[Federal Register: February 11, 1997 (Volume 62, Number 28)]
[Rules and Regulations]
[Page 6307-6363]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 6307]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Part 361 et al.
The State Vocational Rehabilitation Services Program; Final Rule
[[Page 6308]]
DEPARTMENT OF EDUCATION
34 CFR Parts 361, 363, 376, and 380
RIN 1820-AB12
The State Vocational Rehabilitation Services Program
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing The State
Vocational Rehabilitation Services Program. These amendments are needed
to implement changes to the Rehabilitation Act of 1973 (Act) made by
the Rehabilitation Act Amendments of 1992, enacted on October 29, 1992,
as amended by the 1993 technical amendments (hereinafter collectively
referred to as the 1992 Amendments).
EFFECTIVE DATE: These regulations take effect March 13, 1997.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of
Education, 600 Independence Avenue, SW., Room 3014, Mary E. Switzer
Building, Washington, DC. 20202-2531. Telephone (202) 205-8831.
Individuals who use a telecommunications device for the deaf (TDD) may
call (202) 205-5538.
SUPPLEMENTARY INFORMATION: The State Vocational Rehabilitation Services
Program (program) is authorized by Title I of the Act (29 U.S.C. 701-
744). This program provides support to each State to assist it in
operating a comprehensive, coordinated, effective, efficient, and
accountable State program to assess, plan, develop, and provide
vocational rehabilitation (VR) services to individuals with
disabilities so that those individuals may prepare for and engage in
gainful employment, consistent with their strengths, resources,
priorities, concerns, abilities, capabilities, and informed choice.
On December 15, 1995, the Secretary published a notice of proposed
rulemaking (NPRM) for this program in the Federal Register (60 FR
64476).
Additionally, pursuant to Executive Order 12866, which encourages
Federal agencies to facilitate meaningful participation in the
regulatory development process, the Rehabilitation Services
Administration (RSA) made available draft proposed regulations (draft
regulations) in accessible formats, including an electronic format, to
a broad spectrum of parties for informal review and comment prior to
publishing the December 15, 1995 NPRM. RSA also gathered public input
on the draft regulations through public meetings and focus groups and
analyzed over 600 letters of comments on the draft regulations.
These final regulations implement changes made to the program by
the 1992 Amendments with the exception of the evaluation standards and
performance indicator requirements in section 106 of the Act, which are
being implemented in a separate rulemaking document, and incorporate
some of the burden-reducing changes previously proposed in an NPRM for
this program that was published on July 3, 1991 (56 FR 30620) (1991
NPRM). The 1991 NPRM was not finalized at the request of Congress.
These regulations also implement changes that the Secretary believes
are important to update, consolidate, clarify, and in other ways
improve the regulations for this program.
The Supplementary Information section to the NPRM includes a
discussion of the major changes to Title I of the Act made by the 1992
Amendments. These changes have far-reaching implications for the
program. Individuals are encouraged to refer to the NPRM (60 FR 64476-
64477) for a discussion of the major themes associated with the 1992
Amendments.
These final regulations contain a limited number of significant
changes to the proposed regulations based on public comment and
interdepartmental review. A detailed description of these changes
follows. In addition, the final regulations have been reviewed and
revised in accordance with the Department's Principles for Regulating,
which were developed as part of the Administration's regulatory
reinvention initiative under the National Performance Review II. The
principles are designed to ensure that the Department regulates in the
most flexible, most equitable, and least burdensome way possible.
The Secretary also notes that the changes to supported employment
definitions included in these final regulations affect those
definitions in 34 CFR parts 363, 376, and 380. Corresponding regulatory
changes to those parts follow the final regulations amending 34 CFR
part 361.
Goals 2000: Educate America Act
The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands the Department's
capacities for helping communities to exchange ideas and obtain
information needed to achieve the goals.
These regulations address the National Education Goal that every
adult American, including individuals with disabilities, will possess
the knowledge and skills necessary to compete in a global economy and
exercise the rights and responsibilities of citizenship.
Executive Order 12866
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary as necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of the final regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of potential costs and benefits
The potential costs and benefits of these final regulations were
summarized in the preamble to the NPRM under the following headings:
Improved Organization of Regulations; Notes and Examples; Reduction of
Grantee Burden; Enhanced Protections for Individuals with Disabilities
(60 FR 64495); Increased Flexibility of Grantees to Satisfy Statutory
Requirements; and Additional Benefits (60 FR 64496). Additional
discussion of potential costs and benefits is included in the following
Analysis of Comments and Changes section of this preamble.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, more than
400 parties submitted comments on the proposed regulations. RSA
gathered additional public input on the NPRM through a series of public
meetings. An analysis of the comments and of the changes in the
regulations since publication of the NPRM follows.
Major issues are grouped according to subject under appropriate
sections of the regulations. Other substantive issues are discussed
under the section of the regulations to which they pertain. Technical
and other minor changes--and suggested changes the Secretary is not
legally authorized to make under the
[[Page 6309]]
applicable statutory authority--generally are not addressed. However,
some suggested changes that the Secretary is not authorized to make
also raise important policy issues and, therefore, are discussed under
the appropriate section of the analysis.
References in the analysis of comments to the ``proposed
regulations'' refer to the regulatory provisions in the December 15,
1995 NPRM, whereas references to the ``draft regulations'' refer to
provisions in the draft proposed regulations that were circulated for
informal comment prior to publishing the NPRM.
Section 361.5(b) Applicable definitions
* Administrative Costs Under the State Plan
Comments: Some commenters requested that this definition be revised
to specifically limit administrative costs to expenditures incurred by
the Designated State Unit (DSU) in administering the VR program. One
commenter recommended that the definition identify indirect costs as a
type of administrative cost. Finally, one commenter sought to exclude
costs incurred by DSUs in providing technical assistance to businesses
and industries from the definition on the basis that those costs
represent expenditures for the provision of services under
Sec. 361.49(a) of the proposed regulations.
Discussion: The Secretary agrees that administrative costs under
the VR State plan are those costs that the DSU incurs in administering
the VR program. While most indirect costs (those costs that cannot be
allocated to a single cost objective and that benefit more than one
program) are generally types of administrative expenditures, they need
not be limited to administrative expenditures. The Secretary does not
believe it is necessary to classify indirect costs in order to ensure
their allowability under the program. All indirect costs that are
approved under an indirect cost agreement or cost allocation plan are
allowable. The Secretary emphasizes that indirect costs related to
multiple State programs (e.g., operating expenses for State buildings
occupied by DSU staff and staff from other State-administered programs)
can be charged to the VR program only to the extent that the costs are
attributable to the VR program.
In addition, the Secretary agrees that although technical
assistance to businesses, in some cases, is considered an
administrative cost, any technical assistance provided by a DSU to a
business or industry that seeks to employ individuals with disabilities
and that is not subject to the Americans with Disabilities Act (ADA)
does not constitute an administrative cost. Technical assistance
provided under these circumstances is authorized by section 103(b)(5)
of the Act and Sec. 361.49(a)(4) of the regulations as a service for
groups of individuals with disabilities.
Changes: The Secretary has revised Sec. 361.5(b)(2) to clarify that
administrative costs are expenditures that are incurred by the DSU in
performing administrative functions related to the VR program. The
definition also has been amended to exclude technical assistance
provided to businesses and industries as a service under the conditions
in Sec. 361.49(a)(4).
* Appropriate Modes of Communication
Comments: One commenter opposed defining ``appropriate modes of
communication'' as specialized media systems and devices that
facilitate communication on the basis that not all modes of
communication used by persons with disabilities are ``media systems and
devices.'' Several commenters requested that the definition identify
graphic presentations, simple language, and other modes of
communication used by individuals with cognitive impairments.
Discussion: The Secretary agrees that ``appropriate modes of
communication'' are not limited to specific systems, devices, or
equipment, as indicated by the proposed definition, and include any
type of aid or support needed by an individual with a disability to
communicate with others effectively. For example, the use of an
interpreter by a person who is deaf is an appropriate mode of
communication, but is not typically viewed as a system or device.
The Secretary believes it would be useful for the definition of
appropriate modes of communication to include examples of communication
methods used by individuals with cognitive impairments. However, the
Secretary emphasizes that the examples of communication services and
materials listed in the definition in the final regulations are not
all-inclusive and that other appropriate modes of communication not
specified in the definition are also available to address the
particular communication needs of an individual with a disability.
Changes: The Secretary has amended Sec. 361.5(b)(5) to clarify that
appropriate modes of communication include any aid or support that
enables an individual with a disability to comprehend and respond to
information being communicated. In addition, the definition has been
amended to include graphic presentations and simple language materials
as examples of modes of communication that may be appropriate for
individuals with cognitive impairments.
* Assistive Technology Service
Comments: Some commenters asked that particular services be
identified in this definition as examples of permissible assistive
technology services. For instance, one commenter suggested that the
definition specifically identify modifications to vehicles used by
individuals with disabilities as an assistive technology service.
Discussion: The definition of the term ``assistive technology
service'' in both the proposed and final regulations tracks the
definition of that term in the Technology-Related Assistance for
Individuals with Disabilities Act of 1988 (Tech Act), as required by
section 7(24) of the Act. The Tech Act defines assistive technology
services generally to include any service that directly assists an
individual with a disability in the selection, acquisition, or use of
an assistive technology device. The definition in the regulations,
therefore, is intended to address the scope of service-related needs of
individuals who use assistive technology devices (e.g., the need to
acquire a particular device or the need to receive training on the
operation of a device) rather than to identify actual services that an
individual might receive. Nevertheless, the Secretary recognizes that
any modification to a vehicle that is necessary to enable an individual
with a disability to use that vehicle is considered an adaptation or a
customization of an assistive technology device under
Sec. 361.5(b)(7)(iii) and, therefore, constitutes an assistive
technology service. This position is consistent with current RSA
policy.
Changes: None.
* Community Rehabilitation Program
Comments: Some commenters requested that the definition of
``community rehabilitation program'' specify additional services, such
as rehabilitation teaching services, that could be provided under a
community rehabilitation program for individuals with disabilities.
Discussion: The definition of ``community rehabilitation program''
in both the proposed and final regulations is based on the statutory
definition in section 7(25) of the Act. However, paragraph (i)(Q) of
this definition, like section 7(25)(Q) of the Act, authorizes community
rehabilitation programs that
[[Page 6310]]
provide services similar to the services specified in the definition.
Thus, the Secretary believes that a community rehabilitation program
could provide rehabilitation teaching services for individuals who are
blind because those services are similar to orientation and mobility
services for individuals who are blind, which are expressly authorized
under paragraph (i)(K) of the definition.
Changes: None.
* Comparable Services and Benefits
Comments: Several commenters requested clarification of the
requirement in the proposed regulations that comparable services and
benefits be available to the individual within a reasonable period of
time. Some commenters requested that the regulations allow DSUs to use
comparable services and benefits only if they are currently available
at the time the individual's Individualized Written Rehabilitation
Program (IWRP) is developed. Other commenters suggested that comparable
services and benefits should be available when necessary to meet the
rehabilitation objectives identified in the individual's IWRP.
Discussion: The definition of ``comparable services and benefits''
is intended to support the statutory purpose of conserving
rehabilitation funds, while ensuring the provision of appropriate and
timely services. The proposed requirement in the NPRM that comparable
services and benefits be available within a reasonable period of time
was intended to enable DSUs to conserve VR funds by searching for
alternative sources of funds without jeopardizing the timely provision
of VR services to eligible individuals. The Secretary agrees that
additional clarification in the regulations is required to ensure that
VR services are provided to eligible individuals at the time they are
needed.
