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FEDERAL REGISTER
Vol. 81 Friday,
No. 161 August 19, 2016
Part Ill
Department of Education
34 CFR Parts 367, 369, 370, et al.
Workforce Innovation and Opportunity Act, Miscellaneous Program
Changes; Final Rule
55562 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Parts 367, 369, 370, 371, 373,
376, 377, 379, 381, 385, 386, 387, 388,
389, 390, and 396
Docket No. 2015-ED-OSERS-0002]
RIN 1820-AB71
Workforce Innovation and Opportunity
Act, Miscellaneous Program Changes
AGENCY: Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION: Final Regulations.g
SUMMARY: The Secretary amends the
regulations governing a number of
programs administered by the
Rehabilitation Services Administration
RSA) to implement changes to the
Rehabilitation Act of 1973 ( Act) made
by the Workforce Innovation and
Opportunity Act, signed on July 22,
2014.
The Secretary also implements
changes to the Act made by the
Workforce Investment Act of 1998,
signed on August 7, 1998, that have not
previously been implemented in
regulations, and otherwise updates,
clarifies, and improves RSA' s currentprograms and regulations are:
program, 34 CFR part 371 ( formerly
known as" Vocational Rehabilitation
Service Projects for American Indians
with Disabilities");
The Rehabilitation National
Activities program, 34 CFR part 373
formerly known as" Special
Demonstration Projects");
The Protection and Advocacy of
Individual Rights (PAIR) program, 34
CFR part 381;
• The Rehabilitation Training
program, 34 CFR part 385;
The Rehabilitation Long-Term
Training program, 34 CFR part 386;
The Innovative Rehabilitation
Training program, 34 CFR part 387
formerly known as the" Experimental
and Innovative Training");
• The Training of Interpreters for
Individuals Who are Deaf or Hard of
Hearing and Individuals who are Deaf-
Blind program, 34 CFR part 396
formerly known as the" Training of
Interpreters for Individuals Who are
Deaf and Individuals who are Deaf-
Blind program").
WIOA also repealed the statutory
authority for four programs, and the
Secretary, therefore, removes their
corresponding regulations. These
regulations.
DATES: This final rule is effective
September 19, 2016, except the removal
of part 388, amendatory instruction 13,
is effective on October 1, 2016.
FOR FURTHER INFORMATION CONTACT: Ed
Anthony, U. S. Department of Education,
400 Maryland Avenue SW., Room 5086
PCP, Washington, DC 20202-2800.
Telephone:( 202) 245-7488, or by email:
Edward.Anthony@ed.gov.
If you use a telecommunications
device for the deaf( TDD) or a text
telephone (TTY), call the Federal Relay
Service (FRS), toll free at 1-800-877-
8339.
SUPPLEMENTARY INFORMATION:
Background
The Secretary amends the regulations
governing a number of programs
administered by the Rehabilitation
Services Administration( RSA) to
implement changes to the Rehabilitation
Act of 1973 ( Act) made by the
Workforce Innovation and Opportunity
Act( WIOA), signed on July 22, 2014
Pub. L. 113- 128). These programs and
their corresponding regulations are:
The Independent Living Services
for Older Individuals Who Are Blind
OIB) program, 34 CFR part 367;
The Client Assistance Program
CAP), 34 CFR part 370;
The American Indian Vocational
Rehabilitation Services( AIVRS)
Vocational Rehabilitation Service
Projects for Migratory Agricultural
Workers and Seasonal Farmworkers
with Disabilities (Migrant Workers)
program, portions of 34 CFR part 369;
• Projects for Initiating Special
Recreation Programs for Individuals
with Disabilities (Recreational
programs), portions of 34 CFR part 369;
• Projects with Industry, 34 CFR part
379 and portions of part 369; and
The State Vocational Rehabilitation
Unit In-Service Training program, 34
CFR part 388.
In addition, the Secretary implements
changes to the Act made by the
Workforce Investment Act of 1998
WIA), signed into law August 7, 1998
Pub. L. 105-220). These changes were
not previously implemented in the OIB,
CAP, AIVRS, and PAIR program
regulations, and the Secretary now
makes these changes in the applicable
regulations.
Separate and apart from amendments
to the Act made by WIOA and WIA, the
Secretary updates and clarifies the
regulations governing the various
rehabilitation training programs-34
CFR parts 373, 385, 386, 387, and 396-
and 34 CFR part 390, which governs the
Rehabilitation Short-Term Training
program. These regulations have not
been updated in some time, and
updating them now is intended to
improve how these programs function.
Finally, as part of this update, the
Secretary removes regulations that are
superseded or obsolete and consolidates
regulations, where appropriate. In
addition to removing portions of 34 CFR
part 369 pertaining to specific programs
whose statutory authority was repealed
under WIOA( i.e., Migrant Workers
program, the Recreational Programs, and
the Projects With Industry program), the
Secretary is removing the remaining
portions of the Part 369 regulations. The
Secretary is also removing parts 376,
377, and 389.
Public Comment
On April 16, 2015, the Secretary
published a notice of proposed
rulemaking( NPRM) for these programs
in the Federal Register( 80 FR 20988).
In response to our invitation in the
NPRM, more than 100 parties submitted
comments on the proposed regulations.
Because the amendments described in
these final regulations are so many and
varied, we first discuss those programs
whose regulations we amend and do not
remove. We discuss these programs in
the order in which their parts appear in
the Code of Federal Regulations ( CFR).
For each part, we provide a summary of
the changes we proposed, a summary of
the differences between the proposed
regulations and these final regulations,
and a detailed discussion of the public
comment we received on the proposed
regulations. We then discuss those
programs whose regulations we remove.
Generally, we do not address technical
and other minor changes.
Independent Living Services for Older
Individuals who are Blind( OIB), 34
CFR Part 367
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 20989 through
20991 the major changes proposed to
part 367 implementing the amendments
to the OIB program made by WIOA.
These included a requirement that not
less than 1. 8 percent and not more than
2 percent of the funds for this program
be reserved to provide training and
technical assistance to designated State
agencies (DSA) or other providers of
independent living services for older
individuals who are blind.
In addition, we proposed to
incorporate into part 367 the text of
relevant provisions of parts 364 and 365
regarding general independent living
and State independent living services
that were previously incorporated only
by reference.
There are five differences between the
NPRM and these final regulations. As a
result of our further review, we add the
55563Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
entities eligible to apply for awards
under the training and technical
assistance funding in§ 367. 21; we revise
367. 24 to give the Secretary the
discretion to conduct the application
process and make the subsequent award
in accordance with 34 CFR part 75, but
not require it; we clarify in§§ 367. 65
and 367. 66 requirements for the use of
program income; we address in a new
367. 67 the financial participation by
consumers served by the OIB program;
and we revise § 367. 69 by requiring that
designated State agencies and other
service providers enter into written
agreements when sharing personal
information with entities and
organizations for the purpose of
evaluations, audits, research, and other
program purposes. We also make other,
minor technical changes.
Public Comment
In response to our invitation in the
NPRM, eight parties submitted
comments on the proposed regulations
amending the OIB program. One
commenter agreed with all of the
proposed regulations as written.
Another expressed specific support for
incorporating into part 367 the
independent living( IL) services from
section 7( 17) of the Act, including the
requisite supports and services that
facilitate the transition of individuals
from nursing homes and other
institutions to home-and community-
based residences and services to assist
older individuals who are blind and
who are at risk of entering institutions
to remain in their communities. We
address those commenters that
requested clarifications or proposed
additions to the regulations. Because we
made a number of structural and
numbering revisions to part 367, we
provide an analysis of public comment
by subpart and, within each subpart, by
subject or section. We do not address
areas about which we did not receive
public comments, i.e. Subpart D— How
Does the Secretary Award Discretionary
Grants? and Subpart E— How Does the
Secretary Award Formula Grants?
Subpart A—General
Comment: An organization
representing State agencies for the blind
and that supports the concept of
employment first" recommended that
part 367 refer all consumers presumed
eligible for the OIB program based upon
age to the State VR services program to
be assessed for employment potential
prior to being served under the OIB
program. The commenter stated that this
would relieve the" underfunded" OIB
program of the costs of eligibility and
assessment and allow for these costs to
be met by the VR program.
Discussion: We appreciate the
commenter' s support for" employment
first," which regards employment as the
preferred option for individuals of
working age. However, we understand
that many older individuals with vision
loss may not believe that employment is
an option for them. The purpose of the
OIB program is to provide IL services to
individuals age 55 or older whose
significant visual impairment makes
competitive employment extremely
difficult but for whom IL goals are
feasible. Individuals served by the OIB
program who subsequently express an
interest in employment during or after
receiving OIB services may be referred
at any time to the VR program; however,
there is no statutory authority to require
that all potential OIB consumers be
referred to the VR program before
receiving OIB services.
We acknowledge the commenter' s
concerns about relieving the OIB
program of the costs of eligibility and
assessments; however, to require that all
individuals presumed eligible for the
OIB program be referred first to the VR
program for assessment of employment
potential is not appropriate, as it shifts
those costs to the VR program for
individuals for whom competitive
employment may not be likely.
What activities may the Secretary fund?
367.3( b))(§
Comments: Some commenters asked
for clarification about whether it is
mandatory to provide all independent
living( IL) services that may be funded
under this part. Commenters were
concerned about their capacity to
provide all IL services, particularly
those defined in proposed
367. 5( b)( 10). The commenters noted
that some of the services are duplicative
of those provided by Centers for
Independent Living( CILs), while others
may not usually apply to the OIB
program (e.g. shelter, supported living,
physical rehabilitation, therapeutic
treatment, and prostheses).
Additionally, commenters stated that
vision rehabilitation specialists would
require extensive training to gain the
qualifications needed to provide all
services and that providing the full
array of services would affect the quality
of vision services provided to clients by
an already overstretched staff.
Discussion: We acknowledge the
concerns expressed by some
commenters about whether providing
all IL services identified in§ 367. 3( b)—
particularly the catchall in§ 367. 3( b)( 8),
" Other IL services as defined in
367. 5"— is required. While § 367. 3( a)§
specifies that the DSA may use funds
under part 367 for activities described
in§ 367. 1 and§ 367. 5( b), it does not
require the DSA to provide the full array
of services and activities that the
Secretary may fund. In fact, many of
these IL services and activities may also
be provided under title VII, chapter 1 of
the Act, and older individuals who are
blind may be referred to these programs,
which include CILs, for services that
may not be specific to the vision-related
services traditionally provided by the
OIB program. However, the broad scope
of IL services that an OIB program may
provide allows the program to
determine what array of services and
activities it will provide and to
individualize services according to
need.
Changes: None.
Transfer of Title VII, Chapter 1 IL
Programs
Comment: One commenter requested
further clarification about how the
Department intends to work with the
Department of Health and Human
Services (HHS) throughout the IL
program transition process to assure that
older individuals who are blind
continue to receive the necessary
services that provide the greatest
opportunity for complete and full
independence.
Discussion: The Department has
worked collaboratively with HHS to
ensure the efficient and effective
transfer of the Title VII, Chapter 1
programs from the Department of
Education to HHS. The OIB program,
which continues to be administered by
the Department, was transferred within
RSA to staff in the Technical Assistance
Unit who have the knowledge and
expertise necessary to administer the
OIB program.
Change: None.
Subpart B— Training and Technical
Assistance
Comment: One commenter strongly
recommended that a portion of the
technical assistance and training funds
be required to be used to train service
providers on techniques and best
practices for serving older individuals
who are deaf-blind, including those who
are blind or visually impaired and hard
of hearing. This specialized training
would increase understanding of the
needs of deaf-blind individuals, assist
service providers who routinely work
with individuals who are blind to
recognize those who also have hearing
loss, and provide techniques designed
to maximize independence.
Discussion: We appreciate the
commenter' s recommendation.
55564 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Individuals who are deaf-blind, in accordance with 34 CFR part 75, but within each State to maximize
including those who are blind or not require it. collaboration and availability of
visually impaired and hard of hearing, services. Subpart C— What are the application
encompass a growing population within Change: None. requirements under this part?those who may be served under the OIB Subpart F— What conditions must be program. As such, we anticipate that Removal of State Plan for Independent met after an award? training and technical assistance for Living OIB Requirements
367.65( a)( 2)DSAs and other service providers willComments:Two commenters, an Use of Program Income(§
address the needs of this dual sensory and( b)( 2)) organization representing agencies for loss group, as well as of other the blind and an individual, Comment: None.
individuals who are blind or visually acknowledged that WIOA eliminated Discussion: After further review, we impaired and have multiple disabilities. the requirement for including a have revised§ 367. 65 to clarify that Change: None. reference to the OIB program in the payments received by the State agency,
Eligible Entities for Grants, Contracts, or State Plan for Independent Living( SPIL) subrecipients, or contractors for IL
and expressed concern that this would services provided under the OIBCooperative Agreements(§ 367.21( a))
disenfranchise and remove the" voice" program to individual consumers will
Comment: None. of older individuals with vision loss. be treated as program income. We have
Discussion: In proposed§ 367. 21( a), These commenters recommended that also revised final § 367.65(b)( 2) to
we did not describe the entities eligible an OIB section he added to the require OIB grantees to use program
to compete for funds reserved under Vocational Rehabilitation (VR) portion income only to supplement the OIB
367. 20 to carry out training and of the Unified or Combined State Plans grant. Grantees will not be permitted to
technical assistance through grants, deduct program income from the grant.submitted by States, with the
contracts, or cooperative agreements. requirement that plans require Upon closer examination of the grant
This was an oversight. formula set forth in the statute, we have
Change: We added eligible entities to other entities that would further the concluded that the use of the deduction
final § 367. 21( a): State and public or
coordination with VR, CILs, aging, and
independence of older persons with method would, in effect, result in a
non-profit agencies and organizations visual impairments. reduction of an OIB program grantee' s
and institutions of higher education. Discussion: We appreciate the allotment. Absent specific statutory
commenters' concerns surrounding the authority, these reductions would beHow does the Secretary evaluate an potential elimination of the" voice" of inconsistent with the statute and generalapplication?(§ 367.24)
older individuals who are blind or appropriations law principles. In
Comments: None. visually impaired that resulted from the reviewing the grantees' financial Discussion: When WIOA added a transfer of the IL programs to HHS. reports, we have found that very few, if
training and technical assistance However, the previous SPIL any, OIB programs elect to use the
authority to the OIB program it gave the requirements for IL coordination with deduction method. Instead, most, if not
Secretary the ability to make awards by the OIB program and for including any all, grantees elect to use the addition
grant, cooperative agreement or new methods or approaches for method, which is still permissible and,
contract. Since the Department providing OIB services were minimal. in fact, will be the only permissible use
generally makes these awards by grants In addition, nothing prohibits older of program income under the OIB final
using the procedures in part 75, which individuals who are blind or visually regulations. We do not believe this
uses the peer review process identified impaired from participating in the change will negatively affect any in the statute, we added a subsection in development of the SPIL. In fact, for the grantee.
the NPRM that provided that the periodic review and revision of the Changes: We have added
Secretary would use the procedures in SPIL, section 704( a)( 3)( C)( ii)(II) of the § 367. 65( a)( 2), stating that payments
part 75, even when awarding a contract. Act requires collaboration and working received by the State agency,
However, upon further reflection, we relationships with, among others, subrecipients, or contractors from
have determined that there may be entities carrying out programs that insurers, consumers, or others for IL
circumstances when the Department has services provided under the OIBprovide independent living services and
an amount of funds that is too small to that serve older individuals. program to defray part or all of the costs
compete but could be used to support a Furthermore, some State OIB programs of services provided to individual
contract consistent with the training and have developed advisory committees to consumers will be treated as program
technical assistance authority, in the provide input into determining the income. We have revised final
form of a task order or modification needs of the older blind population and § 367. 65( b)( 2) to permit grantees to use
under an existing Department contract developing the services required to meet program income only to supplement
for example, in which case, the those needs. their OIB grant and have removed all
Department would not want to use the While we appreciate the references to the deduction method.
grant processes in part 75. Therefore, we recommendation to add an OIB section
have determined that it is more The Requirements That Apply to theto the VR services portion of the Unified
appropriate to change the language in or Combined State Plan, section 101( a) Obligation of Federal Funds and
Program Income(§ 367.66)this subsection to give the Secretary the of the Act dictates its required
authority to use part 75 if awarding a components, which do not include the Comment: None.
contract, where the Secretary OIB program. We encourage OIB There has been a long-standing,
determines it is appropriate but not consumers to make their views known government-wide requirement under the
require its use. to the DSA and other service providers, common rule implementing former
Changes: We have revised final and we encourage State OIB programs to OMB Circular A-102 and the former
367. 24( b) to give the Secretary the develop strategies to coordinate and link OMB guidance in Circular A-110, as
discretion to conduct the application OIB programs with other disability and codified by the Department of Education
process and make the subsequent award at former 34 CFR 80. 21( f)(2) andaging-related activities and programs
55565Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
74. 22( g), respectively, that non-Federal § 367. 66( c) to explicitly require States to for the cost of OIB services. These
grantees must expend program income expend available program income funds requirements are outlined in the new
367. 67. Because this is a new section
funds. The Uniform Administrative payments, as was the long-standing added to the regulations, the sections
Requirements, Cost Principles, and requirement under former 34 CFR after it are renumbered accordingly.
Audit Requirements for Federal Awards 80. 21( f)(2).
prior to drawing down Federal grant before requesting additional cash
CAP(§ 367.68)Uniform Guidance), codified at 2 CFR We believe this change is essential to
part 200, were adopted by the protect the Federal interest by using Comment: One commenter, noting the
Department at 2 CFR 3474 on December program income to increase the funds inclusion of the notice of the availability
devoted to this program, to which VR of CAP in this subpart, remarked that19, 2014 ( 79 FR 76091), and apply to all
the OIB regulations should, but do not,new and continuing awards made after Social Security reimbursement program
address appeals procedures.December 26, 2014. income may also be transferred, keeping
The new 2 CFR 200. 305( a) specifies to a minimum the interest costs to the Discussion: The Act does not include
the payment procedures that States an appeals procedure for the OIBFederal government of making grant
must use to draw down Federal funds; funds available to the States. This program; therefore, there is no statutory
however, these procedures appear, on change should not negatively affect authority to include any regulations
the surface, to apply only to funds States because it merely maintains the beyond those relating to the availability
included in a Treasury-State Agreement status quo that existed under 34 CFR of CAP to the OIB program.
Change: None.TSA), and not all Federal program 80. 21( f)(2).
funds made available to States are Changes: We have revised final What are the special requirements
subject to TSAs. For this reason, 2 CFR § 367. 66( c) to make clear that all pertaining to the protection, use, and designated agencies must disburse200. 305( a) has created an ambiguity release ofpersonal information? about how States should draw Federal program income prior to drawing down (§ 367.69)
funds under non-TSA programs. Federal funds or, as stated in 2 CFR
Comments: None.Moreover, TSAs do not cover program 200.305(b)( 5), " requesting additional Discussion: We anticipate that other income earned by State grantees, and 2 cash payments." Finally, we have made Federal and State agencies, andCFR 200. 305( a) does not address other technical and conforming edits. researchers will have an increasedwhether States should expend available Financial Participation interest in using the data required to beprogram income funds before requesting Comment: One commenter pointed collected by programs established underadditional Federal cash, which had been
out that the proposed regulations did the Act, including the OIB program.the long-standing government-wide Therefore, after further departmentalnot address how a grantee should
review, we have strengthened therequirement in OMB Circular A-102
and codified for Department grantees at consider a consumer' s ability to pay.
Discussion: We agree that the protection of the confidentiality of34 CFR 80. 21( f)(2). This silence creates
proposed regulations did not address personal information collected by theconcern because, for all other non-
Federal entities, 2 CFR 200. 305( b)( 5) the subject of financial participation by OIB program by requiring in final
367. 69 that designated State agenciesconsumers of the OIB program. Since §requires them to expend available
and service providers enter into writtenthere is neither a Federal requirementprogram income funds before requesting for, nor prohibition of, consumers of the agreements with any entity seekingpayments of Federal funds. access to this information for theWhile the silence in 2 CFR 200. 305( a) OIB program to participate in the cost of
IL services, we believe it is beneficial to purpose of audits, evaluations, research,creates an unintended ambiguity, we do or for other program purposes. Thisnot believe that it should be construed address the commenter' s suggestion by
change is consistent with revisions toto change the prior rule and remove the including regulatory language to
requirement that States must expend provide guidance to States that might final 34 CFR 361. 38 governing the
want to consider this as an option. protection of confidentiality of personalprogram income funds before requesting
Change: We added new§ 367. 67— information collected by the VRadditional Federal cash. No such policy
program.change was discussed in the preambles May an individual' s ability to pay be
Changes: We have revised finalto either the final guidance in 2 CFR considered in determining his or her
part 200, which was published on participation in the costs of OIB 367. 69( a), ( d), and( e)( 1) by requiring
that designated State agencies andservices? A State is neither required to
service providers enter into written
December 26, 2013 ( 78 FR 78589), or in
charge, nor is it prohibited fromthe Interim Final Guidance published
agreements with other organizations and on December 19, 2014 ( 79 FR 75867). charging, consumers for the cost of IL
Further, § 361. 63( c)( 2) permits the services provided under the OIB entities receiving personal OIB program
program. Also, a State is neither information during the conduct oftransfer of VR Social Security
required to, nor prohibited from, audits, evaluations, research, and forreimbursement program income to carry
other program purposes.out programs under title VII, Chapter 2 considering the ability of individual
of the Act( Independent Living Services consumers to pay for the cost of OIB Client Assistance Program( CAP), 34
for Older Individuals Who Are Blind). services in determining how much a CFR Part 370
For this reason, we believe it is essential particular consumer must contribute to
that we resolve this unintended the costs of a particular service. Summary of Changes
ambiguity for the OIB program. However, specific requirements apply if In the preamble of the NPRM, we
We proposed in the NPRM to the State does choose to charge discussed on pages 20991 through
incorporate the requirement to expend consumers or allow providers of 20994 the major changes proposed to
services to charge consumers for part 370 that would implement theprogram income before requesting
services provided under the OIBpayment of funds by referencing 2 CFR amendments to the CAP made by WIOA
200. 305( a). Given the ambiguity in that program. Specific requirements also and WIA. To implement those changes
section, however, the proposed rule did apply if the State considers, or allows made by WIA, the Secretary proposed
not clearly state the requirement. We amending the regulations governing theproviders of services to consider, the
resolve the ambiguity by revising ability of individual consumers to pay redesignation of a designated CAP
55566 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
would not include those individuals section. However, another commenteragency to require the governor to
redesignate the designated CAP agency who are potentially eligible to receive suggested that redesignation should
if it is internal to the designated State pre-employment transition services. ultimately be based on criteria, such as
agency (DSA) for the Vocational These commenters recommended that the efficiency and effectiveness of the
Rehabilitation program and that DSA we incorporate the definitions of grantee as assessed by RSA through its
undergoes a significant reorganization " student with a disability" and" youth monitoring activities, in addition to the
that meets certain statutory criteria. with a disability" within this part to determination of" good cause" by the
governor.The Secretary also proposed making clarify that these individuals are clients
three substantive changes to incorporate and client-applicants. These Discussion: We appreciate the
statutory changes made to section 112 commenters also recommended that we comment supporting this regulation, as
well as the recommendation from theby WIOA. First, we proposed adding the amend this section to prohibit the
protection and advocacy system serving provision of CAP services to youth with commenter regarding criteria on which
the American Indian Consortium as an to base the redesignation of a CAPdisabilities seeking subminimum wage
entity eligible to receive a CAP grant. employment in sheltered settings. grantee. However, other than a
Second, we proposed requiring the Discussion: We appreciate the determination of good cause by the
Secretary to reserve funds from the CAP commenters' support for this regulation. governor, the Act does not provide the
appropriation, once it reaches a We disagree that there is a need to Secretary with authority to specify
specified level, to award a grant for the criteria that would require theclarify in the regulation that students
redesignation of a designated CAPprovision of training and technical and youth with a disability, including
assistance to designated CAP agencies. those students with disabilities seeking agency. We believe that the final
Finally, we proposed clarifying that or receiving pre-employment transition regulation is consistent with the statute.
authorized activities under the CAP services, are clients and client-Change: None.
include assisting client and client-applicants for the purposes of this part. Access to Records and Monitoring
applicants who are receiving services As defined in§ 370. 6, " client or client-
Comments: Several commenters wereunder sections 113 and 511 of the Act. applicant" means an individual
In addition to substantive changes concerned that the proposed regulationsreceiving or seeking services under the
required by statutory amendments, the Act, respectively. Moreover, section did not provide CAPs with the authority
to access records and conductSecretary proposed making other 112( a) makes clear that CAPs may serve
changes to update part 370 so that it, clients and client-applicants who are monitoring to help carry out the
mandate to assist individuals seeking oramong other things, conforms with RSA receiving services under section 113—
practice (i.e., with regard to submission receiving services under sections 113e.g., students with disabilities. In fact,
of application and assurances), reflects students and youth with disabilities and 511 of the Act. These commenters
recommended that CAPs be given thecurrent CAP grantee practice (i.e., with may be eligible to receive a wide range
regard to contracts with centers for of services under the Act, such as same authority to access records as do
independent living), and conforms to transition services, training, other component programs, including
the PAIR program, of the protection andthe new Uniform Guidance at 2 CFR transportation, supported employment,
advocacy system established under the
There are no differences between the students and youth with disabilities Developmental Disabilities Assistance
part 200. and independent living. Therefore,
NPRM and these final regulations, and Bill of Rights Act of 2000, believingwho are receiving services under the
except that, as a result of our further Act are clients and client-applicants for this general authority would enable CAP
review, we clarify in final § 370. 47 purposes of part 370 and are, therefore, grantees to access records and
requirements related to the use of eligible to receive CAP services. documentation developed under both
program income and make other minor We also appreciate the commenter' s sections 113 and 511 of the Act.
Discussion: We disagree with thetechnical changes. concerns about the payment of
commenters' recommendation.Public Comment: In response to our subminimum wages to youth with
invitation in the NPRM, 41 parties disabilities. However, we disagree that Although many CAPs are housed within
submitted comments on the proposed we should prohibit the provision of CAP a State' s protection and advocacy
system, section 112 of the Act neitherregulations amending the CAP ( part services to youth with disabilities
370). In general, these comments seeking subminimum wage establishes the CAP as a mandatory
supported the proposed regulations. We employment. Section 112( a) of the Act, component of the protection and
provide an analysis of public comments advocacy system nor requires that theas amended by WIOA, specifically
by subject and section only for those establishes CAPs to assist clients and CAP have the same general authorities
regulations about which we received as those established in part C of theclient-applicants with all benefits and
opposing comments or requests for services available under the Act, Developmental Disabilities Assistance
clarification. In addition, we provide an and Bill of Rights Act of 2000.including those required by section 511.
explanation of the clarification in Given this mandate, there is no Rather, section 112( a) of the Act
370. 47 regarding requirements related authority under the Act for the Secretary establishes CAPs to: ( 1) Advise and inform clients and client-applicants of
all services and benefits available to
to the use of program income. to prohibit the provision of CAP
services to youth with disabilitiesClients and Client Applicants(§ 370.1) them under the Act; (2) upon the seeking subminimum wageComments: A few commenters request of these clients and client-employment, regardless of the setting.supported the revision to § 370. 1 applicants, assist and advocate for theseWe believe that the final regulation is
clarifying that CAP services are consistent with the statute. individuals in their relationships with
projects, programs, and servicesavailable to assist individuals seeking or Change: None.
provided under the Act; and( 3) inform
Requirements for Redesignationreceiving services under sections 113
and 511 of the Act. Yet, a few other individuals with disabilities of the
370. 10)commenters believe the same proposed (§ services and benefits available to them
regulations were confusing in that the Comments: One commenter under the Act and under Title I of the
terms" clients" and" client-applicants" supported the proposed changes in this Americans with Disabilities Act.
55567Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
In assisting and advocating for clients
and client-applicants upon their
request, section 112( a) of the Act
authorizes the CAP to pursue legal,
administrative, or other appropriate
remedies to ensure the protection of
their rights under the Act and to
facilitate access to, and services funded
under, the Act through individual and
systemic advocacy, as defined at
370. 6( b). This advocacy, whether
individual or systemic, must be at the
request of the client or client-applicant
and must be solely for the purpose of
protecting the rights of clients and
client-applicants under the Act or to
facilitate their access to services under
the Act. In this situation alone, the
CAPs could access relevant records so
long as they follow the requirements of
the holder of those records, which
typically would require the informed
written consent of the client or client-
applicant. There is no authority under
section 112 for the CAP to engage in
advocacy for the sole purpose of gaining
general access to records or conducting
monitoring.
For these reasons, section 112 of the
Act does not provide a basis on which
to amend these regulations, as
recommended by commenters, to
include the same general authorities as
those established in part C of the
Developmental Disabilities Assistance
and Bill of Rights Act of 2000 for
mandatory components of the
protection and advocacy system, which
the CAP is not.
Change: None.
Program Income(§ 370. 47)
Comments: None.
Discussion: In further reviewing the
interplay between§ 370.47 and 2 CFR
200. 305, the Department has determined
additional clarification is necessary in
final § 370.47, particularly with regard
to the use of available program income.
There has been a long-standing
government-wide requirement under the
common rule implementing former
OMB Circular A-102 and the former
OMB guidance in Circular A-110, as
codified by the Department at former 34
CFR 80. 21( f)(2) and 74. 22( g),
respectively, that non-Federal grantees
must expend program income prior to
drawing down Federal grant funds. The
Uniform Guidance, codified at 2 CFR
part 200, was adopted by the
Department at 2 CFR part 3474 on
December 19, 2014 ( 79 FR 76091) and
applies to all new and continuing
awards made after December 26, 2014.
The new 2 CFR 200. 305 specifies the
payment procedures that non-Federal
entities must use to draw down Federal
funds; however, 2 CFR 200. 305( a),
which applies to State agencies, does
not address whether designated
agencies that are State agencies should
expend available program income funds
before drawing down Federal funds, as
had been the long-standing government-
wide requirement under OMB Circulars
A-102 and A-110.
This silence creates concern because
2 CFR 200. 305( b)( 5), which appears to
apply to non-Federal entities other than
States, requires that those entities
expend available program income funds
before requesting payments of Federal
funds. While the silence in 2 CFR
200. 305( a) creates an unintended
ambiguity, we do not believe that this
ambiguity should be construed to
change the prior rule and remove the
requirement that State agencies must
expend program income funds before
requesting additional Federal cash. No
such policy change was discussed in the
preambles to either the OMB final
guidance in 2 CFR part 200, which was
published on December 26, 2013 ( 78 FR
78589), or in the Interim Final Guidance
published on December 19, 2014 ( 79 FR
75867).
Therefore, we believe it is essential
that we resolve this unintended
ambiguity here. To that end, we have
amended § 370.47 in these final
regulations to make clear that all
designated CAP agencies, regardless of
their organizational structure, must
expend program income before drawing
down Federal funds. In so doing, we
have revised final § 370.47(b)( 2)( ii) to
explicitly require CAP grantees to
expend available program income funds
before requesting additional cash
payments, as was the long-standing
requirement under former 34 CFR
74. 22( g) and 80. 21( f)(2).
We believe the change is essential to
protect the Federal interest by using
program income to increase the funds
devoted to the CAP program and
keeping to a minimum the interest costs
to the Federal government of making
grant funds available to the designated
agencies. This change should not
negatively affect designated CAP
agencies that are State agencies because
it merely maintains the status quo that
existed under 34 CFR 80. 21( f)(2).
We also have revised final
§ 370.47(b)( 2) by requiring CAP grantees
to use program income only to
supplement the CAP grant. Upon closer
examination of the grant formula set
forth in the statute, we have concluded
that the use of the deduction method
would, in effect, result in a reduction of
a CAP' s grant allotment. Absent specific
statutory authority, such reductions
would be inconsistent with the statute
and general appropriations law
principles. In reviewing the grantees'
financial reports, we have found that
very few, if any, designated CAP
agencies elect to use the deduction
method. Instead, most, if not all,
grantees elect to use the addition
method, which is still permissible and,
in fact, will be the only permissible use
of program income under these CAP
final regulations. We do not believe this
change will negatively affect any
grantee.
Changes: We have revised final
§ 370. 47( b)( 2) to permit grantees to use
program income only to supplement
their CAP grant and to remove all
references to the deduction method. We
have also added a new§ 370.47(b)( 2)( ii)
to make clear that all designated CAP
agencies must disburse program income
prior to drawing down Federal funds or,
as stated in 2 CFR 200. 305(b)( 5),
" requesting additional cash payments."
Finally, we have made other technical
and conforming edits.
American Indian Vocational
Rehabilitation Services Program
AIVRS), 34 CFR Part 371
Tribal Consultation
Consistent with Executive Order
13175," Consultation and Coordination
With Indian Tribal Governments," in
addition to seeking input from Indian
tribal governments through the public
comment process, the Department
conducted tribal consultations to obtain
input on the proposed changes in the
AIVRS program. We hosted a webinar
on June 9, 2015, and invited written
comments from tribal officials, tribal
governments, tribal organizations, and
affected tribal members. We provided an
overview of the AIVRS NPRM and the
proposed changes to the regulations
governing the program as a result of
WIOA and WIA, and we asked for tribal
input regarding those proposed changes.
When announcing the tribal
consultation, the Department
acknowledged that it was somewhat
unusual to ask for tribal input after an
NPRM was published, but WIOA' s
requirement to publish an NPRM within
six months for all the programs
contained in the Rehabilitation Act,
including regulations with the
Department of Labor implementing the
requirements for a joint state plan for
the State Vocational Rehabilitation
program, precluded the Department
from engaging in a tribal consultation
process before it needed to publish the
NPRM. The consultation process also
had to proceed quickly so that the
Department could receive the comments
before the public comment period for
the NPRM ended in order for those
hofinvolveftune
55568 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
comments to be considered. Despite
these constraints, the Indian community
responded thoughtfully during the
consultation process and provided 42
comments, many of them unique. Those
comments were considered and are
addressed along with the other public
comments here.
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 20994 through
20998 the major changes proposed to
part 371 implementing the amendments
to the AIVRS program made by WIOA.
These included( 1) the expansion of the
definition of" Indian" to include natives
and descendants of natives under the
Alaska Native Claims Settlement Act,
2) the amendment of the definition of
Indian tribe" to include a" tribal
organization," and( 3) amendments to
subpart B to require the reservation of
not less than 1. 8 percent and not more
than 2 percent of the funds for the
AIVRS program for the provision of
training and technical assistance to the
governing bodies of Indian tribes and
consortia of those governing bodies
eligible for a grant under this program.
The amendments to part 371 also
implement changes made by WIA in
1998 that have not previously been
incorporated, such as the expansion of
services to American Indians with
disabilities living" near" a reservation,
as well as" on" a reservation, and the
change of the project period from up to
three to up to five years. Additionally,
we incorporate relevant sections of part
369, which the Department proposed in
the NPRM to repeal, and relevant
sections of part 361, particularly
definitions found in each of those parts.
There are a few differences between
the NPRM and these final regulations.
Section 371. 2( a)( 2) now explicitly
requires approval of the tribal
government before a tribal organization
may apply for an AIVRS grant and
provide services to tribal members. We
made a minor change in§ 371. 2( a)( 3) to
make the language consistent with
371. 2( a)( 1). We modified the definition
of" supported employment" in § 371. 6
to reflect changes we made to the
definition in 34 CFR 361. 5( c)( 53) so that
the term is used identically in both the
State VR program and the AIVRS
program. We revised§ 371. 14 to give the
Secretary the discretion to conduct the
application process and make the
subsequent award in accordance with
34 CFR part 75, but not require it. As a
means of implementing the statutory
requirement that the Secretary give
priority consideration to applications
for the continuation of programs that
have been funded under section 121, we
added paragraph( b) to § 371. 32 to
authorize the Secretary to provide a
competitive preference to applicants
who previously received an AIVRS
grant. Finally, after further departmental
review, we revised§ 371. 44 by requiring
that Tribal Vocational Rehabilitation
units enter into written agreements with
organizations and entities when sharing
personal information for the purposes of
evaluations, audits, research and other
program purposes.
Public Comment: In response to our
invitation in the NPRM, 65 parties
submitted comments on the proposed
regulations amending the AIVRS
program (part 371). We received
comments in support of most of the
proposed regulations, and we received
comments questioning or opposing
some. We thank the commenters for
their support. We discuss only those
comments that questioned or opposed
particular regulations, and we organize
our discussion by subject.
Funding for the AIVRS Program
Comments: Under Section 100( c)( 1)–
2) of the Act, the AIVRS program is
funded annually through a set-aside of
not less than 1 percent and not more
than 1. 5 percent of the funds
appropriated for the State Vocational
Rehabilitation( VR) program. A number
of commenters requested that the
Department increase the funds available
for AIVRS projects by setting aside the
maximum allowable level of 1. 5
percent. Most of these commenters
argued that an increase in the set-aside
was needed to offset the effect of the
new training and technical assistance
requirement on the funding available to
operate AIVRS projects and asked the
Department to take this into
consideration in determining the annual
set-aside.
Discussion: The level of funding set
aside for the AIVRS program under
Section 100( c)( 1)–( 2) of the Act is
outside of the scope of the proposed
rules. However, the Department is aware that the new reservation of funds for
training and technical assistance,
coupled with the sequester of
mandatory funds under the Budget
Control Act of 2011 ( Pub. L. 112-25),
has in recent years reduced the funds
available to operate AIVRS projects and
provide services to American Indians
with disabilities. The Department will
take these and other factors into account
when determining the annual level of
the AIVRS set-aside.
Changes: None.
Comments: One commenter objected
generally to the amount provided for the
AIVRS program, stating that the
government funds minority groups
inequitably and gives too much to
American Indians" just for being
Indian."
Discussion: The commenter' s
statement is outside the scope of this
rulemaking. The Department is
implementing a program funded by
Congress based on a recognized need for
vocational rehabilitation services for
American Indians with disabilities.
Changes: None.
60-Month Project Period—§ 371. 4
Comments: Some commenters
proposed that, instead of limiting
funding for AIVRS projects to five years,
AIVRS projects ought to be funded
permanently. These commenters stated
that to compete for funds every five
years, not knowing if the project will be
re-funded, makes it difficult to ensure
continuity of services and operate an
efficient and effective program. Many of
these commenters recommended that
AIVRS projects, once funded, continue
to be funded based on decisions from
monitoring and technical assistance
rather than competing for new awards
every five years, much like the Centers
for Independent Living program under
Title VII of the Act, and some also
recommended that each project receive
an annual cost-of-living increase.
Discussion: Section 121( b)( 3) provides
that grants can be effective for up to 60
months. Because the AIVRS program is
a discretionary grant program, there is
no statutory authority for the
Commissioner to provide permanent
funding. Section 121 does not provide
authority similar to that for the Centers
for Independent Living program under
Part C of Title VII of the Act, which
permits continued funding without
competition. The Department can only
continue to provide funds to a grant
beyond 60 months if,given exceptional
circumstances, the Secretary publishes a
rule that waives the ) 342whientsch
limit project periods to 60 months and
CFR 7 and 75. 261( c)( 2), which
project period thatextensionsfadditionalinvolve obligation of additional
Federal funds.
As for annual cost-of-living increases,
there are no provisions in the statute
that permit the Commissioner to
provide automatic cost-of-living
increases to all grantees. A grantee may
request a cost-of-living increase when
filing its annual performance report and
budget, and the request must provide a
justification for the increase. The
Commissioner will review and approve
or disapprove requests for a cost-of-
living increase case-by-case.
Changes: None.
55569Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
bodies of Indian tribes, and consortia ofConsolidation ofAIVRS With Other
Employment and Training Programs those governing bodies, eligible for a
grant under this program. While the ActComments: Two commenters
provides the Department with therequested that tribes that consolidate
their employment and training programs authority to determine the amount of
the reservation within the statutoryunder Public Law 102-477 ( 25 U.S. C. Parameters, taking into consideration3401, et seq.) be able to add the AIVRS the needs of the AIVRS program, it must program to the programs they are able reserve at least 1. 8 percent of the funds to consolidate under that statute.
set aside for the AIVRS program. TheDiscussion: This request is outside the Department believes that the rules in scope of this rulemaking. In any event, 371. 11 through 371. 14 implementingthe Department would be unable to section 121( c), as well as the rigorousgrant it because the AIVRS program is requirements for training and technicalnot eligible for consolidation under assistance grantees contained in the Public Law 102-477 ( 25 U.S. C. 3401, et
regulatory priorities applicants must seq. The Indian Employment, Training meet, will help to ensure that theand Related Services Demonstration Act training and technical assistanceof 1992 ( Pub. L. 102-477) is a statute provided is designed to help improveunder which the Secretary of the the operation of AIVRS projects and the Interior, in cooperation with the quality of services provided to theirappropriate Secretary of Labor, Health consumers. and Human Services, or Education, Changes: None.
upon the receipt of a plan submitted by Comment: Two commenters
an Indian tribal government, may recommended that the Department
authorize it to coordinate and integrateconsider and explore alternate fundingits federally funded employment, sources for training and technical training, and related services programs assistance for the AIVRS program. One into a single, coordinated, of these commenters suggested that
comprehensive program, which reduces these activities should be funded as a
administrative costs. Section 5 of that set-aside under the training andAct( 25 U.S. C. 3404), however, makes technical assistance component of the
clear that the only programs that may be Act.
integrated in a plan submitted by a tribe Discussion: While we appreciate the
are those under which an Indian tribe is commenters' suggestions, the
eligible for receipt of funds under a Department is required to reserve funds
statutory or administrative formula. for this purpose from the AIVRS set-
Because the AIVRS program is a aside, consistent with section 121( c) of
discretionary grant program, not a the Act.
formula grant program, it is not eligible Change: None.
for consolidation under Public Law
102-477. Culturally Appropriate Services
371. 1)Changes: None.
Comments: A number of commenters Training and Technical Assistance expressed support for AIVRS providingFunding(§§ 371. 10-371. 14)
culturally appropriate vocational
Comments: A number of commenters rehabilitation services to American
recognized the value of training and Indians with disabilities and for
technical assistance and expressed recognizing subsistence as a permissible
support for these activities. However, employment outcome. Some
most of these commenters did not commenters, however, criticized our
believe that these activities should be illustration of culturally appropriate
provided at the expense of services for services in the NPRM preamble—"( i.e.
tribal VR consumers. While some services traditionally used by Indian
commenters stated that tribal consumers tribes)"— as incomplete and requested
would be better served by continuing to that we include examples of culturally
fund direct services rather than training appropriate services that match the
for tribal vocational rehabilitation broad diversity of Indian country.
programs, others expressed the need for Discussion: We thank these
more balance in the funding of these commenters for their support. Given,
activities. however, the large number of American
Discussion: New provisions in section Indian tribes, including Alaskan Native
121( c) of the Act, implemented in villages and regional corporations, and
subpart B of the AIVRS regulations, their widely varying cultural practices,
require the Commissioner to reserve not any list of further examples of culturally
less than 1. 8 percent and not more than appropriate practices would also be
2 percent of the funds set aside for the incomplete and may exclude cultural
AIVRS program for training and practices that are unique to some tribes.
Changes: None.technical assistance to the governing
Eligibility
Providing Services " On or Near" the
Reservation (§ 371. 3)
Comments: In response to the
proposed language that AIVRS projects
provide services to American Indians
with disabilities who live on" or near"
the reservation, some commenters
requested guidance on how to define
` near." Other commenters stated that as
a matter of tribal sovereignty, it should
be left to the tribes, not the Federal
government, to define" near" and to
define their service areas, which they do
in other contexts such as working with
the UJ. S. Census Bureau or in other
Federal programs.
Discussion: We agree with the
commenters that it should be the tribes
who define" near" the reservation. The
change allowing AIVRS projects to serve
American Indians with disabilities who
live" near" a reservation, as well as
on" a reservation, was made by the
Workforce Investment Act( WIA), Public
Law 105-120, in August 1998. We
proposed adding" or near" to § 371. 3
because, although we had implemented
the statutory change in 1998, the
regulations had not yet been updated to
reflect the change. Consistent with our
current practice under the statutory
requirements, applicants for AIVRS
grants will, as part of their applications,
continue to define the service areas in
which, and the populations to whom,
they will provide services. RSA staff is
always available to assist grantees or
potential grantees in determining
appropriate service areas for AIVRS
grants that meet the criteria of" on or
near" the applicant' s reservation.
Changes: None.
Tribal Organizations(§ 371. 2,§ 371. 6—
definitions)
Comment: Some commenters objected
to proposed§ 371. 2( a)( 1)( ii), which
makes tribal organizations eligible
applicants under AIVRS. These
commenters pointed out that tribal
organizations, like some" urban" Indian
organizations, need not be tribal
governmental entities or even affiliated
with tribes. As such, tribal organizations
may not be sufficiently responsible to
tribal governments, they may
temporarily create programs just to
establish eligibility, and they may take
funding away from established AIVRS
programs and from consumers in need
of VR services.
