# Workforce Innovation and Opportunity Act, Miscellaneous Program Changes

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-05535

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** April 16, 2015
- **Citation:** 80 FR 20988

## Text

DEPARTMENT OF EDUCATION
34 CFR Parts 367, 369, 370, 371, 373, 376, 377, 379, 381, 385, 386, 387, 388, 389, 390, and 396
RIN 1820-AB71
[Docket No. 2015-ED-OSERS-0002]
Workforce Innovation and Opportunity Act, Miscellaneous Program Changes

AGENCY:

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

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Secretary proposes to amend the regulations governing a number of programs administered by the Rehabilitation Services Administration (RSA) to implement changes to the Rehabilitation Act of 1973 (Act) made by the Workforce Innovation and Opportunity Act, enacted on July 22, 2014.

The Secretary also proposes to implement changes to the Act made by the Workforce Investment Act, enacted on August 7, 1998, that have not previously been implemented in regulations, and to otherwise update, clarify, and improve RSA's current regulations.

DATES:

We must receive your comments on or before June 15, 2015.

ADDRESSES:

Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.

•
Federal eRulemaking Portal:
Go to
www.regulations.gov
to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “Are you new to the site?”

•
Postal Mail, Commercial Delivery, or Hand Delivery:
If you mail or deliver your comments about these proposed regulations, address them to Janet LaBreck, U.S. Department of Education, 400 Maryland Avenue SW., Room 5086 Potomac Center Plaza (PCP), Washington, DC 20202-2800.

Privacy Note:

The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
www.regulations.gov.
Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

FOR FURTHER INFORMATION CONTACT:

Janet LaBreck, U.S. Department of Education, 400 Maryland Avenue SW., Room 5086 PCP, Washington, DC 20202-2800.

Telephone: (202) 245-7488, or by email:
Janet.LaBreck@ed.gov.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Invitation to Comment:
We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.

During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in Room 5093, Potomac Center Plaza, 550 12th Street SW., Washington, DC, between 8:30 a.m. and 4:00 p.m. Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under
FOR FURTHER INFORMATION CONTACT
.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record:
On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under
FOR FURTHER INFORMATION CONTACT
.

Background

The Secretary proposes to amend the regulations governing a number of programs administered by the Rehabilitation Services Administration (RSA) to implement changes to the Rehabilitation Act of 1973 (Act) made by the Workforce Innovation and Opportunity Act (WIOA), enacted on July 22, 2014 (Pub. L. 113-128). These programs and their corresponding regulations are:

• The Independent Living Services for Older Individuals Who Are Blind (OIB) program, 34 CFR part 367;

• The Client Assistance Program (CAP), 34 CFR part 370;

• The American Indian Vocational Rehabilitation Services (AIVRS) program, 34 CFR part 371 (formerly known as “Vocational Rehabilitation Service Projects for American Indians with Disabilities”);

• The Rehabilitation National Activities program, 34 CFR part 373 (formerly known as “Special Demonstration Projects”);

• The Protection and Advocacy of Individual Rights (PAIR) program, 34 CFR part 381;

• The Rehabilitation Training program, 34 CFR part 385;

• The Rehabilitation Long-Term Training program, 34 CFR part 386;

• The Innovative Rehabilitation Training Program, 34 CFR part 387 (formerly known as the “Experimental and Innovative Training”);

• The Rehabilitation Short-Term Training Program, 34 CFR part 390; and

• The Training of Interpreters for Individuals Who are Deaf or Hard of Hearing and Individuals who are Deaf-Blind program, 34 CFR part 396 (formerly known as the “Training of Interpreters for Individuals Who are Deaf and Individuals who are Deaf-Blind program”).

WIOA also repealed the statutory authority for four programs, and the Secretary, therefore, proposes to remove their corresponding regulations. These programs and regulations are:

• Vocational Rehabilitation Service Projects for Migratory Agricultural Workers and Seasonal Farmworkers with Disabilities (Migrant Workers) program, portions of 34 CFR part 369;

• Projects for Initiating Special Recreation Programs for Individuals with Disabilities (Recreational programs), portions of 34 CFR part 369;

• Projects with Industry, 34 CFR part 379 and portions of part 369; and

• The State Vocational Rehabilitation Unit In-Service Training program, 34 CFR part 388.

In addition, the Secretary proposes to implement changes to the Act made by

the Workforce Investment Act (WIA), enacted August 7, 1998 (Pub. L. 105-220). These changes were not previously implemented in the applicable regulations. The Secretary proposes these changes to the OIB, CAP, AIVRS, and PAIR program regulations.

Separate and apart from amendments to the Act made by WIOA and WIA, the Secretary proposes to update and clarify the regulations governing the various rehabilitation training programs—34 CFR parts 373, 385, 386, 387, and 396—and 34 CFR part 390, which governs the Rehabilitation Short-Term Training program. These regulations have not been updated in some time, and updating them now is intended to improve how these programs function.

Finally, as part of this update, the Secretary proposes to remove regulations that are superseded or obsolete and to consolidate regulations, where appropriate. The Secretary proposes to remove the balance of 34 CFR part 369 that does not apply to the Migrant Workers program, the Recreational Programs, the Projects With Industry program, and parts 376, 377, and 389.

Proposed Regulations

Because the amendments we propose in this document are so many and varied, we discuss first those programs whose regulations we propose to amend and not remove. We discuss them in the order in which their parts appear in the Code of Federal Regulations (CFR). For each part, we provide a short background of the program, a summary of the changes we propose, and a detailed discussion of the significant proposed regulations. Generally, we do not address proposed regulatory changes that are technical or otherwise minor in effect.

Independent Living Services for Older Individuals Who Are Blind (OIB), 34 CFR Part 367

Background

The program makes grants to designated State agencies (DSAs) that provide vocational rehabilitation services to individuals who are blind. DSAs provide to older individuals who are blind or visually impaired independent living services designed to increase or maintain their ability to live independently. The Department last published regulations for this program in 1994 (59 FR 41909 (August 15, 1994)).

Summary of Proposed Changes

These proposed regulations would implement the changes WIOA made to title VII, Chapter 2, of the Act. We would require that not less than 1.8 percent and not more than 2 percent of the funds for this program be reserved to provide training and technical assistance to DSAs or other providers of independent living services for older individuals who are blind.

In addition, the Secretary proposes to incorporate into part 367 the text of relevant provisions of parts 364 and 365 regarding general independent living and State independent living services that were previously incorporated only by reference. This change is necessary because WIOA transferred the Independent Living Services and Centers for Independent Living programs to the Administration for Community Living of the Department of Health and Human Services. Due to this transfer, parts 364 and 365 will no longer be applicable to programs administered by the Department of Education and will eventually be removed.