Changes: The Secretary has revised Sec. 361.5(b)(9)(ii) of the
proposed regulations to require that comparable services and benefits
be available to the individual at the time that the relevant service is
needed to achieve the rehabilitation objectives in the individual's
IWRP. This change is consistent with revisions made to Sec. 361.53 of
the proposed regulations, which are discussed in the analysis of
comments to that section.
* Competitive Employment and Integrated Setting
Comments: Some commenters opposed the definition of ``competitive
employment'' in the proposed regulations on the basis that it limited
competitive employment outcomes to those in which an individual with a
disability earns at least the minimum wage. Because the proposed
definition applied to supported employment placements, these commenters
believed that the minimum wage requirement would restrict employment
opportunities for individuals with the most severe disabilities who
need supported employment services in order to work. These commenters
stated that some individuals with the most severe disabilities would be
unable to obtain competitive employment unless the definition permitted
employers to compensate employees in accordance with section 14(c) of
the Fair Labor Standards Act (FLSA) (i.e., wages based on individual
productivity that would be less than the minimum wage). Other
commenters supported the proposed definition and the requirement that
individuals in competitive employment earn at least the minimum wage.
Several commenters opposed the requirement in the proposed
regulations that individuals in competitive employment earn at least
the prevailing wage for the same or similar work in the local community
performed by non-disabled individuals. The commenters believed that it
would be unduly burdensome for DSUs to ascertain the relevant
prevailing wage given the potential differences in wages provided by
employers within the same community. In addition, these commenters
stated that the prevailing wage standard would dissuade some employers
from hiring individuals with disabilities when the wage to be provided,
although at least the minimum wage, would have to be increased to be
consistent with higher wages provided by other employers in the
community for the same or similar work.
Several commenters on the proposed regulations opposed the
requirement that competitive employment be performed in an integrated
setting. Several other commenters questioned or requested clarification
of the proposed definition of integrated setting with respect to the
provision of services or the achievement of an employment outcome. In
light of the interrelationship between the terms ``competitive
employment'' and ``integrated setting'' and the fact that the Secretary
considers integration to be an essential component of competitive
employment, comments on both the proposed definition of ``integrated
setting'' and the use of the term ``integrated setting'' as an element
of competitive employment are addressed in the following paragraphs.
Commenters who opposed limiting competitive employment to
placements in integrated settings believed that requiring individuals
with disabilities to interact with non-disabled persons at the work
site would preclude certain kinds of employment outcomes from the scope
of competitive employment. Specifically, the commenters identified
self-employment, home-based employment, and various forms of
telecommuting as examples of employment outcomes that are competitive
but are not located in integrated settings. The commenters stated that
these placement options should be available to individuals with
disabilities to same extent that they are available to non-disabled
persons.
Some commenters believed that the definition of ``integrated
setting'' in the proposed regulations was too weak. These commenters
recommended that the proposed definition, which defined integrated
setting as ``. . . a setting typically found in the community in which
an applicant or eligible individual has an opportunity to interact
regularly with non-disabled persons . . .,'' be amended to require
actual interaction between the applicant or eligible individual and
non-disabled individuals. Other commenters stated that individuals in
competitive employment should be required to interact with non-disabled
persons only to the extent that non-disabled individuals in similar
positions interact with others. Finally, some commenters suggested that
the definition clarify that sheltered workshops and other employment
settings that are established specifically for the purpose of employing
individuals with disabilities do not constitute integrated settings.
Discussion: The Secretary agrees with the commenters who believe
that competitive employment outcomes should be limited to those in
which individuals earn at least the minimum wage. Consequently, the
Secretary does not consider placements in supported employment settings
in which individuals receive wages below the minimum wage under section
14(c) of the FLSA to be competitive employment. This position, which
would modify longstanding RSA regulatory policy, is consistent with the
requirement in the 1992 Amendments (section 101(a)(16) of the Act) that
DSUs annually review and reevaluate the status of each individual in an
employment setting under section 14(c) of the FLSA in order to
determine the individual's readiness for competitive employment. This
statutory requirement indicates that supported employment
[[Page 6311]]
settings in which individuals are compensated below the minimum wage in
accordance with the FLSA do not constitute competitive employment. The
Secretary wishes to clarify that the minimum wage requirement for
individuals placed in supported employment applies at the time of
transition to extended services. If an individual is unable to obtain
the minimum wage at this time, the individual would still be considered
to have achieved an employment outcome but it would not be considered a
supported employment outcome.
The Secretary agrees that requiring individuals in competitive
employment to earn at least the prevailing wage for the same or similar
work in the local community performed by non-disabled individuals is
unduly restrictive and that requiring individuals with disabilities who
achieve competitive employment outcomes to be compensated at the wage
level typically paid to non-disabled individuals who perform the same
or similar work for the same employer is a more reasonable standard.
This standard requires that competitively employed individuals with
disabilities receive the customary wage and level of benefits (e.g.,
insurance premiums, retirement contributions) received by non-disabled
workers performing comparable jobs for the same employer. Clarification
in the final regulations that comparable compensation includes both the
wage and benefit level typically paid by the employer is necessary, the
Secretary believes, in order to ensure that competitive employment
outcomes for individuals with disabilities are truly ``competitive.'
A key purpose of the 1992 Amendments is to ensure that individuals
with disabilities achieve employment outcomes in the most integrated
settings possible, consistent with the individual's informed choice.
Consequently, the Secretary believes that placement in an integrated
setting is an essential component of ``competitive employment.'
The Secretary agrees with those commenters who believe that the
definition of integrated setting in the proposed regulations did not
sufficiently ensure actual interaction between individuals with
disabilities and non-disabled persons. The Secretary also agrees with
those commenters who contend that the best measure of integration in an
employment setting for individuals with disabilities is to require
parity with the integration experienced by non-disabled workers in
similar positions. Consequently, the final regulations establish a
standard of integration with respect to employment outcomes that is
based on ensuring the same level of interaction by disabled individuals
with non-disabled persons as that experienced by a non-disabled worker
in the same or similar job. An integrated setting for purposes of a job
placement is one in which an applicant or eligible individual interacts
with non-disabled persons, excluding service providers, to the same
extent that a non-disabled worker in a comparable position interacts
with others.
The Secretary believes, however, that interaction between
individuals with disabilities and non-disabled persons need not be
face-to-face in order to meet this standard. Persons with disabilities
who are self-employed or telecommute may interact regularly with non-
disabled persons through a number of mediums (e.g., telephone,
facsimile, or computer). Self-employment, home-based employment, and
other forms of employment in which individuals communicate regularly
from separate locations, therefore, would satisfy the integration
requirement of competitive employment as long as the eligible
individual interacts with non-disabled persons other than service
providers to the same extent as a non-disabled person in a comparable
job.
The Secretary, like many of the commenters, also believes that
settings that are established specifically for the purpose of employing
individuals with disabilities (e.g., sheltered workshops) do not
constitute integrated settings since there are no comparable settings
for non-disabled individuals.
Changes: The Secretary has amended Sec. 361.5(b)(10) to define
``competitive employment,'' in part, as work for which an individual
earns at least the minimum wage but not less than the customary wage
and level of benefits provided by the same employer to non-disabled
workers who perform the same or similar work. The Secretary also has
amended Sec. 361.5(b)(30) to define ``integrated setting'' with respect
to an employment outcome as a setting typically found in the community
in which applicants or eligible individuals interact with non-disabled
individuals to the same extent that non-disabled individuals in
comparable positions interact with other persons. The definition of
``integrated setting'' with respect to the provision of services has
been similarly strengthened to require actual interaction between
individuals with disabilities receiving services and non-disabled
individuals.
* Designated State Unit
Comments: Some commenters requested that the regulatory definition
of ``designated State unit'' prohibit DSUs from administering
vocational and other rehabilitation programs other than those programs
authorized or funded under the Act.
Discussion: Sections 101(a)(1) and (a)(2) of the Act require that
the State VR Services Program be administered by a State entity that is
primarily concerned with vocational rehabilitation or vocational and
other rehabilitation of individuals with disabilities, but does not
restrict this rehabilitation focus to only programs authorized or
funded under the Act. The Secretary wishes to give States as much
organizational flexibility as is permitted by statute.
Changes: None.
* Employment Outcome
Comments: Several commenters opposed the definition of ``employment
outcome'' in the proposed regulations on the basis that it failed to
exclude outcomes other than competitive employment (e.g., homemaker,
self-employment). Other commenters disagreed with the emphasis in the
definition on competitive employment.
Discussion: The definition of ``employment outcome'' in the final
regulations, like the proposed definition, elaborates on the definition
in section 7(5) of the Act by incorporating into the definition the
statutory concept that an employment outcome must be consistent with an
individual's strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice. Although the definition
does not contain a full list of permissible employment outcomes, it
does not exclude any employment outcomes that have been permitted in
the past. Thus, for example, homemaker, extended employment, and self-
employment remain acceptable employment outcomes even though they are
not specifically identified in the definition. The Secretary also
believes, however, that competitive employment, which is the optimal
employment outcome under the program, should be considered for each
individual who receives services under the program and should,
therefore, be highlighted in the definition.
Changes: None.
* Establishment, Development, or Improvement of a Public or
Nonprofit Community Rehabilitation Program
Comments: Some commenters opposed that part of the proposed
[[Page 6312]]
definition of the term ``establishment, development, or improvement of
a public or nonprofit community rehabilitation program'' that would
reduce over a four-year period Federal financial support of staffing
costs associated with operating a community rehabilitation program.
Some of these commenters also opposed the prohibition in the definition
of Federal support for ongoing operating expenses of a community
rehabilitation program. The commenters were concerned that these
provisions would make it difficult or impossible to develop new
community rehabilitation programs.
Discussion: The definition elaborates on the statutory definition
of the term ``establishment of a community rehabilitation program''
under section 7(6) of the Act by incorporating all of the types of
expenditures for which a DSU can receive Federal financial support. The
limitations on staffing costs in the proposed definition are based on
the authorization in section 7(6) of the Act for the Secretary to
include as part of the costs of establishment any additional staffing
costs that the Secretary considers appropriate. The limitations are
similar to those previously proposed in the 1991 NPRM. Specifically,
the proposed regulations established a limitation on staffing costs by
providing, after the first 12 months of staffing assistance, for an
annual decrease in the percentage of staffing costs (from 100 percent
to 45 percent) for which Federal financial participation (FFP) is
available. This limitation, like the staffing cost requirements
proposed in the 1991 NPRM, is influenced by and in part based on the
conclusions of a 1979 General Accounting Office (GAO) report (HRD-79-
84). The GAO Report to Congress recommended amending the Act to provide
for a gradual reduction of Federal funding for staffing costs in the
establishment authority. Legislative change is unnecessary to
accomplish this purpose because section 7(6) of the Act vests the
Secretary with the authority to determine what staffing costs are
appropriate for Federal financial participation. The Secretary believes
that the GAO recommendation is still relevant and needs to be
implemented. The limitation on staffing costs is intended, in part, to
ensure that facilities bear an increasing share of the responsibility
for running community rehabilitation programs, while preserving VR
funds needed to support necessary development or expansion of community
rehabilitation facilities. More generally, the limitation on staffing
costs is intended to preserve the amount of funds available to the DSU
for providing VR services to eligible individuals.
The final regulations also authorize Federal support for other
costs needed to establish, develop, or improve a community
rehabilitation program as long as these costs are not ongoing
operational expenses of the program. The Secretary believes that this
prohibition is consistent with the Act, which limits Federal financial
support to costs associated with setting up, renovating, converting, or
otherwise improving community rehabilitation programs.