Many other commenters requested
that, while tribal organizations may be
eligible for AIVRS grants, we should
require an application from any tribal
organization to have the approval of the
tribe or tribes it plans to serve. A few
55570 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
commenters asked who or what office Although we believe that the
must issue this approval; a few others definition of" tribal organization"
noted that securing the necessary already requires a close connection with
approvals may be difficult because an an Indian tribe, we agree with the
commenters that applications fromAIVRS project may provide services to
members of several different tribes. tribal organizations should have the
approval of the tribal governments theFinally, some commenters suggested
organizations seek to serve. In part, thethat there be a single tribal entity within
the tribal government to conduct all proposed regulations already required
AIVRS activities. this.
If a tribal organization serves moreDiscussion: The amendments to
than one tribe, § 371. 2( a)( 3) requires theWIOA added" tribal organizations" to
organization to obtain the approval ofthe definition of" Indian tribe" in
each of the tribes it seeks to serve. Thissection 7( 19)( B) of the Act. Because
Indian tribes are eligible for grants requirement already applies to a
consortium and a tribal governmentunder the AIVRS program, in§ 371. 2,
seeking to serve more tribes than itsthe Department is implementing a
statutory requirement: Tribal own. However, the proposed regulations
organizations are eligible for AIVRS did not explicitly require a tribal
organization that is not a tribalgrants. Specifically, Section 7( 19)( B)
includes in the definition of" Indian government and seeks to serve only one
tribe,"" a tribal organization( as defined tribe, to obtain approval to apply for an
AIVRS grant from that tribalin section 4( 1) of the Indian Self-
government.Determination and Education
We are, therefore, adding thisAssistance Act( 25 U.S. C. 450b( 1))." requirement as § 371. 2( a)( 2)( ii). ThisSection 371. 6 of the regulations adopts will ensure that it is the tribalthat definition. Under§ 371. 6, a tribal governments that ultimately have theorganization is: authority to determine the services1. The recognized governing body of provided to their members and the any Indian tribe; or entity authorized to provide those2. Any legally established services. organization of Indians that is Approval must be a formal action
controlled, sanctioned, or chartered bytaken by the tribal government. It will
the governing body of an Indian tribe; oroften come in the form of a resolution
3. Any legally established from the tribal council. However, as the
organization of Indians that is forms of government among the tribes democratically elected by the adult are so many and varied, we cannot make
members of the Indian community to be an exhaustive list of the entity that must served by the organization and that issue the approval or specify what form includes the maximum participation of the approval must take. It may be Indians in all phases of its activities. sufficient for the tribal council to
As such, if the organization is not the authorize a tribal organization to apply
actual governing body of the tribe, it for any health or social service grant on
nevertheless has close ties to the its behalf and provide those services to
governing body because the body has its members. The council may not have
created it, authorized it, or is actually to pass resolutions for each grant
controlling it, or the organization has application. However, these are matters
close ties to the tribal members because dictated by tribal law, as is the decision
they have elected the membership of the regarding the entity that will provide
tribal organization. Therefore, we do not tribal vocational rehabilitation services
believe that the concern expressed about to its members.
urban" tribal organizations that are As for the difficulty of securing
unaffiliated with tribes competing with approvals when multiple tribes are to be
existing AIVRS projects, perhaps by served, this change merely applies the
creating pretextual vocational existing approval requirement for
rehabilitation programs, is a likely consortia and inter-tribal agreements to
outcome of this regulatory change. We tribal organizations, and our experience
also note that the tribal organization suggests that there is no great difficulty
must also meet the other eligibility in securing the necessary approvals. The
requirements under§ 371. 2( a), number of approvals may, in fact, be
including that they be located on smaller than commenters suggested. The
Federal or State reservations. If the tribal organization needs approvals only
tribal organization is not a tribal from those tribes on (or near) whose
governing body, then the tribes that reservations the tribal organization
make up the tribal organization have to plans to provide services. The tribal
meet the reservation requirement, again organization is under no obligation to
creating a close connection with the identify the tribal affiliation of all
tribes themselves. residents of those service areas who the
AIVRS project may serve and who may
have a different tribal affiliation, nor
must it seek approval from those tribes.
Changes: We have amended
371. 2( a)( 2) and added new
371. 2( a)( 2)( ii) to require that, in order
to receive a grant under this section, a
tribal organization that is not a
governing body of an Indian tribe must
have the approval of the tribe to be
served by the organization.
Who may make an application under
the AIVRS Program?(§ 371. 2)
Comments: None.
Discussion: Section 371. 2( a)
implements the statutory authorization
that permits applications for the AIVRS
program to be made by the governing
bodies of Indian tribes or consortia of
those governing bodies. Section
371. 2( a)( 1) implements the Education
Department General Administrative
Requirement at 34 CFR 75. 128 that
groups of applicants can only apply
either by designating one member of the
group—one of the governing bodies—to
apply on behalf of the group or by
establishing a separate eligible legal
entity to apply for the group. In the
proposed regulations, § 371. 2( a)( 3)
discussed grants being made to" the
governing body of an Indian tribe, a
consortium of those governing bodies,
or a tribal organization." However, in
order to be consistent with 34 CFR
75. 128 and§ 371. 2( a)( 1), § 371. 2( a)( 3)
must recognize that grants cannot go to
a consortium itself but must go to a
tribal governing body or a tribal
organization on behalf of the
consortium.
Changes: We have revised final
371. 2( a)( 3) to reflect that grants are§
made to" the governing body of an
Indian tribe, either on its own behalf or
on behalf of a consortium, or to a tribal
organization. . . .
Who Is Eligible To Receive Services
(§ 371. 3)
Comment: A few commenters
expressed concern about providing
services to descendants of Alaska
Natives. They asked about who
determines their tribal membership and
how those services would be funded.
Discussion: Section 371. 3 implements
the statutory authorization in section
121( a) of the Act that makes American
Indians with disabilities who reside on
or near reservations eligible for services
under AIVRS. WIOA amended Section
7( 19)( A) to include within the definition
of" American Indian" a" Native and a
descendant of a Native as such terms are
defined in subsections (b) and( r) of
section 3 of the Alaska Native Claims
55571Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Settlement Act( ANCSA), 43 U.S. C.
1602."
Native" is defined in subsection (b)
of section 3 of ANCSA as a citizen of the
United States who is a person of one-
fourth degree or more Alaska Indian
including Tsimshian Indians not
enrolled in the Metlakatla Indian
Community) Eskimo, or Aleut blood, or
combination thereof. The term includes
any Native as so defined either or both
of whose adoptive parents are not
Natives. It also includes, in the absence
of proof of a minimum blood quantum,
any citizen of the United States who is
regarded as an Alaska Native by the
Native village or Native group of which
he claims to he a member and whose
father or mother is ( or, if deceased, was)
regarded as Native by any village or
group. Alaska native villages and
regional village corporations are
included in the Rehabilitation Act' s
definition of" Indian tribe," and Alaska
Natives are their members.
Descendant of a Native" is defined
in subsection( r) in section 3 of ANCSA
as—
1) A lineal descendant of a Native or
of an individual who would have been
a Native if such individual were alive
on December 18, 1971, or
2) An adoptee of a Native or of a
descendant of a Native, whose
adoption—
A) Occurred prior to his or her
majority,
and
B) Is recognized at law or in equity.
We understand the essence of the
commenters' concern to be that the Act
makes descendants of natives eligible
for services under AIVRS, but not all
descendants of natives are members of
their parents' native corporations or
tribes, potentially resulting in AIVRS
projects providing services to non-tribal
members. However, the Act does not
require tribes to make any
determination about the membership
status of those eligible; it merely
prescribes the pool of individuals
eligible for services funded by Federal
money. While this change in the
American Indians with disabilities
eligible for services may increase the
number of consumers seeking services,
we do not believe it will he such a
substantial increase that the affected
AIVRS projects cannot absorb it.
Changes: None.
Definitions of" Competitive Integrated
Employment," " Employment Outcome,"
and " Subsistence"(§ 371. 6)
Comments: Some commenters
expressed strong support for the
definitions of" competitive integrated
employment," " employment outcome,"
and" subsistence" in§ 371. 6. Several
commenters recommended that the
Secretary continue to recognize
homemaker and unpaid family worker
outcomes as appropriate vocational
outcomes for purposes of the AIVRS
program.
Alternatively, a few commenters
suggested that we include homemaker
and unpaid family worker outcomes
within the definition of" subsistence."
One commenter recommended that we
include a note in the definition of
employment outcome" that"
subsistence occupations are approved
employment outcomes. Another
commenter asked if we intend that the
definition of" subsistence" apply only
to individuals served through the
AIVRS program or if it applies to all
individuals served through the VR
program, including those individuals
who live in rural areas where few
opportunities for competitive integrated
employment exist. This commenter also
asked if we propose any limits on
hobby-type activities as self-
employment outcomes.
One commenter requested that we
clarify the meaning of" culturally
appropriate" as used in the definition of
subsistence" and the preamble to the
NPRM covering the VR program
regulations by providing examples.
Finally, one commenter
recommended that we standardize the
definition of" competitive integrated
employment" in§ 371. 6 with the
definition of that term in 34 CFR
361. 5( c)( 9) for the State Vocational
Rehabilitation( VR) Services program,
noting that the two definitions vary in
some technical respects.
In light of the interrelationship
between the terms" competitive
integrated employment,"" employment
outcome," and" subsistence," we
address the comments on these
definitions together.
Discussion: We appreciate the support
expressed by the commenters. We
believe that consistency in
interpretation and implementation of
the regulations governing the AIVRS
and VR programs is essential given the
large number of American Indians and
Alaskan Natives with disabilities who
are eligible for services from both
programs, some of whom may be served
by the programs sequentially or even
simultaneously.
This is imperative for the definition of
" employment outcome," which is the
basis for services provided by both
programs. As explained in more detail
in the final regulations governing the VR
program published elsewhere in this
issue of the Federal Register, we have
eliminated uncompensated outcomes,
including homemaker and unpaid
family worker outcomes, from the scope
of the definition of" employment
outcome" in 34 CFR 361. 5( c)( 15).
Although section 7( 5) of the Act, as
amended by WIOA, permits the
Secretary to include within this
definition other appropriate vocational
outcomes, the Secretary must exercise
this discretion in a manner consistent
with the Act.
Because of the extensive emphasis on
competitive integrated employment
throughout the Act, as amended by
WIOA, it is no longer consistent with
the Act to include uncompensated
outcomes within the scope of the
definition of" employment outcome."
Because we believe it is necessary to
implement the term consistently under
both the VR and AIVRS programs, we
cannot include homemaker and unpaid
family worker outcomes within the
scope of the definition of" employment
outcome" solely for the purposes of the
AIVRS program as the commenters
requested. For these reasons also, we
disagree with the recommendation to
include homemaker and unpaid family
worker outcomes within the definition
of" subsistence" in § 371. 6, which is
defined as a form of self-employment
and, thus, considered an allowable
employment outcome under both the
AIVRS and VR programs.
We define" subsistence" in § 371. 6 for
purposes of the AIVRS program to mean
a form of self-employment in which
individuals use culturally relevant or
traditional methods to produce goods or
services for household consumption or
non-commercial barter and trade that
constitute an important basis for the
individual' s livelihood. The definition
of" employment outcome" in 34 CFR
361. 5( c)( 15) encompasses all forms of
competitive integrated employment and
specifically mentions self-employment.
Because we consider subsistence
occupations to be a form of self-
employment, these occupations are
already within the scope of the
definition of" employment outcome,"
and it is not necessary to revise the
definition to refer specifically to
subsistence as recommended by the
commenters.
To ensure consistency in the
interpretation of" competitive integrated
employment" under both the VR and
the AIVRS programs, we stated in the
preamble to the NPRM for the VR
program that we understand subsistence
employment as a form of self-
employment common to cultures of
many American Indian tribes( see
NPRM, State Vocational Rehabilitation
Services Program, Supported
Employment Services Program, and
if
55572 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Limitations on the Use of Subminimum CFR 361. 5( c)( 9) by making technical disabilities, rather than American
Wage, 80 FR 21059, April 16, 2015). We changes. Indian youth with disabilities, are
do not intend that statement, or the eligible for pre-employment transitions of" Supported Employment"inclusion of the definition of services, as explained in more detail in s 371 6)subsistence" only in§ 371. 6, to limit the discussion of comments on 34 CFR
services designed to assist individuals Comment: One commenter noted that 361. 48( a) in the final rule amending partthe definition of" supportedto achieve subsistence occupations to 361 published elsewhere in this issue of
those served through the AIVRS employment" in the Act no longer the Federal Register. While we includes" transitional employment forprogram. understand the commenters' concerns
In addition, while we believe that individuals with mental illness" and regarding the need to ensure thatrecommended that we remove referencesubsistence occupations are most coordination among the DSU, AIVRSto this type of employment from theculturally relevant to American Indian program, and educational agencies is and Alaskan Native tribes, we recognize definition of" supported employment."
taking place and that transition services,that individuals may engage in Discussion: Many other organizations
traditional occupations in other native and individuals submitted comments, in including pre-employment transition
services, are provided to Americanaddition to the one comment discussedcultures. Thus, DSUs may find it Indian students with disabilities, thehere submitted in connection with the
Department believes that the finalappropriate to assist individuals from
AIVRS regulations, on the definition of
regulations in part 361 accomplish this. cultures other than American Indian
supported employment" in theand Alaskan Native tribes, such as The final regulation at 34 CFR 361. 24proposed State VR regulation, 34 CFRindividuals living in the Territories, to addresses the need for coordination361. 5( c)( 53). We discuss all of these
occupations. However, because the comments in detail in the final rule among these entities and for providing
transition services to American Indians
achieve self-employment in subsistence
definition of" subsistence" in § 371. 6 amending 34 CFR 363, published
requires that the subsistence occupation elsewhere in this issue of the Federal living on or near a reservation. Section
Register. As a result of those comments, 361. 24( d)( 1) requires the VR servicesbe culturally relevant to the individual,
portion of the Unified or Combinedwe decline to extend the applicability of we have removed the reference to
subsistence occupations to other transitional employment" from the State Plan to include a formal
definition of" supported employment" cooperative agreement with AIVRSindividuals solely on the basis of their
location in rural areas, even though in § 361. 5( c)( 53) and have made other programs. Section 361. 24( d)( 2) sets out
there may be few opportunities for conforming changes to the definition of requirements for that cooperative
competitive integrated employment in " supported employment" in § 371. 6 so agreement, and those include strategies
that it is consistent with the definitionthose areas. Examples of subsistence for providing transition planning under
occupations that are culturally relevant in § 361. 5( c)( 53). 361. 24( d)( 2)( iii). Furthermore, the
to American Indian or Alaskan Native Changes: We have revised the Federal funds reserved in accordance
tribes can include the exchange of fish definition of" supported employment" with 34 CFR 361. 65, and any funds
caught, or grain raised, by the in final § 371. 6 so that it is substantively made available from State, local, or
identical to the definition of that termindividual with the disability for other private funding sources, are to be used
goods produced by other members of in § 361. 5( c)( 53). The only difference to provide pre-employment transition
the tribe that are needed by the services to all students with disabilities,between the two definitions is that
individual to live and maintain his or where § 361. 5( c)( 53) refers to a including American Indian students
her home. Given, however, the large Designated State Unit," the service with disabilities, in need of such
number of American Indian tribes, provider under the State VR program, services. We also discuss comments on
the definition in§ 371. 6 refers to theincluding Alaskan Native villages and these sections in more detail in the final
regional corporations, and their widely " Tribal Vocational Rehabilitation Unit," rule amending 34 CFR part 361 the appropriate term for the servicevarying cultural practices, any list of published elsewhere in this issue of the
further examples of culturally relevant provider under AIVRS. Federal Register.
practices would also be incomplete and Pre-Employment Transition Services Changes: None. may exclude cultural practices that are and Coordination With AIVRS Projectsunique to some tribes.q 34 CFR 361. 48( a), 34 CFR 361. 24( d), Definition of" Transition Services"( 34
Since the definition of" subsistence" ( CFR 361. 5( c)( 55) and 371. 6)and 34 CFR 361. 65)in§ 371. 6 requires that the activity be
important to the individual' s livelihood, Comment: Some commenters Comments: None.
AIVRS grantees cannot provide services recommended that State VR agencies be Discussion: We have made changes to to enable individuals to engage in mere required to include in their formal the definition of" transition services" in hobbies, as hobbies do not meet the interagency agreements with AIVRS final § 371. 6 to make it consistent with criteria for self-employment as an projects and to address in agreements the definition of that term in final 34
employment outcome. with Tribal Education Agencies in the CFR 361. 5( c)( 55) for purposes of the Finally, to avoid any misperception State how the State VR agency plans to AIVRS program. Specifically, wethat the definitions of" competitive provide equitable pre-employment revised the definition to clarify that itintegrated employment" in 34 CFR transition services to American Indian applies to students and youth with 361. 5( c)( 9) pertaining to the VR program students and American Indian youth disabilities and includes outreach to and that in§ 371. 6 applicable to the with disabilities and how services to parents, or,if appropriate,AIVRS program differ based on the lack American Indian students with
representatives of the student or youth.of technical consistency, we have made disabilities will be incorporated into the
the definitions identical. Changes: We have revised the finalbudgeting and spending plans for the
Changes: We have made the State' s 15% set aside for transition of § 371. 6 so that the definition of
definition of" competitive integrated students with disabilities. transition services" is consistent with
employment" in final§ 371. 6 consistent Discussion: We note at the outset that the definition of the term in final 34
with the definition of that term in 34 CFR 361. 5( c)( 55).only American Indian students with
55573Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Evaluation of an Application for a
Training and Technical Assistance
Award(§ 371. 14( b))
Comment: A number of commenters
recommended that, for a training and
technical assistance award, the
Secretary make mandatory a 10-point
competitive preference priority for
applications that include as project
personnel in a substantive role
individuals who have been employed by
a tribal VR unit as a project director or
VR counselor.
Discussion: While we believe that this
competitive preference priority in final
371. 14( b) should be available to the
Secretary to implement the training and
technical assistance requirement of
section 121( c)( 2) of the Act, we disagree
with the commenters that the priority
should be mandatory and that it should
always be worth 10 points. When
appropriate to an AIVRS training and
technical assistance competition, we
will publish this competitive preference
priority,y, and itspoint value, in thep
notice inviting applications for the
competition.
Changes: None.
How does the Secretary evaluate an
application?(§ 371. 14( c))
Comments: None.
Discussion: When WIOA added a
training and technical assistance
authority to the AIVRS program, it gave
the Secretary the ability to make awards
by grant, cooperative agreement or
contract. Since the Department
generally makes these awards by grants
using the procedures in part 75, which
uses the peer review process identified
in the statute, we added a subsection to
the NPRM that provided that the
Secretary would use the procedures in
part 75, even when awarding a contract.
However, upon further reflection, we
have determined that there may be
circumstances when the Department has
an amount of funds that is too small to
compete but could be used to support a
contract consistent with the training and
technical assistance authority, in the
form of a task order or modification
under an existing Department contract
for example, in which case, the
Department would not want to use the
grant processes in part 75. Therefore, we
have determined that it is more
appropriate to change the language in
this subsection to give the Secretary the
authority to use part 75 if awarding a
contract, where the Secretary
determines it is appropriate but not
require its use.
Changes: We have revised final
371. 14( c) to give the Secretary the
discretion to conduct the application
process and make the subsequent award
in accordance with 34 CFR part 75, but
not require it.
What other factors does the Secretary
consider in reviewing an application?
371. 32)
Comment: A number of commenters
recommended that, in addition to the
training
competitive preference priority for the
and technical assistance award
in § 371. 14(b), the Secretary also make
mandatory a 10-point competitive
preference priority for applications for
the AIVRS program that include as
project personnel in a substantive role
individuals who have been employed by
a tribal VR unit as a project director or
VR counselor.
Discussion: We do not believe that
this competitive preference is
appropriate for the AIVRS program,
whereas it is appropriate for the training
and technical assistance program. While
the quality of the project personnel is
part of the selection criteria for both
projects, the training and technical
assistance applicants generally have a
primary background in providing
training, not necessarily VR services or
VR services to American Indians. The
competitive preference for training and
technical assistance is a way to
encourage applicants to consider
personnel who have a background in the
appropriate training and familiarity
with the community that will be
receiving the technical assistance. By
contrast, the AIVRS projects require
personnel with experience in tribal VR
services.
We do think, however, that this
regulatory section should include a
provision implementing the statutory
requirement to give priority
consideration to applications for the
continuation of programs that have been
funded under section 121. Although the
Department has implemented this
statutory requirement through its
notices inviting applications, we believe
it is appropriate to have a corresponding
regulatory provision for the statutory
requirement.
Changes: We have added final
371. 32( b), which provides that the
Secretary may award a competitive
preference to applications for the
continuation of programs that have
previously been funded under this
program.
Stipends
Comment: One commenter stated that
tribal vocational rehabilitation programs
should be able to pay a stipend for on-
the-job training and work experiences as
is done under the State VR program.
Discussion: On-the-job training( OJT)
and other work experiences ( e.g.
internships) are allowable vocational
rehabilitation services for individuals
under the State VR program( 34 CFR
361. 48(b)( 6)) and the definition section
of the AIVRS program regulations (final
§ 371. 6( b)). A VR agency or AIVRS
project may providepaid work
experiences, such as OJT and
internships, as a VR service so long as
the agency determines that it is
necessaryfor the individual to achieve
an employment outcome. In all
instances, the VR agency purchases
goods or a service that benefit the
consumer. Since the work experience is
considered the goods or service, the VR
agency" purchases" it from the
employer and reimbursement is
provided to employers for these paid
work experiences. This is typically done
through a contract between the
vocational rehabilitation program and
an employer under which funds may be
included that would assist the employer
in providing compensation to the
trainee.
Changes: None.
What are the special requirements
pertaining to the protection, use, and
release ofpersonal information?
371. 44)
Comments: None.
Discussion: We anticipate that other
Federal and State agencies, and
researchers will have an increased
interest in using the data required to be
collected by programs established under
the Act, including the AIVRS program.
Therefore, after further departmental
review, we have strengthened the
protection of the confidentiality of
Personal information collected by the
AIVRS program by requiring in final
371. 44 that Tribal Vocational
Rehabilitation units enter into written
agreements with any entity seeking
access to this information for the
purpose of audits, evaluations, research,
or for other program purposes. This
change is consistent with revisions to
final 34 CFR 361. 38 governing the
protection of confidentiality of personal
information collected by the VR
program.
Changes: We have revised final
371. 44( a), ( d), and( e)( 1) by requiring
that Tribal Vocational Rehabilitation
units enter into written agreements with
other organizations and entities
receiving personal AIVRS program
information during the conduct of
audits, evaluations, research, and for
other program purposes.
55574 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Rehabilitation National Activities
Program, 34 CFR Part 373
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 20998 through
20999 the major changes proposed to
part 373 implementing the amendments
to the Rehabilitation National Activities
Program made by WIOA. These include:
1) A new name for the program—the
Rehabilitation National Activities
Program—that better describes the broad
nature of the types of activities that may
be funded under this authority; (2) as
appropriate, the addition of a definition
of" vocational rehabilitation services"
and the replacement of the term
rehabilitation services" with
vocational rehabilitation services;" ( 3)
the addition of two new statutory
priorities pertaining to transition from
education to employment and
competitive integrated employment; and
4) the addition of four priorities to
address the technical assistance and
training needs of State vocational
rehabilitation agencies and their
personnel.
In addition to minor editorial and
technical revisions, there is one
difference between the NPRM and these
final regulations. In final § 373. 4, we
added a paragraph( 3) to the definition
of" early intervention" that lists
individuals receiving disability benefits
from an employer' s disability insurance
policy.
Public Comment: In response to our
invitation in the NPRM, four partiesP
submitted comments on the proposed
regulations amending the Rehabilitation
National Activities Program (part 373).
We set out our analysis by section.
373. 4 Definitions, Early Intervention
Comment: One commenter noted that
people with emerging disabilities or
disabilities that have increased in
loss of employment. For these people,p p
entering onto an employer' s disability
insurance plan is often the first step to
public disability benefits. The
commenter therefore recommended that
we add this population to the list of
example populations in the definition of
early intervention" in proposed§ 373. 4
that may receive early intervention
services.
Discussion: We agree with the
commenter. As the populations listed in
the definition are illustrative and not
exclusive, we believe it is appropriate to
call attention to this at-risk population.
Change: We add a new paragraph ( 3)
to the definition of" early intervention"
that lists individuals receiving disability
benefits from an employer' s disability
insurance policy.
373. 4 Definitions, " Individual With a
Disability"
Comment: One commenter suggested
updating the definition of" Individual
with a Disability" to follow 2008
statutory changes in the Americans
With Disabilities Act.
Discussion: This definition is based
upon the definition in section 7 of the
Act and thus cannot be changed to
conform to a definition in another
statute.
Changes: None.
Protection and Advocacy of Individual
Rights Program( PAIR), 34 CFR Part
381
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 20999 through
21001 the major changes proposed to
part 381 that would implement the
amendments to the PAIR program made
by WIOA and WIA. With regard to the
statutory changes made to section 509
by WIA, we proposed adding the
protection and advocacy system serving
the American Indian Consortium as an
entity eligible to receive a PAIR grant.
With regard to statutory changes made
to section 509 by WIOA, we proposed:
1) Clarifying that PAIR grantees have
the same general authorities, including
to access records and program income,
as the protection and advocacy system
established under the Developmental
Disabilities Assistance and Bill of Rights
Act of 2000; and( 2) clarifying that the
Secretary may award funds for the
provision of training and technical
assistance for PAIR grantees through a
grant, contract, or cooperative
agreement.
There are no differences between the
NPRM and these final regulations,
except that, as a result of further
Departmental review, we clarifyin final severity are among those most at risk forOMB Circular A-102, and the former381. 33( e) requirements governing the§ use of program income.
Public Comment: In response to our
invitation in the NPRM, three parties
submitted comments on the proposed
regulations amending the PAIR program
part 381). In general, these commenters
support the proposed regulations. We
provide an analysis of public comments
by subject and section only for the
regulation about which we received a
request for clarification. In addition, we
provide an explanation of the
clarification in final § 381. 33( e) about
the use of program income.
Access to Records(§ 381. 10)
Comments: A few commenters
supported the proposed changes to this
section that PAIR grantees have the
same authority to access records as the
Protection and advocacy system
established under the Developmental
Disabilities Assistance and Bill of Rights
Act of 2000. However, one commenter
recommended further clarifying when
PAIR grantees can exercise this access
authority by including specific
examples. The commenter noted that,
while this access authority has been
challenged in the States, PAIR grantees
ultimately have been successful in
exercising this authority.
Discussion: We appreciate the
comments supporting this regulation.
We disagree with the comment
requesting that we further clarify the
circumstances in which PAIR grantees
can exercise their authority to access
records by including examples in the
regulation. As stated in the NPRM, the
change is technical in nature as this
long-standing authority existed prior to
enactment of WIA or WIOA.
Therefore, we believe the proposed
regulation was clear that PAIR grantees,
as part of the protection and advocacy
system, have the same authority to
access records provided for under the
Developmental Disabilities Assistance
and Bill of Rights Act of 2000. For this
reason, we believe these final
regulations are consistent with the
statute and no further change is
warranted.
Change: None.
Program Income(§ 381. 33( e))
Comments: None.
Discussion: In further reviewing the
interplay between§ 381. 33( e) and 2 CFR
200. 305, the Department has determined
additional clarification is necessary in
final § 381. 33( e), particularly with
regard to the use of available program
income.
There has been a long-standing
government-wide requirement under the
common rule implementing former
OMB guidance in Circular A-110, as
codified by the Department at former 34
CFR 80. 21( f)(2) and 74. 22( g),
respectively, that non-Federal grantees
must expend program income prior to
drawing down Federal grant funds. The
Uniform Guidance, codified at 2 CFR
part 200, was adopted by the
Department at 2 CFR part 3474 on
December 19, 2014 ( 79 FR 76091) and
applies to all new and continuing
awards made after December 26, 2014.
The new 2 CFR 200. 305 specifies the
payment procedures that non-Federal
entities must use to draw down Federal
funds; however, 2 CFR 200. 305( a),
which applies to State agencies, does
not address whether designated
55575Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
agencies that are State agencies should
expend available program income funds
before drawing down Federal funds, as
had been the long-standing government-
wide requirement under OMB Circulars
A-102 and A-110.
This silence creates concern because
2 CFR 200. 305( b)( 5), which appears to
apply to non-Federal entities other than
States, requires that those entities
expend available program income funds
before requesting payments of Federal
funds. While the silence in 2 CFR
200. 305( a) creates an unintended
ambiguity, we do not believe that this
ambiguity should be construed to
change the prior rule and remove the
requirement that State agencies must
expend program income funds before
requesting additional Federal cash. No
such policy change was discussed in the
preambles to either the OMB final
guidance in 2 CFR part 200, which was
published on December 26, 2013 ( 78 FR
78589), or in the Interim Final Guidance
published on December 19, 2014 ( 79 FR
75867).
Therefore, we believe it is essential
that we resolve this unintended
ambiguityy here. To that end, we haveg
amended§ 381. 33( e) in these final
regulations to make clear that all
designated agencies, regardless of their
organizational structure, must expend
program income before drawing down
Federal funds. In so doing, we have
revised final § 381. 33( e)( 2)( ii) to
explicitly require PAIR grantees to
expend available program income funds
before requesting additional cash
payments, as was the long-standing
requirement under former 34 CFR
74. 22( g) and 80. 21( f)(2).
We believe this change is essential to
protect the Federal interest by using
program income to increase the funds
devoted to the PAIR program andPg
keeping to a minimum the interest costs
to the Federal government of making
grant funds available to the designated
agencies. This change should not
negatively affect designated agencies
that are State agencies because this
change merely maintains the status quo
that existed under 34 CFR 80. 21( f)(2).
found that very few, if any, designated
agencies elect to use the deduction
method. Instead, most, if not all,
grantees elect to use the addition
method, which is still permissible and,
in fact, will be the only permissible use
of program income under the PAIR
program final regulations. We do not
believe this change will negatively affect
any grantee.
Changes: We have revised final
381. 33( e)( 2) to permit grantees to use
program income only to supplement
their PAIR grant and removed all
references to the deduction method. We
have also added a new§ 381. 33( e)( 2)( ii)
to make clear that all designated
agencies must disburse program income
prior to drawing down Federal funds or,
as stated in 2 CFR 200. 305( b)( 5), before
requesting additional cash payments."
Finally, we have made other technical
and conforming edits in final § 381. 33.
Rehabilitation Training Program, 34
CFR Part 385
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 21001 through
21002 the major changes proposed to
part 385 implementing the amendments
to the Rehabilitation Training Program
made byWIOA. These include: (1)
Adding supported employment and
economic and business development
programs to the list of programs that
may benefit individuals with
disabilities; (2) emphasizing the
importance of maintaining and
upgrading the skills of personnel who
provide supported employment services
and customized employment services to
individuals with the most significant
disabilities, as well as personnel
assisting individuals with disabilities
whose employment outcome is self-
employment, business ownership, or
telecommuting; (3) adding a definition
of" vocational rehabilitation services"
and replacing the term" rehabilitation
services" with" vocational
rehabilitation services" as appropriate;
and( 4) adding definitions of" supported
General
Comment: One commenter
recommended a requirement that
training program personnel consult with
small business development centers.
This commenter also recommended a
requirement that training programs
consult with workforce board business
representatives about effective
telecommuting and entrepreneurship
practices in their area.
Discussion: We agree that training
personnel should consult with other
professionals knowledgeable about
small business development, since self-
employment is an excellent
employment option for some
individuals with disabilities. For the
same reason, we agree that consultation
about telecommuting and
entrepreneurship is appropriate.
Nothing in the proposed regulations
would preclude training programs or
their personnel from consulting as the
commenter recommends, but requiring
this consultation is potentially
burdensome and unnecessary.
Changes: None.
385. 4 Definitions, " Individual with a
Disability"
Comment: One commenter suggested
updating the definition of" Individual
with a Disability" to align it with 2008
statutory changes in the Americans
With Disabilities Act.
Discussion: This definition is based
upon the definition in section 7 of the
Act and thus cannot be changed to
conform to a definition in another
statute.
Changes: None.
Rehabilitation Long-Term Training
Program, 34 CFR Part 386
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 21002 through
21006 the major changes proposed to
part 386 implementing the amendments
to the Rehabilitation Long-Term
Training program made by WIOA, as
well as those changes needed to update
and improve the regulations. We
We also have revised finalproposed: (1) adding two areas to theemployment" and" assistive
381. 33( e)( 2) by requiring PAIR
grantees to use program income only to
supplement the PAIR grant. Upon closer
examination of the grant formula set
forth in the statute, we have concluded
that the use of the deduction method
would, in effect, result in a reduction of
a PAIR' s grant allotment. Absent
specific statutory authority, such
reductions would be inconsistent with
the statute and general appropriations
law principles. In reviewing the
grantees' financial reports, we have
technology" consistent with definitions
in title I of the Act.
Except for minor editorial and
technical revisions, there are no
differences between the NPRM and
these final regulations.
Public Comment: In response to our
invitation in the NPRM, four parties
submitted comments on the proposed
regulations amending the Rehabilitation
Training Program( part 385). We provide
our analysis by subject.
training areas supported by this program
assisting and supporting individuals
with disabilities pursuing self-
employment, business ownership, and
telecommuting; and supported
employment services and customized
employment services to individuals
with the most significant disabilities);
2) reducing from 75 percent to 65
percent the required percentage of the
total award that grantees must spend on
financial assistance to scholars; ( 3)
prohibiting scholars from concurrently
55576 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
receiving financial assistance from new§ 386.40( a)( 4) stating that scholars that scholars understand their
multiple grants; and( 4) requiring the are prohibited from receiving responsibilities, we have added a
grantee to document that the scholar concurrent scholarships under this provision under final § 386.40( a)( 4) that
will seek employment in the field of program. sets out the scholar' s responsibility not
study in which the scholar was trained Public Comment: In response to our to accept concurrent scholarships under
invitation in the NPRM, four partiesor where the field of study is directly this program and clarified that this
submitted comments on the proposed prohibition applies to scholarships forrelevant to the job functions being
performed. the same academic term.regulations amending the Rehabilitation
We also proposed a number of Long-Term Training program (part 386). § 386.32 Allowable Costschanges to the exit processes that will We organize our discussion by section Comment: One commenter requestednumber.help scholars be more aware of the
requirements of their service obligation, that limited travel to professional
386.20 Selection Criteriaincluding: (1) setting out the conferences be explicitly listed in
consequences for a grantee that has Comment: One commenter stated that § 386. 32 as an allowable cost. The
failed to request or maintain the the selection criterion in proposed commenter pointed out that, in the past,
required documentation for a scholar § 386.20(b)( 2)( iii),evidence of focused grantees have been able to support
who does not meet the service practical and other field experiences, scholars in this way.
Discussion: We agree that limitedobligation; ( 2) allowing some scholars to could not by its terms apply to short-
term certificate programs that do not travel to professional conferences hasstart satisfying the service obligation
before completion of the program of require practica or field experiences. been, and should continue to be, an
Discussion: We agree that the allowable cost. Section 386. 4 definesstudy but to prohibit other scholars who
language in§ 386. 20( b)( 2)( iii) is scholarship," in part, as an award ofdo not complete the program of study
financial assistance to a scholar forfrom performing the service obligation; potentially unclear in this way.
and( 3) disallowing internships, Change: We have revised final training and includes student travel in
386. 20(b)( 2)( iii) to state that evidence conjunction with training assignments.practicums, or any other work-related §
of focused practical and other field Limited travel to professionalrequirement necessary to complete the
experiences is not required when thoseeducational program as qualifying conferences would generally be
employment for the service obligation. experiences are not part of the curricula allowable under this description.
Finally, we proposed some changes of a short-term certificate program. Change: We modified final§ 386. 32( d)
to use this language and make clear thatregarding deferrals and exceptions. For § 386.31 Grant Funds limited travel to professionalan exception based on disability, the
Comment: One commenter raised conferences is an allowable cost.scholar must have a disability either
that did not exist at the time the scholar concerns about the provision in 386.33 Requirements for Grantees entered the program or that has proposed§ 386. 31( c) that prohibits a §
Comment: One commenter stated thatworsened since the scholar entered the scholar from receiving concurrent
program. The documentation of scholarships from multiple projects, the requirement in proposed
386. 33( c)( 2), that a scholar' s jobdisability must be less than three noting that this could inadvertently bar §
months old. With regard to deferrals, the students from certificate areas that functions be" directly relevant" to the
field of study in which his or herproposed changes included: (1) allowing could increase their employability. The
prohibition could, for example, bar a training was received, is potentiallyfor up to four years deferral for a
scholar on summer break from a ambiguous and difficult to apply. Themember on active duty in the Armed commenter noted, for example, thatForces, an increase from the three years program leading to a master' s degree
many States do not have a job categoryin prior regulations; and( 2) restricting from receiving a scholarship to
participate in a certificate program. of Rehabilitation Counselor for the Deaf. a deferral based on a scholar' s pursuing Discussion: The prohibition in A person might graduate from ahigher education only to advanced 386. 31( c) was intended to prevent the deafness training program but get a jobeducation that is in the rehabilitation §
as a generalist and still see deaf, hard offield. practice of funding scholars from
There are four differences between the multiple grants for the same academic hearing, and general caseload
term. This practice leads to customers. It is unclear if this job isNPRM and these final regulations.
We clarify in final§ 386. 20( b)( 2)( iii) complications in reporting and in directly relevant" to the scholar' s field
that the selection criterion applies only accurately tracking whether the scholar of study.
Discussion: We agree with theto those programs that require practica is meeting the service obligation.
and field experiences as part of their The provision at final 386. 31( c) does commenter that decisions about the
not prohibit a scholar from receiving a relationship between a scholar' s trainingcurricula.
and eventual employment are complexTo clarify allowable travel costs, we scholarship for a summer certificate
conform the language about student program while that scholar is in a and that decisions about whether the
travel in final § 386. 32( d) to the master' s degree supported by a employment qualifies to repay the
language of student travel in the service obligation need to be made case-scholarship under this program, so long
as the scholar is not also enrolled in the by-case. The proposed§ 386. 33 was ourdefinition of" scholarship" in final
effort to address this issue. We believe386. 4. master' s degree program during the
summer.In final § 386. 31( c), we clarify the this language provides the necessary
prohibition on concurrent scholarships Changes: Because final§ 386. 31( c) flexibility for sometimes difficult case-
describes grantee responsibilities, we by-case analyses. For example, anby setting out the grantee' s obligation to
make a good-faith effort to avoid have reworded the provision to better individual graduating from a program
reflect the intent behind it—that the focused on rehabilitation of individualsawarding a scholarship to any scholar
who is currently receiving another grantee must make good faith efforts to who are deaf but who ultimately finds
ensure that concurrent scholarships employment as a general VR counselorscholarship under this program.
We further clarify the prohibition has job functions" directly relevant" tounder this program are not awarded to
on concurrent scholarships by adding a a scholar. In addition, in order to ensure his or her field of study. The individual
finaliourNPPublic
change in
or
555 77Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
is providing services for which he or she
was specifically trained, and, as a
practical matter, it is unrealistic in this
case to expect all consumers served to
be deaf.
Changes: None.
386.43 Failure To Meet Terms and
Conditions of the Scholarship
Agreement
Comment: One commenter sought
clarification about calculating the date
in which repayment status begins under
proposed§ 386.43( e)( 2). The commenter
referred to a situation in which the grace
period has ended but a scholar finds
qualifying employment only several
months later, asking specifically
whether the scholar enters repayment
immediately upon expiration or
whether it is possible to be granted an
extension in order to complete the
service obligation.
Discussion: According to final
386. 43( e)( 2), a scholar enters into
repayment status when the failure to
enter into employment makes it
impossible for that scholar to complete
the employment obligation within the
number of years required in final
386.40( a)( 8). Given that a scholar who
has not entered into qualifying
employment at the time the grace period
has ended cannot satisfy the
requirements in final § 386. 40( a)( 8), the
scholar referenced above by the
commenter would immediatelybe
placed in repayment status once the
grace period has ended. The Secretary
has no explicit authority to grant an
extension of time to this scholar based
solely upon the failure to complete the
service obligation by the time the grace
period has ended. Section 386.41( c),
however, allows the Secretary to grant a
deferral of the repayment requirement
under limited circumstances and based
upon credible evidence submitted on
behalf of the scholar. There is nothing
in this provision that would prohibit the
Secretary from considering the granting
of a deferral of the repayment
requirement for scholars that need only
a limited amount of extra time to satisfy
the service obligation.
Changes: None.
Innovative Rehabilitation Training
Program, 34 CFR Part 387
Summary of Changes
In the preamble of the NPRM, we
discussed on pages 21006 through
21007 the major changes proposed to
part 387 implementing the amendments
to the Innovative Rehabilitation
Training program made by WIOA. These
include: (1) Adopting a new name for
the program—Innovative Rehabilitation
Training—that better describes the
nature of activities to be funded under
this authority; (2) clarifying that the
Secretary may award grants to develop
new and improved methods of training
not only for the rehabilitation personnel
of State vocational rehabilitation
agencies, but also for rehabilitation
personnel of other public or non-profit
rehabilitation service agencies or
organizations; and( 3) addressing new
statutory language in section 101( a)( 7) of
the Act related to rehabilitation
personnel having a 21st century
understanding of the evolving labor
force and the needs of individuals with
disabilities so they can more effectively
provide vocational rehabilitation
services to individuals with disabilities.
There are no differences between the
NPRM and these final regulations.
Public Comment: In response to our
invitation in the NPRM, no parties
submitted comments on the proposed
regulations amending the Innovative
Rehabilitation Training program( part
387).
Rehabilitation Short-Term Training
Program, 34 CFR Part 390
Summary of Changes
In the preamble of the NPRM, we
discussed on page 21007 the major
change proposed to part 390 needed to
improve the Rehabilitation Short-Term
Training program. In the NPRM, we
proposed to add an additional selection
criterion for grant competitions under
this program—evidence of trainingwe added a priority for serving unservedneeds as identified through training
needs assessment.
There are no differences between the
NPRM and these final regulations.
Public Comment: In response to
invitation in the NPRM, no parties
submitted comments on the proposed
regulation amending the Rehabilitation
Short-Term Training program( part 390).
Training of Interpreters for Individuals
Who are Deaf or Hard of Hearing and
Individuals Who are Deaf-Blind, 34
CFR Part 396
Summary of Proposed Changes
In the preamble of the NPRM, we
discussed on pages 21007 through
21009 the major changes proposed in
part 396 implementing the amendments
to the Training of Interpreters for
Individuals Who Are Deaf or Hard of
Hearing and Individuals Who Are Deaf-
Blind program, as well as changes
needed to improve the program. These
included: (1) Adding individuals who
are hard of hearing to the individuals
served by this program; (2) amending
the regulations to ensure that the
program accurately reflects the training
needs of qualified interpreters in order
to effectively meet the communication
needs of individuals who are deaf or
hard of hearing and individuals who are
deaf-blind; (3) amending the definition
of a qualified professional in order to
ensure that the highest level of
competency is incorporated into the
training of interpreters; (4) adding
selection criteria for the program to
encourage evidence-based and
promising practices; and( 5) adding
priorities for increasing the skill level of
interpreters in unserved or underserved
geographic areas, existing programs that
have demonstrated their ability to raise
the skill level of interpreters to meet the
highest standards approved by
certifying associations, and specialized
topical training.
There are a number of changes
between the NRPM and these final
regulations:
In final § 396. 1( a), we modified the
description of the interpreter training
program to more accurately describe
what interpreters for the deaf, hard of
hearing, and deaf-blind do.
In final § 396.4( c), we modified the
definitions of individual who is hard of
hearing and individual who is deaf to
remove phrases offensive to some.
In§ 396.4( c), we added a definition
of novice interpreter.
In final § 396. 31( c), we clarified that •
riterithe selection criterion applies to any
curricula submitted by an applicant.
In final with a
396. 20( b),conforming change in §
or underserved deaf, hard hearing,
and deaf blind populationss that are not
defined by geographic area.
Comment: In response to our
invitation in the four parties
encs osubmitted comments on the proposed
regulations amending the Training of
Interpreters for Individuals Who Are
Deaf or Hard of Hearing and Individuals
Who Are Deaf-Blind program (part 396).
We organize our discussion by section
and subject.
396. 1 Description of the Program
Comment: One commenter stated that
the description of the program in
proposed§ 396. 1( a) was not accurate.
The commenter stated that the
description of interpretation and
transliteration is too narrow, involving
only spoken language and limiting
training activities to interpreters who
can hear spoken language. Deaf
interpreters, the commenter stated, are
precluded from training described in
this way.
The commenter also stated that the
term" transliterate" is not always the
correct term when describing the
55578 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
activity of conveying spoken language whether the absence of the term in the may propose only one curriculum in
messages into tactile mode ( or vice future competitions under this program.NPRM meant that we were removing the
versa); rather, this is often 2005 definition and recommended that Change: We have modified the
interpretation. we include an updated definition of selection criterion to apply to" any
Discussion: We agree with the novice interpreter" in the final rule. curricula."
commenter that our proposed The commenter suggested an updated 396.33 Priorities description was inadequate. definition.