Significant Proposed Regulations

Because we propose to make a number of structural and numbering revisions to part 367, we discuss the proposed changes by subpart and, within each subpart, by subject or section.

Subpart A—General

Statute:
WIOA added a new subparagraph (E) in section 7(17) of the Act. This new subparagraph specifies that services to facilitate the transition of individuals from nursing homes and other institutions to home and community based residences with the requisite supports and services are core IL services and, as such, may be provided by the OIB program. Grantees may also provide assistance and services to older individuals who are blind and who are at risk of entering institutions so that they may remain in the community.

Current Regulations:
Current § 367.3(b)(7) does not list this service specifically. It lists a broad array of independent living services that may be provided to older individuals who are blind, but does not reference the specific service added by WIOA.

Proposed Regulations:
Current § 367.3(b)(7) would be expanded to include the specific IL service authorized by WIOA in the new subparagraph (E) in section 7(17) of the Act as an allowable service under the OIB program.

Reasons:
The inclusion of the IL service in the proposed regulations is consistent with changes in the IL core services defined in WIOA and allows for the provision of these services by the OIB program.

Transfer of Title VII, Chapter 1 IL Programs

Statute:
Title VII, Chapter 1, Section 701A of the Act (29 U.S.C. 796), as amended by WIOA, establishes within the Administration for Community Living (ACL) of the Department of Health and Human Services an Independent Living Administration that will be the principal agency to carry out the Independent Living Services and Centers for Independent Living programs. WIOA transfers these programs to ACL from RSA. The Department of Education continues to administer title VII, Chapter 2 of the Act, which authorizes OIB.

Current Regulations:
Current § 367.4(c) refers to certain sections of parts 364 and 365 rather than restating the same text in full. The relevant sections in part 364 address definitions; the use and obligation of Federal funds and program income; notice of the Client Assistance Program (CAP); access to records; and special requirements for the protection, use, and release of personal information. The sections in part 365 set out requirements and conditions for cash or in-kind contributions as they apply to a State's non-Federal share, awards, subawards, or contractors.

Proposed Regulations:
We propose to remove these cross references from current § 367.4 and amend current part 367 to provide the full text of the relevant sections in parts 364 and 365 to which current § 367.4 now only cross references.

Reasons:
With the transfer of the Independent Living Services and Centers for Independent Living programs from RSA to ACL, parts 364 and 365 will no longer be applicable to programs administered by the Department of Education and will eventually be removed. We propose to move language into part 367 that is relevant to the functioning of the OIB program.

Proposed New Subpart B—Training and Technical Assistance (Replaces Current Subpart B)

Statute:
WIOA added to title VII, chapter 2 of the Act section 751A, which requires that, beginning in FY 2015, not less than 1.8 percent and not more than 2 percent of the funds for this program be reserved to provide, either directly or through grants, contracts, or cooperative agreements, training and technical assistance to DSAs or other providers of independent living services for older individuals who are blind that

are funded under the OIB program; that the Secretary conduct a survey of DSAs that are OIB program grantees to determine funding priorities for the training and technical assistance; and that the Secretary shall provide for peer review of applications to provide training and technical assistance from eligible entities by panels that include persons who are not government employees and who have experience in the provision of services to older individuals who are blind.

Current Regulations:
None.

Proposed Regulations:
We propose to add a new subpart B to part 367, consisting of §§ 367.20 through 367.24, to govern how the Department would assess the grantees' training and technical assistance needs and how it would provide training and technical assistance under OIB.

Proposed § 367.20 would provide that the Secretary reserve not less than 1.8 percent and not more than 2 percent of the funds appropriated to carry out the OIB program to provide training and technical assistance in any fiscal year, beginning in FY 2015, to DSAs or other providers of independent living services for older individuals who are blind during such fiscal year.

Proposed § 367.21 would explain how the Secretary uses the funds specified in § 367.20 to provide training and technical assistance, either directly or through grants, contracts, or cooperative agreements to entities that have the capacity to provide such training and technical assistance. Any selected entity receiving funding would provide training and technical assistance to DSAs or other service providers, assisting them to improve the operation and performance of the program leading to enhanced independence and self-sufficiency for older individuals who are blind.

Proposed § 367.22 would describe how the Secretary makes an award under subpart B for training and technical assistance. It would require an applicant to submit an application to the Secretary containing a proposal for the provision of training and technical assistance to DSAs and other providers of services under the OIB program. Proposed § 367.22 would also require applications to be peer reviewed by panels that include individuals who are not Federal or State government employees and who have experience in the provision of services to older individuals who are blind.

Proposed § 367.23 would provide that the Secretary conduct a survey of DSAs that receive OIB grants to assess their training and technical assistance needs and to inform decisions about funding priorities.

Proposed § 367.24(a) and (b) would provide that the Secretary evaluate applications for a grant, cooperative agreement, or contract under subpart B on the basis of selection criteria chosen from the general selection criteria found in EDGAR at 34 CFR 75.210. If a contract is awarded, it would be made in accordance with regulations at 34 CFR part 75.

Reasons:
The proposed new subpart B gives effect to the new training and technical assistance requirements and the manner in which these requirements are implemented, including a survey of needs and the funding of activities either directly or through a peer reviewed competitive process consistent with the Department's practices.

Proposed New Subpart C—What Are the Application Requirements Under This Part? (Current Subpart B)

Statute:
None.

Current Regulations:
Current subpart B consists of §§ 367.10 and 367.11, which set out the manner in which a DSA applies for an award or a reallotment grant and the required assurances that a DSA must include in an application.

Proposed Regulations:
We propose to redesignate current subpart B as subpart C and to change its title to “What Are the Application Requirements Under this Part?” We propose as well to renumber the sections in the new subpart §§ 367.30 and 367.31.

Reason:
We propose to redesignate current subpart B as subpart C to make room for a new subpart that addresses WIOA's requirement to provide training and technical assistance to DSAs or other providers of independent living services for older individuals who are blind.

Removal of State Plan for Independent Living OIB Requirements

Statute:
WIOA deletes the requirement in section 752(h) of the Act (29 U.S.C. 796k(h)) for the State to seek to incorporate into the State Plan for Independent Living any new methods and approaches relating to independent living services for older individuals who are blind.

Current Regulations:
Current § 367.11(c) requires the DSA to seek to incorporate into and describe in the State plan for independent living (SPIL) any new methods and approaches relating to IL services for older individuals who are blind that are developed by projects funded by OIB and that the DSA determines to be effective.