The Secretary also notes that recent audits of State agencies have
indicated, in some cases, that VR funds have been used under the
authority for establishing community rehabilitation programs for
purposes other than providing services under the VR program. In
response, the Secretary believes the proposed definition should be
amended to ensure that Federal support for the establishment,
development, or improvement of a public or nonprofit community
rehabilitation program is provided only if the purpose of the
expenditures is to provide services to applicants and eligible
individuals under the VR program.
Changes: The Secretary has amended Sec. 361.5(b)(16) to ensure that
costs associated with the establishment, development, or improvement of
a public or nonprofit community rehabilitation program must be
necessary to the provision of VR services to applicants and eligible
individuals. Changes to this definition and to the State plan
requirements in Sec. 361.33(b) of the regulations are intended to
address the violations identified in recent audits of State agencies.
* Extended Employment
Comments: Several commenters requested that the definition of
``extended employment'' in the proposed regulations be broadened to
include placements in integrated settings. Other commenters sought to
expand the proposed definition to include employment with profitmaking
organizations. Finally, some commenters requested that the regulations
exclude extended employment from the scope of potential employment
outcomes under the program.
Discussion: Section 101(a)(16) of the Act requires DSUs to annually
review and reevaluate the status of each individual in extended
employment to determine the individual's readiness for competitive
employment in an integrated setting. This statutory requirement
indicates that extended employment is limited to placements in non-
integrated settings. The lack of integration in extended employment
placements is a key factor in differentiating between extended
employment and competitive employment outcomes.
The Secretary does not believe that extended employment includes
work performed on behalf of profitmaking organizations. Extended
employment, according to section 101(a)(16) of the Act, means work
performed in community rehabilitation programs, including workshops, or
in other non-integrated employment settings in which individuals are
compensated pursuant to the FLSA. The Secretary believes that
employment in private, profitmaking organizations should be viewed as
competitive employment in which individuals shall earn at least the
minimum wage and work in integrated settings. Incorporating placements
in profitmaking organizations into the definition of extended
employment would expand the scope of potential extended employment
placements and would be contrary to the statutory policy that promotes
movement from extended employment to competitive employment, the
optimal employment outcome under the program. Nevertheless, the final
regulations will continue to recognize extended employment as a
possible employment outcome under the program consistent with
101(a)(16) of the Act.
Changes: None.
* Impartial Hearing Officer
Comments: One commenter requested that the regulations prohibit a
member of a State Rehabilitation Advisory Council from serving as an
impartial hearing officer for any DSU within that State.
Discussion: The definition of ``impartial hearing officer'' in the
proposed regulations specified that a member of a DSU's State
Rehabilitation Advisory Council (Council) could not serve as an
impartial hearing officer for that same DSU. The proposed definition,
however, did allow a member of a DSU's Council to serve as an impartial
hearing officer in cases involving another DSU within the same State.
For example, a member of the Council for a State unit serving
individuals who are blind was not precluded under the proposed
regulations, solely on the basis of that membership, from serving as an
impartial hearing officer in cases involving the State unit that serves
[[Page 6313]]
individuals with disabilities other than individuals with visual
disabilities. The Secretary believes that prohibiting members of a
Council from serving as impartial hearing officers in cases involving
any DSU within the State would be unduly restrictive. The Secretary
also believes that other impartiality requirements in the definition
that apply to all impartial hearing officers, including those who are
members of Councils for other DSUs (e.g., the individual has no
personal, professional, or financial conflict of interest) will
sufficiently ensure the absence of potential conflicts between the
hearing officer and the parties to the dispute.
Changes: None.
* Maintenance
Comments: Some commenters requested that the definition of
``maintenance'' in the proposed regulations be expanded to include
expenses other than living expenses (e.g., food, shelter, and
clothing). As an example, the commenters stated that maintenance should
be authorized to support costs incurred by eligible individuals who
take part in enrichment activities as part of a training program in a
higher education institution. Several other commenters recommended
deletion of the fourth example in the note following the proposed
definition, which stated that maintenance could be used to pay for
food, shelter, and clothing for homeless or recently
deinstitutionalized individuals until other financial assistance is
secured. These commenters asserted that these costs should be supported
by welfare or other public assistance agencies rather than DSUs.
Discussion: The Secretary agrees that maintenance may include costs
other than standard living expenses (i.e., food, shelter, and clothing)
as long as the expenses are in excess of the normal expenses incurred
by an eligible individual or an individual receiving extended
evaluation services. Limiting maintenance to additional costs incurred
by individuals receiving services under an IWRP or under a written plan
for providing extended evaluation services is consistent with section
103(a)(5) of the Act, which restricts the provision of maintenance to
``additional costs while participating in rehabilitation.'
The Secretary also agrees that the fourth example of permissible
maintenance expenses in the proposed regulations was inadvisable.
Permitting DSUs to support the full costs of a homeless or
deinstitutionalized individual's subsistence under the maintenance
authority, until other financial assistance becomes available, is
inconsistent with the policy of limiting maintenance costs to those in
excess of the individual's normal expenses. In addition, the Secretary
agrees that welfare and other social service agencies are better
equipped to support the everyday living expenses of the homeless or
deinstitutionalized. However, a DSU could choose to provide short-term
emergency financial assistance to those individuals under
Sec. 361.48(a)(20) as ``other'' services that the DSU determines are
necessary for the individual to achieve an employment outcome.
Changes: The Secretary has deleted the term ``living'' from
Sec. 361.5(b)(31) of the proposed regulations to clarify that
maintenance may include expenses other than living expenses. In
addition, the Secretary has deleted the fourth example in the note
following the proposed definition of maintenance and replaced it with
an example of a permissible maintenance cost that would not constitute
a living expense.
* Ongoing Support Services
Comments: Some commenters recommended that the Secretary place a
time limit on the provision of ongoing support services furnished by
extended services providers. The commenters stated that the regulations
should permit ongoing support services to ``fade'' once they are no
longer needed to maintain an individual in supported employment.
Discussion: It is RSA's longstanding policy that individuals with
the most severe disabilities who are placed in supported employment
should require ongoing support services throughout the course of their
placement. The need for ongoing support services provides a critical
distinction (i.e., the provision of ongoing supports) between supported
employment and other kinds of employment outcomes. The Secretary
believes that if an individual in supported employment no longer
requires ongoing support services that individual is no longer an
appropriate candidate for supported employment.
Changes: None.
* Personal Assistance Services
Comments: Some commenters requested that the definition of
``personal assistance services'' in the proposed regulations be amended
to more closely track the statutory definition of that term in section
7(11) of the Act. The commenters stated that revision to the proposed
definition is needed to clarify that personal assistance services need
not be provided on the job site.
Discussion: The Secretary agrees that personal assistance services
may be provided off the job site as long as they are necessary to
assist an individual with a disability to perform daily living
functions and achieve an employment outcome and are provided while the
individual is participating in a program of VR services. The Secretary
believes the proposed definition clearly authorized personal assistance
services needed by an individual to perform everyday activities off the
job but, nevertheless, agrees that further clarification may be
helpful.
Changes: The Secretary has amended Sec. 361.5(b)(34) of the
proposed regulations to track the language in section 7(11) of the Act
authorizing personal assistance services needed to increase the
individual's control in life and ability to perform everyday activities
on or off the job.
* Physical and Mental Restoration Services
Comments: Some commenters requested that the regulatory definition
of ``physical and mental restoration services'' specifically include
psychological services provided by qualified personnel under State
licensure laws.
Discussion: The Secretary agrees that psychological services are a
form of mental restoration services. Psychological services, however,
are subsumed within the broader term ``mental health services'' in
paragraph (xiii) of the definition and need not be identified
separately. Moreover, section 103(a)(4) of the Act authorizes services,
including psychological services, that are needed to diagnose and treat
mental or emotional disorders only if those services are provided by
qualified personnel in accordance with State licensure laws. This
requirement, which was included in the proposed definition, is
reflected in paragraph (ii) of the definition in the final regulations.
Changes: None.
* Physical or Mental Impairment
Comments: Some commenters requested clarification of the
requirement in the proposed regulations that a physical or mental
impairment will probably result in materially limiting mental or
physical functioning if it is not treated. One commenter stated that
the definition should be limited to conditions that cause present
functional limitations so as not to unnecessarily expand the pool of
eligible individuals.
[[Page 6314]]
Discussion: The Secretary agrees that clarification is needed. The
proposed regulations defined ``physical or mental impairment'' as an
injury, disease, or other condition that materially limits, or if not
treated will probably result in materially limiting, mental or physical
functioning. The existence of a physical or mental impairment is the
first criterion for determining eligibility under the program (see
Sec. 361.42(a) of the final regulations). The proposed definition was
designed to include progressive conditions that may cause functional
limitations in the future even though current functional limitations
may not be evident. Although a DSU may not always know with certainty
whether a certain condition will limit an individual's functional
abilities, the Secretary believes that the definition must account for
situations in which there is a strong likelihood that functional
limitations will result if treatment is not provided. On the other
hand, the Secretary does not believe that accounting for progressive
conditions will result in an unwarranted increase in eligible
individuals since all eligible individuals, including those who do not
currently experience a limitation in functioning, must meet each of the
eligibility criteria in Sec. 361.42(a).
Changes: The Secretary has amended Sec. 361.5(b)(36) of the
proposed regulations to clarify that a physical or mental impairment
must materially limit, or if untreated must be expected to materially
limit, physical or mental functioning.
* Post-Employment Services
Comments: Some commenters requested that the regulations specify a
time limit for providing post-employment services following the
achievement of an employment outcome. Other commenters opposed the
availability of post-employment services for purposes of assisting an
individual to advance in employment. Finally, several commenters
recommended that the definition enable individuals to receive post-
employment services in order to maintain, regain, or advance in
employment that is consistent with the individual's informed choice.
Discussion: The Secretary believes that it would be inappropriate
to establish an absolute time limit after which post-employment
services would be unavailable. DSUs are responsible for determining on
a case-by-case basis whether an eligible individual who has achieved an
employment outcome requires post-employment services in accordance with
the definition in the regulations. As stated in the note following the
proposed definition, post-employment services are available to meet
rehabilitation needs that do not require a complex and comprehensive
provision of services and, therefore, should be limited in scope and
duration. If the DSU determines that an individual requires extensive
services or requires services over an extended period of time, then the
DSU should consider beginning a new rehabilitation effort for the
individual, starting with a redetermination of whether, under current
circumstances, the individual is eligible under the VR program.
The Secretary emphasizes that post-employment services are
available if the DSU determines that the services are necessary to
enable an individual to advance in employment consistent with the
individual's strengths, resources, priorities, concerns, abilities,
capabilities, and interests. Section 103(a)(2) of the Act specifically
authorizes the provision of post-employment services for purposes of
assisting an individual to maintain, regain, or advance in employment.
The Secretary agrees that the provision of post-employment services
must be consistent with the individual's informed choice. However, the
Secretary believes that it is unnecessary to add informed choice as an
element in the definition of ``post-employment services'' because
informed choice is specifically identified as a condition that applies
to the provision of any VR service, including post-employment services,
under Sec. 361.48(a).
Changes: None.
* Substantial Impediment To Employment
Comments: The majority of commenters supported the definition of
``substantial impediment to employment'' in the proposed regulations.
However, some commenters opposed the proposed definition on the basis
that it requires only that an impairment hinder the individual from
preparing for, entering into, engaging in, or retaining employment.
These commenters recommended that the Secretary reinstate the standard
from the draft regulations that an impairment must prevent the
individual from employment in order for it to constitute a substantial
impediment to employment.
