unanticipated expenditures or reductions in
revenue that result in a general reduction of programs within the
State; or
(ii) Require the State to make substantial expenditures in the
vocational rehabilitation program for long-term purposes due to the
one-time costs associated with the construction of a facility for
community rehabilitation program purposes, the establishment of a
facility for community rehabilitation program purposes, or the
acquisition of equipment.
(2) The Secretary may waive or modify the maintenance of effort
requirement in paragraph (b) of this section or the 10 percent
allotment limitation in Sec. 361.61 if the Secretary determines that a
waiver or modification is necessary to permit the State to respond to
exceptional or
[[Page 55779]]
uncontrollable circumstances, such as a major natural disaster, that
result in significant destruction of existing facilities and require
the State to make substantial expenditures for the construction of a
facility for community rehabilitation program purposes or the
establishment of a facility for community rehabilitation program
purposes in order to provide vocational rehabilitation services.
(3) A written request for waiver or modification, including
supporting justification, must be submitted to the Secretary for
consideration as soon as the State has determined that it has failed to
satisfy its maintenance of effort requirement due to an exceptional or
uncontrollable circumstance, as described in paragraphs (d)(1) and (2)
of this section.
(Authority: Sections 101(a)(17) and 111(a)(2) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 721(a)(17) and 731(a)(2))
Sec. 361.63 Program income.
(a) Definition. For purposes of this section, program income means
gross income received by the State that is directly generated by a
supported activity under this part or earned as a result of the Federal
award during the period of performance, as defined in 2 CFR 200.80.
(b) Sources. Sources of program income include, but are not limited
to: Payments from the Social Security Administration for assisting
Social Security beneficiaries and recipients to achieve employment
outcomes; payments received from workers' compensation funds; payments
received by the State agency from insurers, consumers, or others for
services to defray part or all of the costs of services provided to
particular individuals; and income generated by a State-operated
community rehabilitation program for activities authorized under this
part.
(c) Use of program income. (1) Except as provided in paragraph
(c)(2) of this section, program income, whenever earned, must be used
for the provision of vocational rehabilitation services and the
administration of the vocational rehabilitation services portion of the
Unified or Combined State Plan. Program income--
(i) Is considered earned in the fiscal year in which it is
received; and
(ii) Must be disbursed during the period of performance of the
award.
(2) Payments provided to a State from the Social Security
Administration for assisting Social Security beneficiaries and
recipients to achieve employment outcomes may also be used to carry out
programs under part B of title I of the Act (client assistance), title
VI of the Act (supported employment), and title VII of the Act
(independent living).
(3)(i) The State 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 to the extent that
program income funds are available, a State 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.
(4) Program income cannot be used to meet the non-Federal share
requirement under Sec. 361.60.
(Authority: Sections 12(c) and 108 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 728; 2 CFR part 200)
Sec. 361.64 Obligation of Federal funds.
(a) Except as provided in paragraph (b) of this section, any
Federal award funds, including reallotted funds, that are appropriated
for a fiscal year to carry out a program under this part that are not
obligated by the State by the beginning of the succeeding fiscal year
remain available for obligation by the State during that succeeding
fiscal year.
(b) Federal funds appropriated for a fiscal year remain available
for obligation in the succeeding fiscal year only to the extent that
the State met the matching requirement for those Federal funds by
obligating, in accordance with 34 CFR 76.707, the non-Federal share in
the fiscal year for which the funds were appropriated.
(Authority: Section 19 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 716)
Sec. 361.65 Allotment and payment of Federal funds for vocational
rehabilitation services.
(a) Allotment. (1) The allotment of Federal funds for vocational
rehabilitation services for each State is computed in accordance with
the requirements of section 110 of the Act, and payments are made to
the State on a quarterly basis, unless some other period is established
by the Secretary.
(2) If the vocational rehabilitation services portion of the
Unified or Combined State Plan designates one State agency to
administer, or supervise the administration of, the part of the plan
under which vocational rehabilitation services are provided for
individuals who are blind and another State agency to administer the
rest of the plan, the division of the State's allotment is a matter for
State determination.
(3) Reservation for pre-employment transition services. (i)
Pursuant to section 110(d) of the Act, the State must reserve at least
15 percent of the State's allotment, received in accordance with
section 110(a) of the Act for the provision of pre-employment
transition services, as described in Sec. 361.48(a) of this part.
(ii) The funds reserved in accordance with paragraph (a)(3)(i) of
this section--
(A) Must only be used for pre-employment transition services
specified in Sec. 361.48(a); and
(B) Must not be used to pay for administrative costs, (as defined
in Sec. 361.5(c)(2)) associated with the provision of such services or
any other vocational rehabilitation services.
(b) Reallotment. (1) The Secretary determines not later than 45
days before the end of a fiscal year which States, if any, will not use
their full allotment.
(2) As soon as possible, but not later than the end of the fiscal
year, the Secretary reallots these funds to other States that can use
those additional funds during the period of performance of the award,
provided the State can meet the matching requirement by obligating the
non-Federal share of any reallotted funds in the fiscal year for which
the funds were appropriated.
(3) In the event more funds are requested by agencies than are
available, the Secretary will determine the process for allocating
funds available for reallotment.
(4) Funds reallotted to another State are considered to be an
increase in the recipient State's allotment for the fiscal year for
which the funds were appropriated.
(Authority: Sections 12(c), 110, and 111 of the Rehabilitation Act
of 1973, as amended; 29 U.S.C. 709(c), 730, and 731)
Subparts D-F--[Reserved]
0
2. Effective October 18, 2016, Sec. 361.10 is amended by adding
paragraph (d) to read as follows:
Sec. 361.10 Submission, approval, and disapproval of the State plan.
* * * * *
(d) Submission, approval, disapproval, and duration. All
requirements regarding the submission, approval, disapproval, and
duration of the vocational rehabilitation services portion of the
Unified or Combined State Plan are governed by regulations set forth in
subpart D of this part.
* * * * *
0
3. Effective October 18, 2016, Sec. 361.23 is added to read as
follows:
Sec. 361.23 Requirements related to the statewide workforce
development system.
As a required partner in the one-stop service delivery system
(which is part of
[[Page 55780]]
the statewide workforce development system under title I of the
Workforce Innovation and Opportunity Act), the designated State unit
must satisfy all requirements set forth in regulations in subpart F of
this part.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 101(a)(11)(A) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 721(a)(11)(A); Section 121(b)(1)(B)(iv) of the
Workforce Innovation and Opportunity Act; 29 U.S.C. 3151)
0
4. Effective October 18, 2016, Sec. 361.40 is amended by adding
paragraph (b) to read as follows:
Sec. 361.40 Reports; Evaluation standards and performance indicators.
* * * * *
(b) Evaluation standards and performance indicators--(1) Standards
and indicators. The evaluation standards and performance indicators for
the vocational rehabilitation program carried out under this part are
subject to the performance accountability provisions described in
section 116(b) of the Workforce Innovation and Opportunity Act and
implemented in regulations set forth in subpart E of this part.
(2) Compliance. A State's compliance with common performance
measures and any necessary corrective actions will be determined in
accordance with regulations set forth in subpart E of this part.
0
5. Part 363 is revised to read as follows:
PART 363--THE STATE SUPPORTED EMPLOYMENT SERVICES PROGRAM
Subpart A--General
Sec.
363.1 What is the State Supported Employment Services program?
363.2 Who is eligible for an award?
363.3 Who is eligible for services?
363.4 What are the authorized activities under the State Supported
Employment Services program?