Current § 367.11(f) requires that applications be consistent with the SPIL for providing required independent living services under section 704 of the Act.

Proposed Regulations:
We propose to remove current § 367.11(c) and (f).

Reason:
Removing current § 367.11(c) and (f) would implement WIOA's removal of these requirements from the OIB program and eliminate the connection of OIB to the State Plan for Independent Living, required by title VII, chapter 1, now administered by ACL.

Proposed New Subpart D—How does the Secretary award discretionary grants? (Current Subpart C)

Statute:
None.

Current Regulations:
The current subpart C consists of §§ 367.20 through 367.23 and is entitled “How Does the Secretary Award Discretionary Grants on a Competitive Basis?”

Current § 367.22 provides specific selection criteria used by the Secretary in awarding discretionary grants.

Current § 367.23 provides for the consideration of geographical distribution of projects in making an award.

Current § 367.42(a) and (b) provide the basis for noncompetitive continuation grants.

Proposed Regulations:
We propose to redesignate and retitle subpart C as “Subpart D—How Does the Secretary Award Discretionary Grants?” We propose to renumber the sections within subpart D to begin with § 367.40.

Proposed § 367.40(b) would insert the basis for the award of noncompetitive continuation grants by the Secretary for a multi-year project. This is in current regulations at § 367.42(a) and (b).

We propose to eliminate the specific selection criteria included in current § 367.22. In its place, proposed § 367.41(a) would provide for the evaluation of applications based on the selection criteria chosen from the general selection criteria found in EDGAR at 34 CFR 75.210.

Proposed § 367.41(b) would allow for consideration of geographical distribution of projects in making an award, replacing the current regulation at § 367.23.

Reasons:
Though the Department currently does not make discretionary grants under OIB, we are nonetheless proposing to update the relevant regulations to ensure that we have appropriate flexibility in designing competitions and awarding grants should the appropriation ever fall below $13 million.

Proposed New Subpart E—How does the Secretary award formula grants? (Current Subpart D)

Formula Grant Awards—Reallotment

Statute:
Section 752(i)(4) of the Act, as amended by WIOA, provides for the disposition of certain amounts under formula grants.

Current Regulations:
Current Subpart D consists of § 367.30 through § 367.32.

Current § 367.32 sets out the procedures for how the Secretary reallots funds under the formula grants program.

Proposed Regulations:
We propose to redesignate current subpart D as “Subpart E—“How Does the Secretary Award Formula Grants?” We propose to renumber the sections in this subpart to begin with § 367.50.

Proposed § 367.52(e) would require that an OIB grantee inform the Secretary 45 days prior to the end of the fiscal year that funds would be available for reallotment.

Reasons:
This proposed change would bring the OIB program reallotment requirements into alignment with other formula grants administered by RSA. This timeline would ensure that RSA receives timely notice of relinquished funds and is able to award realloted funds to grantees prior to the end of the Federal fiscal year. This proposed change is consistent with RSA's current practices.

Proposed New Subpart F—What conditions must be met after an award? (Current Subpart E)

Statute:
Section 701A of the Act (29 U.S.C. 796
et seq.
), as amended by WIOA, establishes within the Administration for Community Living in the Department of Health and Human Services a new Independent Living Administration that will administer the independent living programs under chapter 1 of title VII of the Act. Consequently, the independent living regulations in parts 364 and 365, which are referenced in part 367, will no longer be administered by the Department of Education. Therefore, the relevant sections of parts 364 and 365 are being incorporated into part 367.

Current Regulations:
Current subpart E consists of §§ 367.40 through 367.42, which provide the conditions that must be met after an award is made, including matching requirements, when a DSA may award grants or contracts, and when continuation awards may be made.

Proposed Regulations:
We propose to redesignate current subpart E as subpart F, to remove the provisions in current subpart E, and to replace them with new sections beginning with § 367.60.

Proposed § 367.60 would provide guidance on when a DSA may make subawards or contracts under the OIB program.

Proposed § 367.61 would provide the regulatory requirements to meet the non-Federal contribution required by § 367.31(b).

Proposed § 367.62 would address the requirements that apply if a State's non-Federal share is in cash.

Proposed § 367.63 would provide the requirements that apply if a State's non-Federal share is in kind.

Proposed § 367.64 would provide for a prohibition against a State conditioning a subaward or contract based on a cash or in-kind contribution.

Proposed § 367.65 would provide the definition of program income and how it may be used.

Proposed § 367.66 would provide the requirements that apply to the obligation of Federal funds and program income.

Proposed § 367.67 would describe the notice that must be given about the Client Assistance Program.

Proposed § 367.68 would provide the specific requirements pertaining to the protection, use, and release of personal information belonging to applicants or recipients of services.

Proposed § 367.69 would provide the requirements related to the provision of access to records.

Proposed § 367.70 would provide requirements regarding the maintenance of records by DSAs and other providers.

Reasons:
OIB grantees have always been required to comply with these proposed provisions because current § 367.4 incorporates them by reference from parts 364 and 365. Because the IL programs implementing parts 364 and 365 will no longer be administered by the Department of Education, and because those parts will be removed in the future, we propose to move the text of the applicable provisions to part 367 so that the OIB program can continue to function appropriately.

Client Assistance Program (CAP), 34 CFR Part 370

Background

CAP is authorized under section 112 of the Act (29 U.S.C. 732). CAP grantees provide information to individuals with disabilities about the services and benefits available under the Act and their rights under title I of the Americans with Disabilities Act. In addition, CAP grantees are authorized to provide advocacy and legal representation to individuals seeking or receiving services under the Act in order to resolve disputes with programs providing those services, including vocational rehabilitation services.

The Department last updated the regulations at 34 CFR part 370, which govern the CAP, on November 2, 1995 (60 FR 55766).

Summary of Proposed Changes

Both WIOA and WIA made significant changes to section 112 of the Act. To implement those changes made by WIA, the Secretary proposes to amend the regulations governing the redesignation of a designated CAP agency to require the Governor to redesignate the designated CAP agency if it is internal to the designated State agency (DSA) for the Vocational Rehabilitation program and that DSA undergoes a significant reorganization that meets certain statutory criteria.

The Secretary proposes three substantive changes to incorporate statutory changes made to section 112 by WIOA. First, we would add the protection and advocacy system serving the American Indian Consortium as an entity eligible to receive a CAP grant. Second, we would require the Secretary to reserve funds from the CAP appropriation, once it reaches a specified level, to award a grant for the provision of training and technical assistance to designated CAP agencies. Finally, we would clarify that authorized activities under the CAP include assisting client and client-applicants who are receiving services under sections 113 and 511 of the Act.