Discussion: An individual's disability must result in a substantial
impediment to employment for the individual to be found eligible under
the VR program (see Sec. 361.42(a)). The Secretary believes that the
proposed definition establishes the appropriate standard for
determining whether the individual's impairment causes a substantial
impediment to employment when read in conjunction with the remaining
eligibility requirements in Sec. 361.42(a). This standard does not
extend eligibility under the program to individuals with disabilities
who do not experience material functional limitation or who do not need
VR services to obtain appropriate employment since these individuals
would not meet the criteria in Sec. 361.42(a). On the other hand, the
Secretary believes that requiring that an impairment prevent the
individual from employment is too stringent and would exclude from the
program those individuals who are underemployed and who need VR
services to obtain new employment that is consistent with their
abilities and capabilities.
Changes: None.
* Supported Employment
Comments: One commenter suggested that, given the requirement in
the proposed regulations that limits competitive employment outcomes to
those in which individuals earn at least the minimum wage, competitive
employment should not be a required element of supported employment.
Another commenter stated that an individual in a supported employment
setting should be viewed as competitively employed as long as the
individual earns at least the minimum wage at the time of transition to
an extended services provider rather than at the time of initial
placement in supported employment.
Discussion: Section 7(18) of the Act defines supported employment
as competitive employment in an integrated setting with ongoing support
services. Thus, individuals in supported employment shall earn at least
the minimum wage consistent with the definition of competitive
employment in the final regulations. The Secretary agrees, however,
that the minimum wage requirement applies to individuals in supported
employment at the time the individual has made the transition from
support provided by the DSU to extended services provided by an
appropriate State or private entity.
Changes: None.
* Transitioning Student
Comments: Some commenters were concerned that omitting the term
applicant from the definition of ``transitioning student'' would mean
that students with disabilities who apply for VR services might not be
evaluated for program eligibility. In addition, some commenters stated
that the term ``transitioning student'' is confusing and is
inappropriately used in
[[Page 6315]]
other sections of the proposed regulations, specifically Sec. 361.22
(Cooperation with agencies responsible for transitioning students).
Discussion: The proposed regulations defined ``transitioning
student'' as a student who is eligible under the VR program and is
receiving transition services. The Secretary believes that transition
services, which are authorized under section 103(a)(14) of the Act and
defined in Sec. 361.5(b)(47) of the final regulations, are limited to
those services identified in an eligible student's IWRP that promote or
facilitate the accomplishment of long-term rehabilitation goals and
intermediate rehabilitation objectives. Because assessment services are
provided prior to the development of an IWRP and, therefore, are not
transition services, student applicants under the program were not
included within the proposed definition of ``transitioning student.''
Nevertheless, this interpretation does not alter the responsibility of
DSUs to evaluate student applicants for eligibility for VR services. As
with any individual with a disability, DSUs shall promptly handle a
referral of a student for VR services, evaluate the student following
application for services, and determine the student's eligibility under
the program within 60 days after the application is submitted.
The Secretary agrees that the definition of the term
``transitioning student'' in the proposed regulations is confusing, as
evidenced by the previous comments questioning the DSU's responsibility
with regard to student applicants. Other commenters were confused by
Sec. 361.22(b) of the proposed regulations, which referred to students
with disabilities who are not receiving special education services as
``transitioning students.'
Changes: The Secretary has eliminated the definition of the term
``transitioning student'', which is not defined in the Act, from the
final regulations and has replaced that term in the regulations with
the term ``student with a disability,'' which includes students who are
receiving special education services and students who are not.
* Transportation
Comments: One commenter requested that the regulations clarify that
transportation is a support service. Other commenters opposed the
example following the definition that identified the purchase and
repair of vehicles as a possible transportation expense. These
commenters stated that adherence to this example would severely deplete
DSU resources.
Discussion: ``Transportation'' is defined in both the proposed and
final regulations as travel and related expenses that are necessary to
enable an applicant or eligible individual to participate in a VR
service. The Secretary believes that it is clear from this definition
that transportation is not a stand-alone service but must be tied to
the provision of other services identified in an IWRP.
The Secretary emphasizes that the examples provided under this
definition, like all examples throughout the regulations, are provided
solely for purposes of illustration and guidance and are not intended
to substitute for DSU determinations in individual cases. Accordingly,
the example opposed by some commenters neither requires nor encourages
DSUs to purchase or repair vehicles. The example states only that the
purchase or repair of vehicles is authorized as a transportation
expense in those limited circumstances in which the DSU determines that
provision of this service is necessary for an individual to participate
in a VR service and is consistent with DSU policies that govern the
provision of services. Appropriately developed DSU policies covering
the nature and scope of services dictate the extent to which any
service, including transportation, can be provided.
Changes: None.
Sec. 361.10 Submission, approval, and disapproval of the State plan.
Comments: None.
Discussion: The Secretary has revised the requirements governing
the duration of State plans to reflect recent amendments to section 436
of the General Education Provisions Act (GEPA). Section 436 of GEPA,
which applies to Rehabilitation Act programs, authorizes the Secretary
to establish a State plan period that is longer than the standard
three-year period specified in section 101(a) of the Rehabilitation Act
and Sec. 361.10(e) of the proposed regulations. Although RSA will
continue to require the submission of a new State plan every three
years, the regulations now permit RSA to establish a State plan period
other than the regular three-year period if circumstances warrant. For
example, RSA used this statutory authority in FY 1996 to extend for a
fourth year the State plan covering FYs 1994 through 1996 in order to
allow these final regulations to become effective before requiring
submission of a new State plan. The flexibility afforded RSA through
this regulatory change also obviates the need for Sec. 361.10(h) of the
proposed regulations, which would have permitted the Secretary to
require an interim State plan covering less than three years following
a reauthorization of the Act and prior to the publication of final
regulations.
Changes: The Secretary has amended Sec. 361.10(e) to state that the
State plan must cover a multi-year period as determined by the
Secretary. In addition, Sec. 361.10(h) of the proposed regulations has
been deleted from the final regulations.
Sec. 361.13 State agency for administration
Comments: Some commenters opposed the elimination of the
requirement from the draft proposed regulations that the State plan
describe the organizational structure of the State agency and its
organizational units. These commenters stated that the absence of this
description in the State plan would make it impossible for RSA to
determine whether each DSU operates at a level comparable to that of
other organizational units within the State agency. Other commenters
recommended, consistent with requirements in the draft proposed
regulations, that the final regulations authorize the designated State
agency to define the scope of the program and direct its administration
without external administrative controls. Additionally, in response to
the Secretary's request in the NPRM, some commenters identified
additional program functions that were not included in the proposed
regulations for which the DSU shall be responsible in order to meet the
statutory requirement in section 101(a)(2)(A) that it be responsible
for the VR program. The additional functions identified by the
commenters (determinations of whether an individual has achieved an
employment outcome; policy development; and administrative control of
VR funds) were specified in the draft proposed regulations. Finally,
some commenters stated that the requirement in the proposed regulations
that at least 90 percent of DSU staff shall be employed full time on
rehabilitation work was unduly restrictive.
Discussion: This section of the proposed regulations was
significantly revised under the Department's Principles for Regulating
in an effort to reduce the paperwork requirements imposed on State
agencies. For example, the Secretary proposed to remove from current
regulations the requirement that the State plan describe the
organizational structure of the State agency and its organizational
units
[[Page 6316]]
because the Secretary considered the requirement unduly burdensome. The
Secretary intended to reduce the paperwork burden on State agencies in
developing their State plans and to emphasize the underlying
administrative responsibility of States by relying on an assurance,
required by statute, that if the State agency is required to have a
vocational rehabilitation unit, the unit is located at an
organizational level comparable to other organizational units within
the State agency. The Secretary does not believe that continuing to
require by regulations that an organizational description be included
in the State plan would necessarily ensure that a DSU actually operates
at a level comparable to that of other units within the State agency.
Moreover, the Secretary believes that determinations as to whether a
State agency meets the organizational requirements in this section,
including whether the State unit operates at a comparable level to that
of other State entities, can be better addressed by RSA through its
monitoring process.
In an effort to reduce regulatory burden and increase State
flexibility in accordance with the Department's Principles for
Regulating, the Secretary also proposed to remove from current
regulations the requirement that a designated State agency that has as
its major function vocational rehabilitation or vocational and other
rehabilitation of individuals with disabilities shall ``have the
authority, subject to the supervision of the Governor, if appropriate,
to define the scope of the program within the provisions of State and
Federal law and to direct its administration without external
administrative controls.'' This non-statutory requirement applies under
current regulations to only one of the three designated State agency
options. The Secretary believes, however, that a State should have the
same authority to review or oversee the administration of its VR
program regardless of the option under which it chooses to organize its
agency. Elimination of this requirement will enable a State to locate
and administer its vocational rehabilitation program within the limits
permitted by statute without being influenced by the existence or non-
existence of varying levels of control outside of the DSU.
In the preamble to the proposed regulations, the Secretary
solicited public comment on whether the regulations should expand or
otherwise clarify essential program functions for which the DSU shall
be responsible in order to meet the statutory requirement in section
101(a)(2)(A) of the Act that it be responsible for the VR program.
Consistent with current regulations, the proposed regulations specified
that the DSU shall be responsible for determinations of eligibility,
development of IWRPs, and decisions regarding the provision of
services. The Secretary interprets this non-delegation provision to
mean that the DSU shall carry out these functions or activities using
its own staff. While some commenters believed that States should have
the flexibility to delegate responsibility for other programmatic
functions to State entities other than the DSU, the overwhelming
majority of commenters stated that the additional functions that were
identified in the draft regulations (determinations that service
recipients have achieved appropriate employment outcomes, the
formulation and implementation of program policy, and the allocation
and expenditure of program funds) must be carried out by the DSU to
ensure that the program is administered properly. In light of the
public comment received, the Secretary agrees that responsibility for
these additional functions must be retained by the DSU to ensure that
State agencies that consolidate staff to administer multiple State and
federally funded programs do not entrust these key VR programmatic
decisions to individuals who lack experience in meeting the needs of
individuals with disabilities. Moreover, the Secretary believes that
the benefits derived from DSU retention of these functions--enhanced
program efficiency and effectiveness--outweigh any costs that may be
associated with the non-delegation requirements in the final
regulations.
The Secretary does not believe that the proposed requirement that
at least 90 percent of the designated State unit staff shall work full
time on the rehabilitation work of the organizational unit is unduly
restrictive. This provision means that if the organizational unit
provides other rehabilitation services, in addition to vocational
rehabilitation, the 90 percent staffing requirement applies to all unit
staff providing rehabilitation services, not to just the vocational
rehabilitation staff. ``Other rehabilitation'' includes, but is not
limited to, other programs that provide medical, psychological,
educational, or social services to individuals with disabilities.
Although some commenters believed the 90 percent staffing requirement
sets too restrictive a standard, the Secretary believes that this
requirement is consistent with the statutory requirement in section
101(a)(2)(A)(iii) of the Act that ``substantially all'' of the DSU's
staff shall work on rehabilitation and with RSA's longstanding
interpretation of ``substantially all'' to mean 90 percent.
Changes: The Secretary has revised Sec. 361.13(c) by adding three
functions--determination that an individual has achieved an employment
outcome, formulation and implementation of program policy, and
allocation and expenditure of program funds--that must be carried out
by the DSU.
Sec. 361.15 Local administration
Comments: One commenter requested clarification of the requirement
that each local agency administering the program be ``under the
supervision of the DSU.''
Discussion: Section 7(9) of the Act defines the term ``local
agency'' as a local governmental unit that has an agreement with the
designated State agency to conduct the VR program in accordance with
the State plan. Accordingly, the requirement in this section that each
local agency is subject to the supervision of the DSU means that the
DSU is responsible for ensuring that the program is administered in
accordance with the State plan. This provision does not require the DSU
to supervise the day-to-day operations of each local agency's program
staff.
Changes: For purposes of clarification, the Secretary has revised
Sec. 361.15 to add a cross-reference to the regulatory definition of
``sole local agency.'' The Secretary has also made technical changes to
the citations of authority for this section.