Unserved and Underserved PopulationsChanges: We have changed the Discussion: The omission of the
description of the program in final definition of" novice interpreter" in the Comment: One commenter supported
396. 1( a) to be more inclusive and to NPRM was an oversight. In this final the priority in proposed§ 396. 33( b)( 1) use the terms" transliterate" and rule, we have built upon the 2005 for increasing the skills of interpretersinterpret" more accurately. definition of" novice interpreter," for the deaf, hard of hearing, or the deaf-
taking into consideration the comment blind in unserved or underserved396.2 Eligibility we received on the NPRM. There, we geographic areas. The commenter
Comment: One commenter stated that proposed an amendment to the expressed concern, however, that this
the types of institutions that can apply definition of" qualified professional" to section does not include a priority forfor grant funds to train interpreters be consistent with the final priority these individuals in unserved and under this program should be limited to published in the Federal Register on underserved populations, who may notbachelor' s degree granting institutions, September 1, 1999 ( 64 FR 48068), and be located in easily defined geographicbecause an individual must have a to mean an individual who has ( 1) met areas. The commenter observed that bachelor' s degree in order to sit for the existing certification or evaluation there are growing segments of deaf, hardnational performance examination for requirements equivalent to the highest of hearing, and deaf-blind communitiessign language interpreters. standards approved by certifying that will increasingly challenge theDiscussion: Entities eligible for grants associations; or( 2) successfully interpreting workforce, including butunder this program are set by the Act demonstrated interpreting skills that not limited to individuals considered
and reflected in§ 396. 2. reflect the highest standards approved " Deaf+," individuals from minority andChanges: None. by certifying associations through prior immigrant communities, individuals
work experience.396.4 Definitions with cochlear implants, individuals
We proposed this change to ensure pursuing high-level professionalIndividual Who is Hard of Hearing that the highest level of competency is training and careers, and individuals
Comment: One commenter incorporated into the training of who lose their hearing later in life and
recommended replacing the term interpreters in interpreter training have limited communication skills.
hearing impairment" in the definition programs funded by RSA. Since 2000, Discussion: We agree with the
the Department has funded national and commenter that we should have a
regional interpreter education centers
of" individual who is hard of hearing"
because it is offensive to some. The priority for training interpreters to serve
that train qualified interpreters to meetcommenter proposed using" deaf, hard individuals who are deaf, hard of
the competencies equivalent to theof hearing and DeafBlind individual" hearing, or deaf-blind in both unserved
instead, because this language more highest standards approved by and underserved populations and in
certifying associations. Thus, this unserved and underserved geographic
standard has been in effect for 15 years, accurately reflects language used by the
areas.deaf, hard of hearing, and DeafBlind
and we proposed to change thecommunities. Changes: We have amended final
Discussion: We agree that we should definition to reflect this reality. 396. 33( b)( 1) to add a priority for
The updated definition of" novicetry to avoid the use of language that serving unserved or underserved deaf,
interpreter" complements the update tosome may find offensive. hard of hearing, or deaf-blind
the definition of" qualifiedChanges: We have removed" hearing populations that may not be limited to
impairment" from the definition of professional," and we are making the specific geographic areas. We have
update to the definition of" noviceindividual who is hard of hearing" in made a conforming change in final
interpreter" for the same reasons. This §final §396.4(c). Rather than inserting 396.20(b).
the language the commenter proposed, definition of" novice interpreter" is also
however, we have streamlined the consistent with the update suggested in Bachelors' Degree, Accredited, Existing
Programsthe comment we received.definition. We made similar changes in
the definition of" individual who is Change: We have revised final Comment: One commenter urged RSA
deaf" in this section. 396. 4( c) to include an updated to include a priority for applications
However, the definition of definition of" novice interpreter." from postsecondary institutions that
individual who is deaf-blind," which § offer at least a bachelor' s degree in 396.31 Selection Criteria interpreter education. The commenteralso contains the phrase" hearing
Comment: One commenter pointedimpairment," is, in our experience, one also recommended an additional
out that the selection criterion proposedthat is more widely accepted. Therefore, priority giving preference to programs
we have not made changes to this in § 396. 31( c) says only that the that have achieved Commission on
definition. Secretary will evaluate a proposed Collegiate Interpreter Education( CCIE)
curriculum" for the training of accreditation.
Novice Interpreter interpreters based upon evidence-based Discussion: We created the priority for
Comment: One commenter noted that or promising practices when many postsecondary institutions that offer at
the NPRM contained no definition of curricula, in fact, could be and have least a bachelors' degree in the August
novice interpreter," yet the term was been proposed. 3, 2005, notice of final priorities for the
defined in the August 3, 2005, notice of Discussion: We had no intention to Interpreter Training Program( 70 FR
final priority( 70 FR 44834). The suggest that only a single, universal 44834). It is not necessary to recreate the
commenter expressed uncertainty curriculum existed or that applicants priority here because the 2005 priority
55579Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
still exists and can be used in future
competitions.
Further, § 396. 33( b)( 2) already
encompasses the accreditation priority
the commenter described. The phrase
existing programs" refers to any
program, including those at
postsecondary institutions that offer and
have awarded at least a bachelor' s
degree in interpreter education. While
we will not give preference to CCIE or
other certifying organizations, the
phrase" highest standards approved by
certifying associations" already includes
them.
Changes: None.
Comment: One commenter asked
whether the term" programs" in
proposed§ 396. 33( b)( 2) means either a
pre-service or an in-service program.
Discussion: The term" programs" in
final § 396. 33( b)( 2) refers both to pre-
service and in-service programs.
Changes: None.
Consumer Education
Comment: One commenter expressed
concern about the lack of mention of
consumer education in proposed
396. 33( b). The commenter indicated
that this was a new area in the
competitions for this program in 2005
and again in 2010, and the resulting
deaf advocacy training has been
important.
Discussion: As the commenter
indicated, interpreter training centers
funded under this program have
addressed consumer education over the
past 10 years. We believe that promising
practices and resources developed for
consumer education, specifically those
developed under final §396.33(b)(3)—
specialized topical training based on the
needs of individuals who are deaf or
hard of hearing and individuals who are
deaf-blind—have been particularly
effective. We agree that deaf advocacy
training has been an important focus
area for the training of interpreters for
individuals who are deaf, hard of
hearing, and individuals who are deaf-
blind, and we can continue the training
without adding a priority here.
Changes: None.
396.34— Cost Matching
Comment: One commenter suggested
that the requirement in proposed
396. 34 that the grantee contribute to
the cost of a project under this program
in an amount satisfactory to the
Secretary may conflict with 2 CFR
200. 306. The commenter also indicated
that having the Secretary determine the
amount of the match at the time of the
grant award may delay grant activity.
Discussion: The matching amount
will be specified in the notice inviting
applications for the program
competition published in the Federal
Register and will occur prior to the
submittal of the grant application and
prior to the grant award. This provision,
therefore, does not conflict with 2 CFR
200. 306.
Changes: None.
General Comments
Comment: One commenter indicated
that replacing the term" skilled
interpreter" with" qualified interpreter"
does not accomplish much since neither
term is particularly precise.
Discussion: We use" qualified
interpreter" simply to conform part 396
to section 302( f) of the Act.
Changes: None.
Comment: One commenter suggested
changing the number of centers that
receive funding under this program.
Currently, five regional centers and one
national center receive funding. The
commenter suggested one national
center, with three regional centers that
focus on three areas: educating those
individuals who are preparing
interpreters, ensuring a strong language
foundation in both American Sign
Language and English for sign language
interpreters, and developing a national
interpreter education curriculum.
Discussion: The proposed regulations
do not address the structure of this
program. When we run a competition to
meet new and emerging needs of deaf
consumers and the training of
interpreters, we will publish a notice of
proposed priority in the Federal
Register and seek public comment about
how to structure the program.
Changes: None.
Regulations To Be Removed
In the preamble of the NPRM, we
discussed on page 21009 those
regulations that we proposed to remove
as required by WIOA, which
deauthorized the Projects with Industry
program (part 379), the State Vocational
Rehabilitation Unit In Service Training
program (part 388), the Migrants and
Seasonal Farmworkers program
369. 1( b)( 3) and§ 369. 2( c)), and the
Recreation Programs for Individuals
with Disabilities program(§ 369. 1( b)( 5)
and§ 369. 2( d)).
We also proposed to remove, as
duplicative or superseded, the balance
of part 369 pertaining to three other
kinds of vocational rehabilitation (VR)
service projects: VR service projects for
American Indians with disabilities,
special projects and demonstrations for
providing VR services to individuals
with disabilities, and special projects
and demonstrations for providing
transitional rehabilitation services to
youth with disabilities.
We proposed to remove as outdated
part 376 governing the Special Projects
and Demonstrations for Providing
Transitional Rehabilitation Services to
Youth with Disabilities program and
part 377 governing the Demonstration
Projects to Increase Client Choice
program.
We proposed to remove as duplicative
and outdated part 389 governing the
Rehabilitation Continuing Education
programs.
Because the Department' s
administration of grants under the State
Vocational Rehabilitation Unit In-
Service Training program and the
Migrants and Seasonal Farmworkers
Program will be complete on September
30, 2016, we proposed to make the
removal of part 369 and part 388
effective on September 30, 2016.
Comment: In response to our
invitation in the NPRM, no parties
submitted comments on the removal of
any of these regulations.
Discussion: Upon further review, the
Department has determined that the
remaining grant for the Migrants and
Seasonal Farmworkers program can
incorporate the pertinent provisions of
Part 369 into its terms and conditions.
Therefore, there is no need to delay the
effective date for which part 369 will be
removed because the terms and
conditions will still apply to the one
remaining grant after part 369 is
removed. We have also determined that
it makes more sense to make the
removal of the part 388 regulations
coincide with the start of the new fiscal
year, rather than the end of the old fiscal
year. Therefore, we have moved the
removal date for part 388 forward one
day to October 1, 2016.
Changes: Part 369 will be removed
when the final regulations take effect.
Part 388 will be removed on October 1,
2016.
Regulatory Impact Analysis
Executive Order 12866
Under Executive Order 12866, the
Secretary must determine whether this
regulatory action is" significant" and,
therefore, subject to the requirements of
the Executive order and subject to
review by the Office of Management and
Budget( OMB). Section 3( f) of Executive
Order 12866 defines a" significant
regulatory action" as an action likely to
result in a rule that may—
1) Have an annual effect on the
economy of$ 100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
55580 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
State, local, or tribal governments or
communities in a material way( also
referred to as an" economically
significant" rule);
2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
4) Raise novel legal or policy issues
arising out of legal mandates, the
President' s priorities, or the principles
stated in the Executive order.
This regulatory action is not a
significant regulatory action subject to
review by OMB under section 3( f) of
Executive Order 12866.
We have also reviewed these
regulations under Executive Order
13563, which supplements andmethods and approaches relating to
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
The Office ofaccurately as possible."
Information and Regulatory Affairs of
OMB has emphasized that these
techniques may include" identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes."
We have also determined that this
regulatory action would not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.
In accordance with both Executive
orders, the Department has assessed the
potential costs and benefits, both
quantitative and qualitative, of this
regulatory action. The potential costs
associated with this regulatory action
are those resulting from statutory
requirements and those we have
determined as necessary for
administering the Department' s
programs and activities. In assessing the
potential costs and benefits—both
quantitative and qualitative—of these
regulations, we have determined that
the benefits would justify the costs.
Part 367— Independent Living Services
receive no benefit from the training and
technical assistance supported by the
Department, the 56 grantees would
experience a collective loss in benefits
of$ 599, 706. However, since the
Department will sponsor training and
technical assistance services directly for
this group in the amount of$ 599, 706,
we expect there to be no net loss of
benefits. Additionally, as noted above,
the efficiencies realized by this
centralization of training and technical
assistance efforts may actually result in
a net increase in benefits for grantees.
SubpartSubprequiart C— the application
underWhats arethhis part?
Under this Subpart, we have removed
the requirement for States to seek to
incorporate into the State Plan for
Independent Living( SPIL) any new
for Older Individuals Who Are Blind independent living services for older
In general, unless expressly noted individuals who are blind.
below, we do not estimate that changes Incorporating this information into the
to this part will result in any additional
costs to grantees.
Subpart B— Training and Technical
Assistance
New Subpart B of Part 367
implements the WIOA amendmentp
requiring the Department to reserve
from 1. 8 to 2 percent of appropriated
funds for training and technical
assistance to grantees. While this
reservation will result in a reduction in
funding available to grantees, we believe
that these training and technical
assistance projects will increase the
efficiency of the program and provide
substantial benefits to both grantees and
the older individuals who are blind that
they serve.
To ensure that grantees receive the
maximum amount of funds available for
the provision of services to individuals,
we will initially provide funding for
training and technical assistance at the
minimum allowable level of 1. 8 percent.
Prior to this regulation, grantees have
been largely responsible for meeting the
training needs of their program staff.
This may have contributed to
duplicative training and technical
assistance efforts across grantees that
could have easily been coordinated
nationally. The coordination of these
SPIL required minimal time
approximately 15 minutes) every three
years upon submission of the SPIL;
therefore, any savings realized from this
change will be negligible.
Subpart E— How does the Secretary
award formula grants?
Under Subpart E, we have clarified
that OIB grantees are to inform the
Secretary 45 days prior to the end of the
fiscal year whether funds will be
available for reallotment. We do not
believe that this requirement will
generate additional costs to grantees, as
the change only provides a timeline for
an action that is already occurring and
does not, therefore, generate any new
burden on grantees.
Part 370— Client Assistance Program
WIOA requires that the set-aside for
training and technical assistance for
CAP take effect in any fiscal year in
which the appropriation equals or
exceeds$ 14, 000, 000. Section
112( e)( 1)( F) of the Act, as amended by
WIOA, requires the Secretary to reserve
not less than 1. 8 percent and not more
than 2. 2 percent of the CAP
appropriation for this purpose. In FY
2016, the appropriation for CAP is
13,000,000, and so the set-aside for$
efforts by RSA will generate efficiencies training and technical assistance would
across the entire program, thus not take effect. An increase of 7. 7
percent in the program' s appropriationproviding more benefits to grantees than
would be required before the set-asidethey would have realized if the funds
would become effective. Thus, the set-had been directly provided to them.
Based on the FY 2016 authorized aside will not have a substantial impact
appropriation of$ 33, 317,000 for the OIB on the activities of grantees for some
program under WIOA, the estimated set-time. Assuming the Department sets
aside is$ 599, 706, calculated from the aside a minimum of 1. 8 percent to
ensure that grantees receive the
Act. Therefore, if grantees were to maximum amount of funds available for
minimum percentage established by the
55581Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
the provision of services to individuals requirement to provide training and requirements that we do not believe this
when the appropriation reaches technical assistance was triggered in FY new requirement will represent a
14, 000, 000, the Department would be 1994, the Department has historically substantial burden on grantees.
required to reserve$ 252, 000 to provide funded the training and technical However, if we assume that obtaining
assistance at the 1. 8 percent level to this additional documentation will take,training and technical assistance
support to grantees. Additionally, as ensure that grantees receive the on average, 10 minutes per scholar, and
noted above in the discussion of costs maximum amount of funds available for using a wage rate of$ 17.69 (the mean
and benefits associated with Part 367, the provision of services to individuals. hourly wage for office and
we believe that the consolidation of Therefore, the revision to § 381. 20( a)( 1) administrative support staff at colleges,
training and technical assistance in these final regulations will have no universities, and professional schools)
activities at the national level will impact on PAIR grantees since the and the 1, 367 scholars receiving support
in FY 2014, we estimate this provisionultimately yield net benefits to grantees amendment was primarily technical in
greater than if those activities were will cost$ 4, 030. 37.nature.
coordinated locally. 386.34 (Assurances)Part 385— Rehabilitation Training
Part 371— American Indian Vocational Changes to this section requireWe do not anticipate any changes toRehabilitation Services Program this section resulting in increased grantees to annually obtain signed
New Subpart B of Part 371 executed agreements with scholarsburden or costs for grantees.
implements the WIOA amendment containing the terms and conditions Part 386—Rehabilitation Long-Term outlined in this section. It has been therequiring the Department to reserve
from 1. 8 to 2 percent of appropriated Department' s policy to encourageTraining
Except as detailed below, we do notfunds for training and technical annual updating of scholar information;
assistance to grantees. While this anticipate changes to this section to these regulations simply formalize this
reservation will result in a reduction in result in increased burden or costs for policy. As such, we estimate that these
changes to the regulation will have littlefunding available to grantees, we believe grantees.
actual impact on grantees or scholars.that these training and technical 386.31 (Funding Requirement)assistance projects will increase the However, if grantees were previously
Section 386. 31 requires that programefficiency of the program and provide only collecting these agreements once
grantees dedicate 65 percent tosubstantial benefits to both grantees and per scholar rather than every year that
scholarships rather than 75 percent asAmerican Indians with disabilities. support is received, there will be
Based on the FY 2016 amount set required by prior regulations. This additional costs. Of all scholars reported
aside by the Department from the State requirement will apply to both the in qualifying employment in FY 2014,
VR program for the AIVRS program federal award and the non-federal share. 88.4 percent received support for more
This change acknowledges the fact that than one year. If we assumed that thisapproximately$ 43, 000, 000), the
estimated reservation of funds for grantees incur costs in administering change required an additional half hour
these programs, particularly in terms of of time each year beyond the first year
774,000. As noted above, since these staff time needed to track scholar of support to update their information
training and technical assistance is
funds are being used to provide services progress in completing their program of with their program, and using an
and support to grantees, we do not study and their service obligation. This average wage rate of$ 17. 69, we estimate
decrease in the cost to grantees brought an additional cost of$ 10, 641 ( given thatanticipate any net loss of benefit.
However, if efficiencies are realized due about by changes in§ 386. 31 balances we estimate that 1, 203 of the 1, 367
to centralized coordination of these some of the increased costs created by scholars receiving support in FY 2014
changes made in other sections of the were multi-year scholars). Weactivities, grantees may experience a net
gain in benefits. regulations. In FY 2014, the Department emphasize that this is an overestimate,
made approximately$ 17, 075, 000 in as this change simply conforms the Part 373— Rehabilitation National new or continuation awards under the regulations to current practice.
Activities Program Rehabilitation Long-Term Training 386.40( Requirements for Scholars)We do not anticipate any changes to program. Assuming all grantees made §
this section resulting in increased the minimum match of 10 percent of the In§ 386. 40( a)( 7), we clarify the type of
burden or costs for grantees. project cost, the reduction in the employment a scholar must obtain to
complete the service obligation in orderscholarship requirement will free upPart 381– Protection and Advocacy for to ensure that the funds used forapproximately$ 1, 897, 000 in projectIndividual Rights Program scholarships will benefit individualsfunding to be used for activities other
As it had in prior regulations, with disabilities served through thethan scholarship support. While this
381. 20( a)( 1) requires the Secretary, does not represent any additional State vocational rehabilitation program
when the PAIR appropriation equals or and related agencies. This changefunding for grantees, it does represent
exceeds$ 5, 500,000, to set aside between additional flexibility provided by the largely reflects current policy and
1. 8 and 2. 2 percent of these funds for should not result in an increased burdenregulation.
on grantees or scholars. Changes to
386.33( Disbursing Scholarships)training and technical assistance. The
amendments made by WIOA simply § 386. 40( b) establishes a new policy
clarify that the funding mechanism for addressing when scholars may beginChanges to this section require
grantees to document that scholars willthe training and technical assistance qualifying employment while
may include a grant, contract, or seek employment in the field of study § 386. 40( c) affirms the longstanding
cooperative agreement, all of which had in which the scholar was provided RSA practice that scholars who pursued
coursework on a part-time basis shouldbeen available to the Secretary training or employment where it can be
previously. We amended § 381. 20( a)( 1) demonstrated that the field of study is have their service obligations calculated
to clarify explicitly the availability of directly relevant to the job functions on a full-time equivalent basis. As noted
above, 88. 4 percent of the scholarsthese funding mechanisms for training being performed. Currently, grantees
and technical assistance. Since the obtain sufficient documentation of other completing their service obligations in
55582 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
FY 2014 received support for more than
one year and would have been,
therefore, eligible to benefit from the
changes in§ 386.40(b). However,
because the changes in§ 386.40(b) do
not change the length of a scholar' s
service obligation and § 386. 40( c)
simply codifies existing RSA practice,
we do not estimate that these provisions
will result in any net costs or savings.
Finally, changes in§ 386. 40( d) make
scholars in repayment status responsible
for any collection costs if they do not
provide appropriate information to the
grantee in a timely manner but provide
that information after being placed in
repayment status. In FY 2014, the
Department referred 44 scholars for
repayment totaling$ 486, 471. Assuming
that collection costs total 3 percent of
the balance of the repayment, we
estimate total collection costs of
14, 594. However, we note that
collection costs, if the debts are referred
to third-party collection agencies, can
range as high as 30 percent.
Nonetheless, if 5 percent of this
repayment amount involved scholars
who were referred to repayment based
upon failing to provide the information
in paragraph( a)( 10) of this section and
these scholars became eligible for a
refund of any debts paid based upon the
scholars subsequently providing the
correct information, this additional
requirement could save the Department
729. 70 ( using the assumption of a 3
percent collection cost) by making these
scholars responsible for the collection
costs. If we assume a higher rate of
collection costs, the savings would be
higher.
386.41 ( Granting Deferrals and
Exceptions) and§ 386.42( Applyingfor
Deferrals and Exceptions)
Sections 386.41 and 386.42 contain
stricter regulations around exceptions
and deferrals, particularly for
individuals with disabilities, in order to
assure that individuals who benefit from
scholarships funded by this program are
more likely to complete their service
obligation. While these changes may
have impacts on the specific decisions
made by scholars, they will not have a
financial impact on the costs or benefits
for grantees, and will likely increase the
benefits to individuals with disabilities
served by State VR agencies and related
agencies by ensuring that training is
aligned with practice and that a greater
percentage of scholars complete their
service obligations rather than just
repaying the cost of their scholarships.
Part 387— Innovative Rehabilitation
Training Program
We do not anticipate any changes to
this section resulting in increased
burden or costs for grantees.
Part 390— Rehabilitation Short-Term
Training Program
Changes to § 390. 30 adds a selection
criterion that the Secretary will review
each application for evidence of training
needs as identified through training
needs assessments. While conducting a
training needs assessment prior to
application may result in increased
costs for applicants, because the
regulation simply adds this as one
selection criterion among several and
allows applicants to use needs
assessments conducted by other entities,
we do not anticipate that applicants will
realize any actual increased costs
associated with this provision.
Part 396— Training of Interpreters for
Individuals Who Are Deaf or Hard of
Hearing and Individuals Who Are Deaf-
Blind
Changes to § 396. 34 require grantees
to provide matching funds to support
projects in an amount determined by the
Secretary at the time of the grant award.
While this matching requirement did
not previously exist in the regulations,
it was a statutory requirement and,
while the Department did not require
grantees to document the match, we do
not believe that any prior grantees did
not contribute any funds to the project,
either in cash or in kind. As such, we
do not believe this provision will result
in any increased costs for grantees.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid OMB control number.
We display the valid OMB control
numbers assigned to the collections of
information in these final regulations at
the end of the affected sections of the
regulations.
Intergovernmental Review
These programs, except for the
American Indian Vocational
Rehabilitation Services Program, are
subject to Executive Order 12372 and
the regulations in 34 CFR part 79. One
of the objectives of the Executive order
is to foster an intergovernmental
partnership and a strengthened
federalism. The Executive order relies
on processes developed by State and
local governments for coordination and
review of proposed Federal financial
assistance.
This document provides early
notification of our specific plans and
actions for these programs.
Assessment of Educational Impact
In the NPRM we requested comments
on whether the proposed regulations
would require transmission of
orinformationuthoryf that any otheragency
erauthority of the United States gathers or
makes available. We received no
comments, and we do not believe that
these final regulations would require
transmission of this sort of information.
Federalism
Executive Order 13132 requires us to
ensure meaningful and timely input by
State and local elected officials in the
development of regulatory policies that
have federalism implications.
" Federalism implications" means
substantial direct effects on the States,
on the relationshipbetween the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. In the NPRM, we
stated that the proposed regulations may
have federalism implications and
encouraged State and local elected
officials to review and provide
comments on the proposed regulations.
We received no comments on this
subject.
Accessible Format: Individuals with
disabilities can obtain this document in
an accessible format( e.g., braille, large
print, audiotape, or compact disc) on
request to the person listed under FOR
FURTHER INFORMATION CONTACT.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format( PDF). To use PDF you must
have Adobe Acrobat Reader, which is
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You may also access documents of the
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feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.p
Catalog of Federal Domestic Assistance
Numbers: 84. 240A Protection and Advocacy
of Individual Rights; 84. 161A Client
Assistance Program; 84. 177B Independent
Living Services for Older Individuals Who
55583Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Are Blind; 84. 250J American Indian 34 CFR Part 387
Vocational Rehabilitation Services; 84. 128G
Vocational Rehabilitation Service Projects for Grant programs-education, Reporting
and recordkeeping requirements,Migratory Agricultural Workers and SeasonalP g q
Farmworkers with Disabilities Program;g
84. 234 Projects With Industry; 84. 128J
Recreational Programs; and 84. 265 State
Vocational Rehabilitation Services Unit In
Service Training)
List of Subjects
34 CFR Part 367
Aged, Blind, Grant programs-
education, Grant programs-social
programs, Reporting and recordkeeping
requirements, Vocational rehabilitation
34 CFR Part 369
Grant programs-social programs,
Reporting and recordkeeping
requirements, Vocational rehabilitation
34 CFR Part 370
Administrative practice and
procedure, Grantprograms-social
programs, Reporting and recordkeeping
requirements, Vocational rehabilitation
34 CFR Part 371
Grant programs Indians, Grant
programs-social programs, Indians,
Vocational rehabilitation
34 CFR Part 373
Grant programs-education, Vocational
Vocational rehabilitation
34 CFR Part 388
Grant programs-education, Reporting
and recordkeeping requirements,
Vocational rehabilitation
34 CFR Part 389
Grant programs-education, Reporting
and recordkeeping requirements,
Vocational rehabilitation
34 CFR Part 390
Grant programs-education, Reporting
and recordkeeping requirements,
Vocational rehabilitation
34 CFR Part 396
Education of individuals with
disabilities, Grant programs-education,
Individuals with disabilities, Reporting
and recordkeeping requirements
Dated: June 30, 2016.
John B. King, Jr.,
Secretary ofEducation.
For the reasons discussed in the
preamble, under the authority of section
503( f) of the Workforce Innovation and
Opportunity Act( WIOA) (Pub. L. 113-
128) and section 12( c) of the
Rehabilitation Act of 1973, as amended
by WIOA (29 U.S.C. 709( c)), the
rehabilitationSecretary of Education amends chapter
34 CFR Part 376
Grant programs social programs,
Reporting and recordkeeping
requirements, Vocational rehabilitation,
Youth
34 CFR Part 377
Grant programs-social programs,
Reporting and recordkeeping
requirements, Vocational rehabilitation
34 CFR Part 379
Business and industry, Grant
programs-social programs, Reporting
and recordkeeping requirements,
Vocational rehabilitation
34 CFR Part 381
Grant programs-social programs,
Reporting and recordkeeping
requirements, Vocational rehabilitation
34 CFR Part 385
Grant programs-education, Reporting
and recordkeeping requirements,
Vocational rehabilitation
34 CFR Part 386
Grant programs-education, Reporting
and recordkeeping requirements,
Vocational rehabilitation
III of title 34 of the Code of Federal
Regulations as follows:
1. Part 367 is revised to read as
follows:
PART 367-INDEPENDENT LIVING
SERVICES FOR OLDER INDIVIDUALS
WHO ARE BLIND
Subpart A-General
Sec.
367. 1 What is the independent living
services for older individuals who are
blind program?
367. 2 Who is eligible for an award?
367. 3 What activities may the Secretary
fund?
367. 4 What regulations apply?
367. 5 What definitions apply?
Subpart B-Training and Technical
Assistance
367. 20 What are the requirements for
funding training and technical assistance
under this chapter?
367. 21 How does the Secretary use these
funds to provide training and technical
assistance?
367. 22 How does the Secretary make an
award?
367. 23 How does the Secretary determine
funding priorities?
367. 24 How does the Secretary evaluate an
application?
Subpart C-What are the application
requirements under this Part?
367. 30 How does a designated State agency
DSA) apply for an award?
367. 31 What assurances must a DSA
include in its application?
Subpart D-How does the Secretary award
discretionary grants?
367.40 Under what circumstances does the
Secretary award discretionary grants to
States?
367.41 How does the Secretary evaluate an
application for a discretionary grant?
Subpart E-How does the Secretary award
formula grants?
367. 50 Tinder what circumstances does the
Secretary award formula grants to States?
367. 51 How are allotments made?
367. 52 How does the Secretary reallot funds
under this program?
Subpart F-What conditions must be met
after an award?
367. 60 When may a DSA make subawards
or contracts?
367. 61 What matching requirements apply?
367. 62 What requirements apply if the
State' s non-Federal share is in cash?
367. 63 What requirements apply if the
State' s non-Federal share is in kind?
367. 64 What is the prohibition against a
State' s condition of an award of a sub-
award or contract based on cash or in-
kind contributions?
367. 65 What is program income and how
may it be used?
367. 66 What requirements apply to the
obligation of Federal funds and program
me?
367. 67 MayMay an individual' s ability to pay be
considered in determining his or her
participation in the costs of OIB
services?
367. 68 What notice must be given about the
Client Assistance Program( CAP)?
367. 69 What are the special requirements
pertaining to the protection, use, and
release of personal information?
367. 70 What access to records must be
provided?
367. 71 What records must be maintained?
Authority: Sections 751- 753 of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 796j 7961, unless otherwise noted.
Subpart A-General
367.1 What is the Independent Living
Services for Older Individuals Who Are
Blind program?
This program supports projects that-
a) Provide any of the independent(livingIL services to older individuals
who are blind that are described in
367. 3( b);§
b) Conduct activities that will
improve or expand services for these
individuals; and
c) Conduct activities to help improve
public understanding of the challenges
of these individuals.
rs
to
55584 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Authority: Section 752 of the Rehabilitation ( Authority: Section 752( d) and( e) of the ii) Be on behalf of—
Act of 1973, as amended; 29 U. S. C. 796k(a) Rehabilitation Act of 1973, as amended; 29 A) A single individual, in which case
and( d)) U. S. C. 796k( d) and( e)) it is individual advocacy;
367.2 Who is eligible for an award?
Anydesignated State agency( DSA) is
eligible for an award under this program
if the DSA—
a) Is authorized to provide
rehabilitation services to individuals
who are blind; and
b) Submits to and obtains approval
from the Secretary of an application that
meets the requirements of section 752 hq
of the Act and§§ 367. 30-367. 31.
Authority: Section 752( a)( 2) and 752( h) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 796k(a)( 2) and( h))
367.3 What activities may the Secretary
fund?
a) The DSA may use funds awarded
under this part for the activities
described in§ 367. 1 and paragraph( b)
of this section.
b) For purposes of§ 367. 1( a), IL
services for older individuals who are
blind include—
1) Services to help correct blindness,
such as—
i) Outreach services;
ii) Visual screening;
iii) Surgical or therapeutic treatment
to prevent, correct, or modify disabling
eye conditions; and
iv) Hospitalization related to these
services;
2) The provision of eyeglasses and
other visual aids;
3) The provision of services and
equipment to assist an older individual
who is blind to become more mobile
and more self-sufficient;
4) Mobility training, Braille
instruction, and other services and
equipment to help an older individual
who is blind adjust to blindness;
5) Guide services, reader services,
and transportation;
6) Any other appropriate service
designed to assist an older individual
who is blind in coping with daily living
activities, including supportive services
and rehabilitation teaching services;
7) IL skills training, information and
referral services, peer counseling,
individual advocacy training,
facilitating the transition from nursing
homes and other institutions to home
and community-based residences with
the requisite supports and services, and
providing assistance to older
individuals who are blind who are at
risk of entering institutions so that the
individuals may remain in the
community; and
8) Other IL services, as defined in
367. 5.
367.4 What regulations apply?
The followingregulations applyto the
Independent Living Services for Older
Individuals Who Are Blind program:
a) The Education Department General
Administrative Regulations (EDGAR) as
follows:
1) 34 CFR part 75 ( Direct Grant
Programs), with respect to grants under
subpart B and D.
2) 34 CFR part 76 ( State-
Administered Programs), with respect to
grants under subpart E.
3) 34 CFR part 77 ( Definitions That
Apply to Department Regulations).
( 4) 34 CFR part 79 ( Intergovernmental
Review of Department of Education
Programs and Activities).
5) 34 CFR part 81 ( General Education
Provisions Act—Enforcement).
6) 34 CFR part 82 ( New Restrictions
on Lobbying).
7) 2 CFR part 180 ( OMB Guidelines
to Agencies on Debarment and
Suspension( Nonprocurement)), as
adopted at 2 CFR part 3485.
8) 2 CFR part 200 ( Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards), as adopted at 2 CFR
part 3474.
b) The regulations in this part 367.
Authority: Sections 12( c) and 752 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 796k)
367.5 What definitions apply?
( a) The definitions of terms used in
this part that are included in the
regulations identified in§ 367. 4 as
applying to this program.
b) In addition, the following
definitions also apply to this part:
1) Act means the Rehabilitation Act,
as amended by WIOA.
2) Advocacy means pleading an
individual' s cause or speaking or
writing in support of an individual. To
the extent permitted by State law or the
rules of the agency before which an
individual is appearing, a non-lawyer
may engage in advocacy on behalf of (
another individual. Advocacy may—
i) Involve representing an
individual—
A) Before private entities or
organizations, government agencies
( whether State, local, or Federal), or in
a court of law( whether State or
Federal); or
B) In negotiations or mediation, in
formal or informal administrative
proceedings before government agencies
( whether State, local, or Federal), or in
legal proceedings in a court of law; and
B) A group or class of individuals, in
which caseit is systems (or systemic)
advocacy; or
C) Oneself, in which case it is self
advocacy.( 3) Attendant care means a personal
assistance service provided to an
individual with significant disabilities
in performing a variety of tasks required
to meet essential personal needs in areas
such as bathing, communicating,
cooking, dressing, eating, homemaking,
toileting, and transportation.p
4) Contract means a legal instrument
by which RSA in subpart B or the DSA
receiving a grant under this part
oservice needed
the program under this Part.
The term as used in this part does not
include a legal instrument, even if RSA
or the DSA considers it a contract, when
the substance of the transaction meets
the definition of a Federal award or
topurchasesarrycarry outpropertyhe
subaward.
Authority: 20 U. S. C. 1221e-3)
5) Designated State Agency means
the agency described in section
101( a)( 2)( A)(i) of the Rehabilitation Act
as the sole State agency authorized to
provide rehabilitation services to
individuals who are blind and
administer the OIB grant.
6) Independent living services for
older individuals who are blind means
those services listed in§ 367. 3( b).
7) Legally authorized advocate or
representative means an individual who
is authorized under State law to act or
advocate on behalf of another
individual. Under certain
circumstances, State law permits only
an attorney, legal guardian, or
individual with a power of attorney to
act or advocate on behalf of another
individual. In other circumstances, State
law may permit other individuals to act
or advocate on behalf of another
individual.
( 8) Minority group means Alaska
Natives, American Indians, Asians,
Blacks (African Americans), Hispanics
Latinos), Native Hawaiians, and Pacific
Islanders.
9) Older individual who is blind
means an individual age fifty-five or
older whose severe visual impairment
makes competitive employment
extremely difficult to obtain but for
whom IL goals are feasible.
10) Other IL services include:
i) Counseling services, including
psychological, psychotherapeutic, and
related services;
( ii) Services related to securing
housing or shelter, including services
55585Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
related to community group living, that significant disabilities who are actively enable an older individual who is blind
are supportive of the purposes of the to benefit from another IL service andpursuing IL goals.
Act, and adaptive housing services, 12) Peer role models means travel and related expenses for an
individuals with significant disabilities attendant or aide if the services of thatincluding appropriate accommodations
whose achievements can serve as ato and modifications of any space used attendant or aide are necessary to enable
positive example for other older an older individual who is blind toto serve, or to be occupied by, older
individuals who are blind; individuals who are blind. benefit from that IL service.
iii) Rehabilitation technology; 13) Personal assistance services 20) Unserved and underserved
iv) Services and training for older means a range of IL services, provided groups or populations, with respect to
individuals who are blind who also groups or populations of olderby one or more persons, designed to
individuals who are blind in a State,have cognitive and sensory disabilities, assist an older individual who is blind
include, but are not limited to, groupsincluding life skills training and to perform daily living activities on or
interpreter services; off the job that the individual would or populations of older individuals who
v) Personal assistance services, are blind who—typically perform if the individual was
including attendant care and the not blind. These IL services must be i) Have cognitive and sensory
impairments;training of personnel providing these designed to increase the individual' s
ii) Are members of racial and ethnicservices; control in life and ability to perform
vi) Surveys, directories, and other minority groups;everyday activities on or off the job. iii) Live in rural areas; or(activities to identify appropriate 14) Service provider means— iv) Have been identified by the DSAhousing, recreation opportunities, and i) The DSA that directly provides as unserved or underserved.accessible transportation, and other services authorized under§ 367. 3; or
support services; ii) Any other entity that receives a ( Authority: Unless otherwise noted, Section
vii) Consumer information programs 7 of the Rehabilitation Act of 1973, assubaward or contract from the DSA to amended; 29 U. S. C. 705)on rehabilitation and IL services provide services authorized under
available under the Act, especially for § 367. 3. Subpart B— Training and Technicalminorities and other older individuals 15) Significant disability means a Assistance who are blind who have traditionally severe physical, mental, cognitive, or
367.20 What are the requirements forbeen unserved or underserved by sensory impairment that substantially §
programs under the Act; limits an individual' s ability to function funding training and technical assistance
under this chapter?viii) Education and training independently in the family or
necessary for living in a community and community or to obtain, maintain, or For any fiscal year, beginning with
participating in community activities; advance in employment. fiscal year 2015, the Secretary shall first
ix) Supported living; 16) State means, except where reserve not less than 1. 8 percent and not
x) Transportation, including referral otherwise specified in the Act, in more than 2 percent of funds
and assistance for transportation; appropriated and made available toaddition to each of the several States of
xi) Physical rehabilitation; the United States, the District of carry out this chapter to providexii) Therapeutic treatment; Columbia, the Commonwealth of Puerto training and technical assistance to xiii) Provision of needed prostheses Rico, the United States Virgin Islands, DSAs, or other providers of independent
and other appliances and devices; Guam, American Samoa, and the living services for older individuals who xiv) Individual and group social and Commonwealth of the Northern Mariana are blind, that are funded under this
recreational services; Islands. chapter for such fiscal year. xv) Services under other Federal, 17) subaward means arant or ag Authority: Section 751A(a) of the
cooperative agreement provided by the Rehabilitation Act of 1973, as amended; 29 provide resources, training, counseling,
State, or local programs designed to
DSA to a subrecipient for the U.S. C. 796j 1( a))or other assistance of substantial benefit subrecipient to carry out part of thein enhancing the independence, 367.21 How does the Secretary use theseFederal award received by the DSAproductivity, and quality of life of older funds to provide training and technicalunder this part. It does not include assistance?individuals who are blind; payments to a contractor or payments to (xvi) Appropriate preventive services a) The Secretary uses these funds to an individual that is a beneficiary of ato decrease the need of older provide training and technical program funded under this part. A individuals who are blind who are assistance, either directly or throughsubaward may provided through anyassisted under the Act for similar grants, contracts, or cooperative form of legal agreement, including anservices in the future; agreements with State and public or agreement that the DSA considers a non-profit agencies and organizationsxvii) Community awareness contract. and institutions of higher education thatprograms to enhance the understanding
and integration into society of older Authority: 20 U.S. C. 1221e-3) have the capacity to provide technical
individuals who are blind; and 18) Subrecipient means a non-assistance and training in the provision
xviii) Any other services that may be of independent living services for olderFederal entity that receives a subaward necessary to improve the ability of an individuals who are blind.from the DSA to carry out part of the older individual who is blind to program funded under this part; but b) An entity receiving assistance in
accordance with paragraph( a) of thisfunction, continue functioning, or move does not include an individual that is a
toward functioning independently in section shall provide training andbeneficiary of such program. A technical assistance to DSAs or otherthe family or community or to continue subrecipient may also be a recipient of in employment and that are not service providers to assist them inother Federal awards directly from a inconsistent with any other provisions improving the operation andFederal awarding agency.of the Act. performance of programs and services
Authority: 20 U.S. C. 1221e 3)11) Peer relationships mean for older individuals who are blind
19) Transportation means travel andrelationships involving mutual support ( resulting in their enhanced
and assistance among individuals with related expenses that are necessary to independence and self-sufficiency.
55586 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Authority: Section 751A(a) and( c) of the assistance under this program at the d) The DSA will—
Rehabilitation Act of 1973, as amended; 29 time, in the form and manner, and 1) Provide services that contribute to
U.S. C. 796j-1( a) and( c)) the maintenance of, or the increasedcontaining the agreements, assurances,
independence of, older individuals whoand information, that the Secretary367.22 How does the Secretary make an are blind; andaward? determines to be necessary to carry out
2) Engage in—this program.a) To be eligible to receive a grant or i) Capacity-building activities,enter into a contract or cooperative Approved by the Office of Management and including collaboration with otherBudget under control number 1820-0660)
agencies and organizations;agreement under section 751A of the
Act and this subpart, an applicant shallp pp Authority: Sections 752( h) and( i)(4) of the ( ii) Activities to promote communitysubmit an application to the Secretary Rehabilitation Act of 1973, as amended; 29 awareness, involvement, and assistance;
U. S. C. 796k(h) and( i))containing a proposal to provide and
training and technical assistance to iii) Outreach efforts; and367.31 What assurances must a DSA of IL § e) The applicant has been designatedDSAs or other service providersinclude in its application? services to older individuals who are by the State as the sole State agencyAn application for a grant underblind and any additional information at authorized to provide rehabilitation section 752( h) or a reallotment grantthe time and in the manner that the services to individuals who are blind. under section 752( i)(4) of the Act mustSecretary may require. contain an assurance that— Approved by the Office of Management and b) The Secretary shall provide for t under control numbers 1820- 0660a) Grant funds will be expended onlypeer review of applications by panels Bdg de0c)for the purposes described in § 367. 1;that include persons who are not b) With respect to the costs of the Authority: Section 752( h) of theFederal or State government employees ( Rehabilitation Act of 1973, as amended; 29gprogramto be carried out by the Stateand who have experience in the U.S. C. 796k(h))pursuant to this part, the State will provision of services to older make available, directly or throughindividuals who are blind. Subpart D— How does the Secretarydonations from public or private award discretionary grants?Authority: Section 751A(a) and( c) of the entities, non-Federal contributions
Rehabilitation Act of 1973, as amended; 29 toward these costs in an amount that is § 367.40 Under what circumstances does
U. S. C. 796j-1( a) and( c)) not less than$ 1 for each$ 9 of Federal the Secretary award discretionary grants to
funds provided in the grant; States?367.23 How does the Secretary c) At the end of each fiscal year, the ( a) In the case of a fiscal year fordetermine funding priorities?
DSA will prepare and submit to the which the amount appropriated underThe Secretary shall conduct a survey
of DSAs that receive grants under Secretary a report, with respect to each section 753 of the Act is less than
project or program the DSA operates or $ 13,000,000, the Secretary awardssection 752 regarding training and administers under this part, whethertechnical assistance needs in order to discretionary grants under this part on
directly or through a grant or contract, a competitive basis to States ininform funding priorities for such that contains information that the accordance with section 752( b) of thetraining and technical assistance. Secretary determines necessary for the Act and EDGAR regulations at 34 CFR
Authority: Section 751A(b) of the proper and efficient administration of part 75 ( Direct Grant Programs).Rehabilitation Act of 1973, as amended; 29 this program, including— b) The Secretary awardsU. S. C. 796j 1( b)) 1) The number and demographics of noncompetitive continuation grants for
older individuals who are blind,367.24 How does the Secretary evaluate a multi-year project to pay for the costs
an application? including older individuals who are of activities for which a grant was
a) The Secretary evaluates each blind from minority backgrounds, and awarded under this part—as long as the
application for a grant, cooperative are receiving services; grantee satisfies the applicable
2) The types of services provided andagreement or contract under this subpart ( requirements in this part, the terms of
on the basis of the selection criteria the number of older individuals who are the grant, and 34 CFR 75. 250 through
chosen from the general selection blind and are receiving each type of 75. 253 ( Approval of Multi-year
criteria found in EDGAR regulations at Projects).service;
3) The sources and amounts of c) Subparts A, C, D, and F of this part34 CFR 75. 210.
b) If using a contract to award funds funding for the operation of each project govern the award of competitive grants
or program; under this part.under this subpart, the Secretary may 4) The amounts and percentages of (conduct the application process and Authority: Section 752( b) of the resources committed to each type ofmake the subsequent award in Rehabilitation Act of 1973, as amended; 29
accordance with 34 CFR part 75. U.S. C. 796k(b); 20 U. S. C. 1221e-3 and 3474)service provided;
5) Data on actions taken to employ,Authority: Section 751A of the and advance in employment, 367.41 How does the Secretary evaluate
Rehabilitation Act of 1973, as amended; 29
qualified-an application for a discretionary grant?