363.5 What regulations apply?
363.6 What definitions apply?
Subpart B--How Does a State Apply for a Grant?
363.10 What documents must a State submit to receive a grant?
363.11 What are the vocational rehabilitation services portion of
the Unified or Combined State Plan supplement requirements?
Subpart C--How Are State Supported Employment Services Programs
Financed?
363.20 How does the Secretary allot funds?
363.21 How does the Secretary reallot funds?
363.22 How are funds reserved for youth with the most significant
disabilities?
363.23 What are the matching requirements?
363.24 What is program income and how may it be used?
363.25 What is the period of availability of funds?
Subparts D-E--[Reserved]
Subpart F--What Post-Award Conditions Must Be Met by a State?
363.50 What collaborative agreements must the State develop?
363.51 What are the allowable administrative costs?
363.52 What are the information collection and reporting
requirements?
363.53 What requirements must a designated State unit meet for the
transition of an individual to extended services?
363.54 When will an individual be considered to have achieved an
employment outcome in supported employment?
363.55 When will the service record of an individual who has
achieved an employment outcome in supported employment be closed?
363.56 What notice requirements apply to this program?
Authority: Sections 602-608 of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 795g-795m, unless otherwise noted.
Subpart A--General
Sec. 363.1 What is the State Supported Employment Services program?
(a) Under the State supported employment services program, the
Secretary provides grants to assist States in developing and
implementing collaborative programs with appropriate entities to
provide programs of supported employment services for individuals with
the most significant disabilities, including youth with the most
significant disabilities, to enable them to achieve an employment
outcome of supported employment in competitive integrated employment.
Grants made under the State supported employment services program
supplement a State's vocational rehabilitation program grants under 34
CFR part 361.
(b) For purposes of this part and 34 CFR part 361, ``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
and customized, consistent with the unique strengths, abilities,
interests, and informed choice of the individual, including with
ongoing support services for individuals with the most significant
disabilities--
(1)(i) For whom competitive integrated employment has not
historically occurred; or
(ii) For whom competitive integrated employment has been
interrupted or intermittent as a result of a significant disability;
and
(2) Who, because of the nature and severity of the disability, need
intensive supported employment services, and extended services after
the transition from support provided by the designated State unit in
order to perform the work.
(c) Short-term basis. For purposes of this part, an individual with
a most significant disability, whose supported employment in an
integrated setting does not satisfy the criteria of competitive
integrated employment, as defined in 34 CFR 361.5(c)(9), is considered
to be working on a short-term basis toward competitive integrated
employment so long as the individual can reasonably anticipate
achieving competitive integrated employment--
(1) Within six months of achieving a supported employment outcome;
or,
(2) In limited circumstances, 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.
(Authority: Sections 7(38), 7(39), 12(c), and 602 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(38) 705(39),
709(c), and 795g)
Sec. 363.2 Who is eligible for an award?
Any State that submits the documentation required by Sec. 363.10,
as part of the vocational rehabilitation services portion of the
Unified or Combined State Plan under 34 CFR part 361, is eligible for
an award under this part.
(Authority: Section 606(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795k(a))
Sec. 363.3 Who is eligible for services?
A State may provide services under this part to any individual,
including a youth with a disability, if--
(a) The individual has been determined to be--
(1) Eligible for vocational rehabilitation services in accordance
with 34 CFR 361.42; and
(2) An individual with a most significant disability;
[[Page 55781]]
(b) For purposes of activities carried out under Sec. 363.4(a)(2),
the individual is a youth with a disability, as defined in 34 CFR
361.5(c)(59), who satisfies the requirements of this section; and
(c) Supported employment has been identified as the appropriate
employment outcome for the individual on the basis of a comprehensive
assessment of rehabilitation needs, as defined in 34 CFR 361.5(c)(5),
including an evaluation of rehabilitation, career, and job needs.
(Authority: Section 605 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795j)
Sec. 363.4 What are the authorized activities under the State
Supported Employment Services program?
(a) The State may use funds allotted under this part to--
(1) Provide supported employment services, as defined in 34 CFR
361.5(c)(54);
(2) Provide extended services, as defined in 34 CFR 361.5(c)(19),
to youth with the most significant disabilities, in accordance with
Sec. 363.11(f), for a period of time not to exceed four years, or
until such time that a youth reaches the age of 25 and no longer meets
the definition of a youth with a disability under 34 CFR 361.5(c)(58),
whichever occurs first; and
(3) With funds reserved, in accordance with Sec. 363.22 for the
provision of supported employment services to youth with the most
significant disabilities, leverage other public and private funds to
increase resources for extended services and expand supported
employment opportunities.
(b) Except as provided in paragraph (a)(2) of this section, a State
may not use funds under this part to provide extended services to
individuals with the most significant disabilities.
(c) Nothing in this part will be construed to prohibit a State from
providing--
(1) Supported employment services in accordance with the vocational
rehabilitation services portion of the Unified or Combined State Plan
submitted under 34 CFR part 361 by using funds made available through a
State allotment under that part.
(2) Discrete postemployment services in accordance with 34 CFR
361.48(b) by using funds made available under 34 CFR part 361 to an
individual who is eligible under this part.
(d) A State must coordinate with the entities described in Sec.
363.50(a) regarding the services provided to individuals with the most
significant disabilities, including youth with the most significant
disabilities, under this part and under 34 CFR part 361 to ensure that
the services are complementary and not duplicative.
(Authority: Sections 7(39), 12(c), 604, 606(b)(6), and 608 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(39), 709(c),
795i, 795k(b)(6), and 795m)
Sec. 363.5 What regulations apply?
The following regulations apply to the State supported employment
services program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 76 (State-Administered Programs).
(2) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(3) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(5) 34 CFR part 82 (New Restrictions on Lobbying).
(b) The regulations in this part 363.
(c) The following regulations in 34 CFR part 361 (The State
Vocational Rehabilitation Services Program): Sec. Sec. 361.5, 361.31,
361.32, 361.34, 361.35, 361.39, 361.40, 361.41, 361.42, 361.47(a),
361.48, 361.49, and 361.53.
(d) 2 CFR part 200 (Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards), as adopted in 2
CFR part 3474.
(e) 2 CFR part 180 (OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement)), as adopted in 2 CFR part
3485.
(Authority: Section 12(c) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c))
Sec. 363.6 What definitions apply?
The following definitions apply to this part:
(a) Definitions in 34 CFR part 361.
(b) Definitions in 34 CFR part 77.
(c) Definitions in 2 CFR part 200, subpart A.
(Authority: Sections 7 and 12(c) of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 705 and 709(c))
Subpart B--How Does a State Apply for a Grant?
Sec. 363.10 What documents must a State submit to receive a grant?
(a) To be eligible to receive a grant under this part, a State must
submit to the Secretary, as part of the vocational rehabilitation
services portion of the Unified or Combined State Plan under 34 CFR
part 361, a State plan supplement that meets the requirements of Sec.
363.11.
(b) A State must submit revisions to the vocational rehabilitation
services portion of the Unified or Combined State Plan supplement
submitted under this part as may be necessary.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 606(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795k(a))
Sec. 363.11 What are the vocational rehabilitation services portion
of the Unified or Combined State Plan supplement requirements?
Each State plan supplement, submitted in accordance with Sec.