Sec. 361.16 Establishment of an independent commission or a State
Rehabilitation Advisory Council
Comments: One commenter requested clarification of the scope of the
proposed requirement that the State plan summarize annually the advice
provided by the Council.
Discussion: Section 101(a)(36)(A)(iii) of the Act requires the DSU
to include in its State plan or amendment to the plan a summary of
advice provided by the Council. Accordingly, Sec. 361.16(a)(2)(iv) of
the regulations requires that the State plan ``annually summarize the
advice provided by the Council.'' This ``annual'' requirement means
that any State plan submission, whether a new three-year plan or an
annual amendment to an existing plan, must include, as appropriate, a
summary of the advice provided by the Council on the new plan or the
plan amendment. Thus, a summary of the advice provided by the Council
on the entire plan must be submitted once every three years in
conjunction with
[[Page 6317]]
the DSU's new, three-year State plan. During the interim between new
plans, the DSU shall summarize the advice provided by the Council on
the amendments to the existing plan and submit that summary in
conjunction with its annual submission of amendments to the plan.
Annual amendments to the plan include any amendment generated by a
change to a State policy or practice that is reflected in the current
State plan, as well as those amendments that are required by the Act or
these regulations. Consistent with the general requirement in section
101(a)(36)(A)(iii), this section also requires the DSU to annually
summarize the advice provided by the Council on matters other than
those addressed in the State plan. A summary of the advice provided by
the Council on these issues should be included also in the annual
summaries.
Changes: None.
Sec. 361.18 Comprehensive system of personnel development
Comments: Some commenters questioned the authority for requiring
the involvement of the State Rehabilitation Advisory Council in the
development of the State agency's personnel standards, whereas other
commenters supported a role for the Council in this area. Some
commenters sought clarification of what it means for the Council to be
``involved'' in the development of personnel standards. Additional
commenters sought an expanded role for the Council that would involve
it in the formulation of other aspects of the State agency's
comprehensive system of personnel development in addition to the State
agency's personnel standards.
Some commenters stated that the data collection requirements in
paragraph (a) of this section are unduly burdensome and should be
eliminated.
A number of commenters opposed the authorization of State personnel
requirements as comparable requirements upon which a State agency could
develop its personnel standards under paragraph (c) of this section.
These commenters stated that a State agency's personnel standards
should be based solely on the licensing and certification requirements
applicable to the profession in which DSU employees provide VR services
in order to ensure that DSU personnel are ``qualified'' within the
meaning of the Act. Similarly, several commenters opposed the use of
``equivalent experience'' as a substitute for academic degrees in the
definition of ``highest requirements in the State* * *'' under
paragraph (c) of this section. One commenter stated that the personnel
standards developed by State agencies under this section should be
prospective only and that agencies should be permitted to retain
current DSU personnel who do not meet the ``highest requirements in the
State.'' In addition, some commenters recommended that the regulations
specifically provide for DSU employment for individuals who, due to the
existence of their disability, are unable to satisfy certification or
licensure standards applicable to a particular profession. As an
example, these commenters stated that, historically, individuals who
are blind have been excluded on the basis of their disability from
obtaining necessary certification to teach orientation and mobility to
other blind individuals even though they are fully qualified to work in
that profession.
Some commenters believed that the regulations should require that
DSU staff receive mandatory training in all of the areas identified in
paragraph (d)(2) of this section. Paragraph (d)(2) listed examples of
training areas (e.g., the Americans with Disabilities Act and the
Individuals with Disabilities Education Act (IDEA)) that State
agencies, at their discretion, may incorporate into their staff
development systems.
Several commenters opposed the statement in the preamble to the
proposed regulations that supported a DSU's use of family members and
community volunteers for purposes of communicating in an applicant's or
eligible individual's native language. The commenters believed that the
availability of family members or volunteers should not relieve the
State agency of its responsibility to hire qualified personnel who are
able to meet the communication needs of individuals with disabilities.
One commenter asked whether the State agency's responsibility to employ
persons who can address the communication needs of applicants and
eligible individuals means that the State agency shall include sign-
language interpreters among its personnel.
Finally, one commenter stated that the number of individuals that a
rehabilitation counselor assists in achieving an employment outcome
should not be considered as a factor in the evaluation of the
rehabilitation counselor's performance under paragraph (f) of this
section.
Discussion: The Act requires that the Council generally advise the
State unit in connection with the carrying out of its responsibilities.
In addition, the Council is required to advise the State agency on
issues affecting the development of the State plan. Because an
effective system of personnel development is an essential part of the
State plan and a critical element to the success of The State
Vocational Rehabilitation Services Program, the Secretary believes it
is necessary for the Council to be involved in the development of key
aspects of the State agency's personnel development system.
Specifically, the Secretary agrees with the commenters who stated that
the Council should provide advice to the State agency in connection
with the development of the recruitment, preparation, and retention
plan under paragraph (b) of this section; staff development policies
and procedures under paragraph (d) of this section; and the performance
evaluation system under paragraph (f) of this section; as well as in
the development of personnel standards under paragraph (c) of this
section, as was stated in the proposed regulations.
The Secretary emphasizes that this section of the regulations is
not intended to expand or alter the role of the Council beyond the
advisory role contemplated by the Act, but only to identify those areas
of personnel development in which the Council must be involved in an
advisory capacity. The Secretary believes that to fulfill its advisory
role, the Council, at a minimum, must be afforded an opportunity to
review and comment on relevant plans, policies, and procedures prior to
their implementation. This ``opportunity for review and comment'' is
necessary to ensure that the Council plays a meaningful, although
advisory, role in the development of a system that ensures an adequate
supply of qualified DSU personnel.
The data system and data collection requirements specified in
paragraph (a) of this section are statutorily required. However, the
Secretary emphasizes that the regulations require only that the State
plan include a description of the system used to collect the data on
personnel needs and personnel development and do not require the State
to submit the actual data to the Secretary.
The Secretary agrees with those commenters who stated that the
State agency's personnel standards must be based solely on existing
licensing or certification requirements applicable to the profession in
which DSU employees provide VR services. The Secretary interprets
section 101(a)(7)(B) of the Act to permit DSUs to base their personnel
standards on other ``comparable'' requirements only if certification or
licensing requirements applicable to a particular profession do not
exist. This interpretation is consistent with the
[[Page 6318]]
statute's emphasis on qualified personnel and with the requirement in
the Act that State agencies develop personnel standards that are based
on the ``highest requirements in the State.'' State personnel
requirements may be used as ``comparable requirements'' by the State
agency only in those very limited instances in which there is no
national or statewide certification or license that applies to the
professional or paraprofessional providing VR services (e.g., case
aides). Under those circumstances, State personnel requirements may, in
fact, represent the highest requirements in the State for the
particular profession.
The proposed regulations authorized States to base the highest
personnel standards in the State on equivalent experience, as well as
on academic degrees, in an effort to stress the significance of
relevant work experience and to expand the pool from which qualified
personnel can be selected. The overwhelming majority of commenters on
this issue, however, asserted that the use of ``equivalent experience''
as a substitute for academic degrees for purposes of meeting the
``highest requirements in the State * * *'' significantly weakened the
Act's focus on qualified personnel. In light of these comments, the
Secretary agrees that the ``highest requirements in the State'' should
be limited to the highest entry-level academic degree needed for a
national or State license or certification in order to ensure that the
DSU employs those professionals who are most capable of assessing the
specialized needs of individuals with disabilities and addressing those
needs through an appropriate provision of VR services. The Secretary
recognizes the extent to which the qualified personnel standard in the
Act would be undermined if States chose to ignore widely recognized,
nationally approved or State-approved licensing standards and to employ
less qualified individuals on the basis of ``equivalent experience.''
The Secretary interprets the Act and regulations to permit State
agencies to retain current DSU personnel who do not meet the ``highest
requirements in the State.'' This position is consistent with paragraph
(c)(1)(ii) of this section, which requires the State agency to describe
the steps it plans to take to retrain or hire personnel to meet
standards that are based on the highest requirements in the State if
the State's current standards are not based on the highest requirements
in the State.
The Secretary recognizes the concerns of those commenters who
sought to safeguard DSU employment opportunities for individuals who,
because of their disability, are prohibited from obtaining the license
or certification applicable to their particular profession. To the
extent that certification and licensing requirements are discriminatory
on the basis of disability, these issues should be addressed as
compliance issues under section 504 of the Act and the ADA.
Nevertheless, the Secretary is cognizant of the particular difficulty
experienced by blind individuals who, historically, have been excluded
on the basis of their disability from becoming certified as orientation
and mobility instructors. The Secretary emphasizes that these
regulations do not inhibit DSUs or other VR service providers from
hiring blind individuals as orientation and mobility teachers even
though those individuals may not meet current certification
requirements. To the extent that a DSU employs blind individuals who do
not meet the ``highest requirements in the State'' applicable to the
orientation and mobility profession, the State agency's plan under
paragraph (c)(1)(ii) of this section must identify the steps the agency
plans to take to assist employees in meeting those requirements. In
this regard, the Secretary is supporting a national project to develop
alternative certification standards for orientation and mobility
instructors in order to ensure that individuals who are blind can meet
necessary certification standards within the timeframe outlined in the
DSU's plan under paragraph (c)(1)(ii) of this section.
The Secretary does not believe it is prudent to make the training
areas identified in paragraph (d) of this section mandatory for all
staff employed by each DSU. The Secretary believes that the specific
training areas for staff development adopted by a State unit must be
based on the particular needs of that State unit. Thus, the final
regulations, like the proposed regulations, identify specific training
areas as examples that State agencies may incorporate into their staff
development systems in light of the DSU's needs.
Paragraph (e) of this section requires the State unit to describe
in the State plan how it includes among its personnel or obtains the
services of--(1) Individuals able to communicate in the native
languages of applicants and eligible individuals who have limited
English speaking ability; and (2) Individuals able to communicate with
applicants or eligible individuals in appropriate modes of
communication. Personnel under the first requirement may include State
agency staff, family members of an applicant or eligible individual,
community volunteers, and other individuals able to communicate in the
appropriate native language. However, the Secretary agrees that a DSU
cannot institute an across-the-board policy of using family members or
volunteers as a substitute for addressing the communication needs of
individuals with limited English proficiency through the use of DSU
staff or contract personnel. DSUs shall be prepared to address the
individual communication needs of each applicant or eligible individual
it serves. In addition, the Secretary believes that the DSU is
responsible for employing or obtaining the services of sign-language
interpreters, which fall within the definition of ``appropriate modes
of communication'' in Sec. 361.5(b)(5), to the extent necessary to meet
the communication needs of individuals who are deaf.
The Secretary believes that in evaluating a rehabilitation
counselor's performance, States should not focus primarily on the
number of individuals that the counselor has assisted in achieving an
employment outcome. At most, the number of employment outcomes for
which the counselor is responsible should be considered as one of many
factors in the assessment of the counselor's performance. The Act
requires that the State's performance evaluation system facilitate the
accomplishment of the policies and procedures outlined in the statute,
including the policy of serving, among others, individuals with the
most severe disabilities. Thus, counselors should be evaluated on the
basis of their efforts in advancing the purposes of the program and,
more precisely, on the basis of their performance in serving the most
severely disabled. The Secretary notes the following passage from the
report of the Senate Committee on Labor and Human Resources, which was
also referenced in the preamble to the proposed regulations, to further
support this position: ``The Committee is concerned that in some
States, procedures used for evaluating performance of counselors may
have the unintended consequence of providing a disincentive to serve
individuals with the most severe disabilities and those clients
requiring complex services.'' The performance evaluation system
required under the Act and included in the regulations is designed to
address these disincentives.