U. S. C. 796j-1( b), 20 U. S. C. 1221e-3, and i) Individuals with significant a) The Secretary evaluates an3474) disabilities; and application for a discretionary grant
ii) Older individuals with significant based on the selection criteria chosen
disabilities who are blind; from the general selection criteria found
Subpart C— What Are the Application
Requirements Under This Part?
6) A comparison, if appropriate, of in EDGAR regulations at 34 CFR 75. 210.
367.30 How does a designated State prior year activities with the activities of ( b) In addition to the selection
agency( DSA) apply for an award? the most recent year; and criteria, the Secretary considers the
To receive a grant under section geographic distribution of projects in7) Any new methods and approaches
752( h) or a reallotment grant under relating to IL services for older making an award.
section 752( i)(4) of the Act, a DSA must individuals who are blind that are Authority: Section 752( b) of the submit to and obtain approval from the developed by projects funded under this Rehabilitation Act of 1973, as amended; 29
Secretary of an application for part; U.S. C. 796k(b); 20 U. S. C. 1221e-3 and 3474)
the
55587Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
section 752( c) of the Act and this deposited in the account of the DSA inSubpart E— How Does the Secretary
Award Formula Grants? subpart. accordance with State law for
c) A reallotment grant to a State expenditure by, and at the sole 367.50 Under what circumstances does under paragraph (a) of this section is discretion of, the DSA for activities
the Seretary award formula grants to subject to the same conditions as grants authorized by§ 367. 3; orStates? made under section 752( a) of the Act 3) The expenditures are made with
a) In the case of a fiscal year for and this part. cash contributions from a donor that are
which the amount appropriated under d) Any funds made available to a earmarked for meeting the State' s share section 753 of the Act is equal to or State for any fiscal year pursuant to this for activities listed in§ 367. 3;
greater than$ 13, 000, 000, grants under section are regarded as an increase in b) Cash contributions are permissible
this part are made to States from the allotment of the State under§ 367. 51 under paragraph( a)( 3) of this section
allotments under section 752( c)( 2) of the for that fiscal year only. only if the cash contributions are not Act. e) A State that does not intend to used for expenditures that benefit or
b) Subparts A, C, E, and F of this part expend the full amount of its allotment will benefit in any way the donor, an govern the award of formula grants must notify RSA at least 45 days prior individual to whom the donor is related
under this part. to the end of the fiscal year that its by blood or marriage or with whom the grant, or a portion of it, is available forAuthority: Section 752( c) of the donor has a close personal relationship,
reallotment.Rehabilitation Act of 1973, as amended; 29 or an individual, entity, or organizationU. S. C. 796k(c)) with whom the donor shares a financial
Budget under control number 1820-0660) interest.
Approved by the Office of Management and
367.51 How are allotments made?
c) The receipt of a subaward orAuthority: Section 752( i)(4) of thea) For purposes of making grants Rehabilitation Act of 1973, as amended; 29 contract under section 752( g) of the Actunder section 752( c) of the Act and this U. S. C. 796k(i)(4)) from the DSA is not considered a benefit subpart, the Secretary makes an to the donor of a cash contribution for allotment to each State in an amount Subpart F— What Conditions Must Be purposes of paragraph( b) of this section determined in accordance with section Met After an Award? if the subaward or contract was awarded 752( i) of the Act. under the State' s regular competitive367.60 When may a DSA makeb) The Secretary makes a grant to a §
subawards or contracts? procedures. The State may not exemptDSA in the amount of the allotment to the awarding of the subaward orthe State under section 752( i) of the Act A DSA may operate or administer the contract from its regular competitiveprogram or projects under this part to
procedures.
if the DSA submits to and obtains
approval from the Secretary of an carry out the purposes specified in d) For purposes of this section, a application for assistance under this 367. 1, either directly or through—
a) Subawards to public or private donor may be a private agency, a profit-program that meets the requirements of (
nonprofit agencies or organizations; or making or nonprofit organization, or ansection 752( h) of the Act and§§ 367. 30 individual.b) Contracts with individuals,and 367. 31.
entities, or organizations that are not ( Authority: Section 752( f) of theApproved by the Office of Management and public or private nonprofit agencies or Rehabilitation Act of 1973, as amended; 29 Budget under control number 1820- 0660)
organizations. U.S. C. 796k(f))
Authority: Section 752( c)( 2) of the h) of theAuthority: Sections 752( g)g (Rehabilitation Act of 1973, as amended; 29 What requirements apply if the Rehabilitation Act of 1973, as amended; 29 State' s non-Federal share is in kind?U. S. C. 796k(c)( 2)) U. S. C. 796k(g) and( h)( 2)( A)) In-kind contributions may be— 367.52 How does the Secretary reallot § 367.61 What matching requirements a) Used to meet the matchingfunds under this program?
apply? requirement under section 752( f) of the
a) From the amounts specified in Non-Federal contributions required Act if the in-kind contributions meet the
paragraph( b) of this section, the requirements and are allowable under 2by§ 367. 31( b) must meet the Secretary may make reallotment grants requirements in 2 CFR 200. 306 ( Cost CFR 200. 306; and
to States, as determined by the sharing or matching). b) Made to the program or project bySecretary, whose population of older the State or by a third party( i.e., an individuals who are blind has a Authority: Section 752( f) of the
Rehabilitation Act of 1973, individual, entity, or organization,as amended; 29gneed for the U. S. C. 796k(f)) whether local, public, private, for profit,
specified df the Actsubstantialisectionservices752(or nonprofit), including a third partyand§ 367. 3( b), relative to the 367.62 What requirements apply if the that is a subrecipient or contractor that
populations in other States of older State' s non-Federal share is in cash? is receiving or will receive assistance individuals who are blind. a) Expenditures that meet the non-under section 752( g) of the b) The amounts referred to in Federal share requirements of 2 CFR Rehabilitation Act.
paragraph( a) of this section are any 200. 306 may be used to meet the non (
amounts that are not paid to States Authority: Section 752( f)and( g) of theFederal share matching requirement. Rehabilitation Act of 1973, as amended; 29 under section 752( c)( 2) of the Act and Expenditures used as non-Federal share U.S. C. 796k(f) and( g))367. 51 as a result of— must also meet the following
1) The failure of a DSA to prepare, requirements: 367.64 What is the prohibition against a
submit, and receive approval of an 1) The expenditures are made with State' s condition of an award of a sub-
application under section 752(h) of the award or contract based on cash or in-kindfunds made available by appropriation
contributions?Act and in accordance with§§ 367. 30 directly to the DSA or with funds made
and 367. 31; or available by allotment or transfer from a) A State may not condition the
2) Information received by the any other unit of State or local making of a subaward or contract under
Secretary from the DSA that the DSA section 752( g) of the Act on thegovernment;
does not intend to expend the full 2) The expenditures are made with requirement that the applicant for the
amount of the State' s allotment under cash contributions from a donor that are subaward or contract make a cash or in-
55588 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
kind contribution of any particular year in which the program income was ( 3) Ensure costs are charged uniformly
amount or value to the State. received, remain available for obligation so that all individuals are treated
b) An individual, entity, or and expenditure by the DSA during that equally;
organization that is a subrecipient or 4) Ensure that if costs are charged orsucceeding fiscal year.
b) Federal funds appropriated for a financial need is considered, thecontractor of the State, may not
condition the award of a subcontract on fiscal year under this part remain consumer' s required participation is not
the requirement that the applicant for available for obligation in the so high that it effectively denies the
the subcontract make a cash or in-kind succeeding fiscal year only to the extent individual a necessary service;
5) Require documentation of ancontribution of any particular amount or that the DSA complied with its
value to the State or to the subrecipient matching requirement by obligating, in individual' s participation in the cost of
accordance with 34 CFR 76. 707, theor contractor of the State. any IL services provided, including the
non-Federal share in the fiscal year for determination of an individual' sAuthority: Section 752( f)and( g) of the which the funds were appropriated. financial need; andRehabilitation Act of 1973, as amended; 29
c) Program income is considered 6) Provide that individuals who haveU. S. C. 796k(f) and( g)) earned in the fiscal year in which it is been determined eligible for Social
367.65 What is program income and how received. Program income earned during Security benefits under Titles II and XVI may it be used? the fiscal year must be disbursed during of the Social Security Act may not be
a) Definition—Program income the time in which new obligations may charged any cost to receive IL services
means gross income earned by the be incurred to carry out the work under this program.
grantee, subrecipient, or contractor that authorized under the award, and prior c) Policies on consumer financial
is directly generated by a supported to requesting additional cash payments. participation. If a State permits other
activity or earned as a result of the service providers to charge the costs ofAuthority: Section 12( c) of the grant, subaward, or contract. IL services provided under theRehabilitation Act of 1973, as amended; 29
1) Program income received through U. S. C. 709( c)) Independent Living Services for Older
the transfer of Social Security Individuals Who Are Blind program, or
Administration program income from § 367.67 May an individual' s ability to pay chooses to allow other service providers
the State Vocational Rehabilitation be considered in determining his or her to consider the ability of individualparticipation in the costs of OIB services?Services program (Title I) in accordance consumers to contribute to the cost of IL
with 34 CFR 361. 63( c)( 2) will be treated ( a) Participation of individuals in cost services provided through the
as program income received under this of services. ( 1) A State is neither Independent Living Services for Olderrequired to charge nor prohibited frompart. Individuals Who Are Blind program, the
2) Payments received by the State charging consumers for the cost of IL State must require that such service
services provided under the agency, subrecipients, or contractors providers comply with the State' s from insurers, consumers, or other for IL Independent Living Services for Older written policies regarding consumer
services provided under the Individuals Who Are Blind program; financial participation in the cost of IL 2) If a State charges consumers orIndependent Living Services for Older services.
allows other service providers to chargeIndividuals Who Are Blind program to
for the cost of IL services provided Authority: Section 12( c) of thedefray part or all of the costs of services Rehabilitation Act of 1973, as amended; 29under the Independent LivingServicesprovided to individual consumers will p en
U.S. C. 709( c)).for Older Individuals Who Are Blindbe treated as program income received
under this part. program, a State is neither required to § 367.68 What notice must be given about
nor prohibited from considering the the Client Assistance Program( CAP)?b) Use ofprogram income. (1)
Program income, whenever earned, ability of individual consumers to pay The DSA and all other service
must be used for the provision of providers under this part shall usefor the cost of these services in
services authorized under§ 367. 3. determining how much a particular formats that are accessible to notify
2) Program income must be added to consumer must contribute to the costs of individuals seeking or receiving services
the Federal Award in accordance with a particular service. under this part about-
2 CFR 200. 307( e)( 2). b) State policies on cost of services. a) The availability of CAP authorized If a State chooses to charge or allow3) Program income may not be used by section 112 of the Act;
to meet the non-Federal share b) The purposes of the servicesother service providers to charge
requirement under§ 367. 31( b). consumers for the cost of IL services provided under the CAP; and
provided under the Independent Living ( c) How to contact the CAP.Authority: Section 12( c) of the Services for Older Individuals Who Are Rehabilitation Act of 1973, as amended; 29 Authority: Section 20 of the RehabilitationBlind program and if a State chooses to (U. S. C. 709( c)) p g Act of 1973, as amended; 29 U. S. C. 717)
consider and allow other service
367.66 What requirements apply to the providers to consider the ability of 367.69 What are the special
obligation of Federal funds and program requirements pertaining to the protection,individual consumers to pay for the cost income? use, and release of personal information?of IL services provided under the
a) Except as provided in paragraph a) General provisions. The DSA andIndependent Living Services for Older
b) of this section, any Federal funds, Individual Who Are Blind program, the all other service providers under this
including reallotted funds, that are State must maintain policies that— part shall adopt and implement policies
appropriated for a fiscal year to carry 1) Specify the type of IL services for and procedures to safeguard the
out a program under this part that are which costs may be charged and the confidentiality of all personal
not obligated or expended by the DSA type of IL services for which a financial information, including photographs and
prior to the beginning of the succeeding need test may be applied; lists of names. These policies and
fiscal year, and any program income 2) Explain the method for procedures must assure that—
received during a fiscal year that is not determining the amount charged for the ( 1) Specific safeguards protect current
obligated or expended by the DSA prior IL services and how any financial need and stored personal information,
to the beginning of the succeeding fiscal test will be applied; including a requirement that data only
55589Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
be released when governed by a written services under this part or the
agreement between the DSA and other administration of the program under
which services are provided under thisservice providers and the receiving
entity under paragraphs (d) and( e)( 1) of part. In the provision of services under
this section, which addresses the this part or the administration of the
requirements in this section; program under which services are
2) All applicants for, or recipients of, provided under this part, the service
services under this part and, as provider may obtain personal
appropriate, those individuals' legally information from other service
authorized representatives, service providers and cooperating agencies
providers, cooperating agencies, and under assurances that the information
interested persons are informed of the may not be further divulged, except as
confidentiality of personal information provided under paragraphs (c), ( d), and
and the conditions for gaining access to ( e) of this section.
and releasing this information; c) Release to recipients of services 3) All applicants or their legally under this part. (1) Except as provided
authorized representatives are informed in paragraphs (c)( 2) and( 3) of this
about the service provider' s need to section, if requested in writing by a collect personal information and the recipient of services under this part, the
policies governing its use, including— service provider shall release all
i) Identification of the authority information in that individual' s record
under which information is collected; of services to the individual or the
ii) Explanation of the principal individual' s legally authorized purposes for which the service provider representative in a timely manner. intends to use or release the 2) Medical, psychological, or other
information; information that the service provider iii) Explanation of whether providing determines may be harmful to therequested information to the service individual may not be released directlyprovider is mandatory or voluntary and to the individual, but must be providedthe effects to the individual of not through a qualified medical or
providing requested information; psychological professional or the iv) Identification of those situations individual' s legally authorized in which the service provider requiresq representative. or does not require informed written 3) If personal information has been consent of the individual or his or her obtained from another agency orlegally authorized representative before organization, it may released only by,information may be released; and
g or under the conditions established by,
the other agency or organization.
v) Identification of other agencies to
which information is routinely released; d) Release for audit, evaluation, and4) Persons who do not speak, listen, (
research. Personal information may beread, or write English proficiently or released to an organization, agency, or (who rely on alternative modes of individual engaged in audit, evaluation,communication must be provided an
orresearch activitiesonlyfor pur oses explanation of service provider policiesp
directy connected with theand procedures affecting personal administration of a program under thisinformation through methods that can
part, or for purposes that wouldbe meaningfully understood by them;
5) At least the same protections are significantly improve the quality of life
for individuals served under this partprovided to individuals served under
and only if,in accordance with athis part as provided by State laws and written agreement, the organization,regulations; and
6) Access to records is governed by agency, or individual assures that—
rules established by the service provider ( 1) The information will be used only
and any fees charged for copies of for the purposes for which it is being
provided;records are reasonable and cover only
2) The information will be releasedextraordinary costs of duplication or
making extensive searches. only to persons officially connected
b) Service provider use. All personal with the audit, evaluation, or research;
information in the possession of the 3) The information will not be
released to the involved individual;service provider may be used only for
4) The information will be managedthe purposes directly connected with
the provision of services under this part in a manner to safeguard confidentiality;
and the administration of the program and
under which services are provided 5) The final product will not reveal
under this part. Information containing any personally identifying information
identifiable personal information may without the informed written consent of
not be shared with advisory or other the involved individual or the
bodies that do not have official individual' s legally authorized
representative.responsibility for the provision of
e) Release to other programs or
authorities. (1) Upon receiving the
informed written consent of the
individual or, if appropriate, the
individual' s legally authorized
representative, the service provider may
release personal information to another
agency or organization, in accordance
with a written agreement, for the latter' s
program purposes only to the extent that
the information may be released to the
involved individual and only to the
extent that the other agency or
organization demonstrates that the
information requested is necessary for
the proper administration of its
program.
2) Medical or psychological
information may be released pursuant to
paragraph( e)( 1) of this section if the
other agency or organization assures the
service provider that the information
will be used only for the purpose for
which it is being provided and will not
be further released to the individual.
3) The service provider shall release
personal information if required by
Federal laws or regulations.
4) The service provider shall release(
personal information in response to
investigations in connection with law
enforcement, fraud, or abuse, unless
expressly prohibited by Federal or State
laws or regulations, and in response togp
judicial order.
5) The service provider also may(release personal information to protect
the individual or others if the individual
poses a threat to his or her safetyor to
the safety of others.
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c))
367.70 What access to records must be
provided?
For the purpose of conducting audits,
examinations, and compliance reviews,
the DSA and all other service providers
shall provide access to the Secretary and
the Comptroller General, or any of their
duly authorized representatives, to— ( a) The records maintained under this
part;
b) Any other books, documents,
papers, and records of the recipients
that are pertinent to the financial
assistance received under this part; and
c) All individual case records or files
or consumer service records of
individuals served under this part,
including names, addresses,
photographs, and records of evaluation
included in those individual case
records or files or consumer service
records.
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c))
55590 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
367.71 What records must be
maintained?
The DSA and all other service
providers shall maintain-
a) Records that fully disclose and
document-
1) The amount and disposition by the
recipient of that financial assistance;
2) The total cost of the project or
undertaking in connection with which
the financial assistance is given or used;
3) The amount of that portion of the
cost of the project or undertaking
supplied by other sources; and
4) Compliance with the requirements
of this part; and
b) Other records that the Secretary
determines to be appropriate to facilitate
an effective audit.
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c))
PART 369[ REMOVED AND
RESERVED]
2. Part 369 is removed and reserved.
3. Part 370 is revised to read as
follows:
PART 370-CLIENT ASSISTANCE
PROGRAM
Subpart A-General
Sec.
1 What is the Client Assistance
Program( CAP)?g
370. 2 Who is eligible for an award?
370. 3 Who is eligible for services and
information under the CAP?
370.4 What kinds of activities may the
Secretary fund?
370.5 What regulations apply?
370.6 What definitions apply?
370. 7 What shall the designated agency do
to make its services accessible?
Subpart B-What Requirements Apply to
Redesignation?
370. 10 When do the requirements for
redesignation apply?
370. 11 What requirements apply to a notice
of proposed redesignation?
370. 12 How does a designated agency
preserve its right to appeal a
redesignation?
370. 13 What are the requirements for a
decision to redesignate?
370. 14 How does a designated agency
appeal a written decision to redesignate?
370. 15 What must the Governor of a State
do upon receipt of a copy of a designated
agency' s written appeal to the Secretary?
370. 16 How does the Secretary review an
appeal of a redesignation?
370. 17 When does a redesignation becomeg
effective?
Subpart C-What Are the Requirements for
Requesting a Grant?
370. 20 What must be included in a request
for a grant?
Subpart D-How Does the Secretary
Allocate and Reallocate Funds to a State?
370. 30 How does the Secretary allocate
funds?
370. 31 How does the Secretary reallocate
funds?
Subpart E-What Post-Award Conditions
Must Be Met by a Designated Agency?
370. 40 What are allowable costs?
370. 41 What conflict of interest provision
applies to employees of a designated
agency?
370. 42 What access must the CAP be
afforded to policymaking and
administrative personnel?
370. 43 What requirement applies to the use
of mediation procedures?
370. 44 What reporting requirement applies
to each designated agency?370. 45 What limitation applies to the
pursuit of legal remedies?
370. 46 What consultation requirement
applies to a Governor of a State?
370. 47 What is program income and how
may it be used?
370. 48 When must grant funds and program
income be obligated?
370. 49 What are the special requirements
pertaining to the protection, use, and
release of personal information?
Authority: Section 112 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 732, unless otherwise noted.
Subpart A-General
370. 1 What is the Client Assistance
CAP).Program370.
The purpose of this program is to
establish and carry out CAPs that-
a) Advise and inform clients and
client-applicants of all services and
benefits available to them through
programs authorized under the
Rehabilitation Act of 1973, as amended
Act), including activities carried out
under sections 113 and 511;
b) Assist and advocate for clients and
client-applicants in their relationships
with projects, programs, and community
rehabilitation programs providing
services under the Act; and
( c) Inform individuals with
disabilities in the State, especially
individuals with disabilities who have
traditionally been unserved or
underserved by vocational rehabilitation
programs, of the services and benefits
available to them under the Act and
under title I of the Americans with
Disabilities Act of 1990 (ADA) (42
UJ. S. C. 12111 et seq.).
( Authority: Section 112( a) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 732( a))
370.2 Who is eligible for an award?
( a)( 1) Any State, through its Governor,
and the protection and advocacy system
serving the American Indian
Consortium are eligible for an award
under this part if the State or eligible
protection and advocacy system
submits, and receives approval of, an
application in accordance with § 370. 20.
2) For purposes of this part, the
terms-
i) " American Indian Consortium" has
the meaning given the term in section
102 of the Developmental Disabilities
Assistance and Bill of Rights Act of
2000 (DD Act) (42 U.S.C. 15002); and
ii) "Protection and advocacy system"
means a protection and advocacy
system established under subtitle C of
title I of the DD Act( 42 U.S. C. 15041 et
seq.).
( b) Notwithstanding the protection
and advocacy system serving the
American Indian Consortium, the
Governor of each State shall designate a
public or private agency to conduct the
State' s CAP under this part.
c) Except as provided in paragraph
d) of this section, the Governor shall(
designate an agency that is independent
of any agency that provides treatment,
services, or rehabilitation to individuals
under the Act.
d) The Governor may, in the initial
designation, designate an agency that
provides treatment, services, or
rehabilitation to individuals with
disabilities under the Act if, at any time
before February 22, 1984, there was an
agency in the State that both-
1) Was a grantee under section 112 of
the Act by serving as a client assistance
agency and directly carrying out a CAP;
and
2) Was, at the sametitime, a grantee
under anyother provision of the Act.
e) An agency designated by the
Governor of a State to conduct the
State' s CAP or the protection and
advocacy system serving the American
Indian Consortium under this part may
(
not make a subaward to or enter into a contract with an agency that provides
services under this Act either to carry
out the CAP or to provide services
under the CAP.
( f) A designated agency, including the
protection and advocacy system serving
the American Indian Consortium, that
contracts to provide CAP services with
another entity or individual remains
responsible for-
1) The conduct of a CAP that meets
all of the requirements of this part;
2) Ensuring that the entity or
individual expends CAP funds in
accordance with-
i) The regulations in this part; and
ii) The regulations at 2 CFR part 200
applicable to the designated agency
identified in paragraph( b) or the
protection and advocacy system serving
the American Indian Consortium, as
55591Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
described in paragraph( a) of this ii) To facilitate access by individuals ( 2) 2 CFR part 200 ( Uniform
section; and with disabilities, including students and Administrative Requirements, Cost
3) The direct day-to-day supervision youth with disabilities who are making Principles, and Audit Requirements for
of the CAP services being carried out by the transition from school programs, to Federal Awards), as adopted at 2 CFR
the contractor. This day-to-day services funded under the Act; and part 3474.
supervision must include the direct 4) Providing information to the c) The regulations in this part 370.
supervision of the individuals who are public concerning the CAP. Note to§ 370. 5: Any funds made availableemployed or used by the contractor to b) In providing assistance and to a State under this program that are provide CAP services. advocacy services under this part with transferred by a State to a designated agencyrespect to services under title I of the do not make a subaward as that term isAuthority: Sections 12( c) and 112( a),
c)( 1)( A), and( e)( 1)( E) of the Rehabilitation Act, a designated agency may provide defined in 2 CFR 200. 330. The designated
Act of 1973, as amended; 29 U. S. C. 709( c) assistance and advocacy services to a agency is not, therefore, in these
and 732( a),( c)( 1)( A), and( e)( 1)( E)) client or client-applicant to facilitate the circumstances a subrecipient, as that term is
defined in 2 CFR 200. 330.individual' s employment, including370.3 Who is eligible for services and assistance and advocacy services withinformation under the CAP? respect to the individual' s claims under ( Authority: Sections 12( c) and 112 of the
Rehabilitation Act, as amended; 29 U.S. C.a) Any client or client-applicant is title I of the ADA, if those claims under
eligible for the services described in 709( c) and 732) title I of the ADA are directly related to 370. 4. services under title I of the Act that the § 370.6 What definitions apply?b) Any individual with a disability is individual is receiving or seeking. a) Definitions in EDGAR at 34 CFReligible to receive information on the
services and benefits available to Authority: Sections 12( c) and 112( a) of the part 77.
Rehabilitation Act of 1973, as amended; 29 b) Definitions in 2 CFR part 200,individuals with disabilities under the U. S. C. 709( c) and 732( a)) subpart A.Act and title I of the ADA.
c) Other definitions. The following370.5 What regulations apply?
Rehabilitation Act of 1973, as amended; 29 The following regulations apply to the definitions also apply to this part:
Act means the Rehabilitation Act of
Authority: Section 112( a) of the
U. S. C. 732( a)) expenditure of funds and the
1973, as amended.administration of the program under 370.4 What kinds of activities may the this part: Advocacy means pleading an Secretary fund? a) The Education Department General individual' s cause or speaking or a) Funds made available under this Administrative Regulations (EDGAR) as writing in support of an individual. part must be used for activities follows: Advocacy may be formal, as in the case
consistent with the purposes of this 34 CFR part 75 ( Direct Grant Y1) of a lawyer representingP g an individual
program, including— Programs) for purposes of an award in a court of law or in formal
1) Advising and informing clients, administrative proceedings beforemade under§ 370. 30( d)( 1) when the client applicants, and individuals with government agencies ( whether tribal,CAP appropriation equals or exceeds disabilities in the State, especially 14, 000, 000. State, local, or Federal). Advocacy alsoindividuals with disabilities who have $ 2) 34 CFR part 76 ( State-may be informal, as in the case of atraditionally been unserved or Administered Programs) applies to the lawyer or non-lawyer representing an underserved by vocational rehabilitation individual in negotiations, mediation, orState and, if the designated agency is a programs, of— informal administrative proceedingsState or local government agency, to thei) All services and benefits available before government agencies ( whetherdesignated agency, except for—to them through programs authorized i) Section 76. 103; tribal, State, local, or Federal), or as in under the Act; and ii) Sections 76.125 through 76.137; the case of a lawyer or non-lawyerii) Their in connection withTheir iii) Sections 76. 300 through 76.401;rightsanbenefits; representing an individual' s causethose services iv) Section 76. 708; before private entities or organizations,2) Informing individuals with v) Section 76. 734; and orovernment agencies ( whether tribal,disabilities in the State, especially vi) Section 76. 740. g g
individuals with disabilities who have State, local, or Federal). Advocacy may3) 34 CFR part 77 ( Definitions That be on behalf of—traditionallybeen unserved or Apply to Department Regulations). 1) A single individual, in which caseunderserved by vocational rehabilitation ( 4) 34 CFR part 79 ( Intergovernmental (
programs, of the services and benefits Review of Department of Education it is individual advocacy;
available to them under title I of the 2) More than one individual or aPrograms and Activities).
ADA; 5) 34 CFR part 81 ( General Education group of individuals, in which case it is
3) Upon the request of the client or Provisions Act—Enforcement) applies to systems ( or systemic) advocacy, but
client-applicant, assisting and both the State and the designated systems or systemic advocacy, for the
purposes of this part, does not includeadvocating on behalf of the client or agency, whether or not the designatedclient-applicant in his or her class actions, or agency is the actual recipient of the CAP 3) Oneself, in which case it is selfrelationship with projects, programs, grant. As the entity that eventually, if
and community rehabilitation programs not directly, receives the CAP grant advocacy.
American Indian Consortium meansthat provide services under the Act by funds, the designated agency is
engaging in individual or systemic considered a recipient for purposes of that entity described in§ 370. 2( a).
Class action means a formal legal suitadvocacy and pursuing, or assisting and Part 81.
advocating on behalf of the client or 6) 34 CFR part 82 ( New Restrictions on behalf of a group or class of
client-applicant to pursue, legal, individuals filed in a Federal or Stateon Lobbying).
administrative, and other available b) Other regulations as follows: court that meets the requirements for a
1) 2 CFR part 180 ( OMB Guidelines " class action" under Federal or Stateremedies, if necessary—
i) To ensure the protection of the to Agencies on Debarment and law. " Systems ( or systemic) advocacy"
rights of a client or client-applicant Suspension( Nonprocurement)), as that does not include filing a formal
under the Act; and adopted at 2 CFR part 3485. class action in a Federal or State court
2f
S.C.
55592 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
is not considered a class action for
purposes of this part.
Client or client-applicant means an
individual receiving or seeking services
under the Act, respectively.
Designated agency means the agency
designated by the Governor under
370. 2 or the protection and advocacy
system serving the American Indian
Consortium that is conducting a CAP
under this part.
Mediation means the act or process of
using an independent third party to act
as a mediator, intermediary, or
conciliator to settle differences or
disputes between persons or parties.
The third party who acts as a mediator,
intermediary, or conciliator may not be
any entity or individual who is
connected in any way with the eligible
system or the agency, entity, or
individual with whom the individual
with a disability has a dispute.
Mediation may involve the use of
professional mediators or any other
independent third party mutually
agreed to by the parties to the dispute.
Protection and Advocacy System has
the meaning set forth at§ 370. 2( a).
Services under the Act means
vocational rehabilitation, independent
living, supported employment, and
other similar rehabilitation services
provided under the Act. For purposes of
the CAP, the term" services under the
Act" does not include activities carried
out under the protection and advocacy
program authorized by section 509 of
the Act( i.e., the Protection and
Advocacy of Individual Rights ( PAIR)
program, 34 CFR part 381).
State means, in addition to each of the
several States of the United States, the
District of Columbia, the
Commonwealth of Puerto Rico, The
United States Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands, except for purposes of the
allotments under§ 370. 30, in which
case" State" does not mean or include
Guam, American Samoa, the United
States Virgin Islands, and the
Commonwealth of the Northern Mariana
Islands.
Authority: Sections 7( 34), 12( c), and 112 of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 705( 34), 709( c), and 732)
370.7 What shall the designated agency
do to make its services accessible?
The designated agency shall provide,
as appropriate, the CAP services
described in§ 370. 4 in formats that are
accessible to clients or client-applicants
who seek or receive CAP services.
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c))
Subpart B— What Requirements Apply
to Redesignation?
370. 10 When do the requirements for§
redesignation apply?
a) The Governor shall redesignate the(
designated agency for carrying out the
CAP to an agency that is independent of
any agency that provides treatment,
services, or rehabilitation to individuals
under the Act if,after August 7, 1998—
( 1) The designated State agency
undergoes any change in the
organizational structure of the agency
that results in one or more new State
agencies or departments, or results in
the merger with one or more other State
agencies or departments, and
2) The designated State agency
contains an office or unit conducting the
CAP.
3) For purposes of paragraph( a) of
this section, the designated State agency
has the meaning given to that term at 34
CFR 361. 5( c)( 12) and described at 34
CFR 361. 13.
b) The Governor may not redesignate
the agency designated pursuant to
section 112( c) of the Act and§ 370. 2( b)
without good cause and without
complying with the requirements of
370. 10 through 370. 17.
c) For purposes of§§ 370. 10 through
370. 17, a" redesignation of" or" to
redesignate" a designated agency means
any change in or transfer of the
designation of an agency previously
designated by the Governor to conduct
the State' s CAP to a new or different
agency, unit, or organization,
including—
( 1) A decision by a designated agency
to cancel its existing contract with
another entity with which it has
previously contracted to carry out and
operate all or part of its responsibilities
under the CAP ( including providing
advisory, assistance, or advocacy
services to eligible clients and client-
applicants); or
2) A decision by a designated agency
not to renew its existing contract with
another entity with which it has
previously contracted. Therefore, an
agency that is carrying out a State' s CAP
under a contract with a designated
agency is considered a designated
agency for purposes of§§ 370. 10
through 370. 17.
( d) For purposes of paragraph (b) of
this section, a designated agency that
does not renew a contract for CAP
services because it is following State
procurement laws that require contracts
to be awarded through a competitive
bidding process is presumed to have
good cause for not renewing an existing
contract. However, this presumption
may be rebutted.
e) If State procurement laws require(
a designated agency to award a contract
through a competitive bidding process,
the designated agency must hold public
hearings on the request for proposal
before awarding the new contract.
( Authority: Sections 12( c) and 112( c)( 1)( B) of
the a Act 1973, ) s amended;
. l09( c)29 U. S. C. 709( c) and 732( c)( 1)( B))
§ 370.11 What requirements apply to a
notice of proposed redesignation?
a) Prior to any redesignation of the
agency that conducts the CAP, the
Governor shall give written notice of the
proposed redesignation to the
designated agency, the State
Rehabilitation Council (SRC), and the
State Independent Living Council( SILC)
and publish a public notice of the
Governor' s intention to redesignate.
Both the notice to the designated
agency, the SRC, and the SILC and the
public notice must include, at a
minimum, the following:
1) The Federal requirements for the
CAP ( section 112 of the Act).
2) The goals and function of the CAP.
( 3) The name of the current
designated agency.
4) A description of the current CAP
and how it is administered.
( 5) The reason or reasons for
proposing the redesignation, including
why the Governor believes good cause
exists for the proposed redesignation.
6) The effective date of the proposed
redesignation.
7) The name of the agency the
Governor proposes to administer the
CAP.
( 8) A description of the system that
the redesignated( i.e., new) agency
would administer.
b) The notice to the designated
agency must—
1) Be given at least 30 days in
advance of the Governor' s written
decision to redesignate; and
2) Advise the designated agency that
it has at least 30 days from receipt of the
notice of proposed redesignation to
respond to the Governor and that the
response must be in writing.
( c) The notice of proposed
redesignation must be published in a
place and manner that provides the
SRC, the SILC, individuals with
disabilities or their representatives, and
the public with at least 30 days to
submit oral or written comments to the
Governor.
d) Following public notice, public
hearings concerning the proposed
redesignation must be conducted in an
accessible format that provides
individuals with disabilities or their
representatives an opportunity for
comment. The Governor shall maintain
55593Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
a written public record of these designated agency submitted to the 3) Transcripts of all public hearings
hearings. Governor a timely written response to held on the proposed redesignation.
e) The Governor shall fully consider the Governor' s notice of proposed 4) Written comments received by the
any public comments before issuing a redesignation in accordance with Governor in response to the public
written decision to redesignate. 370. 12. notice of proposed redesignation.
5) The Governor' s written decision tob) To appeal to the Secretary aAuthority: Sections 12( c) and 112( c)( 1)( B) of (
the Rehabilitation Act of 1973, as amended; Governor' s written decision to redesignate, including the rationale for
29 U. S. C. 709( c) and 732( c)( 1)( B)) redesignate, a designated agency shall the decision.
file a formal written appeal with the 6) Any other written documentation
or submissions the Governor wishes the370.12 How does a designated agencySecretary within 15 days after the preserve its right to appeal a designated agency' s receipt of the Secretary to consider. redesignation? 7) Anyother information requestedGovernor' s written decision to q
a) To preserve its right to appeal a by the Secretary.redesignate. The date of filing of theGovernor' s written decision to ( b) As part of the submissions underdesignated agency' s written appeal with redesignate (see § 370. 13), a designated this section, the Governor may request the Secretary will be determined in a agency must respond in writing to the manner consistent with the an informal meeting with the Secretary
Governor within 30 days after it receives at which representatives of both partiesrequirements of 34 CFR 81. 12.
the Governor' s notice of proposed will have an opportunity to presentc) If the designated agency files a redesignation. their views on the issues raised in thewritten appeal with the Secretary, the
appeal.b) The designated agency shall send designated agency shall send a separateits response to the Governor by copy of this appeal to the Governor by ( Approved by the Office of Management and registered or certified mail, return registered or certified mail, return Budget under control number 1820- 0520) receipt requested, or other means that receipt requested, or other means that provides a record that the Governor Authority: Sections 12( c) and 112( c)( 1)( B) of provides a record that the Governor the Rehabilitation Act of 1973, as amended;received the designated agency' s received a copy of the designated 29 U. S. C. 709( c) and 732( c)( 1)( B))
response. agency' s appeal to the Secretary. 370.16 How does the Secretary review anApproved by the Office of Management and ( d) The designated agency' s written §appeal of a redesignation?Budget under control number 1820- 0520) appeal to the Secretary must state why
the Governor has not met the burden of ( a) If either party requests a meetingAuthority: Sections 12( c) and 112( c)( 1)( B) of under§ 370. 14( f) or§ 370. 15( b), thethe Rehabilitation Act of 1973, as amended; showing that good cause for the
29 U. S. C. 709( c) and 732( c)( 1)( B)) redesignation exists or has not met the meeting is to be held within 30 days of
the submissions by the Governor underprocedural requirements under 370.13 What are the requirements for a 370. 15, unless both parties agreeree to§§370. 11 and 370. 13. decision to redesignate? e) The designated agency' s written waive this requirement. The Secretary
a) If, after complying with the appeal must be accompanied by the promptly notifies the parties of the date
requirements of§ 370. 11, the Governordesignated agency' s written response to and place of the meeting.
decides to redesignate the designatedthe Governor' s b) Within 30 days of the informalnotice of proposed
agency, the Governor shall provide to meeting permitted under paragraph( a)redesignation and may be accompaniedthe designated agency a written decisionby any other written submissions or of this section or, if neither party has
to redesignate that includes thedocumentation the designated agency requested an informal meeting, within
60 days of the submissions requiredrationale for the redesignation. Thewishes the Secretary to consider. Governor shall send the written f) As part of its submissions under from the Governor under§ 370. 15, the
decision to redesignate to the designated this section, the designated agency may Secretary issues to the parties a final
agency by registered or certified mail, written decision on whether therequest an informal meeting with the
return receipt requested, or other means redesignation was for good cause.Secretary at which representatives of
that provides a record that the c) The Secretary reviews a Governor' sboth parties will have an opportunity to (decision based on the record submitteddesignated agency received the present their views on the issues raised
Governor' s written decision to under§§in the appeal. 370. 14 and 370. 15 and any
redesignate. other relevant submissions of other Approved by the Office of Management andb) If the designated agency submitted interested parties. The Secretary mayBudget under control number 1820-0520) to the Governor a timely response to the affirm or, if the Secretary finds that the
Governor' s notice of proposed Authority: Sections 12( c) and 112( c)( 1)( B) of redesignation is not for good cause,
redesignation, the Governor shall inform the Rehabilitation Act of 1973, as amended; remand for further findings or reverse a 29 U.S. C. 709( c) and 732( c)( 1)( B))the designated agency that it has at least Governor' s redesignation.
15 days from receipt of the Governor' s § d) The Secretary sends copies of the370. 15 What must the Governor of a
written decision to redesignate to file a decision to the parties by registered orState do upon receipt of a copy of a
formal written appeal with the certified mail, return receipt requested,designated agency' s written appeal to the
Secretary. Secretary? or other means that provide a record of
Approved by the Office of Management and ( a) If the designated agency files a receipt by both parties.
Budget under control number 1820- 0520) formal written appeal in accordance Approved by the Office of Management and with§ 370. 14, the Governor shall, Budget under control number 1820- 0520)Authority: Sections 12( c) and 112( c)( 1)( B) of within 15 days of receipt of thethe Rehabilitation Act of 1973, as amended; Authority: Sections 12( c) and 112( c)( 1)( B) of
29 U. S. C. 709( c) and 732( c)( 1)( B)) designated agency' s appeal, submit to ( the Rehabilitation Act of 1973, as amended;
the Secretary copies of the following: 29 U. S. C. 709( c) and 732( c)( 1)( B))
370.14 How does a designated agency 1) The written notice of proposed
appeal a written decision to redesignate? redesignation sent to the designated 370.17 When does a redesignation
become effective?a) A designated agency may appeal to agency.
the Secretary a Governor' s written 2) The public notice of proposed A redesignation does not take effect
redesignation.decision to redesignate only if the for at least 15 days following the
payment
55594 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
designated agency' s receipt of the
Governor' s written decision to
redesignate or, if the designated agency
appeals, for at least 5 days after the
Secretary has affirmed the Governor' s
written decision to redesignate.
Authority: Sections 12( c) and 112( c)( 1)( B) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 732( c)( 1)( B))
Subpart C— What are the
Requirements for Requesting a Grant?
370.20 What must be included in a
request for a grant?
a) Each State and the protection and
advocacy system serving the American
Indian Consortium seeking assistance
under this part shall submit to the
Secretary, in writing, at the time and in
the manner determined by the Secretary
to be appropriate, an application that
includes, at a minimum—
1) The name of the designated
agency; and
2) An assurance that the designated
2) The designated agency will meet
each of the requirements in this part;
and
3) The designated agency will
provide the Secretary with the annual
report required by section 112( g)( 4) of
the Act and§ 370. 44.
( d) To allow a designated agency to
receive direct payment of funds under
this part, a State or the protection and
advocacy system serving the American
Indian Consortium must provide to the
Secretary, as part of its application for
assistance, an assurance that direct
to the designated agency is not
prohibited by or inconsistent with State
or tribal law, regulation, or policy.
Approved by the Office of Management and
Budget under control number 1820 0520)
( Authority: Sections 12( c) and 112( b) and( f)
of the Rehabilitation Act of 1973, as
amended; 29 U. S. C. 709( c) and 732( b) and( f))
Subpart D— How Does the Secretary
Allo( te and Reallocate Funds to a
State?
agency meets the independencerecipient
requirement of section 112( c)( 1)( A) of
the Act and§ 370. 2( c), or that the State
is exempted from that requirement
under section 112( c)( 1)( A) of the Act
and§ 370. 2( d).
b)( 1) Each State and the protection
and advocacy system serving the
American Indian Consortium also shall
submit to the Secretary an assurance
that the designated agency has the
authority to pursue legal,
administrative, and other appropriate
remedies to ensure the protection of the
rights of clients or client-applicants
within the State or American Indian
Consortium.
2) The authority to pursue remedies
described in paragraph( b)( 1) of this
section must include the authority to
pursue those remedies against the State
vocational rehabilitation agency and
other appropriate State agencies. The
designated agency meets this
requirement if it has the authority to
pursue those remedies either on its own
behalf or by obtaining necessary
services, such as legal representation,
from outside sources.
c) Each State and the protection and
advocacy system serving the American
Indian Consortium also shall submit to
the Secretary assurances that—
1) All entities conducting,
administering, operating, or carrying out
programs within the State that provide
services under the Act to individuals
with disabilities in the State will advise
all clients and client-applicants of the
existence of the CAP, the services
provided under the program, and how
to contact the designated agency;
§ 370.30 How does the Secretary allocate CFR part 81 and 2 CFR part 200 apply
funds? to the designated agency, whether or not
the designated agency is the actuala) After reserving funds required recipient of the CAP grant.under paragraphs ( c) and( d) of this
section, the Secretary shall allot the
remainder of the sums appropriated for
each fiscal year under this section
among the States on the basis of relative
population of each State, except that no
such entity shall receive less than
50, 000.
b) The Secretary allocates$ 30, 000
each, unless the provisions of section
112( e)( 1)( D) of the Act are applicable, to
American Samoa, Guam, the Virgin
Islands, and the Commonwealth of
Northern Mariana Islands.
c) The Secretary shall reserve funds,
from the amount appropriated to carry
out this part, to make a grant to the
protection and advocacy system serving
the American Indian Consortium to
provide services in accordance with this
part. The amount of the grant to the
protection and advocacy system serving
the American Indian Consortium shall
be the same amount as is provided to a
territory under paragraph( b) of this
section.
( d)( 1) For any fiscal year for which the
amount appropriated equals or exceeds
14, 000, 000, the Secretary may reserve
not less than 1. 8 percent and not more
than 2. 2 percent of such amount to
provide a grant for training and
technical assistance for the programs
established under this part.
2) All training and technical
assistance shall be coordinated with
activities provided under 34 CFR
381. 22.
3) The Secretary shall make a grant
pursuant to paragraph (d)( 1) of this
section to an entity that has experience
in or knowledge related to the provision
of services authorized under this part.
4) An entity receiving a grant under
paragraph( d)( 1) of this section shall
provide training and technical
assistance to the designated agencies or
entities carrying out the CAP to assist
them in improving the provision of
services authorized under this part and
the administration of the program.
e)( 1) Unless prohibited or otherwise (provided by State or tribal law,
regulation, or policy, the Secretary pays
to the designated agency, from the State
allotment under paragraph( a), ( b), or( c)
of this section, the amount specified in
the State' s or the eligible protection and
advocacy system' s approved request.
Because the designated agency,
including the protection and advocacy
system serving the American Indian
Consortium, is the eventual, if not the
direct, of the CAP funds, 34
2) Notwithstanding the grant made to
the protection and advocacy system
serving the American Indian
Consortium under paragraph( c) of this
section, the State remains the grantee for
purposes of 34 CFR part 76 and 2 CFR
part 200 because it is the State that
submits an application for and receives
the CAP grant. In addition, both the
State and the designated agency are
considered recipients for purposes of 34
CFR part 81.