In addition to substantive changes required by statutory amendments, the Secretary also proposes other changes to update part 370 so that it, among other things, conforms with RSA practice (
i.e.,
with regard to submission of application and assurances) or reflects current CAP grantee practice (
i.e.,
with regard to contracts with centers for independent living).

Significant Proposed Regulations

We organize our discussion of proposed changes by subject and section.

Clients and Client-Applicants (§ 370.1)

Statute:
Section 112(a) of the Act, as amended by WIOA (29 U.S.C. 732(a)), clarifies that CAP grantees may provide information, advocacy, and representation to clients and client-applicants to facilitate their access to services available under the Act, including pre-employment transition services provided under section 113 and the services provided pursuant to

section 511 regarding limitations on the use of subminimum wages.

In addition, the Act, as amended by WIOA, includes new definitions for a “student with a disability” and a “youth with a disability,” at section (7)(37) and (42), respectively, for the purpose of receiving pre-employment transition services and/or other transition services through the vocational rehabilitation program.

Current Regulations:
The current § 370.1(a) states that CAP grantees are authorized to inform and assist client and client-applicants about services available through programs authorized under the Act. Current § 370.1(a) does not mention the services provided under sections 113 and 511, nor does current § 370.4 specifically refer to students and youth with disabilities since these are new statutory requirements.

Proposed Regulations:
We propose to amend current § 370.1(a) to clarify that the CAP may assist individuals who are receiving or applying to receive services under sections 113 and 511 of the Act.

We propose to amend current § 370.4(a)(3)(ii) to clarify that students and youth with disabilities applying for and receiving services under the Act are considered clients and client-applicants for the purpose of receiving CAP services.

Finally, we propose to amend current § 370.4(b) to clarify that in all instances, references to services provided under the Act in the context of this paragraph are those provided under title I of the Act.

Reasons:
While WIOA does not expand the scope of authorized activities or those individuals with disabilities who may be served by CAP grantees, the amendments to section 112 make specific reference to individuals receiving services under sections 113 and 511 of the Act. The proposed regulations incorporate these same references for the purpose of clarification. For clarification purposes, the proposed regulations also incorporate references to students and youth with disabilities.

Centers for Independent Living (§ 370.2)

Statute:
None.

Current Regulations:
Current § 370.2(f) permits a designated CAP agency that, at the time of its initial designation prior to February 22, 1984, was contracting for CAP services with centers for independent living, to continue those contracts. This was promulgated as an exception to the general prohibition in current § 370.2(e) against contracting with entities that provide treatment and services under the Act.

Proposed Regulations:
We propose to amend paragraphs (e) through (g) of current § 370.2 to eliminate the CAP's authority to contract with centers for independent living. We also propose to amend current § 370.41 by deleting all references to the authority to contract with centers for independent living.

Reasons:
According to information available to the Secretary, no CAP agency that had contracted with centers for independent living for the provision of CAP services at the time of its initial designation still does so, thus making the need for the exception and the reference to contracting with centers for independent living obsolete.

The Definition of “State” (§ 370.6)

Statute:
Section 7(32) of the Act, as amended by WIA (29 U.S.C. 705(32)), deleted the Republic of Palau from the definition of the term “State.” As a result, “State” includes, in addition to each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Section 7(32) of the Act was renumbered as section 7(34) by WIOA.

Current Regulations:
Current § 370.6 includes Palau in the definition of “State” because the statutory definition changed after part 370 was last updated. Current § 370.30(b), last updated in 1995, provides for the funding of the territories, including the Republic of Palau.

Proposed Regulations:
We propose to delete the Republic of Palau from the definition of “State” at current § 370.6. We also propose to amend current § 370.30(b) to delete reference to the Republic of Palau.

Reasons:
This change is necessary to implement the new statutory definition of “State,” which forms the basis for determining eligibility for grants under the Act.

Definition of “Systemic Advocacy” (§ 370.6)

Statute:
Section 112(d) of the Act (29 U.S.C. 732(d)) prohibits CAP grantees from engaging in class action litigation as a form of systemic advocacy. This statutory prohibition remains unchanged.

Current Regulations:
The definition of “systemic advocacy” in current § 370.6 includes reference to class action lawsuits.

Proposed Regulations:
We propose to amend the definition of “systemic advocacy” by removing reference to class action lawsuits.

Reasons:
Although the Act specifically prohibits a CAP agency from engaging in class actions, CAP grantees are permitted to engage in systemic advocacy, which could be carried out without the initiation of a class action lawsuit. We believe that the proposed definition of “systemic advocacy” is broad enough to encompass all allowable systemic advocacy activities, while also eliminating the potential for misinterpreting § 370.6 as allowing CAP grantees to engage in class action lawsuits.

Requirements for Redesignation (§ 370.10)

Statute:
Section 112(c)(1)(B)(ii) of the Act, as amended by WIA (29 U.S.C. 732(c)(1)) requires the Governor to redesignate a CAP agency housed in a DSA for the vocational rehabilitation program, if the DSA is reorganized to create one or more agencies or is merged into another agency.

Current Regulations:
Current § 370.10 describes when a Governor must redesignate a CAP agency, but does not include this particular requirement because part 370 was last updated in 1995, prior to the amendments to the Act made by WIA.

Proposed Regulations:
We propose to amend current § 370.10 by adding a new paragraph (a) that would require the Governor to redesignate an internal CAP—
e.g.,
a CAP that is housed within the DSA for the vocational rehabilitation program—when the DSA undergoes a significant reorganization that meets the criteria stated in the statute.

We also propose to amend this section by adding references to 34 CFR 361.5(c)(12) to clarify the meaning of designated State agency in this context in order to eliminate any potential confusion, given the similarities of the terms “designated agency” for the CAP grantees and “designated State agency” for the vocational rehabilitation program.

Reasons:
These proposed changes would implement the 1998 amendments to the Act contained in WIA.

Submission of Application (§ 370.20)

Statute:
Section 112(f) of the Act (29 U.S.C. 732(f)) requires CAP grantees to submit an application at the time and in the manner prescribed by the Secretary as a condition for receiving funding. The statutory requirement remains unchanged.

Current Regulations:
Current § 370.20(a) requires CAP grantees to

submit an application annually as a condition for receiving funding.

Proposed Regulations:
We propose to amend current § 370.20(a) by deleting the requirement for annual submission and, instead, mirroring statutory language that gives the Secretary flexibility for the timing of these submissions.