363.10, must--
(a) Designate a designated State unit or, as applicable, units, as
defined in 34 CFR 361.5(c)(13), as the State agency or agencies to
administer the Supported Employment program under this part;
(b) Summarize the results of the needs assessment of individuals
with most significant disabilities, including youth with the most
significant disabilities, conducted under 34 CFR 361.29(a), with
respect to the rehabilitation and career needs of individuals with most
significant disabilities and their need for supported employment
services. The results of the needs assessment must also address needs
relating to coordination;
(c) Describe the quality, scope, and extent of supported employment
services to be provided to eligible individuals with the most
significant disabilities under this part, including youth with the most
significant disabilities;
(d) Describe the State's goals and plans with respect to the
distribution of funds received under Sec. 363.20;
(e) Demonstrate evidence of the designated State unit's efforts to
identify and make arrangements, including entering into cooperative
agreements, with--
(1) Other State agencies and other appropriate entities to assist
in the provision of supported employment services; and
(2) Other public or non-profit agencies or organizations within the
State, employers, natural supports, and other entities with respect to
the provision of extended services;
(f) Describe the activities to be conducted for youth with the most
significant disabilities with the funds reserved in accordance with
Sec. 363.22, including--
(1) The provision of extended services to youth with the most
significant disabilities for a period not to exceed
[[Page 55782]]
four years, in accordance with Sec. 363.4(a)(2); and
(2) How the State will use supported employment funds reserved
under Sec. 363.22 to leverage other public and private funds to
increase resources for extended services and expand supported
employment opportunities for youth with the most significant
disabilities;
(g) Assure that--
(1) Funds made available under this part will only be used to
provide authorized supported employment services to individuals who are
eligible under this part to receive such services;
(2) The comprehensive assessments of individuals with significant
disabilities, including youth with the most significant disabilities,
conducted under 34 CFR part 361 will include consideration of supported
employment as an appropriate employment outcome;
(3) An individualized plan for employment, as described in 34 CFR
361.45 and 361.46, will be developed and updated, using funds received
under 34 CFR part 361, in order to--
(i) Specify the supported employment services to be provided,
including, as appropriate, transition services and pre-employment
transition services to be provided for youth with the most significant
disabilities;
(ii) Specify the expected extended services needed, including the
extended services that may be provided under this part to youth with
the most significant disabilities in accordance with an approved
individualized plan for employment for a period not to exceed four
years; and
(iii) Identify, as appropriate, the source of extended services,
which may include natural supports, programs, or other entities, or an
indication that it is not possible to identify the source of extended
services at the time the individualized plan for employment is
developed;
(4) The State will use funds provided under this part only to
supplement, and not supplant, the funds received under 34 CFR part 361,
in providing supported employment services specified in the
individualized plan for employment;
(5) Services provided under an individualized plan for employment
will be coordinated with services provided under other individualized
plans established under other Federal or State programs;
(6) To the extent job skills training is provided, the training
will be provided onsite;
(7) Supported employment services will include placement in an
integrated setting based on the unique strengths, resources, interests,
concerns, abilities, and capabilities of individuals with the most
significant disabilities, including youth with the most significant
disabilities;
(8) The designated State agency or agencies, as described in
paragraph (a) of this section, will expend no more than 2.5 percent of
the State's allotment under this part for administrative costs of
carrying out this program; and
(9) The designated State agency or agencies will provide, directly
or indirectly through public or private entities, non-Federal
contributions in an amount that is not less than 10 percent of the
costs of carrying out supported employment services provided to youth
with the most significant disabilities with the funds reserved for such
purpose under Sec. 363.22; and
(h) Contain any other information and be submitted in the form and
in accordance with the procedures that the Secretary may require.
(Approved by the Office of Management and Budget under control
number 1205-0522)
(Authority: Section 606 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795k)
Subpart C--How Are State Supported Employment Services Programs
Financed?
Sec. 363.20 How does the Secretary allot funds?
(a) States. The Secretary will allot the sums appropriated for each
fiscal year to carry out the activities of this part among the States
on the basis of relative population of each State, except that--
(1) No State will receive less than $250,000, or \1/3\ of 1 percent
of the sums appropriated for the fiscal year for which the allotment is
made, whichever amount is greater; and
(2) If the sums appropriated to carry out this part for the fiscal
year exceed the sums appropriated to carry out this part (as in effect
on September 30, 1992) in fiscal year 1992 by $1,000,000 or more, no
State will receive less than $300,000, or \1/3\ of 1 percent of the
sums appropriated for the fiscal year for which the allotment is made,
whichever amount is greater.
(b) Certain Territories. (1) For the purposes of this section,
Guam, American Samoa, the United States Virgin Islands, and the
Commonwealth of the Northern Mariana Islands are not considered to be
States.
(2) Each jurisdiction described in paragraph (b)(1) of this section
will be allotted not less than \1/8\ of 1 percent of the amounts
appropriated for the fiscal year for which the allotment is made.
(Authority: Section 603(a) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795h(a))
Sec. 363.21 How does the Secretary reallot funds?
(a) Whenever the Secretary determines that any amount of an
allotment to a State under Sec. 363.20 for any fiscal year will not be
expended by such State for carrying out the provisions of this part,
the Secretary will make such amount available for carrying out the
provisions of this part to one or more of the States that the Secretary
determines will be able to use additional amounts during such year for
carrying out such provisions.
(b) Any amount made available to a State for any fiscal year in
accordance with paragraph (a) will be regarded as an increase in the
State's allotment under this part for such year.
(Authority: Section 603(b) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 795h(b))
Sec. 363.22 How are funds reserved for youth with the most
significant disabilities?
A State that receives an allotment under this part must reserve and
expend 50 percent of such allotment for the provision of supported
employment services, including extended services, to youth with the
most significant disabilities in order to assist those youth in
achieving an employment outcome in supported employment.
(Authority: Sections 12(c) and 603(d) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 795h(d))
Sec. 363.23 What are the matching requirements?
(a) Non-Federal share. (1) For funds allotted under Sec. 363.20
and not reserved under Sec. 363.22 for the provision of supported
employment services to youth with the most significant disabilities,
there is no non-Federal share requirement.
(2)(i) For funds allotted under Sec. 363.20 and reserved under
Sec. 363.22 for the provision of supported employment services to
youth with the most significant disabilities, a designated State agency
must provide non-Federal expenditures in an amount that is not less
than 10 percent of the total expenditures, including the Federal
reserved funds and the non-Federal share, incurred for the provision of
supported employment services to youth with the most significant
disabilities, including extended services.
(ii) In the event that a designated State agency uses more than 50
percent of its allotment under this part to provide supported
employment services to
[[Page 55783]]
youth with the most significant disabilities as required by Sec.
363.22, there is no requirement that a designated State agency provide
non-Federal expenditures to match the excess Federal funds spent for
this purpose.
(3) Except as provided under paragraphs (b) and (c) of this
section, non-Federal expenditures made under the vocational
rehabilitation services portion of the Unified or Combined State Plan
supplement to meet the non-Federal share requirement under this section
must be consistent with the provision of 2 CFR 200.306.
(b) Third-party in-kind contributions. Third-party in-kind
contributions, as described in 2 CFR 200.306(b), may not be used to
meet the non-Federal share under this section.
(c)(1) Contributions by private entities. Expenditures made from
contributions by private organizations, agencies, or individuals that
are deposited into the sole account of the State agency, in accordance
with State law may be used as part of the non-Federal share under this
section, provided the expenditures under the vocational rehabilitation
services portion of the Unified or Combined State Plan supplement, as
described in Sec. 363.11, do not benefit in any way the donor, an
individual to whom the donor is related by blood or marriage or with
whom the donor shares a financial interest.
(2) The Secretary does not consider a donor's receipt from the
State unit of a contract or subaward with funds allotted under this
part to be a benefit for the purpose of this paragraph if the contract
or subaward is awarded under the State's regular competitive
procedures.