Authority: Sections 12( c) and 112(b) and( e)
of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c) and 732(b) and
e))
370.31 How does the Secretary
reallocate funds?
a) The Secretary reallocates funds in
accordance with section 112( e)( 2) of the
Act.
b) A designated agency shall inform
the Secretary at least 45 days before the
end of the fiscal year for which CAPfunds were received whether the
designated agency is making available
for any of those CAP fundsrealloll bebe unable to obligate in thatthat it will
fiscal year or the succeeding fiscal year.
( Approved by the Office of Management and
Budget under control number 1820- 0520)
Authority: Sections 12( c), 19, and 112( e)( 2)
of the Rehabilitation Act of 1973, as
amended; 29 U. S. C. 709( c), 716, and
732( e)( 2))
tTheaccouures,resourcenated
the
55595Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Subpart E— What Post-Award
Conditions Must Be Met by a
Designated Agency?
370.40 What are allowable costs?
a) The designated agency, including
the eligible protection and advocacy
system serving the American Indian
Consortium, shall apply the regulations
at 2 CFR part 200.
b) Consistent with the program
activities listed in § 370. 4, the cost of
travel in connection with the provision
to a client or client-ali ant ofpp
assistance under this program is
allowable, in accordance with 2 CFR
part 200. The cost of travel includes the
cost of travel for an attendant if the
attendant must accompany the client or
client-applicant.
c)( 1) The State and the designated
agency are accountable, both jointly and
severally, to the Secretary for the proper
use of funds made available under this
part. However, the Secretary may
choose to recover funds under the
procedures in 34 CFR part 81 from
either the State or the designated
agency, or both, depending on the
circumstances of each case.
2) For purposes of the grant made
under this part to the protection and
advocacy system serving the American
Indian Consortium, such entity will be
solely accountable to the Secretary for
the proper use of funds made available
under this part. If the Secretary
determines it necessary, the Secretary
may recover funds from the protection
and advocacy system serving the
American Indian Consortium pursuant
to the procedures in 34 CFR part 81.
Authority: Sections 12( c) and 112( c)( 3) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 732( c)( 3))
370.41 What conflict of interest provision
applies to employees of a designated
agency?
a) Except as permitted by paragraph
b) of this section, an employee of a
designated agency, or of an entity or
individual under contract with a
designated agency, who carries out any
CAP duties or responsibilities, while so
employed, may not—
1) Serve concurrently as a staff
member of, consultant to, or in any
other capacity within, any other
rehabilitation project, program, or
community rehabilitation program
receiving assistance under the Act in the State; or
2) Provide any services under the
Act, other than CAP and PAIR services.
b) An employee of a designated
agency under contract with a designated
agency, may—
1) Receive a traineeship under
section 302 of the Act;
2) Provide services under the PAIR
program;
3) Represent the CAP on any board
or council such as the SRC) if CAP
representation on the board or council
is specifically permitted or mandated by
the Act; and
4) Consult with policymaking and
administrative personnel in State and
local rehabilitation programs, projects,
and community rehabilitation programs,
if consultation with the designated
agency is specifically permitted or
mandated by the Act.
( Authority: Sections 12( c) and 112( g)( 1) of
the Rehabilitation Act of 1973, as amended;
29 U.S. C. 709(c) and 732( g)( 1))
370.42 What access must the CAP be
afforded to policymaking and administrative
personnel?
The CAP must be afforded reasonable
access to policymaking and
administrative personnel in State and
local rehabilitation programs, projects,
and community rehabilitation programs.
One way in which the CAP may be
provided that access would be to
include the director of the designated
agency among the individuals to be
consulted on matters of general policy
development and implementation, as
required by section 101( a)( 16) of the
Act.
( Authority: Sections 12( c), 101( a)( 16), and
112( g)( 2) of the Rehabilitation Act of 1973, as
amended; 29 U. S. C. 709( c), 721( a)( 16), and
732( g)( 2))
370.43 What requirement applies to the
use of mediation procedures?
a) Each designated agency shall
implement procedures designed to
ensure that, to the maximum extent
possible, good faith negotiations and
mediation procedures are used before
resorting to formal administrative or §
legal remedies. In designing these
agency
take s.procinto thent itsgevel of
b) For purposes of this section,
mediation may involve the use of
professional mediators, other
independent third parties mutually
agreed to by the parties to the dispute,
or an employee of the designated agency §
who—
1) Is not assigned to advocate for or
otherwise represent or is not involved
with advocating for or otherwise
representing the client or client-
applicant who is a party to the
mediation; and
2) Has not previously advocated for
or otherwise represented or been
involved with advocating for or
otherwise representing that same client
or client-applicant.
Authority: Section 112( g)( 3) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 732( g)( 3))
370.44 What reporting requirement
applies to each designated agency?
In addition to the program and fiscal
reporting requirements in 34 CFR
76. 720 and 2 CFR 200. 327 that are
applicable to this program, each
designated agency shall submit to the
Secretary, no later than 90 days after the
end of each fiscal year, an annual report
on the operation of its CAP during the
previous year, including a summary of
the work done and the uniform
statistical tabulation of all cases handled
by the program. The annual report must
contain information on—
a) number requests received ofgby the designated agency for
information on services and benefits
under the Act and title I of the ADA;
( b) The number of referrals to other
agencies made by the designated agency
and the reason or reasons for those
referrals;
( c) The number of requests for
advocacy services received by the
designated agency from clients or client-
applicants;
d) The number of requests for
advocacy services from clients or client-
applicants that the designated agency
was unable to serve;
e) The reasons that the designated
agency was unable to serve all of the
requests for advocacy services from
clients or client-applicants; and
f) Any other information that the
Secretary may require.
Approved by the Office of Management and
Budget under control number 1820- 0520)
Authority: Sections 12( c) and 112( g)( 4) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 732( g)( 4))
370.45 What limitationapplies to the
pursuit of legal remedies?
nated ncy may ot bring
any classdaction inecarrying out
responsibilities under this part.
Authority: Section 112( d) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 732( d))
370.46 What consultation requirement
applies to a Governor of a State?
In designating a client assistance
agency under§ 370. 2, redesignating a
client assistance agency under§ 370. 10,
and carrying out the other provisions of
this part, the Governor shall consult
with the director of the State vocational
rehabilitation agency( or, in States with
both a general agency and an agency for
the blind, the directors of both
agencies), the head of the
developmental disability protection and
athe
the
55596 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
advocacy agency, and representatives of
professional and consumer
organizations serving individuals with
disabilities in the State.
Authority: Section 112( c)( 2) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 732( c)( 2))
370.47 What is program income and how
may it be used?
a) Definition. (1) Consistent with 2
CFR 200. 80 and for purposes of this
part, program income means gross
income earned by the designated a encY
that is directly generated by an activity
supported under this part.
2) Funds received through the
transfer of Social Security
Administration payments from the
designated State unit, as defined in 34
CFR 361. 5( c)( 13), in accordance with 34
CFR 361. 63( c)( 2) will be treated as
program income received under this
part.
b) Use ofprogram income. (1)
Program income, whenever earned or
received, must be used for the provision
of services authorized under§ 370.4.
2)( i) The designated agency must use
program income to supplement Federal
funds that support program activities
that are subject to this part. See, for
example 2 CFR 200. 307( e)( 2).
ii) Notwithstanding2 CFR 200. 305( a)
and consistent with 2 CFR
200. 305( b)( 5), and to the extent that
program income funds are available, a
designated agency, regardless of
whether it is a State agency, must
disburse those funds (including
repayments to a revolving fund),
rebates, refunds, contract settlements,
audit recoveries, and interest earned on
such funds before requesting additional
funds from the Department.
Authority: Sections 12( c) and 108 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 728; and 20 U. S. C. 3474);
370.48 When must grant funds and
program income be obligated?
Any Federal funds, including
reallotted funds, that are appropriated
for a fiscal year to carry out the
activities under this part that are not
obligated or expended by the designated
agency prior to the beginning of the
succeeding fiscal year, and any program
income received during a fiscal year that
is not obligated or expended by the
designated agency prior to the beginning
of the succeeding fiscal year in which
the program income was received,
remain available for obligation and
expenditure by the designated agency
during that succeeding fiscal year in
accordance with section 19 of the Act.
( Authority: Sections 12( c) and 19 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 716)
370.49 What are the special
requirements pertaining to the protection,
use, and release of personal information?
a) All personal information about
individuals served by any designated
agency under this part, including lists of
names, addresses, photographs, and
records of evaluation, must be held
strictly confidential.
b) The designated agency' s use of
information and records concerning
individuals must be limited only to
purposes directly connected with the
CAP, including program evaluation
activities. Except as provided in
paragraphs (c) and (e) of this section,
this information may not be disclosed,
directly or indirectly, other than in the
administration of the CAP, unless the
consent of the individual to whom the (
information applies, or his or her
parent, legal guardian, or other legally •
authorized representative or advocate
( including the individual' s advocate
from the designated agency), has been
obtained in writing. A designated
agency may not produce any report,
evaluation, or study that reveals any
personally identifying information
without the written consent of the
individual or his or her representative.
c) Except as limited in paragraphs ( d)
and( e) of this section, the Secretary or
other Federal or State officials
responsible for enforcing legal
requirements are to have complete
access to all—
1) Records of the designated agency
that receives funds under this program;
and
( 2) All individual case records of
clients served under this part without
the consent of the client.
d) For purposes of conducting any
periodic audit, preparing or producing
any report, or conducting any
evaluation of the performance of the
CAP established or assisted under this
part, the Secretary does not require the
designated agency to disclose the
identity of, or any other personally
identifiable information related to, any
individual requesting assistance under
the CAP.
e) Notwithstanding paragraph( d) of
this section and consistent with
paragraph( f) of this section, a
designated agency shall disclose to the
Secretary, if the Secretary so requests,
the identity of, or any other personally
identifiable information (i.e., name,
address, telephone number, social
security number, or any other official
code or number by which an individual
may be readily identified) related to,
any individual requesting assistance
under the CAP if—
1) An audit, evaluation, monitoring
review, State plan assurance review, or
other investigation produces reliable
evidence that there is probable cause to
believe that the designated agency has
violated its legislative mandate or
misused Federal funds; or ( 2) The Secretary determines that this
information mayreasonablylead to
further evidence that is directly related
to alleged misconduct of the designated
agency.
f) In addition to the protection
afforded by d) this section,paragraphersonor(right a person designated
not to produceecmnts or
disclose i to the Secretaryrcretary is
governed bathe common laww ofby the
privileges, the courtsasd interpretedeby
of the United States.
Authority: Sections 12( c) and 112( g)( 4) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 732( g)( 4))
4. Part 371 is revised to read as
follows:
PART 371— AMERICAN INDIAN
VOCATIONAL REHABILITATION
SERVICES
Subpart A—General
Sec.
371. 1 What is the American Indian
Vocational Rehabilitation Services
program?
371. 2 Who is eligible for assistance under
this program?
371. 3 What types of projects are authorized
under this program?
371. 4 What is the length of the project
period under this program?
371. 5 What regulations apply to this
program?
371. 6 What definitions apply to this
program?
Subpart B— Training and Technical
Assistance
371. 10 What are the requirements for
funding training and technical assistance
under this subpart?
371. 11 How does the Secretary use these
funds to provide training and technical
assistance?
371. 12 How does the Secretary make an
award?
371. 13 How does the Secretary determine
funding priorities?
371. 14 How does the Secretary evaluate an
application?
Subpart C— How Does One Apply for a
Grant?
371. 20 What are the application procedures
for this program?
371. 21 What are the special application
requirements related to the projects
funded under this part?
Subpart D— How Does the Secretary Make
a Grant?
371. 31 How are grants awarded?
55597Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
371. 32 What other factors does the own behalf or on behalf of a consortium,
Secretary consider in reviewing an or to a tribal organization to perform
application? services benefiting more than one
Indian tribe, the approval of each suchSubpart E— What Conditions Apply to a
Grantee Under this Program? Indian tribe shall be a prerequisite to the
371.40 What are the matching making of such a grant.
b) Applications for awards underrequirements?
371.41 What are allowable costs? Subpart B may be made by State, local
371.42 How are services to be administered or tribal governments, non-profit
under this program? organizations, or institutions of higher
371.43 What other special conditions apply education.
to this program?
371.44 What are the special requirements ( Authority: Sections 12( c) and 121( a) of the
Rehabilitation Act of 1973, as amended; 29pertaining to the protection, use, and U. S. C. 709( c) and 741( a))release of personal information?
371.45 What notice must be given about the 371. 3 What types of projects are Client Assistance Program( CAP)? authorized under this program?
Authority: Sections 12( c) and 121 of the The American Indian Vocational
Rehabilitation Act of 1973, as amended; 29Rehabilitation Services programU. S. C. 709( c) and 741, unless otherwise provides financial assistance for the noted. establishment and operation of tribal
vocational rehabilitation servicesSubpart A—General
programs for American Indians with
371. 1 What is the American Indian disabilities who reside on or near
Vocational Rehabilitation Services Federal or State reservations.
program?
Authority: Sections 12( c) and 121( a) of theThis program is designed to provide ( Rehabilitation Act of 1973, as amended Act,
vocational rehabilitation services, 29 U.S. C. 709( c) and 741( a))
including culturally appropriate
services, to American Indians with 371. 4 What is the length of the project
period under this program?disabilities who reside on or near
Federal or State reservations, consistent The Secretary approves a project
with such eligible individual' s period of up to sixty months.
strengths, resources, priorities, Authority: Sections 12( c) and 121( b)( 3) of
concerns, abilities, capabilities, the Rehabilitation Act of 1973, as amended,
interests, and informed choice, so that 29 U.S. C. 709( c) and 121( b)( 3))
such individual may prepare for, and 371. 5 What regulations apply to this engage in, high-quality employment that §will increase opportunities for economic program?
The following regulations apply toself-sufficiency. this program—
Authority: Section 121( a) of the a) The regulations in this part 371.
Rehabilitation Act of 1973, as amended; 29 b) 2 CFR part 180 ( OMB Guidelines
U. S. C. 741( a)) to Agencies on Debarment and
Suspension( Nonprocurement)), as371. 2 Who is eligible for assistance
under this program? adopted at 2 CFR part 3485;
c) 2 CFR part 200 ( Uniform a) Applications may be made only by (Administrative Requirements, CostIndian tribes and consortia of those Principles, and Audit Requirements forIndian tribes located on Federal and Federal Awards) as adopted at 2 CFRState reservations.
1) The applicant for the grant must be part 3474.d) 34 CFR part 75 Direct Grant i) The governing body of an Indian Programstribe, either on behalf the Indian tribe or ( e) 34 CFR part 77 Definitions that on behalf of a consortium of Indian Apply to Department Regulationstribes; or fl 34 CFR part 81 General Education ii) A tribal organization that is a Provisions Act—Enforcement
separate legal organization from an g) 34 CFR part 82 New Restrictions Indian tribe. on Lobbying2) In order to receive a grant under h) 34 CFR part 84 Governmentwide
this section, a tribal organization that is Requirements for Drug-Free Workplace not a governing body of an Indian tribe Authority: Section 12( c) of the must: Rehabilitation Act of 1973, as amended; 29 i) Have as one of its functions the U. S. C. 709( c))
vocational rehabilitation of American
Indians with disabilities; and 371. 6 What definitions apply to this
program?ii) Have the approval of the tribe to
be served by such organization. a) The definitions of terms included
in the applicable regulations listed in3) If a grant is made to the governing
body of an Indian tribe, either on its 371. 5;
( b) The following definitions also
apply to this program—
Act means the Rehabilitation Act of
1973, as amended.
Assessment for determining eligibility
and vocational rehabilitation needs
means as appropriate in each case-
i)( A) A review of existing data-
1) To determine if an individual is
eligible for vocational rehabilitation
services; and
2) To assign priority for an order of
selection described in an approved plan
or the approved grant application; and
B) To the extent necessary, the
provision of appropriate assessment
activities to obtain necessary additional
data to make the eligibility
determination and assignment;
ii) To the extent additional data are
necessary to make a determination of
the employment outcomes, and the
nature and scope of vocational
rehabilitation services, to be included in
the individualized plan for employment
of an eligible individual, a
comprehensive assessment to determine
the uniquestrengths, resources,g
priorities, concerns, abilities,
capabilities, interests, and informed
choice, including the need for
supported employment, of the eligible
individual, this comprehensive
assessment—
A) Is limited to information that is
necessary to identify the rehabilitation
needs of the individual and to develop
the individualized plan for employment
of the eligible individual;
B) Uses as a primary source of
information, to the maximum extent
possible and appropriate and in
accordance with confidentiality
requirements—
1) Existing information obtained for
the purposes of determining the
eligibility of the individual and
assigning priority for an order of
selection described in an approved plan
or the approved grant application for the
individual; and
2) Information that can be provided
by the individual and, if appropriate, by
the family of the individual;
C) May include, to the degree needed
to make such a determination, an
assessment of the personality, interests,
interpersonal skills, intelligence and
related functional capacities,
educational achievements, work
experience, vocational aptitudes,
personal and social adjustments, and
employment opportunities of the
individual, and the medical,
psychiatric, psychological, and other
pertinent vocational, educational,
cultural, social, recreational, and
environmental factors, that affect the
55598 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
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
( xii) Extended employment;
xiii) Psychosocial rehabilitation
services;
xiv) Supported employment services
and extended services;
xv) Customized employment;
xvi) Services to family members if
necessary to enable the applicant or
eligible individual to achieve an
employment outcome;
xvii) Personal assistance services; or(
xviii) Services similar to the services
described in paragraphs ( i) through
xvii) of this definition.
Authority: Sections 7( 4) and 12( c) of the
Rehabilitation Act of 1973, as amended, 29
U. S. C. 705( 4) and 709( c))
Comparable services and benefits
settings in the community, and othermeans—
integrated community settings; i) Services and benefits, includingiii) Referral, for the provision of accommodations and auxiliary aids and rehabilitation technology services to the services, that are—
individual, to assess and develop the A) Provided or paid for, in whole or
capacities of the individual to perform in part, by other Federal, State, or local
in a work environment; andpublic agencies, by health insurance, oriv) An exploration of the individual' s by employee benefits;abilities, capabilities, and capacity to B) Available to the individual at the
perform in work situations, which musttime needed to ensure the progress of
be assessed periodically during trialthe individual toward achieving the work experiences, including
experiences in which the individual is
provided appropriate supports and
training.
Authority: Sections 7( 2) and 12( c) of the
Rehabilitation Act of 1973, as amended, 29
U. S. C. 705( 2) and 709( c))
Community rehabilitation program
means a program that provides directly,
or facilitates the provision of, one or
more of the following vocational
rehabilitation services to individuals
with disabilities to enable those
individuals to maximize their
opportunities for employment,
including career advancement—
i) Medical, psychiatric,
psychological, social, and vocational
services that are provided under one
management
ii) Testing, fitting, or training in the
use of prosthetic and orthotic devices;
RecreationalFair iii) therapy;
iv) Physical and occupational
therapy;
v) Speech, language, and hearing
therapy;
vi) Psychiatric, psychological, and
social services, including positive
behavior management;
vii) Assessment for determining
eligibility and vocational rehabilitation
needs;
viii) Rehabilitation technology;
ix) Job development, placement, and
retention services;
x) Evaluation or control of specific
disabilities;
xi) Orientation and mobility services
for individuals who are blind;
employment outcome in the
individual' s individualized plan for
employment; and
C) Commensurate to the services that
the individual would otherwise receive
from the Tribal Vocational
Rehabilitation unit.
ii) For the purposes of this definition,
comparable benefits do not include
awards and scholarships based on merit.
Authority: Sections 12( c) and 101( a)( 8)( A) of
the Rehabilitation Act of 1973, as amended,
29 U.S. C. 709( c) and 721( a)( 8)( A))
Competitive integrated employment
means work that—
i) Is performed on a full-time or part-
time basis ( including self-employment)
and for which an individual is
com ensated ata rate that—p
A) Is not less than the higher of the
rate specified in section 6 a 1 of thep
Labor Standards Act of 1938 ( 29
U. S. C. 206( a)( 1)) or the rate required
under theaapplicable State or localpp
minimum wage law;
B Is not less than the customaryrate
paid by the employer for the same or
similar work performed by other
employees who are not individuals with
disabilities and who are similarly
situated in similar occupations by the
same employer and who have similar
training, experience, and skills; and
( C) In the case of an individual who
is self-employed, yields an income that
is comparable to the income received by
other individuals who are not
individuals with disabilities and who
are self-employed in similar
occupations or on similar tasks and who
have similar training, experience, and
skills; and
( D) Is eligible for the level of benefits
provided to other employees; and
ii) Is at a location—
A) Typically found in the
community; and
B) Where the employee with a
disability interacts for the purpose of
performing the duties of the position
with other employees within the
particular work unit and the entire work
site, and, as appropriate to the work
performed, other persons (e.g.,
customers and vendors), who are not
individuals with disabilities (not
including supervisory personnel or
individuals who are providing services
to such employee) to the same extent
that employees who are not individuals
with disabilities and who are in
comparable positions interact with these
persons; and
C) Presents, as appropriate,(opportunities for advancement that are
similar to those for other employees
who are not individuals with
disabilities and who have similar
positions.
Authority: Sections 7( 5) and 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 705( 5) and 709( c))
Consortium means two or more
eligible governing bodies of Indian
tribes that apply for an award under this
program by either:
i) Designating one governing body to
apply for the grant; or
( ii) Establishing and designating a
tribal organization to apply for a grant.
Authority: Sections 12( c) and 121 of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c) and 741( a))
Customized employment means
competitive integrated employment, for
an individual with a significant
disability, that is based on an
individualized determination of the
unique strengths, needs, and interests of
the individual with a significant
disability, is designed to meet theg
specific abilities of the individual with
a significant disabilityand the businessg
needs of the employer, and is carried
out through flexible strategies, such as—
i) Job exploration by the individual;
( ii) Working with an employer to
facilitate placement, including—
A) Customizing a job description
based on current employer needs or on
previously unidentified and unmet
employer needs; and
( B) Developing a set of job duties, a
work schedule and job arrangement, and
specifics of supervision (including
performance evaluation and review),
and determining a job location;
55599Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
iii) Using a professional who is a member of an Indian tribe and cause comparable substantial functional
representative chosen by the individual, includes a Native and a descendant of limitation.
or if elected self-representation, to work a Native, as such terms are defined in ( Authority: Section 7( 21) of the with an employer to facilitate subsections (b) and( r) of section 3 of the Rehabilitation Act of 1973, as amended, 29
placement; and Alaska Native Claims Settlement Act( 43 U.S. C. 705( 21))
iv) Providing services and supports at U. S. C. 1602). Maintenance means monetary supportthe job location. ii) Indian tribe means any Federal or provided to an individual for expenses,State Indian tribe, band, rancheria,Authority: Sections 7( 7) and 12( c) of the such as food, shelter, and clothing, thatpueblo,Rehabilitation Act of 1973, as amended, 29 colony, or community, are in excess of the normal expenses of
U. S. C. 705( 7) and 709( c)) including any Alaskan native village or the individual and that are necessitatedregional village corporation( as defined Eligible individual means an by the individual' s participation in anin or established pursuant to the Alaska applicant for vocational rehabilitation assessment for determining eligibilityNative Claims Settlement Act) and a services who meets the eligibility and vocational rehabilitation needs ortribal organization( as defined in section requirements of Section 102( a)( 1) of the the individual' s receipt of vocational 4( 1) of the Indian Self Determination
Act. rehabilitation services under an and Education Assistance Act( 25 U.S. C. individualized plan for employment.Authority:Sections 7(20)(A),12(c),and 450(b)(1)) and this section.
102( a)( 1) of the Rehabilitation Act of 1973, as Authority: Sections 12( c) and 103( a)( 7) of
amended, 29 U.S.C. 705(20)(A), 709(c),and ( Authority:Section 7(19)of the the Rehabilitation Act of 1973,as amended;Rehabilitation Act of 1973, as amended, 29722) 29 U. S. C. 709( c) and 723( a)( 7))U. S. C. 705( 19))
Employment outcome means, with Examples: The following areIndividual with a disability means—respect to an individual, entering, examples of expenses that would meetIn general any individual—advancing in or retaining full-time or, if ( i) Who has a physical or mental the definition of maintenance. The
appropriate, part-time competitive examples are illustrative, do not addressimpairment;
integrated employment( including ii) Whose impairment constitutes or all possible circumstances, and are not
customized employment, self-intended to substitute for individualresults in a substantial impediment to
employment, telecommuting or business employment; and counselor judgment.
ownership), or supported employment, ( iii) Who can benefit in terms of an Example 1: The cost of a uniform or other that is consistent with an individual' s employment outcome from the suitable clothing that is required for an
unique strengths, resources, priorities, provision of vocational rehabilitation individual' s job placement or job-seeking
concerns, abilities, capabilities, activities.services.
interests, and informed choice. Example 2: The cost of short-term shelter Authority: Section 7( 20)( A) of the that is required in order for an individual to Authority: Sections 7( 11) and 12( c) of the Rehabilitation Act of 1973, as amended; 29 participate in assessment activities orRehabilitation Act of 1973, as amended, 29 U. S. C. 705( 20)( A)) vocational training at a site that is not withinU. S. C. 705( 11), and 709( c)) Individual with a significant disability commuting distance of an individual' s home.
Family member for purposes of Example 3: The initial one-time costs, suchmeans—
receiving vocational rehabilitation In general an individual with a as a security deposit or charges for the
services means an individual— initiation of utilities, that are required indisability— order for an individual to relocate for a jobi) Who either— i) Who has a severe physical or
placement.A) Is a relative or guardian of an mental impairment that seriously limits
applicant or eligible individual; or one or more functional capacities (such Physical and mental restoration
B) Lives in the same household as an services means—as mobility, communication, self-care,
applicant or eligible individual; self-direction, interpersonal skills, work ( i) Corrective surgery or therapeutic
ii) Who has a substantial interest in tolerance, or work skills) in terms of an treatment that is likely, within a
the well-being of that individual; and reasonable period of time, to correct oremployment outcome;
iii) Whose receipt of vocational ii) Whose vocational rehabilitation modify substantially a stable or slowly
rehabilitation services is necessary to can be expected to require multiple progressive physical or mental
enable the applicant or eligible vocational rehabilitation services over impairment that constitutes a
individual to achieve an employment an extended period of time; and substantial impediment to employment;
outcome. iii) Who has one or more physical or ( ii) Diagnosis of and treatment for
mental disabilities resulting from mental or emotional disorders byAuthority: Sections 12( c) and 103( a)( 19) of amputation, arthritis, autism, blindness, qualified personnel in accordance withthe Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 723( a)( 19)) burn injury, cancer, cerebral palsy, State licensure laws;
cystic fibrosis, deafness, head injury, iii) Dentistry;Governing bodies of Indian tribes heart disease, hemiplegia, hemophilia, ( iv) Nursing services;means those duly elected or appointed respiratory or pulmonary dysfunction, v) Necessary hospitalization( eitherrepresentatives of an Indian tribe or of intellectual disability, mental illness, inpatient or outpatient care) in an Alaskan native village. These multiple sclerosis, muscular dystrophy, connection with surgery or treatmentrepresentatives must have the authority musculo-skeletal disorders, neurological and clinic services;to enter into contracts, agreements, and disorders (including stroke and vi) Drugs and supplies; grants on behalf of their constituency. vii) Prosthetic and orthotic devices;
Authority: Sections 12( c) and 121( a) of the ( including paraplegia and quadriplegia), ( viii) Eyeglasses and visual services,
epilepsy), spinal cord conditions
Rehabilitation Act of 1973, as amended; 29 sickle cell anemia, specific learning including visual training, and the U. S. C. 709( c) and 741( a)) disability, end-stage renal disease, or examination and services necessary for
Indian; American Indian; Indian another disability or combination of the prescription and provision of
American; Indian tribe means--disabilities determined on the basis of eyeglasses, contact lenses, microscopic
i) Indian, American Indian, and an assessment for determining eligibility lenses, telescopic lenses, and other
Indian American mean an individual and vocational rehabilitation needs to special visual aids prescribed by
55600 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
personnel that are qualified in
accordance with State licensure laws;
ix) Podiatry;
x) Physical therapy;Y
xi) Occupational therapy;
xii) Speech or hearing therapy;
xiii) Mental health services;
xiv) Treatment of either acute or
chronic medical complications and
emergencies that are associated with or
arise out of the provision of physical
and mental restoration services, or that
are inherent in the condition under
treatment;
xv) Special services for the treatment
of individuals with end-stage renal
disease, including transplantation,
dialysis, artificial kidneys, and supplies;
and
xvi) Other medical or medically
related rehabilitation services.
xvii) Services reflecting the cultural
background of the American Indian
being served, including treatment
provided bynative healingpractitioners
in accordance with 34 CFR 371. 41( a)( 2).
Authority: Sections 12( c), 103( a)( 6), and
121(b)( 1)( B) of the Rehabilitation Act of 1973,
as amended; 29 U. S. C. 709( c), 723( a)( 6), and
741(b)( 1)( B))
Physical or mental impairment
means—
i) Any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more of
the following body systems:
Neurological, musculo skeletal, special
sense organs, respiratory( including
speech organs), cardiovascular,
reproductive, digestive, genitourinary,
hemic and lymphatic, skin, and
endocrine; or
ii) Any mental or psychological
disorder such as intellectual or
developmental disability, organic brain
syndrome, emotional or mental illness,
and specific learning disabilities.
Authority: Sections 7( 20)( A) and 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 705( 20)( A) and 709( c))
Post-employment services means one
or more of the services that are provided
subsequent to the achievement of an
employment outcome and that are
necessary for an individual to maintain,
regain, or advance in employment,
consistent with the individual' s unique
strengths, resources, priorities,g
concerns, abilities, capabilities,
interests, and informed choice.
Authority: Sections 12( c) and 103( a)( 18) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c)) and 723( a)( 18))
Note to definition of post-employment
services. Post-employment services are
intended to ensure that the employment
outcome remains consistent with the
individual' s unique strengths, resources,
priorities, concerns, abilities, capabilities,
interests, and informed choice. These
services are available to meet rehabilitation
needs that do not require a complex and
comprehensive provision of services and,
thus, should be limited in scope and
duration. If more comprehensive services are
required, then a new rehabilitation effort
should be considered. Post-employment
services are to be provided under an
amended individualized plan for
employment; thus, a re-determination of
eligibility is not required. The provision of
post-employment services is subject to the
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c))
Substantial impediment to
employment means that a physical or
mental impairment( in light of attendant
medical, psychological, vocational,
educational, communication, and other
related factors) hinders an individual
from preparing for, entering into,
engaging in, advancing in or retaining
employment consistent with the
individual' s abilities and capabilities.
same requirements in this part as theAuthoritY Sections 7(20)(A)and 12(c)of the
provision of any other vocational
rehabilitation service. Post-employment
services are available to assist an individual
to maintain employment, e.g., the
individual' s employment is jeopardized
because of conflicts with supervisors or co-
workers, and the individual needs mental
health services and counseling to maintain
the employment; or the individual requires
assistive technology to maintain the
employment; to regain employment, e.g., the
individual' s job is eliminated through
reorganization and new placement services
are needed; and to advance in employment,
e.g., the employment is no longer consistent
with the individual' s unique strengths,
resources, priorities, concerns, abilities,
capabilities, interests, and informed choice.
Representatives of the Tribal
Vocational Rehabilitation program
means, consistent with 34 CFR
371. 21( b), those individuals specifically
responsible for determining eligibility,
the nature and scope of vocational
rehabilitation services, and the
provision of those services.
( Authority: Sections 12( c) and 121( b)( 1)( D) of
the Rehabilitation Act of 1973, as amended,
29 U.S. C. 709( c) and 741( b)( 1)( D))
Reservation means a Federal or State
Indian reservation, public domain
Indian allotment, former Indian
reservation in Oklahoma, land held by
incorporated Native groups, regional
Rehabilitation Act of 1973, as amended; 29
U.S. C. 705( 20)( A) and 709( c))
Supported employment—(i)
Supported employment means
competitive integrated employment,
including customized employment, or
employment in an integrated work
setting in which an individual with a
most significant disability, including a
with a most significant disability,youthg
is working on a short-term basis toward
competitive integrated employment that
is individualized, consistent with the
unique strengths, abilities, interests, and
informed choice of the individual,
includingwith ongoing support services
for indivduals with the most significant
disabilities—
A) For whom competitive integrated
employment has not historically
occurred, or for whom competitive
integrated employment has been
interrupted or intermittent as a result of
a significant disability; and
B) Who, because of the nature and(severity of their disability, need
intensive supported employment
services and extended services after the
transition from support provided by the
Tribal Vocational Rehabilitation Unit, in
order to perform this work.
ii) For purposes of this part, an
individual with the most significant
corporations and village corporationsP gdisabilities,whose supportedunder the provisions of the Alaska
Native Claims Settlement Act; or a
defined area of land recognized by a
State or the Federal Government where
there is a concentration of tribal
members and on which the tribal
government is providing structured
activities and services.
( Authority: Sections 12( c) and 121( e) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 741( e))
Subsistence means a form of self-
employment in which individuals
produce, using culturally relevant and
traditional methods, goods or services
that are predominantly consumed by
their own household or used for
noncommercial customary trade or
barter and that constitute an important
basis for the worker' s livelihood.
employment in an integrated setting
does not satisfy the criteria of
competitive integrated employment is
considered to be working on a short-
term basis toward competitive
integrated employment so long as the
individual can reasonably anticipate
achieving competitive integrated
employment:
A) Within six months of achieving a
supported employment outcome; or
B) Within a period not to exceed 12
months from the achievement of the
supported employment outcome, if a
longer period is necessary based on the
needs of the individual, and the
individual has demonstrated progress
toward competitive earnings based on
information contained in the service
record.
schools
55601Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Authority: Sections 7( 38) and 12( c) of the v) That includes outreach to and information and support services to
Rehabilitation Act of 1973, as amended; 29 engagement of the parents, or, as assist an individual in exercisingU. S. C. 705( 38) and 709( c)) appropriate, the representative of such a informed choice.
Supported employment services student or youth with a disability. iii) Referral and other services
means ongoing support services, necessary to assist applicants andAuthority: Sections 12( c), 103( a)( 15), and including customized employment, and ( b)( 7) of the Rehabilitation Act of 1973, as eligible individuals to secure needed
other appropriate services needed to amended; 29 U. S. C. 709( c), 723( a)( 15), and services from other agencies and to
support and maintain an individual b)( 7)) advise those individuals about client
assistance programs established underwith a most significant disability, Transportation means travel and
including a youth with a most 34 CFR part 370.related expenses that are necessary tosignificant disability, in supported iv) Physical and mental restorationenable an applicant or eligible
employment that are: services, to the extent that financialindividual to participate in a vocational i) Organized and made available, support is not readily available from arehabilitation service, includingsingly or in combination, in such a way source other than the Tribal Vocational expenses for training in the use of as to assist an eligible individual to Rehabilitation unit( such as throughpublic transportation vehicles and gachieve competitive integratedp g health insurance or a comparablesystems.
employment; service or benefit).
ii) Based on a determination of the ( Authority: Sections 12( c) and 103( a)( 8) of v) Vocational and other trainingthe Rehabilitation Act of 1973, as amended,
29 U.S. C. 709( c) and 723( a)( 8)) services, including personal andneeds of an eligible individual, as
specified in an individualized plan for vocational adjustment training,employment; Tribal organization means the advanced training( particularlyiii) Provided by the Tribal Vocational recognized governing body of any advanced training in a field of science,Rehabilitation Unit for a period of time Indian tribe or any legally established mathematicstechnology, engineering,not to exceed 24 months, unless under organization of Indians which is norcincluding computer science), medicine,special circumstances the eligible controlled, sanctioned, or chartered by law or business); books, tools, and other individual and the rehabilitation such governing body or which is training materials, except that nocounselor or coordinator jointly agree to democratically elected by the adult training or training services in anextend the time to achieve the members of the Indian community to be institution of higher education employment outcome identified in the served by such organization and which universities, colleges, community orindividualized plan for employment; includes the maximum participation of (junon colleges, vocational and Indians in all phases of its activities. technical institutes,nstit orts, ohospital schoolsiv) Following transition, as post
employment services that are Authority: Sections 7( 19) and 12( c) of the of nursing or any other postsecondary
Rehabilitation Act of 1973, as amended; 29 unavailable from an extended services education institution) may be paid for U. S. C. 705( 19) and 709( c); Section 4 of the with funds under this part unlessand that are toprovidernecessary Indian Self-Determination and Education maintain or regain the job placement or maximum efforts have been made by theAssistance Act, 25 U.S.C. 450(b)) Tribal Vocational Rehabilitation unitadvance in employment. Tribal Vocational Rehabilitation and the individual to secure grant
Authority: Sections 7( 39) and 12( c) of the program means the unit designated by assistance in whole or in part from other Rehabilitation Act of 1973, as amended; 29 the governing bodies of an Indian Tribe, sources to pay for that training.U. S. C. 705( 39) and 709( c)) or consortia of governingbodies, to vi) Maintenance.
Transition services means a implement and administer the grant avii) Transportation in connection
coordinated set of activities for a under this program in accordance with with the provision of any vocationalstudent or youth with a disability— the purpose of the grant and all rehabilitation service. i) Designed within an outcome-applicableprogrammatic and fiscal viii) Vocational rehabilitation oriented process that promotes requirements. services to family members of anmovement from school to post-school applicant or eligible individual ifAuthority: Sections 12( c) and 121( b)( 1) ofactivities, including postsecondary the Rehabilitation Act of 1973, as amended, necessary to enable the applicant oreducation, vocational training, 29 U.S. C. 709( c) and 741( b)( 1)) eligible individual to achieve an competitive integrated employment,
employment outcome.Vocational Rehabilitation Services forsupported employment, continuing and ix) Interpreter services, includingadult education, adult services, Individuals means any services
described in an individualized plan for sign language and oral interpreterindependent living, or community services, for individuals who are deaf or participation; employment necessary to assist an hard of hearing and tactile interpretingii) Based upon the individual individual with a disability in preparing services for individuals who are deaf-student' s or youth' s needs, taking into for, securing, retaining, advancing in or
account the student' s or youth' s blind provided by qualified personnel.regaining an employment outcome that
preferences and interests; is consistent with the unique strengths, ( x) Reader services, rehabilitation
iii) That includes instruction, resources, priorities, concerns, abilities, teaching services, and orientation and
community experiences, the capabilities, interests, and informed mobility services for individuals who
development of employment and other are blind.choice of the individual, including, but
post-school adult living objectives, and, xi) Job-related services, including jobnot limited to—
search and placement assistance, jobif appropriate, acquisition of daily living ( i) An assessment for determining
skills and functional vocational eligibility, priority for services, and retention services, follow-up services,
evaluation; vocational rehabilitation needs by and follow-along services.
iv) That promotes or facilitates the xii) Supported employment services.qualified personnel, including, if
achievement of the employment xiii) Personal assistance services.appropriate, an assessment by personnel (
outcome identified in the student' s or xiv) Post-employment services.skilled in rehabilitation technology.
youth' s individualized plan for ii) Vocational rehabilitation xv) Occupational licenses, tools,
employment; and counseling and guidance, including equipment, initial stocks, and supplies.
55602 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
xvi) Rehabilitation technology,
including vehicular modification,
telecommunications, sensory, and other
technological aids and devices.
xvii) Transition services for students
and youth with disabilities that
facilitate the transition from school to
postsecondary life, such as achievement
of an employment outcome in
competitive integrated employment.
xviii) Technical assistance and other
consultation services to conduct market
analyses, develop business plans, and
otherwise provide resources to eligible
individuals who are pursuing self-
employment or telecommuting or
establishing a small business operation
as an employment outcome.
xix) Customized employment.
x) Other goods and services
determined necessary for the individual
with a disability to achieve an
employment outcome.
Vocational Rehabilitation Services for
Groups of Individuals provided for the
benefit ofgroups of individuals with
disabilities—
i) May be provided by the Tribal
Vocational Rehabilitation Unit and may
include the following:
A) In the case of any small business
enterprise operated by individuals with
significant disabilities under the
supervision of the Tribal Vocational
Rehabilitation unit, management
services and supervision provided by
the Tribal Vocational Rehabilitation
unit, along with the acquisition by the
Tribal Vocational Rehabilitation unit of
vending facilities or other equipment
and initial stocks and supplies in
accordance with the following
requirements:
1) Management services and
supervision includes inspection, quality
control, consultation, accounting,
regulating, in-service training, and
related services provided on a
systematic basis to support and improve
small business enterprises operated by
individuals with significant disabilities.
Management services and supervision
may be provided throughout the
operation of the small business
enterprise.
2) Initial stocks and supplies include
those items necessary to the
establishment of a new business
enterprise during the initial
establishment period, which may not
exceed 6 months.
3) Costs of establishing a small
business enterprise may include
operational costs during the initial
establishment period, which may not
exceed six months.
4) If the Tribal Vocational
Rehabilitation unit provides for these
services, it must ensure that only
individuals with significant disabilities
will be selected to participate in this
supervised program.
5) If the Tribal Vocational
Rehabilitation unit provides for these
services and chooses to set aside funds
from the proceeds of the operation of
the small business enterprises, the
Tribal Vocational Rehabilitation unit
must maintain a description of the
methods used in setting aside funds and
the purposes for which funds are set
aside. Funds may be used only for small
business enterprises purposes, and
benefits that are provided to operators
from set-aside funds must be provided
on an equitable basis.
B) The establishment, development,
or improvement of a community
rehabilitation program that is used to
provide vocational rehabilitation
services that promote integration into
the community and prepare individuals
with disabilities for competitive
integrated employment, including
supported employment and customized
employment, and under special
circumstances, the construction of a
community rehabilitation facility.
Examples of" special circumstances"
include the destruction by natural
disaster of the only available center
serving an area or a Tribal Vocational
Rehabilitation unit determination that
construction is necessary in a rural area
because no other public agencies or
private nonprofit organizations are
currently able to provide vocational
rehabilitation services to individuals.
C) Telecommunications systems (that
have the potential for substantially
improving vocational rehabilitation
service delivery methods and
developing appropriate programming to
meet the particular needs of individuals
with disabilities including telephone,
television, video description services,
satellite, tactile-vibratory devices, and
similar systems, as appropriate.
D) Special services to provide(
nonvisual access to information for
individuals who are blind, including the
use of telecommunications, Braille,
sound recordings, or other appropriate
media; captioned television, films, or
video cassettes for individuals who are
deaf or hard of hearing; tactile materials
for individuals who are deaf-blind; and
other special services that provide
information through tactile, vibratory,
auditory, and visual media.
E) Technical assistance to businesses
that are seeking to employ individuals
with disabilities.
F) Consultation and technical
assistance services to assist State
educational agencies and local
educational agencies, and, where
appropriate, Tribal Educational
agencies, in planning for the transition
of students with disabilities from school
to postsecondary life, including
employment.
G) Transition services to youth with
disabilities and students with
disabilities, for which a vocational
rehabilitation counselor works in
concert with educational agencies,
providers of job training programs,
providers of services under the
Medicaid program under title XIX of the
Social Security Act( 42 U.S. C. 1396 et
seq.), entities designated by the Tribal
Vocational Rehabilitation unit to
provide services for individuals with
developmental disabilities, centers for
independent living( as defined in
section 702 of the Act), housing and
transportation authorities, workforce
development systems, and businesses
and employers. These specific transition
services are to benefit a group of
students with disabilities or youth with
disabilities and are not individualized
services directly related to a goal in an
individualized plan for employment
IPE). Services may include, but are not
limited to group tours of universities
and vocational training programs,
employer or business site visits to learn
about career opportunities, career fairs
coordinated with workforce
development and employers to facilitate
mock interviews and resume writing,
and other general services applicable to
groups of students with disabilities and
youth with disabilities.
H) The establishment, development,
or improvement of assistive technology
demonstration, loan, reutilization, or
financing programs in coordination with
activities authorized under the Assistive
Technology Act of 1998 ( 29 U. S. C. 3001
et seq.) to promote access to assistive
technology for individuals with
disabilities and employers.
I) Support( including, as appropriate,
tuition) for advanced training in a field
of science, technology, engineering, or
mathematics( including computer
science), medicine, law, or business,
provided after an individual eligible to
receive services under this title,
demonstrates:
( 1) Such eligibility;
2) Previous completion of a(
bachelor' s degree program at an
institution of higher education or
scheduled completion of such degree
program prior to matriculating in the
program for which the individual
proposes to use the support; and
3) Acceptance by a program at an
institution of higher education in the
United States that confers a master' s
degree in a field of science, technology,
engineering, or mathematics (including
computer science), a juris doctor degree,
costseundes
55603Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
a master of business administration in the operation of vocational c) If using a contract to award funds
degree, or a doctor of medicine degree, rehabilitation services programs under under this subpart, the Secretary may
except that— this part. conduct the application process and
i) No training provided at an b) An entity receiving assistance in make the subsequent award in
institution of higher education shall be accordance with paragraph (a) of this accordance with 34 CFR part 75.
paid for with funds under this program section shall provide training and Authority: Sections 12( c) and Section 121( c)unless maximum efforts have been technical assistance with respect to of the Rehabilitation Act of 1973, as
made by the Tribal Vocational developing, conducting, administering, amended; 29 U. S. C. 709( c) and 741( c))
Rehabilitation unit and the individual to and evaluating tribal vocational
secure grant assistance, in whole or in rehabilitation programs funded under Subpart C— How Does One Apply for a part, from other sources to pay for such this part. Grant?
training; and Authority: Sections 12( c) and Section 121( c)ii) Nothing in this paragraph prevents 371. 20 What are the applicationof the Rehabilitation Act of 1973, as procedures for this program?any Tribal Vocational Rehabilitation amended; 29 U. S. C. 709( c) and 741( c))
unit from providing similar support to a) In the development of an
individuals with disabilities pursuant to § 371. 12 How does the Secretary make an application, the applicant is required to
award?their approved IPEs who are eligible to consult with the designated State unit
receive support under this program and ( a) To be eligible to receive a grant or ( DSU) for the state vocational
who are not served under this enter into a contract or cooperative rehabilitation program in the State or
paragraph. agreement under section 121( c) of the States in which vocational rehabilitation
ii) If the Tribal Vocational Act and this subpart, an applicant shall services are to be provided.