Reasons:
Proposed § 370.20(a) would be consistent with the statutory requirements at section 112(f) of the Act, thereby giving the Secretary the flexibility to determine when submission of an application, including assurances, is necessary for efficient program administration. Since 2005, the Department has required Governors to submit the application, including assurances, only at the time of an initial designation or redesignation of a CAP grantee.

American Indian Consortium (§ 370.30)

Statute:
Section 112(e)(1)(E) of the Act, as amended by WIOA (29 U.S.C. 732(e)), requires the Secretary to reserve funds from the CAP appropriation to make a grant to the protection and advocacy system serving the American Indian Consortium in an amount equal to that allotted to the territories.

Current Regulations:
Current § 370.30 describes allotments to CAP grantees, but does not mention the protection and advocacy system serving the American Indian Consortium since this is a new statutory requirement.

Proposed Regulations:
We propose to amend current § 370.30 by adding a new paragraph (c) that would require the Secretary to reserve funds to award a CAP grant to the protection and advocacy system serving the American Indian Consortium. This grant would be made at the level of funding authorized for a territory. We also propose to make conforming amendments to the following related regulations.

We propose to amend current § 370.2(a) to add the protection and advocacy system serving the American Indian Consortium as eligible to receive a CAP grant.

We propose to amend current § 370.6 to: (a) Incorporate references to tribal governmental agencies in the definition of “advocacy”; (b) add new definitions for the terms “American Indian Consortium” and “protection and advocacy system”; and (c) amend the definition of “designated agency” to include the protection and advocacy system serving the American Indian Consortium.

We propose to amend current § 370.20, which governs applications for CAP grants, by adding references to the protection and advocacy system serving the American Indian Consortium, to clarify that this entity is responsible for submitting the application and assurances for a CAP grant. For all other CAP grantees, the Governor would submit the application and assurances on behalf of the grantees.

We propose to amend current § 370.40(c) to clarify that the protection and advocacy system serving the American Indian Consortium is responsible and accountable for the CAP to the Secretary, and the Secretary may seek recovery of funds from that entity, if determined necessary.

Reasons:
The proposed changes are necessary to implement new statutory requirements that add the protection and advocacy system serving the American Indian Consortium as eligible to receive a CAP grant. The protection and advocacy system serving the American Indian Consortium is established under the Developmental Disabilities Assistance and Bill of Rights Act of 2000. Until the enactment of WIOA, this particular protection and advocacy system was authorized to provide services under other components of the protection and advocacy system, including the Protection and Advocacy of Persons with Developmental Disabilities, the Protection and Advocacy of Individuals with Mental Illness, and the Protection and Advocacy of Individual Rights programs, but not CAP. In addition, the Secretary believes it is critical to clarify through the regulations that the CAP administered by the protection and advocacy system serving the American Indian Consortium, as a new grantee, has the ability to engage in advocacy on behalf of clients and client-applicants with tribal governmental agencies since those agencies likely would be most relevant to the issues raised by clients and client-applicants of that particular CAP. Therefore, we propose to clarify that advocacy includes acting on behalf of the clients or client-applicants with tribal governmental agencies. Finally, we believe it is important to clarify that the protection and advocacy system serving the American Indian consortium is specifically established under the Developmental Disabilities Assistance and Bill of Rights Act of 2000; therefore, this CAP agency is not one that is designated by the Governor as are all other CAP grantees.

Training and Technical Assistance (§ 370.30)

Statute:
Section 112(e)(1)(F) of the Act, as amended by WIOA (29 U.S.C. 732(e)(1)(F)), requires the Secretary to reserve a portion of the total CAP appropriation, once it equals or exceeds $14 million, to award a grant for the purpose of providing training and technical assistance to CAP grantees.

Current Regulations:
Current § 370.30 describes the allotment process, but does not address this particular reservation of funds since it is a new statutory requirement.

Proposed Regulations:
We propose to amend current § 370.30 by adding a new paragraph (d) that requires the Secretary to reserve funds from the CAP appropriation, once it equals or exceeds $14 million, to fund training and technical assistance to designated CAP agencies. The training and technical assistance provided under this section, as proposed, must be carried out in coordination with the training and technical assistance activities provided under the Protection and Advocacy of Individual Rights program at 34 CFR part 381.

We also propose to revise current § 370.5(a)(1) to clarify that part 75 of EDGAR applies to the grant made in accordance with § 370.30(d)(1).

Reasons:
The changes are necessary to implement amendments to section 112 of the Act made by WIOA that require the Secretary to award a grant for the purpose of providing training and technical assistance to CAP grantees once the CAP appropriation reaches a certain level and are intended to help designated CAP agencies improve their operations and service delivery.

Reallotment (§ 370.31)

Statute:
Section 112(e)(2) of the Act (29 U.S.C. 732(e)(2)) sets forth the process by which the Secretary reallots funds when a CAP grantee cannot use all funds awarded to it. This statutory provision remains unchanged.

Current Regulations:
Current § 370.31(a) requires a CAP grantee to notify the Secretary 90 days prior to the end of the fiscal year of funds awarded for that year that are available for reallotment.

Proposed Regulations:
We propose to amend current § 370.31(a) to reduce to 45 days the period a designated CAP agency has to inform the Secretary if funds will be available for reallotment.

Reasons:
This change is necessary to bring the CAP requirements into alignment with current practices for other formula grants administered by the Rehabilitation Services Administration. The Secretary believes this proposed change would benefit CAP grantees because each would have 45 more days to determine whether it would be unable to use the awarded funds and, thus, would need to relinquish those funds for reallotment. In practice, CAP grantees rarely

relinquish funds since those funds are available for use in the succeeding fiscal year.

Carryover (§ 370.47)

Statute:
Section 19 of the Act permits CAP grantees to carry over funds received under section 112 of the Act to the succeeding fiscal year. This statutory provision remains unchanged.

Current Regulations:
Current § 370.47(b) requires CAP grantees to notify the Secretary if they are carrying over funds into the fiscal year succeeding that in which the funds were awarded.

Proposed Regulations:
We propose to delete paragraph (b) of current § 370.47 to align the regulations with section 19 of the Act and current Department practice, neither of which requires grantees to inform the Department of an intent to carry over funds.

We propose to renumber current § 370.47 as § 370.48 and include language clarifying reallotment funds that are not obligated or expended by the designated agency prior to the beginning of the succeeding fiscal year, may be carried over to the succeeding fiscal year and remain available for obligation and expenditure in that succeeding fiscal year.

Reasons:
Neither section 19 of the Act nor the Department's current practice require designated agencies to inform the Secretary that funds, including any reallotment funds, are being carried over into the succeeding fiscal year.