Changes: The Secretary has amended Sec. 361.18 to require that the
State Rehabilitation Advisory Council must be afforded an opportunity
to review and comment on the following aspects of the State agency's
comprehensive system of personnel development: The
[[Page 6319]]
plan for recruitment, preparation, and retention of qualified
personnel. Personnel standards. Staff development. The performance
evaluation system. In addition, the Secretary has clarified paragraph
(c) of this section to permit DSUs to base their personnel standards on
comparable requirements (including State personnel requirements) only
if national or State-approved or -recognized certification, licensing,
or registration requirements applicable to a particular profession do
not exist. Finally, the term ``equivalent experience'' has been deleted
from the definition of ``highest requirements in the State'' under
paragraph (c) of this section.
Sec. 361.22 Cooperation with agencies responsible for students with
disabilities
Comments: Some commenters questioned whether this section requires
DSUs to develop policies that enable transitioning students to live
independently before leaving school. The commenters stated that the
proposed regulations appeared to require DSUs to assist students in
living independently while the student continues to receive special
education services from an educational agency. Other commenters
recommended that the regulations be revised to require the development
and completion of the IWRP for a special education student who is
eligible for VR services before the student leaves the school system.
Several commenters believed that the elements of formal interagency
agreements between State units and educational agencies identified in
the proposed regulations should be mandatory for all interagency
agreements developed under this section. Another commenter asked
whether the regulations require DSUs to enter into formal interagency
agreements with each local educational agency within the State.
One commenter opposed the distinction in the proposed regulations
between those students who receive special education services and those
who do not receive special education services and argued that the
requirements governing coordination between educational agencies and
State units should apply for both groups of students. Finally, some
commenters recommended that the term ``transitioning student'' be
replaced by the term ``student with a disability'' for purposes of
referring to students who do not receive special education services
from an educational agency.
Discussion: The proposed regulations required the DSU to develop
plans, policies, and procedures designed to facilitate the transition
of special education students from the school setting to the VR
program. Specifically, the regulations stated these policies must be
designed to facilitate the development and accomplishment of long-term
rehabilitation goals, intermediate rehabilitation objectives, and goals
and objectives related to enabling a transitioning student to live
independently before leaving school. Although these regulatory
requirements largely track the statutory requirements in section
101(a)(24) of the Act, the Secretary agrees that clarification is
needed.
The Secretary does not believe that the Act places on the DSU the
responsibility for assisting a student with a disability to become
independent prior to leaving school. However, the Secretary interprets
the Act to require that, before a student with a disability who is in a
special education program leaves school, the DSU shall plan for that
student's transition to the VR program in order to ensure that there is
no delay in the provision of VR services once special education
services end. This means that the IWRP for each student determined to
be eligible under the VR program or, if the designated State unit is
operating under an order of selection, the IWRP for each eligible
student able to be served under the order, must be completed before the
student leaves school and must, at a minimum, be consistent with the
rehabilitation goals and objectives, including goals and objectives
related to enabling the student to live independently, that were
previously identified in the student's individualized education
program. The Secretary believes that this position is further supported
by the legislative history to the Act, particularly the Report of the
Senate Committee on Labor and Human Resources, portions of which are
restated in the note following this section of the regulations.
Furthermore, the Secretary believes that requiring the development of
the IWRP before a VR-eligible student leaves school does not impose any
additional costs on the DSU since DSUs are already required to develop
IWRPs for eligible individuals, including students with disabilities,
if those individuals can be served. More importantly, the Secretary
believes that this requirement will improve coordination between the
State's special education and VR programs and will ensure that services
are not interrupted after an eligible student leaves school.
In the proposed regulations, the Secretary attempted to lessen the
paperwork burden on State units by reducing the mandatory content
requirements that the draft regulations made applicable to all formal
interagency agreements between State units and educational agencies.
Accordingly, the proposed regulations required only that interagency
agreements identify provisions for determining State lead agencies and
qualified personnel responsible for transition services and identify
policies and practices that can be coordinated between the agencies.
The remaining elements under the draft regulations (identification of
available resources, financial responsibilities of each agency, dispute
resolution procedures, and other necessary cooperative policies) were
discretionary under the proposed regulations. However, most commenters
on this section opposed the reduction in required elements and stated
that each component is essential for ensuring the appropriate
transition of special education students from the school setting to the
VR program. Without detailed agreements, the commenters argue,
resources may be wasted and key processes may not be delineated,
resulting in delays in services once the special education student
leaves school. Consequently, each identified element of formal
interagency agreements is mandatory for all agreements developed under
this section of the final regulations. The Secretary believes this
position is consistent with the statutory requirements governing formal
interagency agreements in section 101 (a)(11) and (a)(24) of the Act.
In reviewing the regulations since publication of the NPRM, the
Secretary identified an additional mandatory element of formal
interagency agreements that was inadvertently omitted from the proposed
regulations. This additional element implements the requirement in
section 101(a)(11)(B) of the Act, which specifies that interagency
cooperation between the DSU and other agencies, including educational
agencies, must include training for staff of the agencies as to the
availability, benefits of, and eligibility standards for vocational
rehabilitation services, to the extent practicable.
The Secretary notes that, although the regulations require the DSU
to enter into a formal agreement with the State educational agency, it
is within the discretion of each State to determine which local
educational agencies should be parties to agreements with the DSU.
The Secretary agrees that classifying students who do not receive
special education services as ``transitioning students'' is confusing.
As stated previously in the preamble analysis of comments on
Sec. 361.5(b)(49), the
[[Page 6320]]
Secretary believes that replacing all references to ``transitioning
students'' in the final regulations with the term ``students with
disabilities'' and eliminating the definition of ``transitioning
student'' from the final regulations will enable DSUs and educational
agencies to more easily refer to, and differentiate between, students
with disabilities who are receiving special education services and
students with disabilities who are not receiving special education
services. Moreover, these changes are consistent with the reference to
``students who are individuals with disabilities'' in section 101
(a)(24) and (a)(30) of the Act.
The Secretary also notes that section 101(a)(30) of the Act
warrants the separate treatment that is afforded students with
disabilities who are not in special education programs as opposed to
those who receive special education services. Paragraph (b) of this
section implements this statutory provision by requiring DSUs to
develop and implement policies for providing VR services to students
with disabilities who do not receive special education services.
Changes: The Secretary has revised Sec. 361.22 to clarify that DSU
policies must provide for the development and completion of the IWRP
for each student with a disability determined to be eligible for
vocational rehabilitation services before the student leaves the school
setting. This section has been revised further to expand the number of
mandatory elements, including staff training to the extent practicable,
that must be included in formal interagency agreements between DSUs and
educational agencies. The Secretary also has revised this section by
replacing the term ``transitioning student'' with the term ``student
with a disability.'' Finally, the Secretary has expanded the note
following this section in order to highlight the emphasis in the Act on
the timely provision of VR services to special education students.
Sec. 361.23 Cooperation with other public agencies
Comments: None.
Discussion: The Secretary wishes to clarify the requirements
governing interagency cooperation between State units and other public
agencies that provide rehabilitation services to individuals with
disabilities. Section 361.23(b)(3) of the proposed regulations would
have required that all types of interagency cooperative initiatives
developed pursuant to this section meet certain requirements. However,
consistent with section 101(a)(11) of the Act, the Secretary wishes to
clarify that the requirements specified in paragraph (b)(3) of this
section (e.g., identification of policies that can be coordinated
between agencies, description of financial responsibility of each
agency, and procedures for resolving disputes) apply only if the State
unit chooses to enter into formal interagency cooperative agreements
with other agencies. It is within the discretion of the State to
determine how the State unit will cooperate with agencies other than
agencies responsible for students with disabilities and to determine
whether the requirements identified in paragraph (b)(3) of this section
should be addressed if the State adopts cooperative methods other than
formal interagency agreements (e.g., interagency working groups).
Changes: The Secretary has revised Sec. 361.23 to clarify that the
mandatory policies, practices, and procedures specified in paragraph
(b)(3) apply only to formal interagency cooperative agreements
developed under this section.
Sec. 361.27 Shared funding and administration of joint programs
Comments: One commenter supported the proposal to no longer require
written agreements for joint programs. The majority of commenters,
however, stated that written agreements are necessary to ensure that
joint programs are administered consistent with the purposes of the VR
program.
Discussion: The proposed regulations removed the current regulatory
requirements relating to written agreements for programs involving
shared funding and administrative responsibility as part of the effort
to reduce paperwork burden on State units and increase State
flexibility. The Secretary maintains that it is within the discretion
of the State to determine whether the public agencies administering a
joint program for providing services to individuals with disabilities
shall enter into a formal written agreement. However, the Secretary
agrees with the commenters who indicated that DSUs should be
accountable for the proper administration of joint rehabilitation
programs authorized under section 101(a)(1)(A) of the Act.
Accountability will be based on the extent to which joint programs are
carried out consistent with the State plan description required by the
final regulations. This limited description is much less extensive, and
therefore less burdensome to DSUs, than the State plan requirements in
the current regulations related to joint programs.
Changes: The Secretary has amended Sec. 361.27 to require that the
State plan describe the nature and scope of any joint program to be
entered into by the DSU, including the services to be provided, the
respective roles of each participating agency in the provision of
services and in the administration of the services, and the share of
the costs to be assumed by each agency.
Sec. 361.29 Statewide studies and evaluations
Comments: One commenter requested that DSUs be required to conduct
a comprehensive assessment of the rehabilitation needs of individuals
with severe disabilities every five years rather than every three years
as was specified in the proposed regulations. Another commenter asked
whether the review of outreach procedures to identify and serve
underserved populations and the review of the provision of VR services
to individuals with the most severe disabilities required under
paragraph (a) of this section are to be conducted on an annual or
triennial basis. In addition, one commenter questioned the statutory
basis for requiring the DSU to analyze the characteristics of
individuals determined to be ineligible for VR services and the reasons
for the ineligibility determinations.
One commenter stated that requiring the DSU to analyze, as part of
its annual evaluation under paragraph (b) of this section, the extent
to which the State has achieved the objectives of the strategic plan is
unnecessary and duplicative of the requirements in Sec. 361.72. Other
commenters stated that it is unduly burdensome to require the
submission of summaries or copies of the statewide studies and annual
evaluations as attachments to the State plan. Finally, one commenter
asked whether the DSU must provide copies of the statewide studies and
annual evaluations to the State Rehabilitation Advisory Council.
Discussion: The Secretary believes it is appropriate and necessary
that a comprehensive assessment of the rehabilitation needs of
individuals with severe disabilities be conducted every three years.
This time period is intended to ensure that the DSU conducts the
assessment and reviews its results in connection with the development
of a new State plan which, in most instances, must be submitted every
three years. Moreover, the Secretary believes that each review or
assessment identified in the regulations as a minimum component of the
DSU's continuing statewide studies must be conducted on a triennial
basis in
[[Page 6321]]
conjunction with the development of the State plan.
Section 101(a)(9)(D) of the Act requires that the State agency
annually provide to the Secretary an analysis of the characteristics of
those individuals determined to be ineligible for VR services and the
reasons for the ineligibility determinations. This requirement,
however, was mischaracterized in the proposed regulations as a
statewide study component and should have been identified as an annual
reporting requirement to be submitted in the State plan.
The Secretary agrees that the proposed annual evaluation
requirement related to the State's achievement of the objectives in its
strategic plan is duplicative of the requirements in Sec. 361.72(e) and
that the requirement should be deleted from paragraph (b) of this
section.