(Authority: Sections 12(c) and 606(b)(7)(I) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 709(c) and 795k(b)(7)(I))
Sec. 363.24 What is program income and how may it be used?
(a) Definition. (1) Program income means gross income earned by the
State that is directly generated by authorized activities supported
under this part or earned as a result of the Federal award during the
period of performance.
(2) Program income received through the transfer of Social Security
Administration payments from the State Vocational Rehabilitation
Services program, in accordance with 34 CFR 361.63(c)(2), will be
treated as program income received under this part.
(b) Use of program income. (1) Program income must be used for the
provision of services authorized under Sec. 363.4. Program income
earned or received during the fiscal year must be disbursed during the
period of performance of the award, prior to requesting additional cash
payments.
(2) States are authorized to treat program income as an addition to
the grant funds to be used for additional allowable program
expenditures, in accordance with 2 CFR 200.307(e)(2).
(3) Program income cannot be used to meet the non-Federal share
requirement under Sec. 363.23.
(Authority: Sections 12(c) and 108 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 728)
Sec. 363.25 What is the period of availability of funds?
(a) Except as provided in paragraph (b) of this section, any
Federal award funds, including reallotted funds, that are appropriated
for a fiscal year to carry out a program under this part that are not
obligated by the State by the beginning of the succeeding fiscal year,
and any program income received during a fiscal year that is not
obligated or expended by the State prior to the beginning of the
succeeding fiscal year in which the program income was received, remain
available for obligation by the State during that succeeding fiscal
year.
(b) Federal funds appropriated for a fiscal year and reserved for
the provision of supported employment services to youth with the most
significant disabilities, in accordance with Sec. 363.22 of this part,
remain available for obligation in the succeeding fiscal year only to
the extent that the State met the matching requirement, as described in
Sec. 363.23, for those Federal funds by obligating, in accordance with
34 CFR 76.707, the non-Federal share in the fiscal year for which the
funds were appropriated. Any reserved funds carried over may only be
obligated and expended in that succeeding Federal fiscal year for the
provision of supported employment services to youth with the most
significant disabilities.
(Authority: Sections 12(c) and 19 of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 709(c) and 716)
Subparts D-E--[Reserved]
Subpart F--What Post-Award Conditions Must Be Met by a State?
Sec. 363.50 What collaborative agreements must the State develop?
(a) A designated State unit must enter into one or more written
collaborative agreements, memoranda of understanding, or other
appropriate mechanisms with other public agencies, private nonprofit
organizations, and other available funding sources, including employers
and other natural supports, as appropriate, to assist with the
provision of supported employment services and extended services to
individuals with the most significant disabilities in the State,
including youth with the most significant disabilities, to enable them
to achieve an employment outcome of supported employment in competitive
integrated employment.
(b) These agreements provide the mechanism for collaboration at the
State level that is necessary to ensure the smooth transition from
supported employment services to extended services, the transition of
which is inherent to the definition of ``supported employment'' in
Sec. 363.1(b). The agreement may contain information regarding the--
(1) Supported employment services to be provided, for a period not
to exceed 24 months, by the designated State unit with funds received
under this part;
(2) Extended services to be provided to youth with the most
significant disabilities, for a period not to exceed four years, by the
designated State unit with the funds reserved under Sec. 363.22 of
this part;
(3) Extended services to be provided by other public agencies,
private nonprofit organizations, or other sources, including employers
and other natural supports, following the provision of authorized
supported employment services, or extended services as appropriate for
youth with the most significant disabilities, under this part; and
(4) Collaborative efforts that will be undertaken by all relevant
entities to increase opportunities for competitive integrated
employment in the State for individuals with the most significant
disabilities, especially youth with the most significant disabilities.
(Authority: Sections 7(38), 7(39), 12(c), 602, and 606(b) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(38), 705(39),
709(c), 795g, and 795k(b))
Sec. 363.51 What are the allowable administrative costs?
(a) A State may use funds under this part to pay for expenditures
incurred in the administration of activities carried out under this
part, consistent with the definition of administrative costs in 34 CFR
361.5(c)(2).
(b) A designated State agency may not expend more than 2.5 percent
of a State's allotment under this part for administrative costs for
carrying out the State supported employment program.
[[Page 55784]]
(Authority: Sections 7(1), 12(c), and 603(c) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(1), 709(c), and 795h(c))
Sec. 363.52 What are the information collection and reporting
requirements?
Each State agency designated in Sec. 363.11(a) must collect and
report separately the information required under 34 CFR 361.40 for--
(a) Eligible individuals receiving supported employment services
under this part;
(b) Eligible individuals receiving supported employment services
under 34 CFR part 361;
(c) Eligible youth receiving supported employment services and
extended services under this part; and
(d) Eligible youth receiving supported employment services under 34
CFR part 361 and extended services.
(Authority: Sections 13 and 607 of the Rehabilitation Act of 1973,
as amended; 29 U.S.C. 710 and 795l)
Sec. 363.53 What requirements must a designated State unit meet for
the transition of an individual to extended services?
(a) A designated State unit must provide for the transition of an
individual with a most significant disability, including a youth with a
most significant disability, to extended services, as defined in 34 CFR
361.5(c)(19), no later than 24 months after the individual enters
supported employment, unless a longer period is established in the
individualized plan for employment.
(b) Prior to assisting the individual in transitioning from
supported employment services to extended services, the designated
State unit must ensure--
(1) The counselor and individual have considered extending the
provision of supported employment services beyond 24 months, as
appropriate, and have determined that no further supported employment
services are necessary to support and maintain the individual in
supported employment before the individual transitions to extended
services; and
(2) The source of extended services for the individual has been
identified in order to ensure there will be no interruption of
services. The providers of extended services may include--
(i) A State agency, a private nonprofit organization, employer, or
any other appropriate resource, after an individual has made the
transition from support from the designated State unit; or,
(ii) The designated State unit, in the case of a youth with a most
significant disability, in accordance with requirements set forth in 34
CFR 361.5(c)(19) and this part for a period not to exceed four years,
or at such time that a youth reaches the age of 25 and no longer meets
the definition of a youth with a disability under 34 CFR 361.5(c)(58),
whichever occurs first. For youth who still require extended services
after they can no longer receive them from the designated State unit,
the designated State unit must identify another source of extended
services for those youth in order to ensure there will be no
interruption of services. The designated State unit may not provide
extended services to individuals with the most significant disabilities
who are not youth with the most significant disabilities.
(Authority: Sections 7(13), 12(c), and 604(b) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 705(13), 709(c) and 795i)
Sec. 363.54 When will an individual be considered to have achieved an
employment outcome in supported employment?
An individual with a most significant disability, including a youth
with a most significant disability, who is employed in competitive
integrated employment or who is employed in an integrated setting
working on a short-term basis to achieve competitive integrated
employment will be considered to have achieved an employment outcome,
including customized employment, in supported employment when--
(a) The individual has completed supported employment services
provided under this part and 34 CFR part 361, except for any other
vocational rehabilitation services listed on the individualized plan
for employment provided to individuals who are working on a short-term
basis toward the achievement of competitive integrated employment in
supported employment. An individual has completed supported employment
services when--
(1) The individual has received up to 24 months of supported
employment services; or
(2) The counselor and individual have determined that an extension
of time to provide supported employment services beyond 24 months is
necessary to support and maintain the individual in supported
employment before the individual transitions to extended services and
that extension of time has concluded; and
(b) The individual has transitioned to extended services provided
by either the designated State unit for youth with the most significant
disabilities, or another provider, consistent with the provisions of
Sec. Sec. 363.4(a)(2) and 363.22; and
(c) The individual has maintained employment and achieved stability
in the work setting for at least 90 days after transitioning to
extended services; and
(d) The employment is individualized and customized consistent with
the strengths, abilities, interests, and informed choice of the
individual.