Program Income (§ 370.47)

Statute:
Section 19 of the Act governs the use of program income received by various programs, including the CAP. This statutory provision remains unchanged.

Current Regulations:
None.

Proposed Regulations:
We propose to rename § 370.47 as “What is program income and how may it be used?” Proposed § 370.47 would define program income, identify its uses, and permit it to be treated as either an addition or deduction to the CAP award.

In addition, we propose amending renumbered § 370.48 to permit program income to be carried over into the succeeding fiscal year.

Reasons:
These regulations are necessary to govern the use and treatment of program income, consistent with section 19 of the Act. Additionally, designated CAP agencies that earn program income, or receive transferred Social Security Administration payments from the vocational rehabilitation program, have historically been permitted to spend the program income as an addition to their Federal award.

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

Background

The program makes grants to the governing bodies of Indian tribes located on Federal and State reservations (and consortia of those governing bodies). Grantees provide vocational rehabilitation services for American Indians who are individuals with disabilities residing on or near these reservations, consistent with their strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice, so that these individuals may prepare for, and engage in, high-quality employment that will increase opportunities for economic self-sufficiency. The Department last made a comprehensive revision of the regulations for this program on February 18, 1994 (59 FR 8338).

Summary of Proposed Changes

These proposed regulations would implement the changes WIOA made to section 121 of title I of the Act. WIOA expanded the definition of “Indian” to include natives and descendants of natives under the Alaska Native Claims Settlement Act. WIOA amended the definition of “Indian tribe” to include a “tribal organization.” Proposed subpart B would amend the AIVRS regulations to implement the WIOA requirement that not less than 1.8 percent and not more than 2 percent of the funds for the AIVRS program be reserved to provide training and technical assistance to the governing bodies of Indian tribes and consortia of those governing bodies eligible for a grant under this program.

The proposed amendments also implement changes made by WIA in 1998 that have not previously been incorporated, such as the expansion of services to American Indians with disabilities living “near” a reservation, as well as “on” a reservation and the change of the project period from up to three to up to five years. Additionally, we propose to incorporate relevant sections of part 369, which the Department proposes to repeal, and relevant sections of part 361, particularly definitions found in each of those parts.

Significant Proposed Regulations

Because we propose to make a number of structural and numbering revisions to part 371, we discuss the proposed changes by subpart and, within each subpart, by subject or section.

Subpart A—General

Statute:
The statutory title of this program is “American Indian Vocational Rehabilitation Services.”

Current Regulations:
The current title for the program in the regulation is “Vocational Rehabilitation Service Projects for American Indians with Disabilities.”

Proposed Regulations:
We propose to change the title of part 371 to “American Indian Vocational Rehabilitation Services.”

Reasons:
The change would make the title of the regulations consistent with the statutory title of the program, eliminating any confusion.

Statute:
WIOA clarified the purpose of the AIVRS program. It added language to section 121(a) of the Act describing that services would be provided to American Indians with disabilities consistent with their strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice, so that such individuals may prepare for, and engage in, high-quality employment that will increase opportunities for economic self-sufficiency.

WIA amendments in 1998 added the ability of AIVRS projects to serve American Indians with disabilities who live “near” the reservation in addition to “on” the reservation. Additionally, section 121(b)(B) of the Act authorizes projects funded under this program to include “services traditionally used by Indian tribes.”

Current Regulations:
Current § 371.1 does not include the ability of projects to serve individuals “near” a reservation, nor does it make clear that projects may provide culturally appropriate services (
i.e.,
services traditionally used by Indian tribes). While it includes some of the language regarding the purpose of the program, it does not include all of the new language added by WIOA.

Proposed Regulations:
We propose to amend § 371.1 to restate the purpose of the program and include the new language added to section 121 of the Act by WIOA. Current § 371.1 would also be updated to include the expanded eligibility of beneficiaries in the WIA 1998 amendments to section 121.

Reasons:
The regulations would properly reflect the purpose of the program restated by WIOA and the expansion of services to American Indians with disabilities who live “near” the reservation made by WIA in 1998.

Statute:
WIOA affects eligibility for the AIVRS program by including a “tribal organization (as defined in section 4(l) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(l))” in the definition of “Indian tribe” under section 7(19) of the Act. By adding the authority to make awards of grants, contracts, or cooperative agreements for training and technical assistance under this program, WIOA also expands the eligibility of entities able to apply for funding under this program.

Current Regulations:
Section 371.2 does not reflect the expanded eligibility of tribal organizations for AIVRS projects or of other entities for the new training and technical assistance funds, providing only that applications may be made by the governing bodies of Indian tribes and consortia of those governing bodies located on Federal and State reservations.

Proposed Regulations:
Proposed § 371.2 would explain how a governing body of an Indian tribe, a consortium, and a tribal organization may each be an applicant for a grant under the AIVRS program. In order to ensure that a tribal organization is capable of carrying out the purposes of the AIVRS program, proposed § 371.2(a)(2) would require that the tribal organization has, as one of its functions, the vocational rehabilitation of American Indians with disabilities. Proposed § 371.2(a)(3) would require that a grant to an applicant serving more than one tribe must have the approval of each tribe it proposes to serve. This section would also identify those entities eligible to be applicants for a training and technical assistance award under the AIVRS program.

Reasons:
The proposed amendments would incorporate the WIOA changes to eligibility for awards under the AIVRS program for both AIVRS projects and the training and technical assistance funds. The amendments would also clarify certain requirements the applicant for an AIVRS award must meet in order to fulfill the purposes of the program.

Statute:
Section 121(a) of the Act describes the type of projects that are authorized to be funded under the AIVRS program.

Current Regulations:
Current § 371.10 describes the types of projects that are authorized under the AIVRS program but does not include the 1998 amendments made by WIA that expanded the individuals that could be served to those who live “near,” as well as “on,” the reservation.

Proposed Regulations:
We propose to renumber current § 371.10 to § 371.3 and to add the authority for AIVRS projects to serve individuals who reside “near” a reservation as well as “on” a reservation. We also propose to change the language of this section to reflect the change in the title of this part to be consistent with the statutory title of the program.

Reason:
We propose to move and renumber § 371.10 to § 371.3 in order to move that provision to accompany the other general provisions in subpart A. We propose to update the language in order to be consistent with the statutory changes made by WIA in 1998 and the change made to the title of the regulations in this part.

Statute:
Section 121(b)(3) of the Act was amended by WIA in 1998 to provide that projects funded under the AIVRS program are effective for a period up to 60 months.

Current Regulations:
Current § 371.5 provides that a project is effective for up to three years and includes authorization for an extension up to two additional years if certain conditions are met.