In recognition of the paperwork burden associated with including
summaries or copies of the statewide studies and annual evaluations as
attachments to the State plan, the Secretary intends to require only
that DSUs maintain copies of the studies and evaluations and provide
copies to the Secretary upon request. Copies of the studies and
evaluations, however, should be provided to the State Rehabilitation
Advisory Council so that the Council can meaningfully fulfill its
advisory role in connection with the development of those documents as
is required under section 105(c) of the Act. Additionally, although
this program reporting requirement has been revised, the Secretary
notes that, pursuant to section 635 of the Act, State agencies shall
submit as part of the supported employment supplement to their State
plan a summary of the results of the comprehensive, statewide
assessment on the rehabilitation and career needs of individuals with
severe disabilities and the need for supported employment services.
Changes: The Secretary has amended Sec. 361.29 to clarify that each
mandatory assessment and review identified in paragraph (a) as part of
the DSU's continuing statewide studies must be conducted triennially in
conjunction with the development of the State plan. In addition,
paragraph (a)(3) of this section of the proposed regulations (annual
analysis of ineligible individuals and ineligibility determinations)
has been changed to a reporting requirement in the State plan and
relocated to paragraph (c)(3) in the final regulations. The Secretary
also has deleted the analysis of the State's progress in achieving the
objectives in the strategic plan from the annual evaluation
requirements in paragraph (b) of this section. Finally, the Secretary
has revised paragraph (c)(3) of this section to require that the DSU
maintain copies of its statewide studies and annual evaluations and
make those copies available upon the request of the Secretary. This
provision has been relocated to paragraph (c)(4) in the final
regulations.
Sec. 361.33 Use, assessment, and support of community rehabilitation
programs
Comments: Some commenters opposed the requirement that vocational
rehabilitation services received through community rehabilitation
programs must be provided in the most integrated settings possible.
Other commenters requested that this section be revised to require the
development of a plan for improving existing community rehabilitation
programs.
Discussion: Section 102(b)(1)(B) of the Act requires that
vocational rehabilitation services, including those provided by
community rehabilitation programs, be provided in the most integrated
settings possible. Thus, the standard of integration specified in this
section is consistent with the Act and with other sections of the
regulations governing the provision of services.
The Secretary recognizes that the proposed regulations did not
adequately address each statutory requirement in section 101(a) of the
Act related to community rehabilitation programs. Consequently, the
Secretary believes that this section of the final regulations should be
reorganized, revised, and retitled in an effort to more accurately
reflect all of these statutory requirements, including the requirement
that DSUs develop plans for improving existing programs.
In addition, the Secretary believes that DSUs should be required to
describe in the State plan the need to use Federal funds in support of
new or existing community rehabilitation programs in light of recent
program audit findings indicating that some States have used Federal
funds received under the authority for establishing, developing, or
improving community rehabilitation programs for purposes other than
providing VR services to applicants and eligible individuals. Any
paperwork burden or cost associated with this description, the
Secretary believes, is significantly outweighed by the need to ensure
that program funds used to support community rehabilitation programs
are properly expended.
Changes: The Secretary has revised Sec. 361.33 to require that the
State plan contain plans for improving existing community
rehabilitation programs. In addition, the Secretary has revised this
section to require States to describe in the State plan the need to
establish, develop, or improve, as appropriate, a community
rehabilitation program to provide VR services to applicants and
eligible individuals. This requirement is consistent with revisions
made to the definition of ``establishment, development, or improvement
of a public or nonprofit community rehabilitation program'' in
Sec. 361.5(b)(16) to clarify that Federal support of community
rehabilitation programs is limited to the provision of services to
applicants and eligible individuals under the VR program. Finally, this
section has been retitled ``use, assessment, and support of community
rehabilitation programs'' and has been reorganized to reflect these
three types of requirements.
Sec. 361.34 Supported employment plan
Comments: One commenter opposed the requirement in the proposed
regulations that the DSU submit annual revisions to its supported
employment plan as a supplement to its State plan.
Discussion: The Secretary does not intend to require DSUs to
annually revise each provision of its supported employment plan and
submit those revisions to RSA every year. Section 635(a) of the Act
requires that each State submit a State plan supplement for providing
supported employment services and ``annual revisions [to] the plan
supplement as may be necessary.'' Pursuant to section 635(b)(3) of the
Act, however, RSA requires that each year the DSU explain how it will
expend its annual allotment of supported employment funds received
under section 632 of the Act. Thus, at a minimum, the DSU is required
to submit an annual revision to its State plan attachment that
describes its plans for distributing section 632 funds for purposes of
providing supported employment services to individuals with the most
severe disabilities. In addition, the State unit shall provide, on an
annual basis, any revisions to its supported employment plan that are
necessary to reflect corresponding changes in State policies or
practices regarding the provision of supported employment services.
Changes: The Secretary has revised Sec. 361.34(b) to clarify that
the DSU is required to submit ``any needed'' annual revisions to its
supported employment plan.
[[Page 6322]]
Sec. 361.35 Strategic plan
Comments: Two commenters opposed the requirement that the strategic
plan be submitted as a supplement to the State plan.
Discussion: Section 120 of the Act requires that each State develop
a strategic plan for developing, expanding, and improving VR services
and submit the plan to RSA. In addition, section 101(a)(34)(A) of the
Act requires that the State plan include an assurance that the State
has developed and implemented a strategic plan. The statute, however,
does not authorize the Secretary to approve or disapprove the strategic
plan. Consistent with these requirements, the Secretary does not
consider the strategic plan to be part of the State plan that is
subject to the approval of the Secretary, but is requiring the DSU to
submit the strategic plan and the State plan at the same time for
purposes of administrative efficiency.
Changes: The Secretary has amended Sec. 361.35(b) to require that
the DSU submit the strategic plan at the same time that it submits the
State plan.
Sec. 361.37 Establishment and maintenance of information and referral
programs
Comments: The majority of commenters on this section of the
proposed regulations supported the new provision that would authorize
State units operating under an order of selection to establish an
expanded information and referral program for eligible individuals who
do not meet the order of selection criteria for receiving VR services.
Some commenters did seek additional clarification as to whether
counseling and guidance services are authorized or whether an IWRP is
to be developed for individuals served under the expanded program. One
commenter requested that the Secretary define the term ``referral for
job placement.'' Other commenters requested that DSUs be permitted to
count as successful outcomes those individuals who obtain employment
following a referral by the DSU. A limited number of commenters
believed the expanded program to be inconsistent with the order of
selection requirements in the Act.
Discussion: The expanded information and referral program
authorized in this section is intended to address the concerns of some
State units operating under an order of selection. These State units
believe they should be permitted to provide limited non-purchased
services to eligible individuals who do not qualify for services under
the State unit's priority categories. An order of selection is required
under section 101(a)(5)(A) of the Act if a State unit determines that
it is unable to provide services to all eligible individuals.
Authorization of an expanded information and referral program under
this section is consistent with the Act as long as the DSU, in carrying
out the expanded program, does not use funds needed to provide VR
services to eligible individuals who are able to be served under the
State unit's order of selection. An assurance to this effect is a key
condition to operating an expanded program. In addition, the Secretary
expects a DSU to expend a limited level of resources (e.g., staff time
and equipment) in support of its referral program. For example, a DSU
staff member can administer the expanded program only to extent that
the staff person is not needed to provide VR services to eligible
individuals who qualify for services. This limited commitment of
resources must be reflected in the DSU's description of its program
under paragraph (c)(2) of this section.
The Secretary agrees that it is appropriate to provide counseling
and guidance services under the expanded referral program.
Authorization of these services further distinguishes the expanded
program from the general information and referral functions performed
by the DSU for any individual with a disability. However, DSUs are not
expected to develop IWRPs for eligible individuals receiving expanded
information and referral services since these individuals do not meet
the DSU's criteria for receiving services under its order of selection
and, therefore, cannot receive the full range of services under section
103(a) of the Act to address their rehabilitation needs.
The Secretary believes that the term ``referral for job placement''
is self-explanatory. The expanded program authorizes DSUs to refer
individuals to various public and private placement agencies in the
community that may be able to assist the individual in obtaining
employment.
Although the proposed regulations had required DSUs to track the
results of its expanded information and referral program, the final
regulations make this a State option. For those DSUs that choose to
track and report on individuals who obtain employment following their
participation in the expanded information and referral program, the
final regulations require that the DSU report to RSA the number of
individuals served and the number who obtain employment. However, the
Secretary emphasizes that the number of individuals who are assisted,
in part, under the expanded information and referral program and who
subsequently obtain employment must be identified separately from those
individuals who receive full services under an IWRP and achieve an
employment outcome under the VR program. Individuals who obtain
employment following their receipt of limited counseling, guidance, and
referral services through the expanded program are not considered to
have achieved an employment outcome under Sec. 361.56 of the
regulations.
Changes: The Secretary has revised Sec. 361.37(c) to authorize
counseling and guidance services under the DSU's expanded information
and referral program. In addition, paragraph (c) of this section has
been amended to give the DSU the discretion to determine whether to
track the results of its expanded information and referral program.
Sec. 361.38 Protection, use, and release of personal information
Comments: One commenter questioned whether the regulations
authorize the release of personal information to the State
Rehabilitation Advisory Council for purposes of evaluating program
effectiveness and consumer satisfaction. Other commenters stated that
this section should permit applicants or eligible individuals to
examine, as well as receive copies of, the information in their record
of services.
Some commenters argued that determinations as to whether
information is harmful under paragraph (c)(2) of this section should be
made by objective third parties rather than DSUs. These commenters were
concerned that a conservative interpretation of the term ``harmful'' by
a State unit would result in limited access to important information.
Additional commenters requested that applicants and eligible
individuals be given unrestricted access to personal information
obtained by the DSU from other agencies and organizations. Other
commenters sought authorization in this section for the removal of
inaccurate or misleading information from the record of services.
Finally, some commenters requested clarification of the term ``judicial
officer'' in paragraph (e)(4) of this section, which is used in
connection with the release of information in response to a judicial
order.
Discussion: Paragraph (d) of this section authorizes the release of
personal information to entities that evaluate the VR program as long
as the evaluation is directly related to the
[[Page 6323]]
administration of the program or to the improvement of the quality of
life for applicants and eligible individuals. State Rehabilitation
Advisory Councils are responsible for evaluating the effectiveness of,
and consumer satisfaction with, the State agency and VR services.
Because the Council's evaluations are designed to facilitate
improvement in the administration of the VR program and in the
provision of VR services, personal information may be released to the
Council for purposes of carrying out its evaluative functions, provided
that the Council safeguards the confidentiality of the information
consistent with the requirements in paragraph (d).
The Secretary recognizes that, in some instances, an applicant or
eligible individual may need ready access to the information in his or
her case record, in addition to copies of the information. The proposed
regulations were not intended to foreclose the current regulatory
option that permits applicants and eligible individuals to examine the
information in their record of services.
The Secretary believes it would be unduly burdensome to require
that an objective third party rather than the DSU determine whether
information requested by an applicant or eligible individual is
``harmful'' to that individual. Moreover, the Secretary regards any
inconvenience resulting from the individual's inability to directly
receive ``harmful'' information as minimal since the relevant
information must still be provided to the individual, except that it
shall be provided through a third party chosen by the applicant or
eligible individual. The Secretary also notes that the individual's
right under paragraph (c)(2) of this section to choose the person to
whom harmful information is released supersedes any conflicting State
confidentiality policy developed under paragraph (a)(1) that designates
a specific individual to receive harmful information (e.g., medical
professional). Nevertheless, if a representative has been assigned by a
court to represent the applicant or eligible individual, the harmful
information must be released to the individual through the court-
appointed representative. This exception is particularly applicable if
the applicant or eligible individual is a minor or has limited
cognitive capacity.
The Secretary does not believe that there is a basis for requiring
that applicants and eligible individuals be given unrestricted access
to personal information obtained by the DSU from other agencies and
organizations. Release of information developed or compiled by another
agency or organization is subject to the conditions established by that
entity in accordance with paragraph (c)(3) of this section.