Rehabilitation Unit provides for b) The procedures for the review andsubmit an application to the Secretary at (
vocational rehabilitation services for such time, in such manner, and comment by the DSU or the DSUs of the
groups of individuals it must— State or States in which vocationalcontaining a proposal to provide such
A) Develop and maintain written rehabilitation services are to betraining and technical assistance, and
policies covering the nature and scope any additional information as the provided on applications submitted
of each of the vocational rehabilitation from within the State that the DSU orSecretary may require.services it provides and the criteria DSUs serve are in 34 CFR 75. 155—b) The Secretary shall provide for
under which each service is provided; 75. 159.peer review of applications by panels
and that include persons who are not Authority: Sections 12( c) and 121(b)( 1)( C) ofB) Maintain information to ensure Federal or State government employees the Rehabilitation Act of 1973, as amended;
the proper and efficient administration and who have experience in the 29 U. S. C. 709( c) and 741( b)( 1)( C))
of those services in the form and detail operation of vocational rehabilitation
and at the time required by the services programs under this part. 371. 21 What are the special application
ofSecresereictary, ng rements lated to the projects funded
Authority: Sections 12( c) and Section 121( c) er thisses provided, the of those part? of the Rehabilitation Act of 1973, as services, and to the extent feasible, Each applicant under this programamended; 29 U. S. C. 709( c) and 741( c))
estimates of the numbers of individuals must provide evidence that—
benefiting from those services. 371. 13 How does the Secretary a) Effort will be made to provide a
determine funding priorities? broad scope of vocational rehabilitationAuthority: Sections 12( c) and 103( a) and( b)
of the Rehabilitation Act of 1973, as The Secretary shall conduct a survey services in a manner and at a level of
amended, 29 U. S. C. 709( c) and 723( a) and of the governing bodies of Indian tribes quality at least comparable to those
b)) funded under this part regarding services provided by the designated
training and technical assistance needs State unit.
Subpart B— Training and Technical in order to determine fundingprioritiesp Authority: Sections 12( c) and 121(b)( 1)( B) ofAssistance for such training and technical the Rehabilitation Act of 1973, as amended;
assistance. 29 U. S. C. 709( c) and 741( b)( 1)( B))371. 10 What are the requirements for
funding training and technical assistance ( Authority: Sections 12( c) and Section 121( c) ( b) All decisions affecting eligibility
under this subpart? asof the Rehabilitation Act of 1973, for vocational rehabilitation services,
amended; 29 U. S. C. 709( c) and 741( c))The Secretary shall first reserve not the nature and scope of available
less than 1. 8 percent and not more than vocational rehabilitation services and371. 14 How does the Secretary evaluate2percent of funds appropriated and the provision of such services will be an application?
made available to carry out this program made by a representative of the tribala) The Secretary evaluates eachto provide training and technical vocational rehabilitation programapplication for a grant, cooperativeassistance to the governing bodies of funded through this grant and such
Indian tribes and consortia of those agreement or contract under this subpart decisions will not be delegated to on the basis of the selection criteriagoverning bodies awarded a grant under another agency or individual.chosen from the general selection this program. criteria found in EDGAR regulations at ( Authority: Sections 12( c) and 121(b)( 1)( D) of
Authority: Sections 12( c) and Section 121( c) 34 CFR 75. 210. the Rehabilitation Act of 1973, as amended;
of the Rehabilitation Act of 1973, as 29 U. S. C. 709( c) and 741( b)( 1)( D))b) The Secretary may award aamended; 29 U. S. C. 709( c) and 741( c)) competitive preference consistent with ( c) Priority in the delivery of
vocational rehabilitation services will be371. 11 How does the Secretary use these 34 CFR 75. 102( c)( 2) to applications that
funds to provide training and technical include as project personnel in a given to those American Indians with
assistance? substantive role, individuals that have disabilities who are the most
a) The Secretary uses these funds to been employed as a project director or significantly disabled.
make grants to, or enter into contracts or VR counselor by a Tribal Vocational Authority: Sections 12( c) and 101( a)( 5) of
other cooperative agreements with, Rehabilitation unit funded under this the Rehabilitation Act of 1973, as amended;
entities that have staff with experience part. 29 U. S. C. 709( c) and 721( a)( 5))
55604 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
d) An order of selection of Authority: Sections 12( c) and 102( c) of the b) The Secretary may award a
individuals with disabilities to be competitive preference consistent withRehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 722( c)( 1)–( 5) and( 7))served under the program will be 34 CFR 75. 102( c)( 2) to applications for
specified if services cannot be provided ( the continuation of programs whichj) The tribal vocational rehabilitation to all eligible American Indians with have been funded under this program.program funded under this part must
disabilities who apply. assure that any facility used in Authority: Sections 12( c), 121( b)( 1)( A), and
121(b)( 4) of the Rehabilitation Act of 1973, asAuthority: Sections 12( c) and 101( a)( 5) of connection with the delivery of
the Rehabilitation Act of 1973, as amended; amended; 29 U. S. C. 709( c), 741( b)( 1)( A)), andvocational rehabilitation services meets
29 U.S.C. 709( c) and 721(a)(5)) 741(b)( 4).facility and program accessibility
requirements consistent with thee) All vocational rehabilitation Subpart E— What Conditions Apply torequirements, as applicable, of theservices will be provided according to a Grantee Under this Program?Architectural Barriers Act of 1968, the an individualized plan for employment
Americans with Disabilities Act of 1990, § 371. 40 What are the matchingwhich has been developed jointly by the section 504 of the Act, and the requirements?representative of the tribal vocational
regulations implementing these laws. a) Federal share Except as providedrehabilitation program and each
American Indian with disabilities being ( Authority: Sections 12( c) and 101( a)( 6)( C) of in paragraph( c) of this section, the
served. the Rehabilitation Act of 1973, as amended; Federal share may not be more than 90 29 U.S. C. 709( c) and 721( a)( 6)( C)) percent of the total cost of the project.Authority: Sections 12( c) and 101( a)( 9) of
the Rehabilitation Act of 1973, as amended; ( k) The tribal vocational rehabilitation ( b) Non-Federal share The non-
29 U. S. C. 709( c) and 721( a)( 9)) Federal share of the cost of the projectprogram funded under this part must
ensure that providers of vocational may be in cash or in kind, fairly valuedf) American Indians with disabilities pursuant to match requirements in 2rehabilitation services are able toliving on or near Federal or State CFR 200. 306.communicate in the native language of,reservations where tribal vocational
c) Waiver of non-Federal share Inrehabilitation service programs are or by using an appropriate mode of
communication with, applicants and order to carry out the purposes of thebeing carried out under this part will eligible individuals who have limited program, the Secretary may waive thehave an opportunity to participate in non-Federal share requirement, in partEnglish proficiency, unless it is clearlymatters of general policy development not feasible to do so. or in whole, only if the applicantand implementation affecting vocational demonstrates that it does not have rehabilitation service delivery by the ( Authority: Sections 12( c) and 101( a)( 6)( A) of sufficient resources to contribute the tribal vocational rehabilitation program. the Rehabilitation Act of 1973, as amended;
non-Federal share of the cost of the29 U.S. C. 709( c) and 721( a)( 6)( A))
Authority: Sections 12( c) and 101( a)( 16) of project.
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 721( a)( 16)) Subpart D— How Does the Secretary ( Authority: Sections 12( c) and 121( a) of the
Make a Grant? Rehabilitation Act of 1973, as amended; 29
g) Cooperative working arrangements U.S. C. 709( c) and 741( a))
will be developed with the DSU, or 371. 31 How are grants awarded?
371. 41 What are allowable costs?DSUs, as appropriate, which are To the extent that funds have been
a) In addition to those allowable costproviding vocational rehabilitation appropriated under this program, the
services to other individuals with established in 2 CFR 200.400-200.475,Secretary approves all applicationsdisabilities who reside in the State orwhich meet acceptable standards of the following items are allowable costs
under this program—States being served. program quality. If any application is 1) Expenditures for the provision ofAuthority: Sections 12( c) and 101( a)( 11)( F) not approved because of deficiencies in (
of the Rehabilitation Act of 1973, as vocational rehabilitation services andproposed program standards, the
amended; 29 U. S. C. 709( c) and 721( a)( 11)( F)) for the administration, including staffSecretary provides technical assistance development, of a program of vocational to the applicantlit Indiantribeithh) Any comparable services and w
rehabilitation services. benefits available to American Indians respect to any areas of the proposal
which were judged to be deficient. 2) Expenditures for services with disabilities under any other reflecting the cultural background of theprogram, which might meet in whole or ( Authority: Sections 12( c) and 121( b)( 1)( A) of American Indians being served,the Rehabilitation Act of 1973, as amended;in part the cost of any vocational
29 U.S. C. 709( c) and 741( b)( 1)( A)) including treatment provided by native rehabilitation service, will be fully healing practitioners who areconsidered in the provision of 371. 32 What other factors does the recognized as such by the tribalvocational rehabilitation services. Secretary consider in reviewing an vocational rehabilitation program when
application?Authority: Sections 12( c) and 101( a)( 8) of the services are necessary to assist an the Rehabilitation Act of 1973, as amended; a) In addition to the selection criteria individual with disabilities to achieve
29 U. S. C. 709( c) and 721( a)( 8)) used in accordance with the procedures his or her vocational rehabilitation
objective.i) Any American Indian with in 34 CFR part 75, the Secretary, in
disabilities who is an applicant or making an award under this program, b) Expenditures may not be made
recipient of services, and who is considers the past performance of the under this program to cover the costs of
dissatisfied with a determination made applicant in carrying out similar providing vocational rehabilitation
by a representative of the tribal activities under previously awarded services to individuals with disabilities
vocational rehabilitation program and grants, as indicated by such factors as not residing on or near Federal or State
files a request for a review, will be compliance with grant conditions, reservations.
afforded a review under procedures soundness of programmatic and Authority: Sections 12( c) and 121( a) and developed by the grantee comparable to financial management practices and b)( 1) of the Rehabilitation Act of 1973, as
those under the provisions of section attainment of established project amended; 29 U. S. C. 709( c) and 741( a) and
102( c)( 1)–( 5) and( 7) of the Act. objectives. b)( 1))
55605Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
371. 42 How are services to be
administered under this program?
a) Directly or by contract. A grantee
under this part may provide the
vocational rehabilitation services
directly or it may contract or otherwise
enter into an agreement with a DSU, a
community rehabilitation program, or
another agency to assist in the
implementation of the tribal vocational
rehabilitation program.
b) Inter-tribal agreement. A grantee
under this part may enter into an inter-
tribal arrangement with governing
these requirements to this program, the
Secretary carries out those
responsibilities assigned to the
Secretary of Interior.
Sec. 12( c) and 121( b)( 2) of the
Rehabilitation Act of 1973, as amended; 29
U. S. 0 709( c) and 741(b)( 2))
d) The Tribal Vocational
Rehabilitation unit must develop and
maintain written policies regarding the
provision of vocational rehabilitation
services that ensure that the provision of
services is based on the vocational
rehabilitation needs of each individual
bodies of other Indian tribes for carryingas identified in that individual' s IPE and out a project that serves more than one
Indian tribe.
c) Comparable services. To the
maximum extent feasible, services
provided by a grantee under this part
must be comparable to vocational
rehabilitation services provided under
the State vocational rehabilitation
program to other individuals with
disabilities residing in the State.
Authority: Sections 12( c) and 121(b)( 1)( B) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 741( b)( 1)( B))
371. 43 What other special conditions
apply to this program?
a) Any American Indian with
disabilities who is eligible for services
under this program but who wishes to
be provided services by the DSU must
be referred to the DSU for such services.
Authority: Sec. 12( c) and 121( b)( 3) of the
Rehabilitation Act of 1973, as amended; 29
709( c) and 741( b)( 3))
b) Preference in employment in
connection with the provision of
vocational rehabilitation services under
this section must be given to American
Indians, with a special priority being
given to American Indians with
disabilities.
Authority:Y 12( c) and 121(b)( 2) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 741( b)( 2))
c) The provisions of sections 5, 6, 7,
and 102( a) of the Indian Self-
Determination and Education
Assistance Act also apply under this
program ( 25 U.S. C. 450c, 450d, 450e,
and 450f(a)). These provisions relate to
grant reporting and audit requirements,
maintenance of records, access to
records, availability of required reports
and information to Indian people served
or represented, repayment of
unexpended Federal funds, criminal
activities involving grants, penalties,
wage and labor standards, preference
requirements for American Indians in
the conduct and administration of the
grant, and requirements affecting
requests of tribal organizations to enter
into contracts. For purposes of applying
is consistent with the individual' s
informed choice. The written policies
may not establish any arbitrary limits on
the nature and scope of vocational
rehabilitation services to be provided to
the individual to achieve an
employment outcome. The policies
must be developed in accordance with
the following provisions:
1) Off-reservation services. (i) The
Tribal Vocational Rehabilitation unit
may establish a preference for on-or
near-reservation services, provided that
the preference does not effectively deny
an individual a necessary service. If the
individual chooses an equivalent off
reservation service at a higher cost than
an available on or near reservation
service, the Tribal Vocational
Rehabilitation unit is not responsible for
those costs in excess of the cost of the
on- or near-reservation service, if either
service would meet the individual' s
rehabilitation needs.
ii) The Tribal Vocational
Rehabilitation unit may not establish
policies that effectively prohibit the
provision of off-reservation services.
2) Payment for services( i) The Tribal
Vocational Rehabilitation unit must
establish and maintain written policies
to govern the rates of payment for all
purchased vocational rehabilitation
services.
ii) The Tribal Vocational
Rehabilitation unit may establish a fee
schedule designed to ensure the
program pays a reasonable cost for each
service, as long as the fee schedule—
A) Is not so low as effectively to deny
an individual a necessary service; and
( B) permits exceptions so that
individual needs can he addressed.
( C) The Tribal Vocational
Rehabilitation unit may not place
absolute dollar limits on the amount it
will pay for specific service categories
or on the total services provided to an
individual.
3) Duration of services( i) The Tribal
Vocational Rehabilitation unit may
establish reasonable time periods for the
provision of services provided that the
time periods—
( A) Are not so short as effectively to
deny an individual a necessary service;
and
B) Permit exceptions so that
individual needs can be addressed.
ii) The Tribal Vocational
Rehabilitation unit may not place time
limits on the provision of specific
services or on the provision of services
to an.individual. The duration of each
service needed by an individual must be
determined on the basis of that
individual' s needs and reflected in that
individual' s individualized plan for
employment.
4) Authorization of services. The
Tribal Vocational Rehabilitation unit
must establish policies related to the
timely authorization of services.
( Authority: Sections 12( c) and 121(b) of the
Rehabilitation Act of 1973, as amended, 29
U.S. C. 709( c) and 741( b))
e) Informed choice. Each individual
who is an applicant for or eligible to
receive vocational rehabilitation
services must be afforded the
opportunity to exercise informed choice
throughout the vocational rehabilitation
process carried out under programs
funded under this part. The Tribal
Vocational Rehabilitation unit must
develop and maintain written policies
and procedures that require it—
1) To inform each applicant and (eligible individual, through appropriate
modes of communication, about the
availability of, and opportunities to
exercise, informed choice, including the
availability of support services for
individuals with cognitive or other
disabilities who require assistance in
exercising informed choice, throughout
the vocational rehabilitation process;( 2) To assist applicants and eligible
individuals in exercising informed
choice in decisions related to the
provision of assessment services;
3) To develop and implement flexible
procurementpolicies and methods thatpp
facilitate the provision of vocational
rehabilitation services, and that afford
eligible individuals meaningful choices
among the methods used to procure
vocational rehabilitation services;
4) To provide or assist eligible
individuals in acquiring information
that enables them to exercise informed
choice in the development of their IPEs
and selection of—
i) The employment outcome;
ii) The specific vocational
rehabilitation services needed to
achieve the employment outcome;
( iii) The entity that will provide the
services;
( iv) The employment setting and the
settings in which the services will be
provided; and
55606 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
v) The methods available for
procuring the services; and
5) To ensure that the availability and
scope of informed choice is consistent
with the obligations of the Tribal
Vocational Rehabilitation unit.
6) Information and assistance in the
selection of vocational rehabilitation
services and service providers: In
assisting an applicant and eligible
individual in exercising informed
choice during the assessment for
determining eligibility and vocational
rehabilitation needs and during
development of the IPE, the Tribal
Vocational Rehabilitation unit must
provide the individual or the
individual' s representative, or assist the
individual or the individual' s
representative in acquiring, information
necessary to make an informed choice
about the specific vocational
rehabilitation services, including the
providers of those services, that are
needed to achieve the individual' s
employment outcome. This information
must include, at a minimum,
information relating to the—
i) Cost, accessibility, and duration of
potential services;
ii) Consumer satisfaction with those
services to the extent that information
relating to consumer satisfaction is
available;
iii) Qualifications of potential service
providers;
iv) Types of services offered by the
potential providers;
v) Degree to which services are
provided in integrated settings; and
vi) Outcomes achieved by
individuals workingwith service
providers, to the extent that such
information is available.
7) Methods or sources of information:
In providing or assisting the individual
or the individual' s representative in
acquiring the information required
under paragraph( c) of this section, the
Tribal Vocational Rehabilitation unit
may use, but is not limited to, the
following methods or sources of
information:
i) Lists of services and service
providers.
ii) Periodic consumer satisfaction
surveys and reports.
iii) Referrals to other consumers,
consumer groups, or disability advisory
councils qualified to discuss the
services or service providers.
iv) Relevant accreditation,
certification, or other information
relating to the qualifications of service
providers.
v) Opportunities for individuals to
visit or experience various work and
service provider settings.
Approved by the Office of Management and
Budget under control number 1820-0500)
( Authority: Sections 12( c), 102(b)( 2)( B), and
102( d) of the Rehabilitation Act of 1973, as
amended; 29 U. S. C. 709( c), 722( b)( 2)( B), and
722( d))
§ 371. 44 What are the special
requirements pertaining to the protection,
use, and release of personal information?
a) General provisions. (1) The Tribal
Vocational Rehabilitation unit must
adopt and implement written policies
and procedures to safeguard the
confidentiality of all personal
information, including photographs and
lists of names. These policies and
procedures must ensure that—
( i) Specific safeguards are established
to protect current and stored personal
information, including a requirement
that data only be released when
governed by a written agreement
between the Tribal Vocational
Rehabilitation unit and receiving entity
under paragraphs ( d) and( e)( 1) of this
section, which addresses the
requirements in this section;
ii) All applicants and eligible
individuals and, as appropriate, those
individuals' representatives, service
providers, cooperating agencies, and
interested persons are informed through
appropriate modes of communication of
the confidentiality of personal
information and the conditions for
accessing and releasing this
information;
iii) All applicants or their
representatives are informed about the
Tribal Vocational Rehabilitation unit' s
need to collect personal information and
the policies governing its use,
including—
A) Identification of the authority
under which information is collected;( B) Explanation of the principal
purposes for which the Tribal
Vocational Rehabilitation unit intends
to use or release the information;
( C) Explanation of whether providing
requested information to the Tribal
Vocational Rehabilitation unit is
mandatory or voluntary and the effects
of not providing requested information;
D) Identification of those situations
in which the Tribal Vocational
Rehabilitation unit requires or does not
require informed written consent of the
individual before information may be
released; and
E) Identification of other agencies to
which information is routinely released;
iv) An explanation of the Tribal
Vocational Rehabilitation unit's policies
and procedures affecting personal
information will be provided to each
individual in that individual' s native
language or through the appropriate
mode of communication; and
( v) These policies and procedures
provide no fewer protections for
individuals than State laws and
regulations.
( 2) The Tribal Vocational
Rehabilitation unit may establish
reasonable fees to cover extraordinary
costs of duplicating records or making
extensive searches and must establish
policies and procedures governing
access to records.
b) Tribal Vocational Rehabilitation
Program Use. All personal information
in the possession of the Tribal
Vocational Rehabilitation unit must be
used only for the purposes directly
connected with the administration of
the Tribal Vocational Rehabilitation
program. Information containing
identifiable personal information may
not be shared with advisory or other
bodies or other tribal agencies that do
not have official responsibility for
administration of the program. In the
administration of the program, the
Tribal Vocational Rehabilitation unit
may obtain personal information from
service providers and cooperating
agencies under assurances that the
information may not be further
divulged, except as provided under
paragraphs ( c), ( d), and( e) of this
section.
c) Release to applicants and eligible
individuals. (1) Except as provided in
paragraphs ( c)( 2) and( 3) of this section,
if requested in writing by an applicant
or eligible individual, the Tribal
Vocational Rehabilitation unit must
make all requested information in that
individual' s record of services
accessible to and must release the
information to the individual or the
individual' s representative in a timelyP
manner.
2) Medical, psychological, or other
information that the Tribal Vocational
Rehabilitation unit determines may be
harmful to the individual may not be
released directly to the individual, but
must be provided to the individual
through a third party chosen by the
individual, which may include, among
others, an advocate, a family member, or
a qualified medical or mental health
professional, unless a representative has
been appointed by a court to represent
the individual, in which case the
information must be released to the
court-appointed representative.
( 3) If personal information has been
obtained from another agency or
organization, it may be released only by,
or under the conditions established by,
the other agency or organization.
4) An applicant or eligible individual
who believes that information in the
individual' s record of services is
inaccurate or misleading may request
menb)(
55607Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
that the Tribal Vocational Rehabilitation enforcement, fraud, or abuse, unless
unit amend the information. If the expressly prohibited by Federal or State
information is not amended, the request laws or regulations, and in response to
for an amendment must be documented an order issued by a judge, magistrate,
in the record of services. or other authorized judicial officer.
d) Release for audit, evaluation, and ( 5) The Tribal Vocational
research. Personal information may be Rehabilitation unit also may release
released to an organization, agency, or personal information in order to protect
individual engaged in audit, evaluation, the individual or others if the individual
or research only for purposes directly poses a threat to his or her safety or to
connected with the administration of the safety of others.
the tribal vocational rehabilitation Authority: Sections 12( c) and 121( b)( 1) of program or for purposes that would the Rehabilitation Act of 1973, as amended;
significantly improve the quality of life 29 U.S. C. 709( c) and 741( b)( 1))
for applicants and eligible individuals
371. 45 What notice must be given aboutand onlyif, in accordance with a
the Client Assistance Program( CAP)?written agreement, the organization,
The Tribal Vocational Rehabilitationagency, or individual assures that—
unit shall use formats that are accessible1) The information will be used only
for the purposes for which it is being to notify individuals seeking or
provided; receiving services under this part, or as
2) The information will be released appropriate, the parents, family
only to persons officially connected members, guardians, advocates, or
with the audit, evaluation, or research; authorized representatives of those
3) The information will not be individuals, about—
released to the involved individual; a) The availability of CAP authorized
4) The information will be managed by section 112 of the Act;
in a manner to safeguard confidentiality; ( b) The purposes of the services
and provided under the CAP; and
5) The final product will not reveal c) How to contact the CAP.
any personal identifying information
( Authority: Section 20 of the Rehabilitationwithout the informed written consent of Act of 1973, as amended; 29 U. S. C. 717)the involved individual or the 5. Part 373 is revised to read as individual' s representative. follows:e) Release to other programs or
authorities. (1) Upon receiving the PART 373—REHABILITATION
informed written consent of the NATIONAL ACTIVITIES PROGRAM
individual or, if appropriate, the
individual' s representative, the Tribal Subpart A—General
Vocational Rehabilitation unit may Sec.
release personal information to another 373. 1 What is the purpose of the
Rehabilitation National Activitiesagency or organization, in accordance
with a written agreement, for its program?
program purposes only to the extent that 373. 2 Who is eligible for assistance? 373. 3 What regulations apply?the information maybe released to the 373. 4 What definitions apply?involved individual or the individual' s 373. 5 Who is eligible to receive services
representative and only to the extent and to benefit from activities conducted
that the other agency or organization by eligible entities? demonstrates that the information 373. 6 What types of projects maybe
requested is necessary for its program. funded?
2) Medical or psychological 373. 7 What are the priorities and other
information that the Tribal Vocational factors and requirements for
competitions?Rehabilitation unit determines may be
harmful to the individual may be Subpart B— How Does the Secretary Make
released if the other agency or a Grant?
organization assures the Tribal373.10 What selection criteria does the
Vocational Rehabilitation unit that the Secretary use?
information will be used only for the 373. 11 What other factors does the
purpose for which it is beingprovided Secretaryconsider when makinga grant?
and will not he further released to the Subpart C— What Conditions Must Be Met individual. By a Grantee?3) The Tribal Vocational
373. 20 What are the matchingRehabilitation unit must release
requirements?personal information if required by 373. 21 What are the reporting requirementsFederal law or regulations. under this part?
4) The Tribal Vocational 373. 22 What are the limitations on indirect
Rehabilitation unit must release costs?
personal information in response to 373. 23 What additional requirements must
investigations in connection with law be met?
373. 24 What are the special requirements
pertaining to the protection, use, and
release of personal information?
Authority: Section 303( b) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 773( b), unless otherwise noted.
Subpart A—General
§ 373. 1 What is the purpose of the
Rehabilitation National Activities program?
The purpose of this program is to
provide competitive grants, including
cooperative agreements, to, or enter into
contracts with, eligible entities to
expand and improve the provision of
vocational rehabilitation and other
services authorized under the
Rehabilitation Act of 1973, as amended ( Act), or to further the purposes and
policies in sections 2( b) and( c) of the
Act by supporting activities that
increase the provision, extent,
availability, scope, and quality of
rehabilitation services under the Act,
including related research and
evaluation activities.
Authority: Sections 2( b) and( c), 7( 40), 12( c),
and 303( b) of the Rehabilitation Act of 1973,
as amended; 29 U. S. C. 701( b) and( c),
705(40), 709( c), and 773( b))
373.2 Who is eligible for assistance?
a) The following types of
organizations are eligible for assistance
under this program:
1) State vocational rehabilitation
agencies.
2) Community rehabilitation
programs.
3) Indian tribes or tribal
organizations.
4) Other public or nonprofit agencies
or organizations, including institutions
of higher education.
5) For-profit organizations, if the
Secretary considers them to be
appropriate.
6) Consortia that meet the
requirements of 34 CFR 75. 128 and
75. 129.
7) Other organizations identified by
the Secretary and published in the
Federal Register.
b) In competitions held under this(
program, the Secretary may limit
competitions to one or more types of
these organizations.
Authority: Sections 12( c) 973nd 303( 2) of
( heRehabilitation Actof 1973, amended;the as e
29 U. S. C. 709( c) and 773( b)( 2))
373.3 What regulations apply?
The following regulations apply to
this program:
a) The Education Department General
Administrative Regulations( EDGAR) as
follows:
( 1) 34 CFR part 75 ( Direct Grant
Programs).
55608 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
2) 34 CFR part 77 ( Definitions that ( Authority: Sections 12( c) and 303( b) of the
Rehabilitation Act of 1973, as amended; 29Apply to Department Regulations). U. S. C. 709( c) and 773( b))3) 34 CFR part 79 ( Intergovernmental
Review of Department of Education Employment outcome is defined in 34
Programs and Activities). CFR 361. 5.
4) 34 CFR part 81 ( General Education ( Authority: Section 7( 11) of theProvisions Act—Enforcement). Rehabilitation Act of 1973, as amended; 29 5) 35 CFR part 82 ( New Restrictions U. S. C. 705( 11)) on Lobbying).
6) 34 CFR part 84 ( Governmentwide Individual with a disability is defined
as follows:Requirements for Drug-Free Workplace
Financial Assistance). 1) For an individual who will receive
rehabilitation services under this part,7) 34 CFR part 86 (Drug and Alcohol
Abuse Prevention). an individual with a disability means an
8) 34 CFR part 97 ( Protection of individual—
Human Subjects). i) Who has a physical or mental
9) 34 CFR part 98 ( Student Rights in impairment which, for that individual,
Research, Experimental Programs, and constitutes or results in a substantial
Testing. impediment to employment; and
10) 34 CFR part 99 ( Family ii) Who can benefit in terms of an
Educational Rights and Privacy). employment outcome from vocational
b) The regulations in this part 373. rehabilitation services.
c) The regulations in 48 CFR part 31 ( 2) For all other purposes of this part,
Contracts Cost Principles and an individual with a disability means an
Procedures). individual—
d)( 1) 2 CFR part 180 i) Who has a physical or mental
Nonprocurement Debarment and impairment that substantially limits one Suspension), as adopted at 2 CFR part or more major life activities;
3485; and ii) Who has a record of such an
2) 2 CFR part 200 ( Uniform impairment; or
Administrative Requirements, Cost iii) Who is regarded as having such
Principles, and Audit Requirements for an impairment.
Federal Awards) as adopted at 2 CFR 3) For purposes of paragraph( 2) of
part 3474. this definition, projects that carry out
services or activities pertainingto TitleAuthority: Sections 12( c) and 303(b) of the
Rehabilitation Act of 1973, as amended; 29 V of the Act must also meet the
U. S. C. 709( c)) and 773( b) requirements for" an individual with a
disability" in section 7( 20)( c) through373.4 What definitions apply? e) of the Act, as applicable.
The followingdefinitions apply to ( hthis part:
pp y Authority: Section 7( 20) of the
Rehabilitation Act of 1973, as amended; 29Act means the Rehabilitation Act of U. S. C. 705( 20))1973, as amended.
Individual with a significant disabilityAuthority: 29 U. S. C. 701 et seq.) means an individual—
Competitive integrated employment is ( 1) Who has a severe physical or
defined in 34 CFR 361. 5( c)( 9). mental impairment that seriously limits
Authority: Section 7( 5) of the Rehabilitation one or more functional capacities (such
Act of 1973, as amended; 29 U. S. C. 705( 5)) as mobility, communication, self-care,
self-direction, interpersonal skills, workEarly intervention means a service tolerance, or work skills) in terms of andelivery or model demonstration
program for adults with disabilities employment outcome;
2) Whose vocational rehabilitationdesigned to begin the rehabilitation
can be expected to require multipleservices as soon as possible after the
vocational rehabilitation services overonset or identification of actually or
an extended period of time; andpotentially disabling conditions. The 3) Who has one or more physical orpopulations served may include, but are (mental disabilities resulting fromnot limited to, the following: amputation, arthritis, autism, blindness,1) Individuals with chronic and
J
more disabling, such as multiple cystic fibrosis, deafness, head injury,
sclerosis, progressive visual disabilities, heart disease, hemiplegia, hemophilia,
or HIV. intellectual disability, respiratory or
progressive diseases that may become burn injury,y cancer, cerebralpalsy,
2) Individuals in the acute stages of pulmonary dysfunction, mental illness,
injury or illness, including, but not multiple sclerosis, muscular dystrophy,
limited to, diabetes, traumatic brain musculo-skeletal disorders, neurological
injury, stroke, burns, or amputation. disorders (including stroke and
3) Individuals receiving an epilepsy), paraplegia, quadriplegia and
employer' s short-term or long-term other spinal cord conditions, sickle-cell
disability insurance benefits. anemia, specific learning disabilities,
end-stage renal disease, or another
disability or combination of disabilities
determined on the basis of an
assessment for determining eligibility
and vocational rehabilitation needs to
cause comparable substantial functional
limitation.
Authority: Section 7( 21)( A) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 705( 21)( A))
Informed choice means the provision
of activities whereby individuals with
disabilities served by projects under this
part have the opportunity to be active,
full partners in the rehabilitation
process, making meaningful and
informed choices as follows:
1) During assessments of eligibility
and vocational rehabilitation needs.
2) In the selection of employment
outcomes, services needed to achieve
the outcomes, entities providing these
services, and the methods used to
secure these services.
( Authority: Sections 2( c) and 12( c) of the Act
29 U. S. C. 701( c) and 709( c))
Rehabilitation services means
services, including vocational, medical,
social, and psychological rehabilitation
services and other services under the
Rehabilitation Act, provided to
individuals with disabilities in
performing functions necessary in
preparing for, securing, retaining, or
regaining an employment or
independent living outcome.
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c))
Substantial impediment to
employment means that a physical or
mental impairment( in light of attendant
medical, psychological, vocational,
educational, and other related factors)
hinders an individual from preparing
for, entering into, engaging in, or
retaining employment consistent with
the individual' s abilities and
capabilities.
Authority: Section 7( 20)( A) and 12( c) of the
Act 29; U.S. C. 705( 20)( A) and 709( c))
Supported employment is defined in
34 CFR 361, 5( c)( 53),
( Authority: Section 7( 38) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 705( 38))
Vocational Rehabilitation Services
means services provided to an
individual with a disability in preparing
for, securing, retaining, or regaining an
employment outcome that is consistent
with the strengths, resources, priorities,
concerns, abilities, capabilities,
interests, and informed choice of the
individual. Vocational Rehabilitation
55609Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Services for an individual with a ii) Non-traditional jobs, professional
employment, and work settings;disability may include—
1) An assessment for determining iii) Collaborating with employers,
Economic Development Councils, andeligibility and vocational rehabilitation
needs by qualified personnel, including, others in creating new jobs and career
if appropriate, an assessment by advancement options in local job
personnel skilled in rehabilitation markets through the use of job
technology; restructuring and other methods; and
2) Counseling and guidance, iv) Other services as identified by the
including information and support Secretary and published in the Federal
services to assist an individual in Register.
exercising informed choice; Authority: Section 7(40) of the 3) Referral and other services to Rehabilitation Act of 1973, as amended; 29
secure needed services from other U. S. C. 705( 40))
agencies; Youth or Young adults with4) Job-related services, including job disabilities means individuals with search and placement assistance, job disabilities who are between the ages of retention services, follow-up services, 14 and 24 inclusive when entering theand follow along services; program.
5) Vocational and other training
services, includingthe provision of Authority: Section 7( 42) of the
Rehabilitation Act of 1973, as amended; 29personal and vocational adjustment U. S. C. 705( 42)services, books, tools, and other training
materials; Authority: Sections 7( 40), 12( c), and 103( a)
of the Rehabilitation Act of 1973, as6) Diagnosis and treatment of
amended; 29 U. S. C. 705( 40), 709( c) andphysical and mental impairments;
723( a))7) Maintenance for additional costs
incurred while the individual is 373. 5 Who is eligible to receive services
receiving services; and to benefit from activities conducted by
8) Transportation; eligible entities?
9) On-the-job or other related a)( 1) For projects that provide
personal assistance services; rehabilitation services or activities to
10) Interpreter and reader services; expand and improve the provision of
11) Rehabilitation teaching services, rehabilitation services and other
and orientation and mobility services; services authorized under Titles I, III, 12) Occupational licenses, tools, and VI of the Act, individuals are equipment, and initial stocks and eligible who meet the definition in
supplies; paragraph( a) of an" individual with a
13) Technical assistance and other disability" as stated in§ 373. 4.consultation services to conduct market ( 2) For projects that provide
analysis, develop business plans, and independent living services or activities,otherwise provide resources to eligible individuals are eligible who meet the
individuals who are pursuing self-definition in paragraph( b) of an
employment or telecommuting or individual with a disability" as statedestablishing a small business operation in § 373. 4.
as an employment outcome; 3) For projects that provide other
14) Rehabilitation technology, services or activities that further the
including telecommunications, sensory, purposes of the Act, individuals are
and other technological aids and eligible who meet the definition in
devices; paragraph( b) of an" individual with a
15) Transition services for disability" as stated in§ 373. 4.individuals with disabilities that b) By publishing a notice in the
facilitate the achievement ofFederal Register, the Secretary may employment outcomes; identify individuals determined to be 16) Supported employment services; eligible under one or more of the
17) Services to the family of an provisions in paragraph( a) of this individual with a disability necessary to section.
assist the individual to achieve an
employment outcome; Authority: Sections 12( c), 103( a), and 303( b)
of the Rehabilitation Act of 1973, as18) Post-employment services
amended; 29 U. S. C. 709( c), 723( a), and necessary to assist an individual with a 773( b)) disability to retain, regain, or advance in
employment; and 373. 6 What types of projects may be
19) Expansion of employment funded?
opportunities for individuals with The Secretary may fund the following
disabilities, which includes, but is not types of projects under this program:
limited to— a) Special projects of service
i) Self-employment, business delivery.
b) Model demonstration.ownership, and entreprenuership;
( c) Technical assistance.
d) Systems change.
e) Special studies, research, or
evaluations.
f)Dissemination and utilization.
Authority: Sections 12( c) and 303(b)( 4) of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 709( c) and 773( b)( 4))
§ 373.7 What are the priorities and other
factors and requirements for competitions?
a) In announcing competitions for
grants and contracts, the Secretary gives
priority consideration to—
1) Initiatives focused on improving
transition from education, including
postsecondary education, to
employment, particularly in competitive
integrated employment, for youth who
are individuals with significant
disabilities.
2) Supported employment, including
community-based supported
employment programs to meet the needs
of individuals with the most significant
disabilities or to provide technical
assistance to States and community
organizations to improve and expand
the provision of supported employment
services.
3) Increasing competitive integrated
employment for individuals with
significant disabilities.
b) In announcing competitions for
grants and contracts, the Secretary may
also identify one or more of the
following as priorities—
1) Expansion of employment
opportunities for individuals with
disabilities, as authorized in
paragraph( s) of the definition of
" vocational rehabilitation services" as
stated in§ 373. 4.
2) System change projects to promote
meaningful access of individuals with
disabilities to employment-related
services under subtitle B of title I of the
Workforce Innovation and Opportunity
Act and under other Federal laws.
3) Innovative methods of promoting
achievement of high-quality
employment outcomes.
4) The demonstration of the
effectiveness of early intervention
activities in improving employment
outcomes.
5) Projects to find alternative
methods of providing affordable
transportation services to individuals
with disabilities.
6) Technical assistance to designated
State units and their personnel in
working with employers to identify
competitive integrated employment
opportunities and career exploration
opportunities in order to facilitate the
provision of vocational rehabilitation
services and transition services for
youth with disabilities and students
with disabilities.
55610 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
the Rehabilitation Act of 1973, as amended;7) Consultation, training and program, the Secretary may require that
technical assistance to businesses that recipients of grants under this part29 U.S. C. 709( c), 721( a)( 7)( B)( ii)and( 11)( E),
723( b)( 5), 728a, and 773( b)( 5))have hired or are interested in hiring submit information determined by the
individuals with disabilities. Secretary to be necessary to measureSubpart B— How Does the Secretary project outcomes and performance,8) Technical assistance and training Make a Grant? to designated State units and their including any data needed to comply
personnel on establishment and 373. 10 What selection criteria does the with the Government Performance and
maintenance of education and Results Act.Secretary use?
experience requirements, to ensure that b) Specific reporting requirements forThe Secretary publishes in the
the personnel have a 21st century Federal Register or includes in the competitions will be identified by the
understanding of the evolving labor application package the selection Secretary and published in the Federal
force and the needs of individuals with Register.criteria for each competition under this
disabilities. program. To evaluate the applications ( Authority: Sections 12( c), 303( b)( 2)( B), and
9) Technical assistance to State 306 of the Rehabilitation Act of 1973, asfor new grants under this program, the
vocational rehabilitation agencies or amended; 29 U. S. C. 709( c), 773( b)( 2)( B), andSecretary may use the following:
State vocational rehabilitation units to a) Selection criteria established 776)
improve management practices that will under 34 CFR 75. 209. 373.22 What are the limitations on
improve the provision of vocational b) Selection criteria in 34 CFR indirect costs?
rehabilitation services and increase 75. 210. a) Indirect cost reimbursement for
competitive employment outcomes for ( c) Any combination of selection grants under this program is limited to individuals with disabilities. criteria from paragraphs( a) and( b) of the recipient' s actual indirect costs, as
10) Other projects that will expand this section. determined by its negotiated indirect and improve the provision, extent, cost rate agreement, or 10 percent of theAuthority: Sections 12( c) and 103( a) of the
availability, scope, and quality of Rehabilitation Act of 1973, as amended; 29 total direct cost base, whichever amount
rehabilitation and other services under U. S. C. 709( c) and 723( a)) is less.
the Act or that further the purpose and b) Indirect costs in excess of the 10
373. 11 What other factors does thepolicy of the Act as stated in sections § percent limit maybe used to satisfy
2( b) and( c) of the Act. Secretary consider when making a grant? matching or cost-sharing requirements.
c) In announcing competitions of a) The Secretary funds only those c) The 10 percent limit does not
applications submitted in response togrants and contract the Secretary may apply to federally recognized Indian
limit the priorities listed in paragraphs competitions announced in the Federal tribal governments and their tribal
a) and( b) of this section to address one Register. representatives.
or more of the following factors: b) The Secretary may consider the ( Authority: Section 12( c) of thepast performance of the applicant inAge ranges.1) Ag g Rehabilitation Act of 1973, as amended; 29
2) Types of disabilities. carrying out activities under previously U.S. C. 709( c))
3) Types of services. awarded grants.
§ 373.23 What additional requirements4) Models of service delivery. c) The Secretary awards bonus points must be met?if identified and published in the5) Stages of the vocational
rehabilitation process; Federal Register for specific a) Each grantee must do the
competitions.6) Unserved and underserved comP following:
1) Ensure equal access and treatment populations. Authority: Sections 12( c) and 103( a) of the for eligible project participants who are7) Unserved and underserved Rehabilitation Act of 1973, as amended; 29 members of groups that have geographical areas. U. S. C. 709( c) and 723( a))
traditionally been underrepresented8) Individuals with significant
Subpart C— What Conditions Must Be based on race, color, national origin,disabilities. gender, age, or disabilities.Met By a Grantee?9) Low-incidence disability 2) Encourage applications for
populations. 373. 20 What are the matching employment from persons who are 10) Individuals residing in federally requirements? members of groups that have designated Empowerment Zones and The Secretary may make grants to pay traditionally been underrepresentedEnterprise Communities. all or part of the cost of activities based on race, color, national origin,d) The Secretary may require that an covered under this program. If the gender, age, or disabilities. applicant certify that the project does 3) Advise individuals withSecretary determines that the grantee is (not include building upon or expanding disabilities who are applicants for orrequired to pay part of the costs, theactivities that have previously been amount of grantee participation is recipients of the services, or the
conducted or funded, for that applicant specified in the application notice, and applicants' representatives or the
or in that service area. individuals' representatives, of thethe Secretary will not require granteee) The Secretary may require that the participation to be more than 10 percent availability and purposes of the Client project widely disseminate the methods of the total cost of the project. Assistance Program, includingof vocational rehabilitation service information on means of seeking( Authority: Sections 12( c) and 303( b)( 1) ofdelivery or model proven to be effective, assistance under that program.the Rehabilitation Act of 1973, as amended; P g so that theymaybe adapted, replicated,p 4) Provide, through a careful29 U.S. C. 709( c) and 773( b)( 1))or purchased under fee-for-service appraisal and study, an assessment and arrangements by State vocational 373. 21 What are the reporting evaluation of the project that indicates
rehabilitation agencies and other requirements under this part? the significance or worth of processes,
disability organizations in the project' s ( a) In addition to the program and methodologies, and practices
targeted service area or other locations. fiscal reporting requirements in 34 CFR implemented by the project.
75. 720 and 2 CFR 200. 327 that areAuthority: Sections 12( c), 101( a)( 7)( B)( ii) b) A grantee may not make a subgrant
and(11)(E), 103(b)(5), 108a,and 303(b)( 5)of applicable to projects funded under this under this part. However, a grantee may
55611Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
contract for supplies, equipment, and Subpart B— How Does One Apply for an Protection and Advocacy of Individual
Award?other services, in accordance with 2 Rights (PAIR) program to plan for,
CFR part 200 ( Uniform Administrative 381. 10 What are the application develop outreach strategies for, and
Requirements, Cost Principles, and requirements? carry out a protection and advocacy
Audit Requirements for Federal program authorized under this part.Subpart C— How Does the Secretary Make Awards) as adopted at 2 CFR part 3474. an Award? c) In any fiscal year in which the
amount appropriated to carry out thisAuthority: Sections 12( c) and 303(b)( 2)( B) of 381. 20 How does the Secretary evaluate an part is equal to or greater thanthe Rehabilitation Act of 1973, as amended; application?