(Authority: Sections 7(11), 7(13), 7(38), 7(39), 7(40), 12(c), 602,
and 606(b) of the Rehabilitation Act of 1973, as amended; 29 U.S.C.
705(11), 705(13), 705(38), 705(39), 705(40), 709(c), 795g, and
795k(b))
Sec. 363.55 When will the service record of an individual who has
achieved an employment outcome in supported employment be closed?
(a) The service record of an individual with a most significant
disability, including a youth with a most significant disability, who
has achieved an employment outcome in supported employment in
competitive integrated employment will be closed concurrently with the
achievement of the employment outcome in supported employment when the
individual--
(1) Satisfies requirements for case closure, as set forth in 34 CFR
361.56; and
(2) Is not receiving extended services or any other vocational
rehabilitation service provided by the designated State unit with funds
under this part or 34 CFR part 361.
(b) The service record of an individual with a most significant
disability, including a youth with a most significant disability who is
working toward competitive integrated employment on a short-term basis
and is receiving extended services from funds other than those allotted
under this part and 34 CFR part 361 will be closed when the
individual--
(1) Achieves competitive integrated employment within the short-
term basis period established pursuant to Sec. 363.1(c); and the
individual--
(i) Satisfies requirements for case closure, as set forth in 34 CFR
361.56; and
(ii) Is no longer receiving vocational rehabilitation services
provided by the designated State unit with funds under 34 CFR part 361;
or
(2) Does not achieve competitive integrated employment within the
short-term basis period established pursuant to Sec. 363.1(c).
(c) The service record of a youth with a most significant
disability who is receiving extended services provided by the
designated State unit from funds under this part or 34 CFR part 361
will be closed when--
(1) The youth with a most significant disability achieves an
employment
[[Page 55785]]
outcome in supported employment in competitive integrated employment
without entering the short-term basis period; and
(i) Is no longer eligible to receive extended services provided by
the designated State unit with funds allotted under this part and 34
CFR part 361 because the individual--
(A) No longer meets age requirements established in the definition
of a youth with a disability pursuant to 34 CFR 361.5(c)(58); or
(B) Has received extended services for a period of four years; or
(C) Has transitioned to extended services provided with funds other
than those allotted under this part or part 361 prior to meeting the
age or time restrictions established under paragraphs (c)(1)(i)(A) and
(B) of this section, respectively; and
(ii) Satisfies requirements for case closure, as set forth in 34
CFR 361.56; and
(iii) The individual is no longer receiving any other vocational
rehabilitation service from the designated State unit provided with
funds under 34 CFR part 361; or
(2) The youth with a most significant disability who is working
toward competitive integrated employment on a short-term basis--
(i) Achieves competitive integrated employment within the short-
term basis period established pursuant to Sec. 363.1(c);
(ii) Is no longer eligible to receive extended services provided by
the designated State unit with funds allotted under this part and 34
CFR part 361 because the individual--
(A) No longer meets age requirements established in the definition
of a youth with a disability pursuant to 34 CFR 361.5(c)(58); or
(B) Has received extended services for a period of four years; or
(C) Has transitioned to extended services provided with funds other
than those allotted under this part or 34 CFR part 361 prior to meeting
the age or time restrictions established under paragraphs (c)(2)(ii)(A)
and (B) of this section, respectively; and
(iii) Satisfies requirements for case closure, as set forth in 34
CFR 361.56; or
(3) The youth with a most significant disability working toward
competitive integrated employment on a short-term basis does not
achieve competitive integrated employment within the short-term basis
period established pursuant to Sec. 363.1(c).
(Authority: Sections 7(11), 7(13), 7(38), 7(39), 7(40), 7(42),
12(c), 602, and 606(b) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(11), 705(13), 705(38), 705(39), 705(40),
705(42), 709(c), 795g, and 795k(b))
Sec. 363.56 What notice requirements apply to this program?
Each grantee must advise applicants for or recipients of services
under this part, or as appropriate, the parents, family members,
guardians, advocates, or authorized representatives of those
individuals, including youth with the most significant disabilities, of
the availability and purposes of the Client Assistance Program,
including information on seeking assistance from that program.
(Authority: Section 20 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 717)
0
6. Part 397 is added to read as follows:
PART 397--LIMITATIONS ON USE OF SUBMINIMUM WAGE
Subpart A--General Provisions
Sec.
397.1 Purpose.
397.2 What is the Department of Education's jurisdiction under this
part?
397.3 What rules of construction apply to this part?
397.4 What regulations apply?
397.5 What definitions apply?
Subpart B--Coordinated Documentation Procedures Related to Youth with
Disabilities
397.10 What documentation process must the designated State unit
develop?
Subpart C--Designated State Unit Responsibilities Prior to Youth with
Disabilities Starting Subminimum Wage Employment
397.20 What are the responsibilities of a designated State unit to
youth with disabilities who are known to be seeking subminimum wage
employment?
Subpart D--Local Educational Agency Responsibilities Prior to Youth
with Disabilities Starting Subminimum Wage Employment
397.30 What are the responsibilities of a local educational agency
to youth with disabilities who are known to be seeking subminimum
wage employment?
397.31 What are the contracting limitations on educational agencies
under this part?
Subpart E--Designated State Unit Responsibilities to Individuals with
Disabilities During Subminimum Wage Employment
397.40 What are the responsibilities of a designated State unit for
individuals with disabilities, regardless of age, who are employed
at subminimum wage?
Subpart F--Review of Documentation
397.50 What is the role of the designated State unit in the review
of documentation under this part?
Authority: Section 511 of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 794g, unless otherwise noted.
Subpart A--General Provisions
Sec. 397.1 Purpose.
(a) The purpose of this part is to set forth requirements the
designated State units and State and local educational agencies must
satisfy to ensure that individuals with disabilities, especially youth
with disabilities, have a meaningful opportunity to prepare for,
obtain, maintain, advance in, or regain competitive integrated
employment, including supported or customized employment.
(b) This part requires--
(1) A designated State unit to provide youth with disabilities
documentation demonstrating that they have completed certain
requirements, as described in this part, prior to starting subminimum
wage employment with entities (as defined in Sec. 397.5(d)) holding
special wage certificates under section 14(c) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 214(c));
(2) A designated State unit to provide, at certain prescribed
intervals for the duration of such employment, career counseling and
information and referral services, designed to promote opportunities
for competitive integrated employment, to individuals with
disabilities, regardless of age, who are known to be employed at
subminimum wage; and
(3) A designated State unit, in consultation with the State
educational agency, to develop a process or utilize an existing
process, to document completion of required activities under this part
by a youth with a disability known to be seeking employment at
subminimum wage.
(c) This part authorizes a designated State unit, or a
representative of a designated State unit, to review individual
documentation required to be maintained by these entities under this
part.
(d) The provisions in this part work in concert with requirements
in 34 CFR parts 300, 361, and 363, and do not alter any requirements
under those parts.
(Authority: Sections 12(c) and 511 of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g)
Sec. 397.2 What is the Department of Education's jurisdiction under
this part?