The Secretary recognizes that any applicant or eligible individual
would prefer that inaccurate or misleading information be removed from
the individual's record of services. On the other hand, the Secretary
also believes it would be unduly burdensome to impose, through these
regulations, costly and time-consuming due process procedures that
would enable an individual to legally challenge the accuracy of the
information in his or her file. It is within the discretion of the DSU
to determine the extent to which an individual may challenge the
information in that individual's record of services. However, the
Secretary believes, at a minimum, that applicants and eligible
individuals should be given an opportunity to question the accuracy of
the information in the individual's record of services and, if
unsuccessful in having the information removed, should be permitted to
include a statement in the record that identifies the information that
the individual considers to be inaccurate.
The Secretary emphasizes that DSUs are not authorized to release
personal information in response to a subpoena or other document issued
by a party to a dispute or an attorney. Release is authorized only if a
judge or other judicial officer orders the State unit to release the
information. The term ``judicial officer'' in the proposed regulations
was intended to mean any judge, magistrate, or other official who is
authorized to decide the merits of, and issue, a court order. The
Secretary has clarified this intention in the final regulations.
Changes: The Secretary has expanded paragraph (c)(1) of Sec. 361.38
to require that the DSU make the information in the record of services
available for inspection by the applicant or eligible individual. In
addition, paragraph (c)(2) has been amended to clarify that if a court
has appointed a representative to represent an applicant or eligible
individual, then any requested information that is considered harmful
to the individual shall be provided to the individual through the
court-appointed representative. The Secretary also has expanded
paragraph (c) to authorize applicants and eligible individuals to
request that misleading or inaccurate information in the individual's
record of services be amended and to have the request documented in the
individual's file. Finally, paragraph (e)(4) has been clarified to
require the release of information in response to an order issued by a
judge, magistrate, or other authorized judicial officer.
Sec. 361.41 Processing referrals and applications
Comments: Some commenters opposed the proposed requirement that the
DSU develop timelines for informing individuals referred to the DSU for
VR services of its application requirements and for gathering
information necessary to assess the individual's eligibility and
priority for services. While these commenters viewed the timeline
requirements as unduly burdensome, other commenters supported the
provision and emphasized the need for DSUs to respond timely to
individuals during the pre-application stage.
One commenter stated that authorized extensions of the 60-day time
period for determining eligibility should be limited in duration. Other
commenters stated that all individuals should be required to complete
the DSU's formal application form before the 60-day time period begins
to run. Finally, one commenter requested clarification as to whether
all individuals must provide information necessary to conduct an
assessment for determining eligibility and priority for services before
being considered ``to have submitted an application.''
Discussion: The Secretary believes that it is important to retain
in the final regulations the requirement that DSUs develop timelines
for making good faith efforts to inform individuals referred to the VR
program of the DSU's application requirements and to obtain information
needed to assess the individual's eligibility and priority for
services. The Secretary agrees with those commenters who indicated that
these timelines are necessary to ensure that there is no unreasonable
delay between the individual's referral and application for VR
services. Moreover, this requirement is unlikely to cause DSUs undue
burden since many States already have in place timelines for handling
referrals. However, the Secretary believes that the development of an
appropriate, good faith timeline for processing referrals is a matter
of State discretion and that it would be inappropriate to impose in the
final regulations a specific Federal time period for this purpose.
Section 102(a)(5)(A) authorizes extensions of the 60-day time
period for determining eligibility if (1) exceptional or unforeseen
circumstances arise or (2) an extended evaluation of the individual is
necessary, which may not exceed 18 months. The Secretary agrees,
[[Page 6324]]
however, that extensions due to exceptional or unforeseen circumstances
cannot be open-ended but must be limited to a specific time period that
is mutually agreed upon by the individual and the DSU.
The Secretary believes it would be unduly restrictive to require in
all instances that an individual with a disability complete the DSU's
application form before the DSU initiates an assessment for determining
eligibility and priority for services. This limitation would be
particularly burdensome for individuals in rural areas who may not have
ready access to a DSU application form. Although the regulations
require the DSU to make its application form widely available
throughout the State, the Secretary considers it inappropriate to
penalize individuals who are unable to secure an application. Thus, the
Secretary maintains that the 60-day time period for determining
eligibility begins once the individual (1) has either completed and
signed an agency application form or has otherwise requested services
and (2) has provided information necessary for the DSU to initiate the
assessment. Once an individual or the individual's representative, as
appropriate, requests services, it is expected that State units will
make good faith efforts to obtain the assessment information as quickly
as possible. The Secretary also notes that information needed to
initiate the assessment must be provided before the 60-day timeline
begins to run, whether the individual has completed an agency
application form or has otherwise requested services. Of course, it is
essential that the individual remain available during this period to
complete the assessment process.
Changes: The Secretary has amended Sec. 361.41 to require that
extensions of the 60-day time period for determining eligibility due to
exceptional or unforeseen circumstances be limited in duration and that
a specific time period be agreed to by the individual and the DSU. In
addition, the Secretary has revised this section to clarify that all
individuals who have requested VR services, whether through the
completion of an agency application or otherwise, shall be available to
complete the assessment before the individual is considered to have
submitted an application for VR services.
Sec. 361.42 Assessment for determining eligibility and priority for
services
Comments: With respect to the first eligibility criterion, several
commenters opposed the standard in the proposed regulations that
required qualified personnel ``licensed or certified in accordance with
State law and regulation'' to determine the existence of a physical or
mental impairment. The commenters further recommended that the
regulations permit DSU employees who meet requirements that are
``comparable'' to licensing or certification requirements to determine
the existence of obvious physical impairments.
Some commenters sought clarification under the second eligibility
criterion that an impairment that hinders an individual from
maintaining a job placement constitutes a ``substantial impediment to
employment.'' These commenters were concerned that the proposed
regulations appeared to limit ``substantial impediments to employment''
to impairments that prevent unemployed individuals from obtaining jobs.
Other commenters recommended that the term ``determine'' be
replaced by the statutory term ``demonstrate'' in paragraph (a)(2) of
this section, in connection with rebutting the presumption that an
individual who has a substantial impediment to employment can benefit
in terms of an employment outcome from VR services. Finally, one
commenter requested clarification as to whether individuals who qualify
for Social Security benefits are presumed eligible for VR services.
Several commenters recommended specific clarifying changes to some
of the examples following this section, whereas other commenters
opposed the use of examples under this section altogether.
Discussion: The Secretary believes that the personnel standard
proposed in connection with the first eligibility criterion is
consistent with the Act. The proposed standard was based on the
requirement in section 103(a)(1) of the Act, which states that the
assessment for determining an individual's eligibility and VR needs
must be conducted by qualified personnel. The Secretary interprets the
term ``qualified personnel'' under section 103(a)(1) of the Act to
refer to personnel who meet the DSU's personnel standards under
Sec. 361.18(c) of these final regulations (i.e., national or State-
approved certification, licensing, or registration requirements or, if
none of these requirements exist, other ``comparable requirements''
that apply to the profession in which the individual provides VR
services). Thus, a determination that an individual has a physical or
mental impairment, or meets any of the other eligibility criteria in
Sec. 361.42(a), must be made by personnel who meet existing licensure,
certification, or registration requirements applicable to their
profession. Moreover, because DSUs are required under Sec. 361.18(c) to
develop personnel standards based on existing certification or
licensure requirements, it is expected that DSU personnel who determine
the existence of impairments, including obvious physical impairments,
will be qualified within the meaning of the Act.
The Secretary agrees that an individual does not have to be
unemployed to have a ``substantial impediment to employment.'' A
``substantial impediment to employment,'' as defined in
Sec. 361.5(b)(44), includes any impairment that hinders the individual
from entering into, engaging in, or retaining employment consistent
with the individual's abilities and capabilities. Given that the
regulatory definition of the term ``substantial impediment to
employment'' clearly recognizes that currently employed individuals may
qualify for VR services for purposes of ``retaining'' their employment,
the Secretary does not believe it is necessary to revise the second
eligibility criterion in paragraph (a)(1)(ii) as the commenters
recommended.
Section 102(a)(4)(A) of the Act requires the DSU to presume that an
individual can benefit in terms of an employment outcome, unless the
DSU can ``demonstrate,'' based on clear and convincing evidence, that
the individual is incapable of benefitting in terms of an employment
outcome from VR services. The Secretary did not intend to weaken this
statutory presumption by using the term ``determine'' in place of the
term ``demonstrate'' in the proposed regulations and agrees that the
regulations should be changed to track the stronger statutory language.
In addition, the Secretary emphasizes that Social Security
beneficiaries are not automatically eligible to receive VR services,
but are presumed under section 102(a)(2) of the Act to meet only the
first two eligibility criteria under paragraph (a)(1) of this section
(i.e., the individual has a physical or mental impairment that
constitutes or results in a substantial impediment to employment).
Eligibility for services under the Social Security Act also means that
the individual is presumed to meet the first element in the definition
of ``individual with a severe disability'' under Sec. 361.5(b)(28). The
Secretary believes that these limited presumptions were clearly
reflected in the proposed regulations.
Although the Secretary believes that most of the examples in the
regulations represent useful guidance material, the Secretary agrees
that the examples
[[Page 6325]]
following this section of the proposed regulations, which had
identified six potential applications of the fourth eligibility
criterion (an individual requires VR services), should be removed from
the final regulations in light of the confusion expressed by commenters
and in recognition of the fact that eligibility determinations are
highly individualized. The commenters' confusion, the Secretary
believes, stems from the possibility that the application of the fourth
eligibility criterion may result in different outcomes for individuals
with disabilities who face apparently similar circumstances. By
removing these examples, the Secretary seeks to avoid causing similar
confusion on the part of individual counselors charged with making
individual eligibility determinations. Because the examples used
elsewhere in the regulations (e.g., permissible expenses under the
definitions of ``maintenance'' and ``transportation'') are
straightforward applications of clear issues and do not create similar
confusion among commenters, the Secretary believes that those examples
should be retained in the final regulations.
Changes: The Secretary has amended Sec. 361.42(a)(2) of this
section to require a ``demonstration,'' based on clear and convincing
evidence, that an individual is incapable of benefitting from VR
services in order for the DSU to overcome the presumption that an
individual can benefit from VR services. A technical change also has
been made to paragraph (a)(1)(iii) to identify more accurately the
third eligibility criterion as a ``presumption'' of benefit, not a
``determination'' of benefit. In addition, the Secretary has removed
from the final regulations the examples that had followed this section
in the proposed regulations of how an individual may or may not meet
the final eligibility criterion.
Sec. 361.43 Procedures for ineligibility determination
Comments: Several commenters stated that DSUs should be required,
in all instances, to inform individuals in writing of the DSU's
ineligibility determination. These commenters were concerned that the
proposed regulations authorized DSUs to inform individuals of
ineligibility determinations through an appropriate mode of
communication without a written record.
In addition, several commenters indicated that it is unduly
burdensome to require DSUs to review all ineligibility determinations
within 12 months. These commenters stated that the review of
ineligibility determinations should be limited to those determinations
that are based on a finding that the individual is incapable of
achieving an employment outcome. Other commenters asked that the
regulations specify additional bases for not reviewing ineligibility
determinations (e.g., that the individual's disability is rapidly
progressive or terminal).
Discussion: The proposed regulations incorrectly indicated that
DSUs have the option of providing ineligibility notices in writing or
through an appropriate mode of communication. The Secretary agrees
that, at a minimum, notice of an ineligibility determination and other
required information should be provided to the individual in writing
and supplemented, as necessary, by other appropriate modes of
communication in accordance with the individual's informed c