Proposed Regulations:
We propose to renumber current § 371.5 to § 371.4 and to update the regulation to provide for a project period of up to 60 months.

Reason:
We propose this change in order to move this general section before the sections addressing applicable regulations and definitions at the end of subpart A. We propose to update the language in order to be consistent with the statutory changes made by WIA in 1998.

Statute:
WIOA amended section 7 of the Act, changing several definitions relevant to the AIVRS program.

Current Regulations:
Section 371.4 provides that the definitions in part 369 apply to the AIVRS program and also defines five additional words and phrases applicable to the AIVRS program.

Proposed Regulations:
Proposed § 371.4 would be moved and renumbered to § 371.6 and revised to be a comprehensive definitions section. It would include the definitions in current § 371.4 and referenced by current § 371.3, some of which we would revise; definitions from part 369, which the Department proposes to repeal; relevant definitions from sections 7 and 121 of the Act added by WIOA; relevant definitions from part 361; and other definitions of terms commonly used in this part that are needed to provide clarity.

The definitions that we would add from Section 361 are: “Assessment for determining eligibility and vocational needs”; “Comparable services and benefits”; “Eligible Individual”; “Employment outcome”; “Family member”; “Maintenance”; “Physical and mental restoration services”; “Physical or mental impairment”; “Post-employment services”; “Substantial impediment to employment”; “Supported employment”; “Supported employment services”; “Transition services”; and “Transportation.”

The definitions that we would add from part 369 are: “Act”; “Community rehabilitation program”; “Individual with a disability”; “Individual with a significant disability”; and “Vocational Rehabilitation Services.”

The new definitions required by WIOA are: “Competitive integrated employment”; “Customized Employment”; Representative of the tribal vocational rehabilitation program; “Tribal organization;” and “Tribal Vocational Rehabilitation Program”.

The definitions of common terms we would add for clarity are: “Representative of the Tribal Vocational Rehabilitation program” and “Subsistence.”

The current definitions that we would change are “Consortium”; and “Indian”; “American Indian”; “Indian American”; and “Indian tribe.” “Reservation” was amended, following public notice and comment, by a final regulation issued on February 5, 2015 (80 FR 6452). Proposed substantive changes to individual definitions will be discussed throughout this NPRM in conjunction with relevant topical discussions.

Reasons:
We propose to include relevant definitions from part 369, which we propose to repeal, in proposed § 371.6 so that these definitions still apply to the AIVRS program.

We propose to add definitions of terms as they are defined in sections 7 and 121 of the Act, as amended by WIOA, in order to be consistent with the statute.

We propose to include definitions from part 361 as the same terms are used in the AIVRS program, and adding definition of these terms to part 371 will make this part easier to use.

We propose to add definitions of “Representative of the Tribal Vocational Rehabilitation program” and “Subsistence.” We propose to include “Representative of the Tribal Vocational Rehabilitation program”, as used in § 371.21
pertaining to the special application requirements for projects funded under part 371,
because we believe the definition would help the AIVRS grantees to more effectively implement the program and fiscal requirements and to improve employment outcomes for American

Indians with disabilities. We propose to define “subsistence” to make clear that it is a form of self-employment and that it continues to be an allowable employment outcome under the AIVRS program.

Finally, we propose to revise the definitions of “American Indian,” “Consortium” and “Indian tribe” to implement WIOA changes and to clarify eligibility under the program.

Proposed New Subpart B—Training and Technical Assistance (Replaces Current Subpart B)

Statute:
WIOA added to section 121 of the Act, a new subsection (c), which requires that, beginning in FY 2015, not less than 1.8 percent and not more than 2 percent of the funds for this program be reserved to provide, either directly or through grants, contracts, or cooperative agreements, training and technical assistance to the governing bodies of Indian tribes and consortia of those governing bodies awarded a grant under this program. Section 121(c) also provides that the Secretary must conduct a survey of such governing bodies to determine funding priorities for the training and technical assistance; and that the Secretary shall provide for peer review of applications to provide training and technical assistance from eligible entities by panels that include persons who are not government employees and who have experience in the operation of AIVRS programs.

Current Regulations:
None.

Proposed Regulations:
We propose to add a new subpart B to part 371, consisting of §§ 371.10 through 371.14, to govern how the Department would assess the need for, and provide training and technical assistance to, grantees under the AIVRS program.

Proposed § 371.10 would provide that the Secretary reserve not less than 1.8 percent and not more than 2 percent of the funds appropriated to carry out the AIVRS program to provide training and technical assistance in any fiscal year, beginning in FY 2015, to the governing bodies of Indian tribes and consortia of those governing bodies awarded a grant under this program.

Proposed § 371.11 would explain how the Secretary uses the funds specified in § 371.10 to provide training and technical assistance, either directly or through grants, contracts, or cooperative agreements to entities that have the capacity to provide such training and technical assistance. Any selected entity receiving funding would provide training and technical assistance to the governing bodies of Indian tribes and consortia of those governing bodies awarded a grant under this program with respect to developing, conducting, administering, and evaluating tribal vocational rehabilitation programs funded under this part.

Proposed § 371.12 would describe how the Secretary makes an award under subpart B for training and technical assistance, requiring an applicant to submit an application to the Secretary containing a proposal for the provision of training and technical assistance to the governing bodies of Indian tribes and consortia of those governing bodies awarded a grant under this program. Section 371.12 would also require applications to be peer reviewed by panels that include individuals who are not Federal or State government employees and who have experience in the operation of AIVRS programs.

Proposed § 371.13 would provide that the Secretary determines funding priorities for training and technical assistance by conducting a survey of the governing bodies of Indian tribes funded under this part to assess training and technical assistance needs.

Proposed § 371.14(a) would provide that the Secretary evaluates applications for a grant, cooperative agreement, or contract under subpart B on the basis of selection criteria chosen from the general selection criteria found in EDGAR at 34 CFR 75.210. Proposed § 371.14(b) would allow for a competitive preference to be given to applications that include as project personnel in a substantive role, individuals that have been employed as a project director or VR counselor by a Tribal Vocational Rehabilitation unit funded under this part. Proposed § 371.14(c) would provide that, if a contract is awarded, it will be made in accordance with regulations at 34 CFR part 75.

Reasons:
The proposed new subpart B gives effect to the new WIOA training and technical assistance requirements and the manner in which these requirements are implemented, including a survey of needs and the funding of activities either directly or through a peer reviewed competitive process consistent with the Department's practices.

Subpart C—How does one apply for a grant?

Statute:
None.