(a) The Department of Education has jurisdiction under this part to
implement guidelines for--
(1) Documentation requirements imposed on designated State units
and local educational agencies, including the documentation process
that the
[[Page 55786]]
designated State unit must develop in consultation with the State
educational agency;
(2) Requirements related to the services that designated State
units must provide to individuals regardless of age who are employed at
subminimum wage; and
(3) Requirements under Sec. 397.31.
(b) Nothing in this part will be construed to grant to the
Department of Education, or its grantees, jurisdiction over
requirements set forth in the Fair Labor Standards Act, including those
imposed on entities holding special wage certificates under section
14(c) of that Act, which is administered by the Department of Labor.
(Authority: Sections 12(c), 511(b)(3), 511(c), and 511(d) of the
Rehabilitation Act of 1973, as amended; 709(c), 794g(b)(3), 794g(c),
and 794g(d))
Sec. 397.3 What rules of construction apply to this part?
Nothing in this part will be construed to--
(a) Change the purpose of the Rehabilitation Act, which is to
empower individuals with disabilities to maximize opportunities for
achieving competitive integrated employment;
(b) Promote subminimum wage employment as a vocational
rehabilitation strategy or employment outcome, as defined in 34 CFR
361.5(c)(15); or
(c) Be inconsistent with the provisions of the Fair Labor Standards
Act, as amended before or after July 22, 2014.
(Authority: Sections 12(c) and 511(b) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g(b))
Sec. 397.4 What regulations apply?
(a) The regulations in 34 CFR part 300 governing the definition of
transition services, and the Individualized Education Program
requirements related to the development of postsecondary goals and the
transition services needed to assist the eligible child in reaching
those goals (Sec. Sec. 300.320(b), 300.321(b), 300.324(c), and
300.43).
(b) The regulations in 34 CFR part 361 governing the vocational
rehabilitation program, especially those regarding protection and use
of personal information in 34 CFR 361.38; eligibility determinations in
34 CFR 361.42; individualized plans for employment in 34 CFR 361.45 and
34 CFR 361.46; provision of vocational rehabilitation services,
including pre-employment transition services, transition services, and
supported employment services in 34 CFR 361.48; ineligibility
determinations in 34 CFR 361.43; informed choice in 34 CFR 361.52; and
case closures in 34 CFR 361.56.
(c) The regulations in 29 CFR part 525 governing the employment of
individuals with disabilities at subminimum wage rates pursuant to a
certificate issued by the Secretary of Labor.
(d) The regulations in this part 397.
(Authority: Sections 12(c), 102(a) and (b), 103(a), and 113 of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 722(a) and
(b), 723(a), and 733; sections 601(34) and 614(d)(1)(A)(i)(VIII) of
the Individuals with Disabilities Education Act (20 U.S.C. 1401(34)
and 1414(d)); and section 14(c) of the Fair Labor Standards Act (29
U.S.C. 214(c))
Sec. 397.5 What definitions apply?
(a) The following terms have the meanings given to them in 34 CFR
361.5(c):
(1) Act;
(2) Competitive integrated employment;
(3) Customized employment;
(4) Designated State unit;
(5) Extended services;
(6) Individual with a disability;
(7) Individual with a most significant disability;
(8) Individual's representative;
(9) Individualized plan for employment;
(10) Pre-employment transition services;
(11) Student with a disability;
(12) Supported employment;
(13) Vocational rehabilitation services; and
(14) Youth with a disability.
(b) The following terms have the meanings given to them in 34 CFR
part 300:
(1) Local educational agency (Sec. 300.28);
(2) State educational agency (Sec. 300.41); and
(3) Transition services (Sec. 300.43).
(c) The following terms have the meanings given to them in 29 CFR
525.3 and section 6(a)(1) of the Fair Labor Standards Act (29 U.S.C.
206(a)(1)):
(1) Federal minimum wage has the meaning given to that term in
section 6(a)(1) of the Fair Labor Standards Act (29 U.S.C. 206(a)(1));
and
(2) Special wage certificate means a certificate issued to an
employer under section 14(c) of the Fair Labor Standards Act (29 U.S.C.
214(c)) and 29 CFR part 525 that authorizes payment of subminimum
wages, wages less than the statutory minimum wage.
(d) Entity means an employer, or a contractor or subcontractor of
that employer, that holds a special wage certificate described in
section 14(c) of the Fair Labor Standards Act (29 U.S.C. 214(c)).
(Authority: Sections 7, 12(c), and 511(a) and (f) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705, 709(c), and
794g(a) and (f); sections 601 and 614(d) of the Individuals with
Disabilities Education Act, 20 U.S.C. 1401 and 1414(d); section 901
of the Elementary and Secondary Education Act of 1965, 20 U.S.C.
7801; and sections 6(a)(1) and 14(c) of the Fair Labor Standards
Act, 29 U.S.C. 206(a)(1) and 29 U.S.C. 214(c))
Subpart B--Coordinated Documentation Procedures Related to Youth
with Disabilities
Sec. 397.10 What documentation process must the designated State unit
develop?
(a) The designated State unit, in consultation with the State
educational agency, must develop a new process, or utilize an existing
process, to document the completion of the actions described in Sec.
397.20 and Sec. 397.30 by a youth with a disability, as well as a
process for the transmittal of that documentation from the educational
agency to the designated State unit, consistent with confidentiality
requirements of the Family Education Rights and Privacy Act (20 U.S.C.
1232g(b) and 34 CFR 99.30 and 99.31) and the Individuals with
Disabilities Education Act (20 U.S.C. 1417(c) and 34 CFR 300.622).
(1) Such documentation must, at a minimum, contain the--
(i) Youth's name;
(ii) Determination made, including a summary of the reason for the
determination, or description of the service or activity completed;
(iii) Name of the individual making the determination or the
provider of the required service or activity;
(iv) Date determination made or required service or activity
completed;
(v) Signature of the designated State unit or educational personnel
making the determination or documenting completion of the required
services or activity;
(vi) Date of signature described in paragraph (a)(1)(v) of this
section;
(vii) Signature of designated State unit personnel transmitting
documentation to the youth with a disability; and
(viii) Date and method (e.g., hand-delivered, faxed, mailed,
emailed, etc.) by which document was transmitted to the youth.
(2) In the event a youth with a disability or, as applicable, the
youth's parent or guardian, refuses, through informed choice, to
participate in the activities required by this part, such documentation
must, at a minimum, contain the--
(i) Youth's name;
(ii) Description of the refusal and the reason for such refusal;
[[Page 55787]]
(iii) Signature of the youth or, as applicable, the youth's parent
or guardian;
(iv) Signature of the designated State unit or educational
personnel documenting the youth's refusal;
(v) Date of signatures; and
(vi) Date and method (e.g., hand-delivered, faxed, mailed, emailed,
etc.) by which documentation was transmitted to the youth.
(3) The documentation process must include procedures for the
designated State unit to retain a copy of all documentation required by
this part in a manner consistent with the designated State unit's case
management system and the requirements of 2 CFR 200.333.
(b) The documentation process must ensure that--
(1) A designated State unit provides, in the case of a student with
a disability, documentation of completion of appropriate pre-employment
transition services, in accordance with Sec. 361.48(a) of this chapter
and as required by Sec. 397.20(a)(1);
(2) In the case of a student with a disability, for actions
described in Sec. 397.30--
(i) The appropriate school official, responsible for the provision
of transition services, must provide the designated State unit
documentation of completion of appropriate transition services under
the Individuals with Disabilities Education Act, including those
provided under section 614(d)(1)(A)(i)(VIII) (20 U.S.C.