29 U. S. C. 709( c) and 773( b)( 2)( B)) 5, 500, 000, an eligible system from any381. 22 How does the Secretary allocate
funds under this program? State and from any of the jurisdictions373.24 What are the special named in paragraph( b) of this section
requirements pertaining to the protection, Subpart D— What Conditions Must Be Met may apply to receive the amount use, and release of personal information? After an Award?
allotted pursuant to section 509( c)-( e) of a) All personal information about 381. 30 How are services to be the Act.
administered?individuals served by any project under
381. 31 What are the requirements Authority: Section 509(b),( c), and( m) of thethis part, including lists of names, Rehabilitation Act of 1973, as amended; 29 addresses, photographs, and records of pertaining to the protection, use, and
release of personal information? U.S.C. 794e(b),( c), and( m))evaluation, must be confidential.
381. 32 What are the reporting requirementsb) The use of information and records 381. 3 What activities may the Secretary
concerning individuals must be limited fund?
under this part?
381. 33 What are the requirements related to onlyto purposes directlyconnectedP P the use of funds provided under this a) Funds made available under this
with the project, including project part? part must be used for the following
reporting and evaluation activities. This activities:Authority: Section 509 of the Establishinga system to protect,information may not be disclosed, as amended; 29 1) YRehabilitation Act of 1973,
directlyor indirectly, other than in the U. S. C. 794e, unless otherwise noted. and advocate for, the rights of
administration of the project unless the individuals with disabilities.
consent of the agency providing the Subpart A—General 2) Pursuing legal, administrative, and
information and the individual to whom other appropriate remedies or
381. 1 What is the Protection andthe information applies, or his or her § approaches to ensure the protection of, Advocacy of Individual Rights program? representative, has been obtained inP and advocacy for, the rights of eligibleThis program is designed to supportwriting. The Secretary or other Federal individuals with disabilities within the
a system in each State to protect theofficials responsible for enforcing legal State or the American Indian
requirements have access to this Consortium.legal and human rights of eligible
individuals with disabilities.information without written consent 3) Providing information on and
being obtained. The final products of ( Authority: Section 509( a) of the making referrals to programs and
the project may not reveal any personal Rehabilitation Act of 1973, as amended; 29 services addressing the needs of
identifying information without written individuals with disabilities in the StateU. S. C. 794e( a))
consent of the individual or his or her § or American Indian Consortium,381. 2 Who is eligible for an award?
representative. including individuals with disabilities a)( 1) A protection and advocacy exitingfrom school programs.who are P gAuthority: Sections 12( c) and 303(b)( 2)( B) of system that is established under part C (the Rehabilitation Act of 1973, as amended; 4) Coordinating the protection and of title I of the Developmental29U.S.C. 709(c),and 773(b)(2)(B)) p advocacy program provided through an Disabilities Assistance and Bill of Rights eligible system with the advocacy
PART 376[ REMOVED AND Act of 2000 (DD Act), 42 U.S.C. 15041 programs under—
RESERVED] et seq., and that meets the requirements ( i) Section 112 of the Act( the Client
of§ 381. 10 is eligible to apply for a grant Assistance Program ( CAP));6. Part 376 is removed and reserved. award under this part. ii) The Older Americans Act of 1965
2)( i) For any fiscal year in which the (
appropriation to carry out the activities program) (42 U.S.C. 3001 et seq.);
PART 377[ REMOVED AND the State long-term care ombudsman
RESERVED] of this part equals or exceeds iii) Part C of the DD Act; and
7. Part 377 is removed and reserved. $ 10, 500, 000, the eligible system serving ( iv) The Protection and Advocacy for
the American Indian Consortium is Individuals with Mental Illness Act of PART 379[ REMOVED AND eligible to apply for a grant award under 2000 ( PAIMI) (42 U.S. C. 10801-10807).RESERVED] this part. 5) Developing a statement of
ii) For purposes of this part, an objectives and priorities on an annual
eligible system is defined at§ 381. 5( c).
8. Part 379 is removed and reserved.
9. Part 381 is revised to read as basis and a plan for achieving these
follows: iii) For purposes of this part, the objectives and priorities.
American Indian Consortium means a 6) Providing to the public, including
PART 381— PROTECTION AND consortium established as described in individuals with disabilities and, as
ADVOCACY OF INDIVIDUAL RIGHTS section 102 of the DD Act( 42 U.S. C. appropriate, their representatives, an
15002). opportunity to comment on theSubpart A—General b) In any fiscal year in which the objectives and priorities described in
Sec. amount appropriated to carry out this § 381. 10( a)( 6).
381. 1 What is the Protection and Advocacy part is less than$ 5, 500, 000, a protection ( 7) Establishing a grievance procedureof Individual Rights program? and advocacy system from any State or for clients or prospective clients of the 381. 2 Who is eligible for an award? from Guam, American Samoa, the eligible system to ensure thatgY381. 3 What activities may the Secretary
fund? United States Virgin Islands, or the individuals with disabilities are
Commonwealth of the Northern Mariana afforded equal access to the services of381. 4 What regulations apply?
381. 5 What definitions apply? Islands, may apply for a grant under the the eligible system.
55612 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
b) Funds made available under this
part also may be used to carry out any
other activities consistent with the
purpose of this part and the activities
listed in paragraph( a) of this section.
Authority:Sections 12(c) and 509(f)of the
Rehabilitation Act of 1973, as amended; 29
U.S.C. 709(c) and 794e(f)).
381. 4 What regulations apply?
The following regulations apply to the
PAIR program:
a) The Education Department General
Administrative Regulations( EDGAR) as
follows:
1) 34 CFR part 75 ( Direct Grant
Programs) for purposes of an award
made under§§ 381. 20 or 381. 22( a)( 1).
2) 34 CFR part 76 ( State-
Administered Programs), if the
appropriation for the PAIR program is
equal to or greater than$ 5, 500, 000 and
the eligible system is a State or local
government agency, except for—
i) Section 76. 103;
ii) Sections 76. 125 through 76. 137;
iii) Sections 76. 300 through 76. 401;
iv) Section 76. 704;
v) Section 76. 734; and
vi) Section 76. 740.
3) 34 CFR part 77 ( Definitions that
Apply to Department Regulations).
4) 34 CFR part 79 ( Intergovernmental
Review of Department of Education
Programs and Activities).
5) 34 CFR part 81 ( General Education
Provisions Act—Enforcement).
6) 34 CFR part 82 ( New Restrictions
on Lobbying).
b) 2 CFR part 180 ( OMB Guidelines
to Agencies on Debarment and
Suspension( Nonprocurement)), as
adopted at 2 CFR part 3485.
c) 2 CFR part 200 ( Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards), as adopted at 2 CFR
part 3474.
d) The regulations in this part 381.
Authority: Sections 12( c) and 509 of the
Act of 1973, as amended; 29
U. S. C. 709( c) and 794e)
381. 5 What definitions apply?
a) Definitions in EDGAR at 34 CFR
part 77.
b) Definitions in 2 CFR part 200
subpart A.
c) Other definitions. The following
definitions also apply to this part:
Act means the Rehabilitation Act of
1973, as amended.
Advocacy means pleading an
individual' s cause or speaking or
writing in support of an individual.
Advocacy may be formal, as in the case
of a lawyer representing an individual
in a court of law or in formal
administrative proceedings before
government agencies (whether tribal,
State, local, or Federal). Advocacy also
may be informal, as in the case of a
lawyer or non-lawyer representing an
individual in negotiations, mediation, or informal administrative proceedings
before government agencies ( whether
tribal, State, local, or Federal), or as in
the case of a lawyer or non-lawyer
representing an individual' s cause
before private entities or organizations,
or government agencies ( whether tribal,
State, local, or Federal). Advocacy may
be on behalf of—
i) A single individual, in which case
it is individual advocacy;
ii) More than one individual or a
group or class of individuals, in which
case it is systems( or systemic)
advocacy; or
iii) Oneself, in which case it is self
advocacy.
Eligible individual with a disability
means an individual who—
i) Needs protection and advocacy
services that are beyond the scope of
services authorized to berovided bPY
the CAP under section 112 of the Act;
and
ii) Is ineligible for—
A) Protection and advocacy programs
under part C of the DD Act; and
B) Protection and advocacy programs
under the PAIMI.
Eligible system means a protection
and advocacy system that is established
under part C of the DD Act and that
meets the requirements of§ 381. 10.
Mediation means the act or process of
using an independent third party to act
as a mediator, intermediary, or
conciliator to settle differences or
disputes between persons or parties.
The third party who acts as a mediator,
intermediary, or conciliator must not be
any entity or individual who is
connected in any way with the eligible
system or the agency, entity, or
individual with whom the individual
with a disability has a dispute.
Mediation may involve the use of
professional mediators or any other
independent third party mutually
agreed to by the parties to the dispute.
State means, in addition to each of the
several States of the United States, the
District of Columbia, the
Commonwealth of Puerto Rico, the
United States Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands, except for purposes of sections
509( c)( 3)( B) and( c)( 4) of the Act, in
which case State does not mean or
include Guam, American Samoa, the
United States Virgin Islands, and the
Commonwealth of the Northern Mariana
Islands.
( Authority: Sections 7( 34), 12( c), and 509 of
the Rehabilitation Act of 1973, as amended;
29 U. S. C. 705( 34), 709( c) and 794e)
Subpart B— How Does One Apply for an Award?
§ 381. 10 What are the application
requirements?
a) Regardless of the amount of funds
appropriated for the PAIR program in a
fiscal year, an eligible system shall
submit to the Secretary an application
for assistance under this part at the time
and in the form and manner determined
by the Secretary that contains all
information that the Secretary
determines necessary, including
assurances that the eligible system
will—
1) Have in effect a system to protect,
and advocate for, the rights of eligible
individuals with disabilities;
2) Have the same general authorities,
including the authority to access records
and program income, as in part C of title
I of the DD Act;
3) Have the authority to pursue legal,
administrative, and other appropriate
remedies or approaches to ensure the
protection of, and advocacy for, the
rights of eligible individuals with
disabilities within the State and the
American Indian Consortium;
4) Provide information on and make
referrals to programs and services
addressing the needs of individuals
with disabilities in the State and the
American Indian Consortium, including
individuals with disabilities who are
exiting from school programs;
5) Develop a statement of objectives
and priorities on an annual basis and a
plan for achieving these objectives and
priorities;
( 6) Provide to the public, including
individuals with disabilities and, as
appropriate, their representatives, an
opportunity to comment on the
objectives and priorities established by,
and activities of, the eligible system
including—
i) The objectives and priorities for the
activities of the eligible system for each
year and the rationale for the
establishment of those objectives and
priorities; and
ii) The coordination of the PAIR
program provided through eligible
systems with the advocacy programs
under-
( A) Section 112 of the Act( CAP);
( B) The Older Americans Act of 1965
the State long-term care ombudsman
program);
C) Part C of the DD Act; and
D) The PAIMI;
( 7) Establish a grievance procedure for
clients or prospective clients of the
55613Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
eligible system to ensure that to an eligible system that submits an services, or habilitation to persons with
individuals with disabilities are application that meets the requirements disabilities.
afforded equal access to the services of of§ 381. 10 the amount of the allotment ( d) For purposes of paragraph( c) of
the eligible system; to the State pursuant to section 509 of this section, " services under the Act"
8) Use funds made available under the Act, unless the State provides and" treatment, services, or
this part to supplement and not otherwise. habilitation" does not include client
supplant the non-Federal funds that c) For any fiscal year in which the assistance services under CAP,
would otherwise he made available for amount appropriated to carry out this protection and advocacy services
the purpose for which Federal funds are program equals or exceeds$ 10,500,000, authorized under the protection and
provided; and the Secretary shall reserve a portion, advocacy programs under part C of the
9) Implement procedures designed to and use the portion to make a grant for DD Act and the PAIMI, or any other
ensure that, to the maximum extent the eligible system serving the American protection and advocacy services.
possible, mediation( and other Indian Consortium. The Secretary shall ( Authority: Section 12( c) of the alternative dispute resolution) make the grant in an amount of not less Rehabilitation Act of 1973, as amended; 29
procedures, which include good faith than$ 50, 000 for the fiscal year. U.S. C. 709( c))
d) Reallotment:negotiation, are used before resorting to ( 381. 31 What are the requirementsformal administrative or legal remedies. ( 1) For any fiscal year in which the § pertaining to the protection, use, andb) To receive direct payment of funds amount appropriated to carry out this release of personal information? under this part, an eligible system must program equals or exceeds$ 5, 500,000
a) All personal information aboutprovide to the Secretary, as part of its and if the Secretary determines that any (
application for assistance, an assurance amount of an allotment to an eligible individuals served by any eligible
system within a State will not be system under this part, including lists ofthat direct payment is not prohibited by
names, addresses, photographs, and or inconsistent with tribal or State law, expended by such system in carrying records of evaluation, must be heldout the provisions of this part, theregulation, or policy. confidential.Secretary shall make such amountApproved by the Office of Management and b) The eligible system' s use ofavailable to one or more of the eligibleBudget under control number 1820-0018) information and records concerningsystems that the Secretary determinesAuthority: Sections 12( c) and 509(f) and will be able to use additional amounts individuals must be limited only to
g)( 1) of the Rehabilitation Act of 1973, as purposes directly connected with the amended; 29 U.S.C. 709(c)and 794e(f)and during such year for carrying out this
protection and advocacy program,g)( 1)) part.
including program evaluation activities.2) Any reallotment amount made Except as provided in paragraph( c) ofSubpart C— How Does the Secretary available to an eligible system for any
Make an Award? fiscal year shall, for the purposes of this this section, an eligible system may not
disclose personal information about ansection, be regarded as an increase in
381. 20 How does the Secretary evaluate the eligible system' s allotment under individual, directly or indirectly, other
an application? than in the administration of thethis part for that fiscal year.
In any fiscal year in which the protection and advocacy program,
amount appropriated for the PAIR unless the consent of the individual toAuthority: Sections 12( c) and 509( c) ( e) of
the Rehabilitation Act of 1973, as amended; program is less than$ 5, 500,000, the whom the information applies, or his or29 U.S. C. 709( c) and 794e( c)–( e)) her guardian, parent, or otherSecretary evaluates applications under
the procedures in 34 CFR part 75. Subpart D— What Conditions Must Be authorized representative or advocate
Met After an Award? including the individual' s advocateAuthority: Sections 12( c) and 509(b) and( f) from the eligible system), has beenof the Rehabilitation Act of 1973, as 381. 30 How are services to beamended; 29 U. S. C. 709( c) and 794e( b) and § obtained in writing. An eligible system
administered?f)) may not produce any report, evaluation,
a) Each eligible system shall carry out or study that reveals any personally381. 22 How does the Secretary allocate the protection and advocacy program identifying information without thefunds under this program? authorized under this part. written consent of the individual or his
a) In any fiscal year in which the b) An eligible system may not award or her representative.
amount appropriated for this program is a grant or make a subaward to another c) Except as limited in paragraph (d)
equal to or greater than$ 5, 500, 000— entity to carry out, in whole or in part, of this section, the Secretary or other 1) The Secretary sets aside not less the protection and advocacy program Federal or State officials responsible for
than 1. 8 percent but not more than 2. 2 authorized under this part. enforcing legal requirements must be
percent of the amount appropriated to c) An eligible system may contract given complete access to all—
provide a grant, contract, or cooperative with another agency, entity, or 1) Records of the eligible system
agreement for training and technical individual to carry out the PAIR receiving funds under this program; and
assistance to eligible systems carrying program in whole or in part, but only if ( 2) All individual case records of
out activities under this part. the agency, entity, or individual with clients served under this part without
2) After the reservation required by whom the eligible system has the consent of the client.
paragraph( a)( 1) of this section, the contracted— d)( 1) The privilege of a person or
Secretary makes allotments from the 1) Does not provide services under eligible system not to produce
remainder of the amount appropriated the Act or does not provide treatment, documents or provide information
in accordance with section 509( c)( 2)–( d) services, or habilitation to persons with pursuant to paragraph (c) of this section
of the Act. disabilities; and is governed by the principles of
b) Notwithstanding any other 2) Is independent of, and not common law as interpreted by the
provision of law, in any fiscal year in connected financially or through a courts of the United States, except that,
which the amount appropriated for this board of directors to, an entity or for purposes of any periodic audit,
program is equal to or greater than individual that provides services under report, or evaluation of the performance
5, 500, 000, the Secretary pays directly the Act or that provides treatment, of the eligible system established or
review,
55614 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
assisted under this part, the Secretary § 381. 33 What are the requirements related repayments to a revolving fund),
to the use of funds provided under thisdoes not require the eligible system to rebates, refunds, contract settlements,
part? audit recoveries, and interest earned ondisclose the identity of, or any other
a) Funds made available under thispersonally identifiable information such funds before requesting additional part must be used to supplement andrelated to, any individual requesting funds from the Department.
not supplant the non-Federal funds that (assistance under the PAIR program. 3) Any program income received
would otherwise he made available for during a fiscal year that is not obligated2) However, notwithstanding the purpose for which Federal funds are paragraph( d)( 1) of this section, if an or expended prior to the beginning of
provided under this part.
audit, review, State plan the succeeding fiscal year in which the b) In any State in which an eligible program income was received, remainmonitoringoiew,assuranceraire evala or system is located within a State agency, available for obligation and expenditurehas pro, otherdproduced that State or State agency may not useinveindependent by the grantee during that succeedingand reliable that more than five percent of any allotment fiscal year.thereiprobable causellaleto evidencebeliethhat for the costs of administration of the the eligible system has violated its Authority: Sections 12( c), 19, and 509(f)(7),eligible system supported under this (
legislative mandate or misused Federal g), and( i) of the Rehabilitation Act of 1973,part. For purposes of this paragraph, as amended; 29 U. S. C. 709( c), 716, andfunds, the eligible system shall disclose, " costs of administration" include, but 794e(f)(7),( g), and( i); and 20 U.S. C. 3474)if the Secretary so requests, the identity are not limited to, administrative Part 385 is revised to read asof, or any other personally identifiable salaries (including salaries for clerical follows:information( i.e., name, address, and support staff), supplies,
telephone number, social security depreciation, the cost of operating and PART 385— REHABILITATION
number, or other official code or maintaining facilities, equipment, and TRAINING number by which an individual may be grounds (e.g., rental of office space or readily identified) related to, any equipment, telephone, postage, Subpart A—General
individual requesting assistance under maintenance agreements), and other Sec.
the PAIR program, in accordance with 385. 1 What is the Rehabilitation Trainingsimilar types of costs that may bethe principles of common law as program?incurred by the State or State agency to 385. 2 Who is eligible for assistance underinterpreted by the courts of the United administer the eligible system.
States. these programs?c) Funds paid to an eligible system
within a State for a fiscalyear, including385.3 What regulations apply to theseAuthority: Sections 12( c) and 509(h) of the programs? Rehabilitation Act of 1973, as amended; 29 reallotment funds, to carry out this 385.4 What definitions apply to these U.S.C. 709(c) and 794e(h)) program that are not expended or programs?
obligated prior to the end of that fiscal381. 32 What are the reporting Subpart B[ Reserved] year remain available to the eligiblerequirements under this part?
system within a State for obligation Subpart C— How Does One Apply for a
Each eligible system shall provide to Grant?during the succeeding fiscal year in
the Secretary, no later than 90 days after 385. 20 What are the application proceduresaccordance with sections 19 and 509( g)
the end of each fiscal year, an annual for these programs?of the Act.
report that includes information on the ( d) For determining when an eligible Subpart D— How Does the Secretary Makefollowing: system makes an obligation for various a Grant?
a) The types of services and activities kinds of property or services, 34 CFR 385. 30 [ Reserved]
undertaken by the eligible system and 75. 707 and 76. 707, as appropriate, apply 385. 31 How does the Secretary evaluate an to this program. If the appropriation forhow these services and activities application?
addressed the objectives and priorities the PAIR program is less than 385. 33 What other factors does the
5, 500, 000, § 75. 707 applies. If thedeveloped pursuant to § 381. 10( a)( 6). $ Secretary consider in reviewing an
appropriation for the PAIR program is application?
b) The total number of individuals,
equal to or greater than$ 5, 500, 000, Subpart E— What Conditions Must Be Metby race, color, national origin, gender, p 76. 707 applies. An eligible system is by a Grantee?age, and disabling condition, who considered a State for purposes of requested services from the eligible 385.40 What are the requirements
76. 707. pertainingg to the membershipof a projectsystem and the total number of P P 7 e) Program income: advisory committee?naoindividuals, by race, color, national 1) Consistent with 2 CFR 200. 80 and 385.41 What are the requirements affectingorigin, gender, age, o disabling for purposes of this part, program the collection of data from designatedcondition, who were served by the income means gross income earned by State agencies?
eligible system. the designated agency that is directly 385.42 What are the requirements affecting
c) The types of disabilities the dissemination of training materials?generated by an activity supported
under this part. 385.43 What requirements apply to therepresented by individuals served by
training of rehabilitation counselors andthe eligible system. 2)( i) The designated agency must use other rehabilitation personnel?d) The types of issues beingprogram income to supplement FederalyP 385.44 What requirement applies to thefunds that ro ram activitiesaddressed on behalf of individualssupportprogram training of individuals with disabilities?that are subject to this part. See, for 385.45
example 2 CFR 200. 307( e)( 2). served by the eligible system. What additional application
requirements apply to the training ofe) Any other information that the ii) Notwithstanding 2 CFR 200. 305( a) individuals for rehabilitation careers? Secretary may require. and consistent with 2 CFR 385.46 What limitations apply to the rate of
Approved by the Office of Management and pay for experts or consultants appointed200.305(b)( 5), and to the extent that
Budget under control number 1820-0018) program income funds are available, all or serving under contract under the
designated agencies, regardless of Rehabilitation Training program?Authority: Sections 12( c), 13, and 509(k) of
the Rehabilitation Act of 1973, as amended; whether they are a State agency, must Authority: Sections 12( c), 301, and 302 of
29 U. S. C. 709( c), 710, and 794e( k)) disburse those funds ( including the Rehabilitation Act of 1973, as amended;
of
The
55615Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
29 U. S. C. 709( c), 771 and 772, unless Authority: Sections 12( c), 301 and 302 of the
otherwise noted. Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c), 771 and 772)
Subpart A—General
385. 2 Who is eligible for assistance
385. 1 What is the Rehabilitation Training under these programs?
program? States and public or private nonprofit
a) Purpose. The Rehabilitation agencies and organizations, including
Training program is designed to— Indian tribes and institutions of higher
1) Ensure that skilled personnel are education, are eligible for assistance
available to provide rehabilitation under the Rehabilitation Training
services to individuals with disabilities program.
through vocational, medical, social, and ( Authority: Sections 7( 19), 301, and 302 of
psychological rehabilitation programs the Rehabilitation Act of 1973, as amended;
including supported employment 29 U.S. C. 705( 19), 771 and 772)
programs), through economic and
385. 3 What regulations apply to thesebusiness develo ment ro rams,p p g programs?through independent living services
programs, and through client assistance The following regulations apply to the
programs; Rehabilitation Training program:
a) The Education Department General2) Maintain and upgrade basic skills Administrative Regulations (EDGAR) asand knowledge of personnel employed, follows: including personnel specifically trained 1) 34 CFR part 75 ( Direct Grantto deliver rehabilitation services, Programs).including supported employment 2) 34 CFR part 77 ( Definitions That services and customized employment
Apply to Department Regulations).services, to individuals with the most 3) 34 CFR part 79 ( Intergovernmentalsignificant disabilities, and personnel
Review of Department of Educationspecifically trained to deliver services to Programs and Activities).individuals with disabilities whose 4) 34 CFR part 81 ( General Educationemployment outcome is self-
Provisions Act—Enforcement).employment, business ownership, or 5) 34 CFR part 82 ( New Restrictions telecommuting, to provide state-of-the- ( on Lobbying).art service delivery and rehabilitation 6) 34 CFR part 84 ( Governmentwide technology services; and Requirements for Drug Free Workplace3) Provide training and information Financial Assistance).to individuals with disabilities, the 7) 34 CFR part 86 ( Drug Free Schoolsparents, families, guardians, advocates, (and Campuses).and authorized representatives of the 8) 34 CFR part 97 Protection of individuals, and other appropriate Human Subjects).parties to develop the skills necessary 9) 34 CFR part 98 ( Student Rights in for individuals with disabilities to Research, Experimental Programs, and access the rehabilitation system and to Testing.become active decision makers in the 10) 34 CFR part 99 ( Familyvocational rehabilitation process. Educational Rights and Privacy).b) The Secretary awards and b) The regulations in this part 385.
contracts aonacompetitive grantsis to paytibas pay, (( c) [ Reserved]
part the offprojects for training, (the costs finreing, d)( 1) 2 CFR part 180 ( OMB traineeshipssort scholarships, and Guidelines to Agencies on Debarment
vities, ths provision ofincludingactand Suspension( Nonprocurement)), as
technical assistance, to assist in adopted at 2 CFRpart 3485; andpincreasing the numbers of qualified 2) 2 CFR part 200 ( Uniform
personnel trained in providing Administrative Requirements, Cost
vocational rehabilitation services and Principles, and Audit Requirements for other services provided under the Act, Federal Awards) as adopted at 2 CFR to individuals with disabilities. part 3474.
Financial assistance is provided through
( Authority: Sections 12( c) and 302 of themultiple training programs, including: Rehabilitation Act of 1973, as amended; 29 1) Rehabilitation Long Term Training U. S. C. 711( c) and 772)
34 CFR part 386).
2) Innovative Rehabilitation Training § 385. 4 What definitions apply to these
programs?34 CFR part 387).
3) Rehabilitation Short-Term a) The following definitions in 34
Training( 34 CFR part 390). CFR part 77 apply to the programs
4) Training of Interpreters for under the Rehabilitation Training
Individuals Who Are Deaf and Hard of Program—
Hearing and Individuals Who Are Deaf-Applicant
Blind (34 CFR part 396). Application
Award
Budget Period
Department
EDGAR
Grantee
Nonprofit
Private
Project
Project Period
Public
Secretary
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c))
b) The following definitions also
apply to programs under the
Rehabilitation Training program:
Act means the Rehabilitation Act of
1973, as amended( 29 U. S. C. 701 et
seq.).
Assistive technology means
technology designed to be utilized in an
assistive technology device or assistive
technology service.
Assistive technology device means
any item, piece of equipment, or
product system, whether acquiredy
commercially off the shelf, modified, or
customized, that is used to increase,
maintain, or improve functional
capabilities of individuals with
disabilities.
Assistive technology service means
any service that directly assists an
individual with a disability in the
selection, acquisition, or use of an
assistive technology device. The term
includes—
i The evaluation of the needs of an
individual with a disability, including a
functional evaluation of the individual
in the individual' s customary
environment;
ii) Purchasing, leasing, or otherwise
providing for the acquisition of assistive
technology devices by individuals with
disabilities;
iii) Selecting, designing, fitting,
customizing, adapting, applying,
maintaining, repairing, or replacing of
assistive technology devices;
iv) Coordinating and using other
therapies, interventions, or services
with assistive technology devices, such
as those associated with existing
education and rehabilitation plans and
programs;
v) Training or technical assistance for
an individual with disabilities, or, if
appropriate, the family of an individual
with disabilities;
vi) Training or technical assistance
for professionals (including individuals
providing education and rehabilitation
services), employers, or other
individuals who provide services to,
employ, or are otherwise substantially
involved in the major life functions of
individuals with disabilities; and
55616 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
vii) A service consisting of expanding
the availability of access to technology,
including electronic and information
technology, to individuals with
disabilities.
Community rehabilitation program
means a program that provides directly
or facilitates the provision of vocational
rehabilitation services to individuals
with disabilities, and that provides,
singly or in combination, for an
individual with a disability to enable
the individual to maximize
opportunities for employment,
including career advancement—
i) Medical, psychiatric,
psychological, social, and vocational
services that are provided under one
management;
ii) Testing, fitting, or training in the
use of prosthetic and orthotic devices;
iii) Recreational therapy;
iv) Physical and occupational
therapy;
v) Speech, language, and hearing
therapy;
vi) Psychiatric, psychological, and
social services, including positive
behavior management;
vii) Assessment for determining
eligibility and vocational rehabilitation
needs;
viii) Rehabilitation technology;
ix) Job development, placement, and
retention services;
x) Evaluation or control of specific
disabilities;
xi) Orientation and mobility services
for individuals who are blind;
xii) Extended employment;
xiii) Psychosocial rehabilitation
services;
xiv) Supported employment services
and extended services;
xv) Services to family members when
necessary to the vocational
rehabilitation of the individual;
xvi) Personal assistance services; or
xvii) Services similar to the services
described in paragraphs (i) through( xvi)
of this definition.
Designated State agency means an
agency designated under section 7( 8)
and 101( a)( 2)( A) of the Act.
Designated State unit means
i) Any State agency unit required
under section 7( 8) and 101( a)( 2)( B) of
the Act, or
ii) In cases in which no State agency
unit is required, the State agency
described in section 101( a)( 2)( B)( ii) of
the Act.
Independent living core services
means—
i) Information and referral services;
ii) Independent living skills training;
iii) Peer counseling, including cross-
disability peer counseling; and
iv) Individual and systems advocacy.
Independent living services
includes—
i) Independent living core services;
and
ii)(A) Counseling services, including
psychological, psychotherapeutic, and
related services;
( B) Services related to securing
housing or shelter, including services
related to community group living, and
supportive of the purposes of this Act
and of the titles of this Act, and
adaptive housing services (including
appropriate accommodations to and
modifications of any space used to
serve, or occupied by, individuals with
disabilities);
C) Rehabilitation technology;
D) Mobility training;
E) Services and training for
individuals with cognitive and sensory
disabilities, including life skills
training, and interpreter and reader
services;
F) Personal assistance services,
including attendant care and the
training of personnel providing these
services;
G) Surveys, directories, and other
activities to identify appropriate
housing, recreation opportunities, and
accessible transportation, and other
support services;
( H) Consumer information programs
on rehabilitation and independent
living services available under this Act,
especially for minorities and other
individuals with disabilities who have
traditionally been unserved or
underserved by programs under this
Act;
I) Education and training necessary
for living in the community and
participating in community activities;
( J) Supported living;
K) Transportation, including referral
and assistance for transportation;
L) Physical rehabilitation;
( M) Therapeutic treatment;
( N) Provision of needed prostheses
and other appliances and devices;
0) Individual and group social and
recreational services;
P) Training to develop skills
specifically designed for youths who are
individuals with disabilities to promote
self-awareness and esteem, develop
advocacy and self-empowerment skills,
and explore career options;
Q) Services for children;
R) Services under other Federal,
State, or local programs designed to
provide resources, training, counseling,
or other assistance of substantial benefit
in enhancing the independence,
productivity, and quality of life of
individuals with disabilities;
S) Appropriate preventive services to
decrease the need of individuals
assisted under this Act for similar
services in the future;
T) Community awareness programs
to enhance the understanding and
integration of individuals with
disabilities; and
U) Such other services as may be
necessary and not inconsistent with the
provisions of this Act.
Individual with a disability means any
individual who—
i) Has a physical or mental
impairment, which for that individual
constitutes or results in a substantial
impediment to employment;
( ii) Can benefit in terms of an
employment outcome from vocational
rehabilitation services provided
pursuant to title I, III, or VI of the
Rehabilitation Act of 1973, as amended;
and
iii) Has a disability as defined in
section 7( 20)( B) of the Act.
Individual with a significant disability
means an individual with a disability—
i) Who has a severe physical or
mental impairment that seriously limits
one or more functional capacities ( such
as mobility, communication, self care,
self direction, interpersonal skills, work
tolerance, or work skills) in terms of an
employment outcome;
ii) Whose vocational rehabilitation
can be expected to require multiple
vocational rehabilitation services over
an extended period of time; and
iii) Who has one or more physical or(mental disabilities resulting from
amputation, arthritis, autism, blindness,
burn injury, cancer, cerebral palsy,
cystic fibrosis, deafness, head injury,
heart disease, hemiplegia, hemophilia,
intellectual disability, respiratory or
pulmonary dysfunction, mental illness,
multiple sclerosis, muscular dystrophy,
musculo-skeletal disorders, neurological
disorders (including stroke and
epilepsy), paraplegia, quadriplegia and
other spinal cord conditions, sickle-cell
anemia, specific learning disabilities,
end-stage renal disease, or another
disability or combination of disabilities
determined on the basis of an
assessment for determining eligibility
and vocational rehabilitation needs.
Institution of higher education has the
meaning given the term in section
101( a) of the Higher Education Act( 20
U.S. C. 1001( a)).
Personal assistance services means a
range of services provided by one or
more persons designed to assist an
individual with a disability to perform
daily living activities on or off the job
that the individual would typically
perform if the individual did not have
a disability. The services shall be
designed to increase the individual' s
reo
xii)
55617Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
control in life and ability to perform
everyday activities on or off the job.
Qualified personnel. (i) For
designated State agencies or designated
State units, means personnel who have
met standards that are consistent with
existing national or State approved or
recognized certification, licensing,gg
registration, or other comparable
requirements that apply to the area in
which such personnel are providing
vocational rehabilitation services.
ii) For other than designated State
agencies or designated State units,
means personnel who have met existing
State certification or licensure
requirements, or, in the absence of State
requirements, have met professionally
accepted requirements established by
national certification boards.
Rehabilitation services means
services, including vocational, medical,
social, and psychological rehabilitation
services and other services under the
Rehabilitation Act, provided to
individuals with disabilities in
performing functions necessary in
preparing for, securing, retaining, or
regaining an employment or
independent living outcome.
Rehabilitation technology means the
systematic application of technologies,
engineering methodologies, or scientific
principles to meet the needs of and
address the barriers confronted by
individuals with disabilities in areas
that include education, rehabilitation,
employment, transportation,
independent living, and recreation. The
term includes rehabilitation
engineering, assistive technology
devices, and assistive technology
services.
State includes, in addition to each of
the several States of the United States,
the District of Columbia, the
Commonwealth of Puerto Rico, the
United States Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands.
Stipend means financial assistance on
behalf of individuals in support of their
training, as opposed to salary payment
for services provided within the project.
Supported employment means
competitive integrated employment,
including customized employment, or
employment in an integrated work
setting in which individuals are
working on a short-term basis toward
competitive integrated employment,
that is individualized and customized
consistent with the strengths, abilities,
interests, and informed choice of the
individuals involved, for individuals
with the most severe disabilities—
i)(A) For whom competitive
integrated employment has not
traditionally occurred; or
B) For whom competitive(
employment has been interrupted or
intermittent as a result of a severe
disability; and
ii) Who, because of the nature and
severityof their disability, need
intensive supported employment
services from the designated State unit
and extended services after transition in
order to perform the work involved.
Supported employment services
means ongoingg supportpp services,g
including customized employment, and
other appropriate services needed to
support and maintain an individual
with most severe disability in supported
employment, that are—
nsupplies;i) combination
are organized available insinglyandormadeavailable
such a way as to assist an eligible
individual in entering or maintaining
integrated, competitive employment;
ii) Based on a determination of the
needs of an eligible individual, as
specified in an individualized written
rehabilitation program; and
iii) Provided by the designated State
unit for a period of time not more than
24 months, unless under special
circumstances the eligible individual
and the rehabilitation counselor or
coordinator jointly agree to extend the
time in order to achieve the
rehabilitation objectives identified in
the individualized plan for
employment.
Vocational rehabilitation services
means services provided to an
individual with a disability in preparing
for, securing, retaining, or regaining an
employment outcome that is consistent
with the strengths, resources, priorities,
concerns, abilities, capabilities,
interests, and informed choice of the
individual, and services provided for
the benefit of groups of individuals with
disabilities. Vocational Rehabilitation
Services for an individual with a
disability may include—
i) An assessment for determining(eligibility and vocational rehabilitation
needs bqualified ersonnel, includin g'
if appropriate, an assessment by
personnel skilled in rehabilitation
technology;
ii) Counseling and guidance,
including information and support
services to assist an individual in
exercising informed choice;
iii) Referral and other services to
secure needed services from other
agencies;
iv) Job-related services, including job
search and placement assistance, job
retention services, follow-up services,
and follow-along services;
v) Vocational and other training
services, including the provision of
personal and vocational adjustment
services, books, tools, and other training
materials;
vi) Diagnosis and treatment of
physical and mental impairments;
vii) Maintenance for additional costs
incurred while the individual is
receiving services;
( viii) Transportation;
ix) On-the-job or other related
personal assistance services;
x) Interpreter and reader services;
( xi) Rehabilitation teaching services,
and orientation and mobilityservices;
xii) Occupational licenses, tools, (equipment, and initial stocks and
( Ixiiixiii) Technical assistance and other
consultation services to conduct market
analysis, develop business plans, and
otherwise provide resources to eligible
individuals who are pursuing self-
employment or telecommuting or
establishing a small business operation
as an employment outcome;
( xiv) Rehabilitation technology,
including telecommunications, sensory,
and other technological aids and
devices;
xv) Transition services for
individuals with disabilities that
facilitate the achievement of
employment outcomes;
xvi) Supported employment services;
xvii) Services to the family of an
individual with a disabilitynecessaryto
assist the individual to achieve an
employment outcome;
( xviii) Post-employment services
necessary to assist an individual with a
disability to retain, regain, or advance in
employment; and
xix) Expansion of employment
opportunities for individuals with
disabilities, which includes, but is not
limited to—
A) Self-employment, business
ownership, and entrepreneurship;
B) Non-traditionalprofessionaljobs,(employment, and work settings;
C) Collaborating with employers,
Economic Development Councils, and
others in creating new jobs and career
advancement options in local job
markets through the use of job
restructuring and other methods; and
D) Other services as identified by the
Secretary and published in the Federal
Register.
( Authority: Sections 7( 40), 12( c), and
101( a)( 7) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 705(40), 709(c), and
721( a)( 7))
55618 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Subpart B [ Reserved] Authority: Sections 12( c) and 302( b) of the rehabilitation technology in vocational
Rehabilitation Act of 1973, as amended; 29 rehabilitation services, the applicabilityU. S. C. 709( c) and 772( b))Subpart C— How Does One Apply for a of section 504 of this Act, title I of the
Grant? Americans with Disabilities Act of 1990,Subpart E— What Conditions Must Be and the provisions of titles II and XVI
385.20 What are the application Met by a Grantee? of the Social Security Act that areprocedures for these programs? 385. 40 What are the requirements related to work incentives for
The Secretary gives the designated pertaining to the membership of a project individuals with disabilities.
State agency an opportunity to review advisory committee? Authority: Sections 12( c), 101( a), and 302 of
and comment on applications submitted If a project establishes an advisory the Rehabilitation Act of 1973, as amended;
from within the State that it serves. The committee, its membership must 29 U. S. C. 709( c), 721( a) and 772)
procedures to be followed by the include individuals with disabilities or
385.44 What requirement applies to'theapplicant and the State are in 34 CFR parents, family members, guardians, § training of individuals with disabilities.75. 155 through 75. 159. advocates, or other authorized
representatives of the individuals; Any grantee or contractor whoAuthority: Sections 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29 members of minority groups; trainees; provides training shall give due regard
U. S. C. 709( c) and 772) and providers of vocational to the training of individuals with
disabilities as part of its effort torehabilitation and independent living increase the number of qualifiedSubpart D— How Does the Secretary rehabilitation services.
Make a Grant? personnel available to provide
Authority: Section 12( c) of the rehabilitation services.
385.30 [ Reserved] Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c)) Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29385.31 How does the Secretary evaluate
385. 41 What are the requirementsan application? U.S. C. 709( c)
affecting the collection of data from a) The Secretary evaluates designated State agencies? 385.45 What additional application
applications under the procedures in 34 requirements apply to the training o?If the collection of data is necessaryCFR part 75. individuals for rehabilitation careers. from individuals with disabilities being a) All applicants for a grant orb) The Secretary evaluates each served by two or more designated State application using selection criteriacontract to provide training shallagencies or from employees of two or
identified in parts 386, 387, and 390,asdemonstrate how the training they planmore of these agencies, the project
appropriate. director must submit requests for the to provide will prepare rehabilitation
c) In addition to the selection criteria
described in paragraph( b) of this
section, the Secretary evaluates each
application using—
1) Selection criteria in 34 CFR
75. 210;
data to appropriate representatives of
the affected agencies, as determined by
the Secretary. This requirement also
applies to employed project staff and
individuals enrolled in courses of study
supported under these programs.
professionals to address the needs of
individuals with disabilities from
minority backgrounds.
b) All applicants for a grant shall
include a detailed description of
strategies that will be utilized to recruit
2) Selection criteria established
under 34 CFR 75. 209; or
3) A combination of selection criteria
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c))
and train persons so as to reflect the
diverse populations of the United
States, as part of the effort to increase
the number of individuals with established under 34 CFR 75. 209 and
selection criteria in 34 CFR 75. 210.
§ 385. 42 What are the requirements
affecting the dissemination of training
disabilities, individuals who are
members of minority groups, who are
Authority: Sections 12( c) and 302 of the materials? available to provide rehabilitation
Rehabilitation Act of 1973, as amended; 29 services.A set of any training materials U. S. C. 709( c) and 772) developed under the Rehabilitation Approved by the Office of Management and
385.33 What other factors does the Training Program must be submitted to Budget under control number 1820-0018)
Secretary consider in reviewing an any information clearinghouse Authority: Sections 21( a) and( b) and 302 of
application? designated by the Secretary. the Rehabilitation Act of 1973, as amended;
In addition to the selection criteria ( Authority: Section 12( c) of the 29 U. S. C. 718( a) and( b) and 772)
listed in§ 75. 210 and parts 386, 387, Rehabilitation Act of 1973, as amended; 29 §
U.S.C. 709(c)) 385.46 What limitations apply to the rate and 390, the Secretary, in making of pay for experts or consultants appointedawards under this program, considers § 385. 43 What requirements apply to the or serving under contract under the
such factors as— training of rehabilitation counselors and Rehabilitation Training program?
a) The geographical distribution of other rehabilitation personnel? An expert or consultant appointed or
projects in each Rehabilitation Training Any grantee who provides training of serving under contract pursuant to this
Program category throughout the rehabilitation counselors or other section shall be compensated at a rate
country; and rehabilitation personnel must train subject to approval of the Commissioner
b) The past performance of the those counselors and personnel on the which shall not exceed the daily
applicant in carrying out similar services provided under this Act, and, equivalent of the rate of pay for level 4
training activities under previously in particular, services provided in of the Senior Executive Service
awarded grants, as indicated by such accordance with amendments made to Schedule under section 5382 of title 5,
factors as compliance with grant the Rehabilitation Act by the Workforce United States Code. Such an expert or
conditions, soundness of programmatic Innovation and Opportunity Act of consultant may be allowed travel and
and financial management practices and 2014. The grantee must also furnish transportation expenses in accordance
attainment of established project with section 5703 of title 5, Unitedtraining to these counselors and
objectives. States Code.personnel regarding applications of
iiTakemonts;
55619Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
Authority: Section 302(b)( 3) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 772( b)( 3))
11. Part 386 is revised to read as
follows:
PART 386— REHABILITATION
TRAINING: REHABILITATION LONG-
TERM TRAINING
Subpart A—General
Sec.
386. 1 What is the Rehabilitation Long-Term
Training program?
386. 2 Who is eligible for an award?
386. 3 What regulations apply?
386. 4 What definitions apply?
Subpart B[ Reserved]
Subpart C— How Does the Secretary Make
an Award?
386. 20 What additional selection criteria
are used under this program?
386. 21 What are the application procedures
for these programs?
Subpart D— What Conditions Must Be Met
After an Award?
386. 30 What are the matching
requirements?
386. 31 What are the requirements for
directing grant funds?
386. 32 What are allowable costs?
386. 33 What are the requirements for
grantees in disbursing scholarships?
386. 34 What assurances must be provided
by a grantee that intends to provide
scholarships?
386. 35 What information must be provided
by a grantee that is an institution of
higher education to assist designated
State agencies?
386. 36 What is a grantee' s liability for
failing to provide accurate and complete
scholar information to the Department?
Subpart E— What Conditions Must Be Met
by a Scholar?
386.40 What are the requirements for
scholars?
386.41 Tinder what circumstances does the
Secretary grant a deferral or exception to
performance or repayment under a
scholarship agreement?
386.42 What must a scholar do to obtain an
exception or a deferral to performance or
repayment under a scholarship
agreement?
386.43 What are the consequences of a
scholar' s failure to meet the terms and
conditions of a scholarship agreement?
Authority: Sections 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 772, unless otherwise
noted.