1414(d)(1)(A)(i)(VIII));
(ii) The designated State unit must provide documentation of
completion of the transition services, as documented and provided by
the appropriate school official in accordance with paragraph (b)(2) of
this section, to the youth with a disability.
(c) The designated State unit must provide--
(1) Documentation required by this part in a form and manner
consistent with this part and in an accessible format for the youth;
and
(2)(i) Documentation required by paragraph (a)(1) of this section
to a youth as soon as possible upon the completion of each of the
required actions, but no later than--
(A) 45 calendar days after the determination or completion of the
required activity or service; or
(B) 90 calendar days, if additional time is necessary due to
extenuating circumstances, after the determination or completion of
each of the required actions in Sec. 397.20 and Sec. 397.30(a).
Extenuating circumstances should be interpreted narrowly to include
circumstances such as the unexpected lengthy absence of the educational
or designated State unit personnel necessary for the production of the
documentation or the transmittal of that documentation due to illness
or family emergency, or a natural disaster.
(ii) Documentation required by paragraph (a)(2) of this section,
when a youth has refused to participate in an action required by this
part, must be provided to the youth within 10 calendar days of the
youth's refusal to participate.
(3) When transmitting documentation of the final determination or
activity completed, as required by Sec. 397.20 and Sec. 397.30(a),
the designated State unit must provide a coversheet that itemizes each
of the documents that have been provided to the youth.
(Authority: Sections 12(c) and 511(d) of the Rehabilitation Act of
1973, as amended; 29 U.S.C. 709(c) and 794g(d))
Subpart C--Designated State Unit Responsibilities Prior to Youth
With Disabilities Starting Subminimum Wage Employment
Sec. 397.20 What are the responsibilities of a designated State unit
to youth with disabilities who are known to be seeking subminimum wage
employment?
(a) A designated State unit must provide youth with disabilities
documentation upon the completion of the following actions:
(1)(i) Pre-employment transition services that are available to a
student with a disability under 34 CFR 361.48; or
(ii) Transition services under the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.), such as transition services
available to the individual under section 614(d) of that Act (20 U.S.C.
1414(d));
(2) Application for vocational rehabilitation services, in
accordance with 34 CFR 361.41(b), with the result that the individual
was determined--
(i) Ineligible for vocational rehabilitation services, in
accordance with 34 CFR 361.43; or
(ii) Eligible for vocational rehabilitation services, in accordance
with 34 CFR 361.42; and
(A) The youth with a disability had an approved individualized plan
for employment, in accordance with 34 CFR 361.46;
(B) The youth with a disability was unable to achieve the
employment outcome specified in the individualized plan for employment,
as described in 34 CFR 361.5(c)(15) and 361.46, despite working toward
the employment outcome with reasonable accommodations and appropriate
supports and services, including supported employment services and
customized employment services, for a reasonable period of time; and
(C) The youth with a disability's case record, which meets all of
the requirements of 34 CFR 361.47, is closed.
(3)(i) Regardless of the determination made under paragraph (a)(2)
of this section, the youth with a disability has received career
counseling, and information and referrals from the designated State
unit to Federal and State programs and other resources in the
individual's geographic area that offer employment-related services and
supports designed to enable the individual to explore, discover,
experience, and attain competitive integrated employment.
(ii) The career counseling and information and referral services
provided in accordance with paragraph (a)(3)(i) of this section must--
(A) Be provided by the designated State unit in a manner that
facilitates informed choice and decision-making by the youth, or the
youth's representative as appropriate;
(B) Not be for subminimum wage employment by an entity defined in
Sec. 397.5(d), and such employment-related services are not
compensated at a subminimum wage and do not directly result in
employment compensated at a subminimum wage provided by such an entity;
and
(C) Be provided within 30 calendar days of a determination under
paragraph (a)(2)(i) or (a)(2)(ii)(C) of this section for a youth known
by the designated State unit to be seeking employment at subminimum
wage.
(b) The following special requirements apply--
(1) For purposes of this part, all documentation provided by a
designated State unit must satisfy the requirements for such
documentation, as applicable, under 34 CFR part 361.
(2) The individualized plan for employment, required in paragraph
(a)(2)(ii)(A) of this section, must include a specific employment goal
consistent with competitive integrated employment, including supported
or customized employment.
(3)(i) For purposes of paragraph (a)(2)(ii)(B) of this section, a
determination as to what constitutes a ``reasonable period of time''
must be consistent with the disability-related and vocational needs of
the individual, as well as the anticipated length of time required to
complete the services identified in the individualized plan for
employment.
[[Page 55788]]
(ii) For an individual whose specified employment goal is in
supported employment, such reasonable period of time is up to 24
months, unless under special circumstances the individual and the
rehabilitation counselor jointly agree to extend the time to achieve
the employment outcome identified in the individualized plan for
employment.
(Authority: Sections 7(5), 7(39), 12(c), 102(a) and (b), 103(a),
113, and 511(a) and (d) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(5), 705(39), 709(c), 722(a) and (b), 723(a),
733, and 794g(a) and (d))
Subpart D--Local Educational Agency Responsibilities Prior to Youth
With Disabilities Starting Subminimum Wage Employment
Sec. 397.30 What are the responsibilities of a local educational
agency to youth with disabilities who are known to be seeking
subminimum wage employment?
(a) Of the documentation to demonstrate a youth with a disability's
completion of the actions described in Sec. 397.20(a), a local
educational agency, as defined in Sec. 397.5(b)(1), must provide the
designated State unit with documentation that the youth has received
transition services under the Individuals with Disabilities Education
Act (20 U.S.C. 1400 et seq.), such as transition services available to
the individual under section 614(d) of that Act (20 U.S.C. 1414(d)).
The documentation must be provided to the designated State unit in a
manner that complies with confidentiality requirements of the Family
Education Rights and Privacy Act (20 U.S.C. 1232g(b) and 34 CFR 99.30
and 99.31) and the Individuals with Disabilities Education Act (20
U.S.C. 1417(c) and 34 CFR 300.622).
(b)(1) The documentation of completed services or activities
required by paragraph (a) of this section must, at a minimum, contain
the--
(i) Youth's name;
(ii) Description of the service or activity completed;
(iii) Name of the provider of the required service or activity;
(iv) Date required service or activity completed;
(v) Signature of educational personnel documenting completion of
the required service or activity;
(vi) Date of signature described in paragraph (b)(1)(v) of this
section; and
(vii) Signature of educational personnel transmitting documentation
to the designated State unit; and
(viii) Date and method (e.g., hand-delivered, faxed, mailed,
emailed, etc.) by which document was transmitted to the designated
State unit.
(2) In the event a youth with a disability or, as applicable, the
youth's parent or guardian, refuses, through informed choice, to
participate in the activities required by this part, such documentation
must, at a minimum, contain the--
(i) Youth's name;
(ii) Description of the refusal and the reason for such refusal;
(iii) Signature of the youth or, as applicable, the youth's parent
or guardian;
(iv) Signature of the educational personnel documenting the youth's
refusal;
(v) Date of signatures required by paragraphs (b)(2)(iii) and (iv)
of this section;
(vi) Signature of educational personnel transmitting documentation
of the refusal to the designated State unit; and
(vii) Date and method (e.g., hand-delivered, faxed, mailed,
emailed, etc.) by which documentation was transmitted to the designated
State unit.
(c)(1)(i) The educational personnel must transmit the documentation
required by paragraph (b)(1) of this section to the designated State
unit as soon as possible upon the completion of each of the required
actions, but no later than--
(A) 30 calendar days after the completion of the required activity
or service; or
(B) 60 calendar days, if additional time is necessary due to
extenuating circumstances, after the completion of each of the required
actions in paragraph (a) of this section. Extenuating circumstances
should be interpreted narrowly to include the unexpected lengthy
absence due to illness or family emergency of the educational personnel
necessary to produce or transmit the documentation, or a natural
disaster.
(ii) Documentation required by paragraph (b)(2) of this section,
when a youth has refused to participate in an action required by this
part, must be provided to the DSU within 5 calendar days of the youth's
refusal to participate.
(2) When the educational personnel transmits the last documentation
to the designated State unit regarding the services provided to the
youth under paragraph (a) of this section, the educational personnel
must provide a cover sheet that itemizes the documentation that has
been provided to the designated State unit regarding that youth.
(d) The educational agency must retain a copy of all documentation
provided to the designated State unit under this section in a manner
consistent with the requirements of 2 CFR 200.333.
(Authority: Sections 12(c), 511(a)(2)(A), and 511(d) of the
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),
794g(a)(2)(A), and (d))
Sec. 397.31 What are the contracting limitations on educational
agencies under this part?
Neither a local educational agency, as defined in Sec.
397.5(b)(1), nor a State educational agency, as defined in Sec.
397.5(b)(2), may enter into a contract or other arrangement with an
entity, as defined in Sec. 397.5(d), for the purpose of operating a
program for a youth under which work is compensated at a subminimum
wage.
(Authority: Section 511(b)(2) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 794g(b)(2))
Subpart E--Designated State Unit Responsibilities to Individuals
With Disabilities During Subminimum Wage Employment
Sec. 397.40 What are the responsibilities of a designated State unit
for individuals with disabilities, regardless of age, who are employed
at a subminimum wage?
(a) Counseling and information services. (1) A designated State
unit must provide career counseling and information and referral
services, as described in Sec. 397.20(a)(3), to individuals with
disabilities, regardless of age, or the individual's representative as
appropriate, who are known by the designated State unit to be employed
by an entity, as defined in Sec. 397.5(d), at a subminimum wage level.
(2) A designated State unit may know of an individual with a
disability described in this paragraph through the vocational
rehabilitation process, self-referral, or by referral from the client
assistance program, another agency, or an entity, as defined in Sec.
397.5(d).
(3) The career counseling and information and referral services
must be provided in a manner that--
(i) Is understandable to the individual with a disability; and
(ii) Facilitates independent decision-making and informed choice as
the individual makes decisions regarding opportunities for competitive
integrated employment and career advancement, particularly with respect
to supported employment, including customized employment.
(4) The career counseling and information and referral services
provided under this section may include benefits counseling,
particularly with regard to the interplay between
[[Page 55789]]
earned income and income-based financial, medical, and other benefits.
(b) Other services. (1) Upon a referral by an entity, as defined in
Sec. 397.5(d), that has fewer than 15 employees, of an individual with
a disability who is employed at a subminimum wage by that entity, a
designated State unit must also inform the individual within 30
calendar days of the referral by the entity, of self-advocacy, self-
determination, and peer mentoring training opportunities available in
the community.
(2) The services described in paragraph (b)(1) of this section must
not be provided by an entity as defined in Sec. 397.5(d).
(c) Required intervals. (1) For individuals hired at subminimum
wage on or after July 22, 2016, the services required by this section
must be carried out once every six months for the first year of the
individual's subminimum wage employment and annually thereafter for the
duration of such employment.
(2) For individuals already employed at subminimum wage prior to
July 22, 2016, the services required by this section must be carried
out once by July 22, 2017, and annually thereafter for the duration of
such employment.
(3)(i) With regard to the intervals required by paragraphs (c)(1)
and (2) of this section for purposes of the designated State unit's
responsibilities to provide certain services to individuals employed at
subminimum wage, the applicable intervals will be calculated based upon
the date the individual becomes known to the designated State unit.
(ii) An individual with a disability may become ``known'' to the
designated State unit through self-identification by the individual
with a disability, referral by a third-party (including an entity as
defined in Sec. 397.5(d)), through the individual's involvement with
the vocational rehabilitation process, or any other method.
(d) Documentation. (1)(i) The designated State unit must provide
documentation to the individual as soon as possible, but no later
than--
(A) 45 calendar days after completion of the activities required
under this section; or
(B) 90 calendar days, if additional time is necessary due to
extenuating circumstances, after the completion of the required actions
in this section. Extenuating circumstances should be interpreted
narrowly to include circumstances such as the unexpected lengthy
absence of the designated State unit personnel, due to illness or other
family emergency, who is responsible for producing or transmitting the
documentation to the individual with a disability, or a natural
disaster.
(ii) Documentation required by paragraph (d)(3) of this section,
when an individual has refused to participate in an activity required
by this section, must be provided to the individual within 10 calendar
days of the individual's refusal to participate.
(2) Such documentation must, at a minimum, contain the--
(i) Name of the individual;
(ii) Description of the service or activity completed;
(iii) Name of the provider of the required service or activity;
(iv) Date required service or activity completed;
(v) Signature of individual documenting completion of the required
service or activity;
(vi) Date of signature described in paragraph (d)(2)(v) of this
section;
(vii) Signature of designated State unit personnel (if different
from that in paragraph (d)(2)(v) of this section) transmitting
documentation to the individual with a disability; and
(viii) Date and method (e.g., hand-delivered, faxed, mailed,
emailed, etc.) by which document was transmitted to the individual.
(3) In the event an individual with a disability or, as applicable,
the individual's representative, refuses, through informed choice, to
participate in the activities required by this section, such
documentation must, at a minimum, contain the--
(i) Name of the individual;
(ii) Description of the refusal and the reason for such refusal;
(iii) Signature of the individual or, as applicable, the
individual's representative;
(iv) Signature of the designated State unit personnel documenting
the individual's refusal;
(v) Date of signatures; and
(vi) Date and method (e.g., hand-delivered, faxed, mailed, emailed,
etc.) by which documentation was transmitted to the individual.
(4) The designated State unit must retain a copy of all
documentation required by this part in a manner consistent with the
designated State unit's case management system and the requirements of
2 CFR 200.333.
(e) Provision of services. Nothing in this section will be
construed as requiring a designated State unit to provide the services
required by this section directly. A designated State unit may contract
with other entities, i.e., other public and private service providers,
as appropriate, to fulfill the requirements of this section. The
contractor providing the services on behalf of the designated State
unit may not be an entity holding a special wage certificate under
section 14(c) of the Fair Labor Standards Act (29 U.S.C. 214(c)) as
defined in 397.5(d).
(Authority: Sections 12(c) and 511(c) and (d) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 709(c) and 794g(c) and (d))
Subpart F--Review of Documentation
Sec. 397.50 What is the role of the designated State unit in the
review of documentation under this part?
(a) The designated State unit, or a contractor working directly for
the designated State unit, is authorized to engage in the review of
individual documentation required under this part that is maintained by
an entity, as defined in 397.5(d), under this part. The contractor
referred in this section may not be an entity holding a special wage
certificate under section 14(c) of the Fair Labor Standards Act (29
U.S.C. 214(c)).
(b) If deficiencies are noted during a documentation review
conducted under paragraph (a) of this section, the designated State
unit should report the deficiency to the U.S. Department of Labor's
Wage and Hour Division.
(Authority: Sections 12(c) and 511(e)(2)(B) of the Rehabilitation
Act of 1973, as amended; 29 U.S.C. 709(c) and 794g(e)(2)(B))
[FR Doc. 2016-15980 Filed 8-8-16; 11:15 am]
BILLING CODE 4000-01-P