Subpart A—General
386.1 What is the Rehabilitation Long-
Term Training program?
a) The Rehabilitation Long-Term
Training program provides financial
assistance for—
1) Projects that provide basic or
advanced training leading to an
academic degree in one of those fields
of study identified in paragraph( b) of
this section;
2) Projects that provide a specified
series of courses or program of study
leading to award of a certificate in one
of those fields of study identified in
paragraph( b) of this section; and
3) Projects that provide support for
medical residents enrolled in residency
training programs in the specialty of
physical medicine and rehabilitation.
b) The Rehabilitation Long-Term
Training program is designed to provide
academic training that leads to an
academic degree or academic certificate
in areas of personnel shortages
identified bythe Secretaryand
published in a notice in the Federal
Register. These areas may include—
1) Assisting and supporting
individuals with disabilities pursuing
self-employment, business ownership,
and telecommuting;( 2) Vocational rehabilitation
counseling;
3) Rehabilitation technology,
including training on its use,
applications, and benefits;pp
4) Rehabilitation medicine;
5) Rehabilitation nursing;
6) Rehabilitation social work;
( 7) Rehabilitation psychiatry;
8) Rehabilitation psychology;
9) Rehabilitation dentistry;
( 10) Physical therapy;
11) Occupational therapy;
12) Speech pathology and audiology;
13) Physical education;
14) Therapeutic recreation;
( 15) Community rehabilitation
program personnel;
16) Prosthetics and orthotics;
17) Rehabilitation of individuals who
are blind or visually impaired,
including rehabilitation teaching and
orientation and mobility;
18) Rehabilitation of individuals who(
are deaf or hard of hearing;
19) Rehabilitation of individuals who
are mentally ill;
( 20) Undergraduate education in the
rehabilitation services;
21) Independent living;
22) Client assistance;
23) Administration of community
rehabilitation programs;
24) Rehabilitation administration;
25) Vocational evaluation and work
adjustment;
26) Services to individuals with
specific disabilities or specific
impediments to rehabilitation,
including individuals who are members
of populations that are unserved or
underserved by programs under this
Act;
27) Job development and job
placement services to individuals with
disabilities;
28) Supported employment services
and customized employment services
for individuals with the most significant
disabilities;
29) Specialized services for
individuals with significant disabilities;
30) Other fields contributing to the
rehabilitation of individuals with
disabilities.
( Authority: Sections 12 and 302 of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709 and 772)
§ 386.2 Who is eligible for an award?
Those agencies and organizations
eligible for assistance under this
program are described in 34 CFR 385. 2.
Authority: Section 302( a) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 772( a))
386.3 What regulations apply?§9
The following regulations apply to the
Rehabilitation Training: Rehabilitation
Long-Term Training program:
a) The regulations in this part 386.
b) The regulations in 34 CFR part
385.
Authority: Section 302( a) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 772( a))
386.4 What definitions apply?
The following definitions apply to
this program:
a) Definitions in 34 CFR 385. 4.
b) Other definitions. The following
definitions also apply to this part:
Academic year means a full-time
course of study—
i) Taken foraeriod totalingat leastp
nine or
for the equivalent of at least( ) aksttwo semesters, two trimesters, or three
uarters.q
Certificate means a recognized
educational credential awarded by a
grantee under this part that attests to the
completion of a specified series of
courses or program of study.
Professional corporation or
professional practice means—
i) A professional service corporation
or practice formed by one or more
individuals duly authorized to render
the same professional service, for the
purpose of rendering that service; and
( ii) The corporation or practice and its
members are subject to the same
supervision by appropriate State
regulatory agencies as individual
practitioners.
Related agency means—
i) An American Indian rehabilitation
program; or
ii) Any of the following agencies that
provide services to individuals with
disabilities under an agreement or other
arrangement with a designated State
5ate
55620 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
agency in the area of specialty for which ( ii) The curriculum and teaching
training is provided:
A) A Federal, State, or local agency.
B) A nonprofit organization.
C) A professional corporation or
professionalpractice group.
Scholar means an individual who is
enrolled in a certificate or degree
granting course of study in one of the
areas listed in§ 386. 1( b) and who
methods provide for an integration of
theory and practice relevant to the
educational objectives of the program;
iii) For programs whose curricula
require them, there is evidence of
educationally focused practical and
other field experiences in settings that
ensure student involvement in the
provision of vocational rehabilitation,
receives scholarship assistance undersupported employment, customized
this part.
Scholarship means an award of
financial assistance to a scholar for
training and includes all disbursements
or credits for student stipends, tuition
and fees, books and supplies, and
student travel in conjunction with
training assignments.
State vocational rehabilitation agency
means the designated State agency as
defined in 34 CFR 361.
Authority: Section 12( c) of the
employment, pre-employment transition
services, transition services, or
independent living rehabilitation
services to individuals with disabilities,
especially individuals with significant
disabilities;
iv) The coursework includes student
exposure to vocational rehabilitation,
supported employment, customized
employment, employer engagement, andindependent living rehabilitation
processes, concepts, programs, and
from within the State that it serves. The
procedures to be followed by the
applicant and the State are in 34 CFR
75. 155-75. 159.
Authority: Sections 12( c) and 302(b)( 2) and
d) of the Rehabilitation Act of 1973, as
amended; 29 U.S.C. 709(c)and 772(b)(2) and
( d))
Subpart D— What Conditions Must Be
Met After an Award?
§ 386.30 What are the matching
requirements?
Thegrantee is required to contribute
at least ten percent of the total cost of
a project under this program. However,
if the rantee can demonstrate that it hasg•insufficient resources to contribute the
entire match but that it can fulfill all
other requirements for receiving an
award, the Secretary may waive part of
the non-Federal share of the cost of the
Rehabilitation Act of 1973, as amended;29project after negotiations withservices; and
U. S. C. 709( c))
Subpart B [ Reserved]
Subpart C— How Does the Secretary
Make an Award?
386.20 What additional selection criteria
are used under this program?
In addition to the criteria in 34 CFR
385. 31( c), the Secretary uses the
following additional selection criteria to
evaluate an application:
a) Relevance to State-Federal
vocational rehabilitation service
program. (1) The Secretary reviews each
application for information that shows
that the proposed project appropriately
relates to the mission of the State-
Federal vocational rehabilitation service
program.
2) The Secretary looks for
information that shows that the project
can be expected either—
i) To increase the supply of trained
personnel available to State and other
public or nonprofit agencies involved in
the rehabilitation of individuals with
h degree or certificatedisabilities throug g
granting programs; or
ii) To improve the skills and quality
of professional personnel in the
rehabilitation field in which the training
is to be provided through the granting
of a degree or certificate.
b) Nature and scope of curriculum.
1) The Secretary reviews each
application for information that
demonstrates the adequacy of the
proposed curriculum.
2) The Secretary looks for
information that shows—
i) The scope and nature of the
coursework reflect content that can be
expected to enable the achievement of
the established project objectives;
v) If applicable, there is evidence of
current professional accreditation by the
designated accrediting agency in the
professional field in which grant
support is being requested.
Authority: Section 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 772)
386.21 What are the application
procedures for these programs?
a) Application. No grant shall be
awarded or contract entered into under
the Rehabilitation Long-Term Training
program unless the applicant has
submitted to the Secretary an
application at such time, in such form,
in accordance with such procedures
identified by the Secretary and, and
includingsuch information as the
Secretary may require, including—
( 1) A description of how the
designated State unit or units will
participate in the project to be funded
under the grant or contract, including,
as appropriate, participation on
advisory committees, as practicum sites,
in curriculum development, and inp
other ways so as to build closer
relationships between the applicant and
the designated State unit and to
encourage students to pursue careers in
public vocational rehabilitation
programs;
2) The identification of potential
employers that provide employment
that meets the requirements in
386. 33( c); and
3) An assurance that data on the
employment of graduates or trainees
who participate in the project is
accurate.
b) The Secretary gives the designated
State agency an opportunity to review
and comment on applications submitted
Department staff.
( Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c))
386.31 What are the requirements for
directing grant funds?
a) A grantee must use at least 65
percent of the total cost of a project
under this program for scholarships as
defined in § 386. 4.
b) The Secretary may waive the
requirement in( a) and award grants that
use less than 65 percent of the total cost
of the project for scholarships based
upon the unique nature of the project,
such as the establishment of a new
training program or long-term training
in an emerging field that does not award
degrees or certificates.
c) Before providing a scholarship to
a scholar, a grantee must make good
faith efforts to determine that the
scholar is not concurrently receiving
more than one scholarship under this
program for the same academic term.
Authority: Sections 12( c) and 302 of the( Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c) and 772)
§ 386.32 What are allowable costs?
In addition to those allowable costs
established in the Education
Department General Administrative
Regulations in 34 CFR 75. 530 through
75. 562, the following items are
allowable under long-term training
projects:
a) Student stipends.
b) Tuition and fees.
c) Books and supplies.
d) Student travel in conjunction with
training assignments.
( Authority: Sections 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c) and 772)
55621Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
386.33 What are the requirements for
grantees in disbursing scholarships?
Before disbursement of scholarship
assistance to an individual, a grantee—
a)( 1) Must obtain documentation that
the individual is—
i) A U.S. citizen or national; or
ii) A permanent resident of the
Commonwealth of Puerto Rico, the
United States Virgin Islands, Guam,
American Samoa, or the Commonwealth
of the Northern Mariana Islands;
2) Must confirm from documentation
issued to the individual by the U.S.
Department of Homeland Security that
he or she—
i) Is a lawful permanent resident of
the United States; or
ii) Is in the United States for other
than a temporary purpose with the
intention of becoming a citizen or
permanent resident; and
b) Must confirm that the applicant
has expressed interest in a career in
clinical practice, administration,
supervision, teaching, or research in the
vocational rehabilitation, supported
employment, or independent living
rehabilitation of individuals with
disabilities, especially individuals with
significant disabilities;
c) Must obtain documentation, as
described in§ 386. 40( a)( 7), that the
individual expects to seek and maintain
employment in a designated State
agency or in a related agency as defined
in§ 386.4 where
1) The employment is in the field of
study in which the training was
received or
2) Where the job functions are
directly relevant to the field of study in
which the training was received.
d) Must ensure that the scholarship,
when added to the amount of financial
aid the scholar receives for the same
academic year under title IV of the
Higher Education Act, does not exceed
the scholar' s cost of attendance;
e) Must limit scholarship assistance
to no more than four academic years,
unless the grantee provides an extension
consistent with the institution' s
accommodations under section 504 of
the Act; and
f) Must obtain a Certification of
Eligibility for Federal Assistance from
each scholar as prescribed in 34 CFR
75. 60, 75. 61, and 75. 62.
Approved by the Office of Management and
Budget under control number 1820-0018)
Authority: Sections 12( c) and 302(b) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 772( b))
386.34 What assurances must be
provided by a grantee that intends to
provide scholarships?
A grantee under this part that intends
to grant scholarships for any academic
year must provide the following
assurances before an award is made:
a) Requirement for agreement. No
individual will be provided a
scholarship without entering into a
written agreement containing the terms
and conditions required by this section.
An individual will sign and date the
agreement prior to the initial
disbursement of scholarship funds to the individual for payment of the
individual' s expenses. An agreement
must be executed between the grantee
and scholar for each subsequent year
that scholarship funds are disbursed
and must contain the terms and
conditions required by this section.
b) Disclosure to applicants. The
terms and conditions of the agreement
between the grantee and a scholar will
be fully disclosed in the application for
scholarship.
c) Form and terms of agreement.
Prior to granting each year of a
scholarship, the grantee will require
each scholar to enter into a signed
written agreement in which the scholar
agrees to the terms and conditions set §
forth in§ 386.40. This agreement must
be in the form and contain any
additional terms and conditions that the
Secretary may require.
d) Executed agreement. The grantee(
will provide an original signed executed
payback agreement upon request to the
Secretary.
( e) Standards for satisfactory progress.
The grantee will establish, publish, and
apply reasonable standards for
measuringwhether a scholar is
maintaining satisfactory progress in the
scholar' s course of study. The Secretary
considers an institution's standards to
be reasonable if the standards—
1) Conform with the standards of
satisfactory progress of the nationally
recognized accrediting agency that
accredits the institution' s program of
study, if the institution' s program of
study is accredited by such an agency,
and if the agency has those standards;
2) For a scholar enrolled in an
eligible program who is to receive
assistance under the Rehabilitation Act,
are the same as or stricter than the
institution' s standards for a student
enrolled in the same academic program
who is not receiving assistance under
the Rehabilitation Act; and
3) Include the following elements: §
i) Grades, work projects completed,
or comparable factors that are
measurable against a norm.
ii) A maximum timeframe in which
the scholar must complete the scholar' s
educational objective, degree, or
certificate.
( iii) Consistent application of
standards to all scholars within
categories of students; e.g., full-time,
part-time, undergraduates, graduate
students, and students attending
programs established by the institution.
iv) Specific policies defining the
effect of course incompletes,
withdrawals, repetitions, and noncredit
remedial courses on satisfactory
progress.
v) Specific procedures for appeal of
a determination that a scholar is not
making satisfactory progress and for
reinstatement of aid.
f) Exit certification. (1) At the time of
exit from the program, the grantee will
provide the following information to the
scholar:
i) The name of the institution and the
number of the Federal grant that
provided the scholarship.
( ii) the total amount of scholarship
assistance received subject to
386.40( a)( 7).
iii) The scholar' s field of study and
the obligation of the scholar to perform
the service obligation with employment
that meets the requirements in
386. 40( a)( 7)( i).
iv) The number of years the scholar
needs to work to satisfy the work
requirements in § 386. 40( a)( 7)( ii).
v) The time period during which the
scholar must satisfy the work
requirements in § 386. 40( a)( 8).
( vi) As applicable, all other
obligations of the scholar in§ 386.40.
2) Upon receipt of this information(from the grantee, the scholar must
provide written and signed certification
to the grantee that the information is
correct.
g) Tracking system. The grantee has(
established policies and procedures to
determine compliance of the scholar
with the terms of the signed payback
agreement. In order to determine
whether a scholar has met the terms and
conditions set forth in§ 386. 40, the
tracking system must include for each
employment position maintained by the
scholar—
1) Documentation of the employer' s
name, address, dates of the scholar' s
employment, name of supervisor,
position title, a description of the duties
the scholar performed, and whether the
employment is full-or part-time;
2) Documentation of how the
employment meets the requirements in
386.40( a)( 7); and
3) In the event a grantee is
experiencing difficulty locating a
scholar, documentation that the grantee
has checked with existing tracking
systems operated by alumni
organizations.
h) Reports. The grantee will make
annual reports to the Secretary, unless
more frequent reporting is required by
of
55622 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
the Secretary, that are necessary to carry
out the Secretary' s functions under this
part.
i) Repayment status. The grantee will
immediately report to the Secretary
whenever a scholar has entered
repayment status under§ 386. 43( e) and
provide all necessary documentation in
support thereof.
described in §§ 386. 40( d) and 386. 43, if
the Department:
a) Is unable to collect, or improperly
collected, some or all of these amounts
or costs from a scholar and
b) Determines that the grantee failed
to provide to the Department accurate
and complete documentation described
in § 386. 34.
j) Records. The grantee will maintain ( Authority: Sections 12( c) and 302 of the
accurate and complete records asRehabilitation Act of 1973, as amended; 29
outlined in paragraphs ( g) and( h) of this
section for a period of time not less than
one year beyond the date that all
scholars provided financial assistance
under the grant—
1) Have completed their service
obligation or
2) Have entered into repayment
status pursuant to § 386. 43( e).
Approved by the Office of Management and
Budget under control number 1820-0018)
Authority: Sections 12( c) and 302(b) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 772( b))
386.35 What information must be
provided by a grantee that is an institution
of higher education to assist designated
State agencies?
A grantee that is an institution of
higher education provided assistance
under this part must cooperate with the
following requests for information from
a designated State agency:
a) Information required by section
101( a)( 7) of the Act which may include,
but is not limited to—
1) The number of students enrolled
by the grantee in rehabilitation training
programs; and
2) The number of rehabilitation
professionals trained by the grantee who
graduated with certification or
licensure, or with credentials to qualify
for certification or licensure, during the
past year.
b) Information on the availability of
rehabilitation courses leading to
certification or licensure, or the
credentials to qualify for certification or
licensure, to assist State agencies in the
planning of a program of staff
development for all classes of positions
that are involved in the administration
and operation of the State vocational
rehabilitation program.
Approved by the Office of Management and
Budget under control number 1820-0018)
Authority: 12( c) 302Authority: Sectionson Act of 1973,) 29andas 302 of the;
U. S. C.C. 709( c) and 772)ReU. S.
386.36 What is a grantee' s liability for
failing to provide accurate and complete
scholar information to the Department?
The Department may recover, in
whole or in part, from the grantee the
debt amount and any collection costs
U. S. C. 709( c) and 772)
Subpart E— What Conditions Must Be
Met by a Scholar?
386.40 What are the requirements for
scholars?
a) A scholar must—
1) Be enrolled in a course of study
leading to a certificate or degree in one
of the fields designated in§ 386. 1( b);
2) Receive the training at the
educational institution or agency
designated in the scholarship;
3) Not accept payment of educational
allowances from any other entity if that
allowance conflicts with the scholar' s
obligation under section 302 of the Act
and this part;
4) Not receive concurrent
scholarships for the same academic term
from more than one project under this
program;
5) Enter into a signed written
agreement with the grantee, prior to the
receipt of scholarship funds, as required
in § 386. 34( c);
6) Maintain satisfactory progress
toward the certificate or degree as
determined by the grantee;
7) Upon exiting the training program
under paragraph (a)( 1) of this section,
subsequently maintain employment on
a full-or part-time basis subject to the
provisions in paragraph( b) of this
section—
i)(A) In a State vocational(
rehabilitation agency or related agency
as defined in§ 386.4; and
( B)( 1) In the field of study for which
training was received, or
2) Where the field of study is directly
relevant to the job functions performed;
and
ii) For a period of at least the full-
time equivalent of two years for every
academic year for which assistance
under this section was received subject
to the provisions in paragraph( c) of this
section for part-time coursework;
Complete the service obligation
within a period, beginning after the
recipient exits the training program for
which the scholarship was awarded, of
not more than the sum of the number of
years in the period described in
paragraph( a)( 7)( ii) of this section and
two additional years;
( 9) Repay all or part of any
scholarship received, plus interest, if
the individual does not fulfill the
requirements of this section, except as
provided for in§ 386.41 for exceptions
and deferrals; and
10) Provide the grantee all requested
information necessary for the grantee to
meet the exit certification requirements
in§ 386. 34(f) and, as necessary,
thereafter for any changes necessary for
the grantee to monitor the scholar' s
service obligation under this section.
( b)( 1) The period of qualifying
employment that meets the
requirements ofparagraph a 7 of thisq
section may begin—
i) For courses of study of at least one
year, only subsequent to the completion
of one academic year of the training for
which the scholarship assistance was
received.
ii) For courses of study of less than
one year, only upon completion of the
training for which the scholarship
assistance was received.
2) The work completed as part of an
internship, practicum, or any other
work-related requirement necessary to
complete the educational program is not
considered qualifying employment.
c) If the scholar is pursuing
coursework on a part-time basis, the
service obligation for these part-time
courses is based on the equivalent total
of actual academic years of training
received.
d) If a scholar fails to provide the
information in paragraph( a)( 10) of this
section or otherwise maintain contact
with the grantee pursuant to the terms
of the signed payback agreement and
enters into repayment status pursuant to
§ 386. 43, the scholar will be held
responsible for any costs assessed in the
collection process under that section
even if that information is subsequently
provided.
Authority: Sections 12( c) and 302(b) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c) and 772( b))
§ 386.41 Under what circumstances does
the Secretary grant a deferral or exception
to performance or repayment under a
scholarship agreement?
Based upon sufficient evidence to
substantiate the grounds as detailed in
§ 386. 42, a repayment exception to or
deferral of the requirements of
§ 386. 40( a)( 7) may be granted, in whole
or in part, by the Secretary as follows:
a) Repayment is not required if the(
scholar—
( 1) Is unable to continue the course of
study or perform the work obligation
because of a permanent disability that
meets one of the following conditions:
55623Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
i) The disability had not been
diagnosed at the time the scholar signed
the agreement in§ 386. 34( c); or
ii) The disability did not prevent the
scholar from performing the
requirements of the course of study or
the work obligation at the time the
scholar signed the agreement in
386. 34( c) but subsequently worsened;
or
2) Has died.
b) Repayment of a scholarship may
be deferred during the time the scholar
is—
1) Engaging in a full-time course of
study in the field of rehabilitation at an
institution of higher education;
2) Serving on active duty as a
member of the armed services of the
United States for a period not in excess
of four years;
3) Serving as a volunteer under the
Peace Corps Act;
4) Serving as a full-time volunteerRehabilitation Act of 1973, as amended; 29 under title I of the Domestic Volunteer
Service Act of 1973;
5) Experiencing a temporary
disability that affects the scholar' s
ability to continue the course of study
or perform the work obligation, for a
period not to exceed three years; or
c) Under limited circumstances as
determined by the Secretary and based
upon credible evidence submitted on
behalf of the scholar, the Secretary may
grant an exception to, or deferral of, the
requirement to repay a scholarship in
instances not specified in this section.
These instances could include, but are
not limited to, the care of a disabled
spouse, partner, or child or the need to
accompany a spouse or partner on
active duty in the Armed Forces.
Authority: Sections 12( c) and 302(b) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 772( b))
386.42 What must a scholar do to obtain
an exception or a deferral to performance
or repaymnt under a scholarship
agreement?
To obtain an exception or a deferral
to performance or repayment under a
scholarship agreement under§ 386.41, a
scholar must provide the following:
a) Written application. A written
application must be made to the
Secretary to request a deferral or an
exception to performance or repayment
of a scholarship.
b) Documentation. Sufficient
documentation must be provided to
substantiate the grounds for all deferrals
or exceptions, including the following,
as appropriate.
1) Documentation necessary to
substantiate an exception under
386. 41( a)( 1) or a deferral under
386. 41( b)( 5) must include a letter from
a qualified physician or other medical
professional, on official stationery,
attesting how the disability affects the
scholar in completing the course of
study or performing the work obligation.
The documentation must be less than
three months old and include the
scholar' s diagnosis and prognosis and
ability to complete the course of study
or work with accommodations.
2) Documentation to substantiate an
exception under§ 386. 41( a)( 2) must
include a death certificate or other
evidence conclusive under State law.
3) Documentation necessary to
substantiate a deferral or exception
under 386. 41( c) based upon the
disability of a spouse, partner, or child
must meet the criteria, as relevant, in
paragraph( b)( 1) of this section.
Approved by the Office of Management and
Budget under control number 1820-0018)
Authority: Sections 12( c) and 302 of the
U. S. C. 709( c) and 772)
386.43 What are the consequences of a
scholar' s failure to meet the terms and
conditions of a scholarship agreement?
In the event of a failure to meet the
terms and conditions of a scholarship
agreement or to obtain a deferral or an
exception as provided in§ 386.41, the
scholar must repay all or part of the
scholarship as follows:
( a) Amount. The amount of the
scholarship to be repaid is proportional
to the employment obligation not
completed.
b) Interest rate. The Secretary charges
the scholar interest on the unpaid
balance owed in accordance with 31
U. S. C. 3717.
c) Interest accrual. (1) Interest on the
unpaid balance accrues from the date
the scholar is determined to have
entered repayment status under
paragraph( e) of this section.
2) Any accrued interest is capitalized
at the time the scholar' s repayment
schedule is established.
3) No interest is charged for the
period of time during which repayment
has been deferred under§ 386. 41.
d) Collection costs. Under the
authority of 31 U. S. C. 3717, the
Secretary may impose reasonable
collection costs.
( e) Repayment status. A scholar enters
repayment status on the first day of the
first calendar month after the earliest of
the following dates, as applicable:
( 1) The date the scholar informs the
Secretary he or she does not plan to
fulfill the employment obligation under
the agreement.
2) Any date when the scholar' s
failure to begin or maintain employment
makes it impossible for that individual
to complete the employment obligation
within the number of years required in
§ 386.40( a)( 8).
f) Amounts and frequency of
payment. The scholar shall make
payments to the Secretary that cover
principal, interest, and collection costs
according to a schedule established by
the Secretary.
Authority: Sections 12( c) and 302(b) of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c) and 772( b))
12. Part 387 is revised to read as
follows:
PART 387—INNOVATIVE
REHABILITATION TRAINING
Subpart A—General
Sec.
387. 1 What is the Innovative Rehabilitation
Training program?
387. 2 Who is eligible for assistance under
thisprogram?
387. 3 Whatreregulationsg apply to thispp y
program?
387.4 What definitions apply to this
program?
387. What types of prosects are authorized5under this program?
Subpart B—[ Reserved]
Subpart C—[ Reserved]
Subpart D— How Does the Secretary Make
a Grant?
387. 30 What additional selection criteria
are used under this program?
Subpart E— What Conditions Must Be Met
by a Grantee?
387.40 What are the matching
requirements?
387.41 What are allowable costs?
Authority: Sections 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29
U.S. C. 709( c), and 772, unless otherwise
noted.
Subpart A—General
§ 387.1 What is the Innovative
Rehabilitation Training program?
This program is designed—
a) To develop new types of training(programs for rehabilitation personnel
and to demonstrate the effectiveness of
these new types of training programs for
rehabilitation personnel in providing
rehabilitation services to individuals
with disabilities;
( b) To develop new and improved
methods of training rehabilitation
personnel so that there may be a more
effective delivery of rehabilitation
services to individuals with disabilities
by designated State rehabilitation
agencies and designated State
rehabilitation units or other public or
non-profit rehabilitation service
agencies or organizations; and
55624 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
c) To develop new innovative proposed project appropriately relates to ( b) Tuition and fees; and
the mission of the State-Federaltraining programs for vocational c) Student travel in conjunction with
rehabilitation professionals and rehabilitation service program. training assignments.paraprofessionals to have a 21st century ( 2) The Secretary looks for Authority: Sections 12( c) and 302 of theinformation that shows that the project ( Rehabilitation Act of 1973, as amended; 29understanding of the evolving labor
force and the needs of individuals with can be expected either— U.S. C. 700( c) and 772)
disabilities so they can more effectively ( i) To increase the supply of trained
provide vocational rehabilitation personnel available to public and PART 388—[ REMOVED AND
services to individuals with disabilities. private agencies involved in the RESERVED]
rehabilitation of individuals with Authority: Sections 12( c), 121( a)( 7), and 302
of the Rehabilitation Act of 1973, as 13. Effective October 1, 2016, part 388disabilities; or
ii) To maintain and improve theamended; 29 U. S. C. 709( c), 721( a)( 7), and is removed and reserved.
772) skills and quality of rehabilitation
personnel. PART 389—[ REMOVED AND
387.2 Who is eligible for assistance RESERVED]b) Nature and scope ofcurriculum.under this program? 1) The Secretary reviews each Those agencies and organizations application for information that 14. Part 389 is removed and reserved.
eligible for assistance under this demonstrates the adequacy and scope of • 15. Part 390 is revised to read as program are described in 34 CFR 385. 2. the proposed curriculum. follows:
Authority: Section 12( c) and 302 of the 2) The Secretary looks for
Rehabilitation Act of 1973, as amended; 29 information that shows that— PART 390— REHABILITATION SHORT-
U. S. C. 709( c) and 772) i) The scope and nature of the TERM TRAINING
training content can be expected to387.3 What regulations applypP Y to this9 Subpart A—Generalenable the achievement of the program? established project objectives of the Sec.
a) 34 CFR part 385 ( Rehabilitation 390.1 What is the Rehabilitation Short-trainingtraining project;Training); and Term Training program?ii) The curriculum and teachingb) The regulations in this part 387. 390. 2 Who is eligible for assistance undermethods provide for an integration of this program?Authority: Sections 12( c) and 302 of the theory and practice relevant to theRehabilitation Act of 1973, as amended;29390.3 What regulations apply to thiseducational objectives of the program; program?U. S. C. 709( c) and 772) iii) There is evidence of 390.4 What definitions apply to this
program?387.4 What definitions apply to this educationally focused practicum or
program? other field experiences in settings that Subpart B— What Kinds of Projects Does assure student involvement in theThe definitions in 34 CFR part 385 the Department of Education Assist Under
provision of vocational rehabilitation orapply to this program. This Program?
independent living rehabilitationAuthority: Sections 12( c) and 302 of the 390.10 What types of projects are services to individuals with disabilities,Rehabilitation Act of 1973, as amended; 29 authorized under this program?
U. S. C. 709( c) and 772)) especially individuals with significant
disabilities; and Subpart C—[ Reserved]
387.5 What types of projects are iv) The didactic coursework includes Subpart D— How Does the Secretary Make authorized under this program? student exposure to vocational a Grant?
The Innovative Rehabilitation rehabilitation processes, concepts, 390.30 What additional selection criterion
programs, and services.Training Program supports time-limited is used under this program?
pilot projects through which new types ( Authority: Sections 12( c) and 302 of the Subpart E— What Conditions Must Be Metof rehabilitation workers may be trained Rehabilitation Act of 1973, as amended; 29 by a Grantee? or through which innovative methods of U. S. C. 709( c) and 772)
390.40 What are the matchingtraining rehabilitation personnel may be requirements?demonstrated. Subpart E— What Conditions Must Be
390.41 What are allowable costs?Met by a Grantee?Authority: Sections 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29 Authority: Sections 12( a) and( c) and 302 387.40 What are the matching of the Rehabilitation Act of 1973, asU. S. C. 709( c) and 772)) requirements?9 amended; 29 U. S. C. 709( a) and( c) and 772,
A grantee must contribute to the cost unless otherwise noted.Subpart B—[ Reserved]
of a project under this program in an
Subpart A—General Subpart C—[ Reserved] amount satisfactory to the Secretary.
The part of the costs to be borne by the § 390.1 What is the Rehabilitation Short-
grantee is determined by the SecretarySubpart D— How Does the Secretary Term Training program?
at the time of the grant award.Make a Grant? This program is designed for the
Authority: Sections 12( c) and 302 of the387.30 What additional selection criteria support of special seminars, institutes,Rehabilitation Act of 1973, as amended; 29
are used under this program? workshops, and other short-termU. S. C. 709( c) and 772)
addition to the criteria in 34 CFR courses in technical matters relating to
387.41 What are allowable costs? the vocational, medical, social, and385. 31( c), the Secretary uses the
psychological rehabilitation programs,In addition to those allowable costsfollowing additional selection criteria to
evaluate an application: established under 34 CFR 75. 530– independent living services programs,
a) Relevance to State-Federal and client assistance programs.75. 562, the following items are
rehabilitation service program. (1) The allowable under Innovative Authority: Sections 12( a)( 2) and 302 of the
Secretary reviews each application for Rehabilitation training projects— Rehabilitation Act of 1973, as amended; 29
information that shows that the a) Student stipends; U.S. C. 709( a)( 2) and 772)
40
55625Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
390.2 Who is eligible for assistance
under this program?
Those agencies and organizations
eligible for assistance under this
program are described in 34 CFR 385. 2.
Authority: Section 302 of the Rehabilitation
Act of 1973, as amended; 29 U. S. C. 772)
390.3 What regulations apply to this
program?
a) 34 CFR part 385 ( Rehabilitation
Training); and
b) The regulations in this part 390.
Authority: Section 302 of the Rehabilitation
Act of 1973, as amended; 29 U. S. C. 772)
390.4 What definitions apply to this
program?
The definitions in 34 CFR part 385
apply to this program.
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c)
Subpart B— What Kinds of Projects
Does the Department of Education
Assist Under This Program?
390.10 What types of projects are
authorized under this program?
a) Projects under this program are
designed to provide short-term training
and technical instruction in areas of
special significance to the vocational,
medical, social, and s cholo icalpy g
rehabilitation programs, supported
employment programs, independent
living services programs, and client
assistance programs.
b) Short-term training projects may
be of regional or national scope.
c) Conferences and meetings in
which training is not the primary focus
may not be supported under this
program.
Authority: Section 12( a)( 2) and 302 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( a)( 2) and 772)
Subpart C—[ Reserved]
Subpart D— How Does the Secretary
Make a Grant?
390.30 What additional selection
criterion is used under this program?
In addition to the criteria in 34 CFR
385. 31( c), the Secretary uses the
following additional selection criterion
to evaluate an application:
a) Relevance to State-Federal
rehabilitation service program. (1) The
proposed project can be expected to
improve the skills and competence of—
i) Personnel engaged in the
administration or delivery of
rehabilitation services; and
ii) Others with an interest in the
delivery of rehabilitation services.
b) Evidence of training needs. The
Secretary reviews each application for
evidence of training needs as identified
through training needs assessment
conducted by the applicant or by
designated State agencies or designated
State units or any other public and
private nonprofit rehabilitation service
agencies or organizations that provide
rehabilitation services and other
services authorized under the Act,
whose personnel will receive the
training'
Authority: Section 12( c) of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c))
Subpart E— What Conditions Must Be
Met by a Grantee?
390.40 What are the matching
requirements?
A grantee must contribute to the cost
of a project under this program in an
amount satisfactory to the Secretary.
The part of the costs to be borne by the
grantee is determined by the Secretary
at the time of the award.
Authority: Section 12( c) and 302 of the
Rehabilitation Act of 1973, as amended; 29
U. S. C. 709( c) and 772)
390.41 What are allowable costs?
a) In addition to those allowable
costs established in 34 CFR 75. 530–
75. 562, the following items are
allowable under short-term training
projects:
1) Trainee per diem costs;
2) Trainee travel in connection with
a training course;
3) Trainee registration fees; and
4) Special accommodations for
trainees with handicaps.
b) The preparation of training
materials may not be supported under a
short-term training grant unless the materials are essential for the conduct of
the seminar, institute, workshop or
other short course for which the grant
PART 396— TRAINING OF
INTERPRETERS FOR INDIVIDUALS
WHO ARE DEAF OR HARD OF
HEARING AND INDIVIDUALS WHO
ARE DEAF– BLIND
Subpart A—General
Sec.
396. 1 What is the Training of Interpreters
for Individuals Who Are Deaf or Hard of
Hearing and Individuals Who Are Deaf-
Blind program?
396. 2 Who is eligible for an award?
396. 3 What regulations apply?
396.4 What definitions apply?
396. 5 What activities may the Secretary
fund?
Subpart B—[ Reserved]
Subpart C— How Does One Apply for an
Award?
396. 20 What must be included in an
application?
Subpart D— How Does the Secretary Make
an Award?
396. 30 How does the Secretary evaluate an
application?
396. 31 What additional selection criteria
are used under this program?
396. 32 What additional factors does the
Secretary consider in making awards?
396. 33 What priorities does the Secretary
apply in making awards?
396. 34 What are the matching
requirements?
Authority: Sections 12( c) and 302( a) and
f) of the Rehabilitation Act of 1973, as( amended; 29 U. S. C. 709( c) and 772( a) and( f),
unless otherwise noted.
Subpart A—General
396.1 What is the Training of Interpreters
for Individuals Who Are Deaf or Hard of
Hearing and Individuals Who Are Deaf-Blind
program?
The Training of Interpreters for
Individuals Who Are Deaf or Hard of
Hearing and Individuals Who Are Deaf-
Blind program is designed to establish
interpreter training programs or to
provide financial assistance for ongoing
interpreter programs to train a sufficient
number of qualified interpreters
throughout the country in order to meet
the communication needs of individuals
who are deaf or hard of hearing and
individuals who are deaf-blind by-
a) Training interpreters to effectively(interpret and transliterate between
spoken language and sign language and to transliterate between spoken language
and oral or tactile modes of
communication;Secretary reviews each application forsupport has been provided.
information that shows that the b) Ensuring the maintenance of the
proposed project appropriately relates to ( Authority: Section 12( c) and 302 of the interpreting skills of qualified
Rehabilitation Act of 1973, as amended; 29the mission of the State-Federal interpreters; and
U. S. C. 709( c) and 772)rehabilitation service programs. c) Providing opportunities for
16. Part 396 is revised to read as interpreters to raise their skill level2) The Secretary looks for
information that shows that the follows: competence in order to meet the highest
55626 Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
standards approved by certifying communicate, depends primarily upon interpreter education program or enters
associations. visual modes, such as sign language, the field through an alternate pathway,
is at the start of his or her professionalspeech reading, and gestures, or readingAuthority: Sections 12( c) and 302( a) and( f)
of the Rehabilitation Act of 1973, as and writing. career with some level of proficiency in
amended; 29 U. S. C. 709( c) and 772( a) and( f)) Individual who is deaf-blind means an American Sign Language, and is
individual— working toward becoming a qualified396.2 Who is eligible for an award? professional.i)(A) Who has a central visual acuity
Public and private nonprofit agencies of 20/ 200 or less in the better eye with Qualified professional means an
and organizations, including corrective lenses, or a field defect such individual who has—
institutions of higher education, are that the peripheral diameter of visual i) Met existing certification or
eligible for assistance under this field subtends an angular distance no evaluation requirements equivalent to
program. greater than 20 degrees, or a progressive the highest standards approved by
visual loss having a prognosis leading to certifying associations; andAuthority: Section 302(f)of the
Rehabilitation Act of 1973, as amended; 29 one or both of these conditions; ii) Successfully demonstrated
U. S. C. 772( f)) B) Who has a chronic hearing interpreting skills that reflect the
impairment so severe that most speech highest standards approved by
396.3 What regulations apply? cannot be understood with optimum certifying associations through prior
The following regulations apply to the amplification, or a progressive hearing work experience.
Training of Interpreters for Individuals loss having a prognosis leading to this Related agency means—
i) An American Indian rehabilitationWho Are Deaf or Hard of Hearing and condition; and
Individuals Who Are Deaf-Blind C) For whom the combination of program; or
program: impairments described in paragraphs ii) Any of the following agencies that
a) 34 CFR part 385 (Rehabilitation ( i)(A) and( B) of this definition causes provide services to individuals with
disabilities under an agreement or otherTraining), sections— extreme difficulty in attaining1) 385. 3( a) and( d); arrangement with a designated Stateindependence in daily life activities, 2) 385.40 through 385.46; and achieving psychosocial adjustment, or agency in the area of specialty for which
b) The regulations under this part obtaining a vocation; training is provided:
396. ii) Who, despite the inability to be A) A Federal, State, or local agency.
B) A nonprofit organization.Authority:Sections 12(c) and 302(f)of the measured accurately for hearing and C) A professional corporation orRehabilitation Act of 1973, as amended; 29 vision loss due to cognitive or
U. S. C. 709( c) and 772( f)) behavioral constraints, or both, can be professional practice group.
determined through functional and Authority:Sections 12(c) and 302(f)of the396.4 What definitions apply? performance assessment to have severe Rehabilitation Act of 1973, as amended and
a) Definitions in EDGAR. The Section 206 of Pub. L. 98-221; 29 U. S. C.hearing and visual disabilities thatfollowingtermsdefinedin34CFR77.1 709(c)and 772(f)and 29 U.S.0 1905) cause extreme difficulty in attainingapply to this part: independence in daily life activities, § 396.5 What activities may the SecretaryApplicant achieving psychosocial adjustment, or fund? Application obtainingvocational objectives; or Award The Secretary may award grants to iii) Who meets any other public or private nonprofit agencies orEquipment requirements that the Secretary mayGrant organizations, including institutions of prescribe.Nonprofit higher educations, to provide assistance
Private Individual who is hard ofhearing for establishment of interpreter trainingmeans an individual who, in order toProject programs or for projects that provide communicate, needs to supplementPublic training in interpreting skills for personsSecretaryauditory information by depending preparing to serve, and persons who are Supplies primarily upon visual modes, such as already serving, as interpreters for b) Definitions in the rehabilitation sign language, speech reading, and individuals who are deaf or hard of
trainingregulations. The followinggestures, or reading and writing. hearing, and as interpreters forInterpreter or individuals who arepfterms defined in 34 CFR 385. 4( b) apply individuals who are deaf-blind in public
to thisart: deaf or hard of hearing means aP and private agencies, schools, and other
qualified professional who uses signIndividual With a Disability service providing institutions.language skills, cued speech, or oralInstitution of Higher Education
c) Other definitions.The following interpreting skills, as appropriate to the (Authority:Section 302(f)of the
Rehabilitation Act of 1973, as amended; 29needs of individuals who are deaf ordefinitions also apply to this part: U.S. C. 772( f))Existing program that has hard of hearing, to facilitate
communication between individualsdemonstrated its capacity for providing Subpart B—[ Reserved]
interpreter training services means an who are deaf or hard of hearing and
established program with— other individuals. Subpart C— How Does One Apply forInterpreter for individuals who arei) A record of training qualified an Award?
interpreters who are serving the deaf, deaf-blind means a qualified
professional who uses tactile or other § 396.20 What must be included in anhard of hearing, and deaf-blind
application?communities; and manual language or fingerspelling
ii) An established curriculum that modes, as appropriate to the needs of Each applicant shall include in the
uses evidence-based practices in the individuals who are deaf-blind, to application—
facilitate communication between a) A description of the manner intraining of interpreters and promising
practices when evidence-based practices individuals who are deaf-blind and which the proposed interpreter training
are not available. other individuals. program will be developed and operated
Individual who is deaf means an Novice Interpreter means an during the five-year period following
individual who, in order to interpreter who has graduated from an the award of the grant;
55627Federal Register/ Vol. 81, No. 161/ Friday, August 19, 2016/ Rules and Regulations
b) A description of the 3) A combination of selection criteria carry out the purposes of this program.
communication needs for training To accomplish this, the Secretary mayestablished under 34 CFR 75. 209 and
interpreters for the population(s) or in selection criteria in 34 CFR 75. 210. in any fiscal year make awards of
the geographical area( s) to be served by ( Authority: Section 302(f) of the regional or national scope.
the project; Rehabilitation Act of 1973, as amended; 29 ( Authority:Sections 12(c) and 302(f)of the c) A description of the applicant' s U. S. C. 772(f)) Rehabilitation Act of 1973, as amended; 29
capacity or potential for providing U.S. C. 709( c) and 772( f))396.31 What additional selection criteriatraining of interpreters for individuals § are used under this program? 396.33 What priorities does the Secretarywho are deaf or hard of hearing and In addition to the criteria in 34 CFR apply in making awards?interpreters for individuals who are
deaf-blind that is evidence-based, and a) The Secretary, in making awards396. 30( c), the Secretary uses the
following additional selection criterionbased on promising practices when under this part, gives priority to publicto evaluate an application. Theevidence-based practices are not or private nonprofit agencies or
Secretary reviews each application toavailable; organizations, including institutions ofdetermine the extent to which— d) An assurance that any interpreter higher education, with existinga) The proposed interpreter trainingtrained or retrained under this program ( programs that have demonstrated their project was developed in consultation shall meet those standards of capacity for providing interpreterwith State Vocational Rehabilitation competency for a qualified professional, training.agencies and their related agencies and that the Secretary may establish; b) In announcing competitions forconsumers; e) An assurance that the project shall ( grants and contracts, the Secretary mayb) The training is appropriate to the cooperate or coordinate its activities, as needs of both individuals who are deaf give priority consideration to—
appropriate, with the activities of other or hard of hearing and individuals who ( 1) Increasing the skill level of
projects funded under this program; interpreters for individuals who are deafare deaf-blind and to the needs of public
f) The descriptions required in 34 and private agencies that provide or hard of hearing and individuals who
CFR 385. 45 with regard to the training services to either individuals who are are deaf-blind in unserved or
of individuals with disabilities, underserved populations or in unserveddeaf or hard of hearing or individuals
or underserved geographic areas;including those from minority groups, who are deaf-blind in the geographical
for rehabilitation careers; and area to be served by the training project; ( 2) Existing programs that have
g) Such other information as the c) Any curricula for the training of demonstrated their capacity for Secretary may require. interpreters includes evidence-based providing interpreter training services
that raise the skill level of interpretersApproved by the Office of Management and practices and promising practices when
Budget under control number 1820-0018) evidence-based practices are not in order to meet the highest standards
available;Authority: Sections 12( c), 21( c), and 302(f) approved by certifying associations; and
of the Rehabilitation Act of 1973, as d) There is a working relationship 3) Specialized topical training based
amended; 29 U. S. C. 709( c), 718( c), and between the interpreter training project on the communication needs of
772(f)) and State Vocational Rehabilitation individuals who are deaf or hard of
agencies and their related agencies, and hearing and individuals who are deaf-
consumers; andSubpart D— How Does the Secretary blind. Make an Award? e) There are opportunities for
individuals who are deaf or hard of Authority: Sections 12( c) and 302(f)(1)( C) of
396.30 How does the Secretary evaluate the Rehabilitation Act of 1973, as amended;hearin and individuals who are deaf-an application? 29 U.S.C. 709(c) and 772(f)(1)( C)) blind to provide input regarding the a) The Secretary evaluates design and management of the training § 396.34 What are the matchingapplications under the procedures in 34 requirements?project. CFR part 75. A grantee must contribute to the costAuthority:Sections 12(c)and 302(f)of theb) The Secretary evaluates each Rehabilitation Act of 1973, as amended; 29 of a project under this program in anapplicationusing selection criteria in U.S.C. 709(c)and 772(f))
396. 31. amount satisfactory to the Secretary.
The part of the costs to be borne by the
grantee is determined by the Secretary
c) In addition to the selection criteria § 396.32 What additional factors does the
described in paragraph( b) of this Secretary consider in making awards?
at the time of the grant award.section, the Secretary evaluates each In addition to the selection criteria
application using— listed in§396.31 and 34 CFR 75.210, ( Authority:Section 12(c)and 302(f)of the
Rehabilitation Act of 1973, as amended; 291) Selection criteria in 34 CFR the Secretary, in making awards under U.S. C. 709( c) and 772( f))75. 210; this part, considers the geographical
2) Selection criteria established distribution of projects throughout the [ FR Doc. 2016-16046 Filed 8- 8-16; 11: 15 am]
under 34 CFR 75. 209; or country, as appropriate, in order to best BILLING CODE 4000-01-P