Current Regulations:
Section 371.20 requires the applicant to consult with the DSU for the State Vocational Rehabilitation program in the State or States in which the AIVRS program is providing services.

Proposed Regulations:
We propose to update current § 371.20 to include the language from current § 369.20 that references the specific provisions of EDGAR in 34 CFR 75.155-75.159 that the AIVRS projects should use when consulting with the DSU in the State or States in which the AIVRS program is providing services.

Reason:
Incorporating the specific provisions from current § 369.20 would clarify the procedures that the AIVRS projects should use when consulting with the DSU or DSUs in the State or States in which it is providing services.

Statute:
WIOA added to section 121(b)(1)(D) of the Act that applicants for a AIVRS grant provide assurances that (i) all decisions affecting eligibility for vocational rehabilitation services, the nature and scope of available vocational rehabilitation services and the provision of such services will, consistent with title I, be made by a representative of the tribal vocational rehabilitation program funded through the grant; and (ii) such decisions will not be delegated to another agency or individual.

In addition, the WIA 1998 amendments made certain amendments to the Act reflected throughout, such as changing “severely disabled” to “significantly disabled;” “similar benefits” to “comparable benefits;” and changing the “individualized written rehabilitation program” to the “individualized plan for employment.” These amendments also authorized AIVRS projects to provide services to American Indians with disabilities living “near” as well as “on” a reservation in section 121(a).

Finally, the 1998 amendments made changes relevant to the AIVRS program to subsection (6) of section 101(a) of the Act that address standards for facilities and providers of services and deleted the requirement in subsection (7) to make maximum use of public or other vocational or technical training facilities or other appropriate community resources.

Current Regulations:
Section 371.21 lists the special application requirements for projects funded under the AIVRS program. The requirements have not, however, been updated to reflect the statutory changes made by the WIA 1998 amendments and the WIOA amendments.

Proposed Regulations:
Current § 371.21(b) already includes the requirement that all decisions affecting eligibility and the nature, scope and provision of vocational rehabilitation services will be made by a tribal vocational rehabilitation program through its vocational rehabilitation unit and will not be delegated to another agency or individual. However, we propose to update the language

consistent with the inclusion of the term “representative of the tribal vocational rehabilitation program” in the statute by the WIOA amendments. We also propose to update other paragraphs of current § 371.21 to reflect changes made by the WIA 1998 amendments to the Act. Additionally, we would revise § 371.21(j) to reflect the statutory requirement for the accessibility of facilities, and we would add § 371.21(k) to require service providers to communicate with applicants in language or modes of communication they understand. Finally, we propose to delete current § 371.21(k) since the provision in the statute on which it was based has been removed.

Reason:
We are proposing these changes so that § 371.21 is consistent with statutory provisions in the Act, which have changed since the last time these regulations were amended, and to provide for a more culturally sensitive and efficient administration of the program.

Subpart D—How does the Secretary make a grant?

Statute:
Section 121(b)(1)(A) of the Act provides that an application must be made at such time, in such manner, and contain such information as the Commissioner may require.

Current Regulations:
Section 369.32(b) provides that the Secretary considers other factors in addition to the selection criteria in making awards, such as past performance of the applicant in carrying out similar activities under previously awarded grants. Specifically, the Secretary considers such factors as compliance with grant conditions, soundness of programmatic and financial management practices and attainment of established project objectives.

Proposed Regulations:
We propose to move current § 369.32(b) into part 371 as proposed § 371.32.

Reasons:
Because the Department is repealing part 369, we are proposing these changes to provide continuity of practice in how the Department makes the awards under this program.

Subpart E—What conditions apply to a grantee under this program?

Statute:
None.

Current Regulations:
Current §§ 371.40 and 371.41 describe the requirements for matching and allowable costs, but they do not include the authority to serve American Indians with disabilities located “near,” as well as “on,” the reservation in section 121(a) added by the WIA amendments in 1998 or any reference to the OMB Uniform Guidance adopted by the Department.

Proposed Regulations:
We propose to add to § 371.40 regarding matching and § 371.41 regarding allowable costs the references to the sections in 2 CFR 200 that address these subjects. In addition, we propose to update the language in § 371.41 regarding the ability of AIVRS projects to serve American Indians with disabilities located “near,” as well as “on,” a reservation.

Reasons:
These proposed changes would make §§ 371.40 and 371.41 consistent with the changes made to section 121(a) of the Act in 1998 by the WIA amendments and would clarify that the Department has adopted the OMB Uniform Guidance in 2 CFR part 200 and will apply that guidance going forward instead of the EDGAR provisions it replaces.

Statute:
Section 121(b)(1)(B) of the Act requires that applicants for an award under the AIVRS program provide an assurance that the vocational rehabilitation services provided to American Indians with disabilities residing on or near a reservation in a State shall be, to the maximum extent feasible, comparable to vocational rehabilitation services provided under the State Vocational Rehabilitation program to other individuals with disabilities residing in the State.

Current Regulations:
Current § 371.43 describes the special conditions that apply to the AIVRS program.

Proposed Regulations:
We propose to add two additional paragraphs to § 371.43. Proposed paragraph (d) would describe the nature of the written policies that the AIVRS project would have to develop in order to ensure that the provision of services is based on the vocational rehabilitation needs of each individual as identified in the individual's IPE and is consistent with the individual's informed choice. Proposed paragraph (e) would describe the necessary elements of an AIVRS project's policies and procedures developed to ensure each individual who is an applicant for, or eligible to receive, vocational rehabilitation services is afforded the opportunity to exercise informed choice throughout the vocational rehabilitation process.

Reasons:
We propose to add paragraphs (d) and (e) to § 371.43 in order to ensure that the AIVRS projects provide vocational rehabilitation services that are comparable to those services provided by the State and to ensure efficient administration of the projects funded under the AIVRS program. The nature and scope of the vocational rehabilitation services provided by the AIVRS projects, and respect for the informed choice of the consumers who utilize those services, are central tenets of vocational rehabilitation. While AIVRS projects would have been implementing these central requirements of the vocational rehabilitation program, we believe it is essential to require the AIVRS projects funded under this program to develop and maintain written policies and procedures that address these issues.

Statute:
Section 121(b)(1)(B) of the Act requires that applicants for an award under the AIVRS program provide an assurance that the vocational rehabilitation services provided to American Indians with disabilities residing on or near a reservation in a State shall be, to the maximum extent feasible, comparable to vocational rehabilitation services provided under the State Vocational Rehabilitation program to other individuals with disabilities residing in the State.

Current Regulations:
Current § 369.46 describes the special requirements pertaining to the protection, use, and release of personal information.

Proposed Regulations:
We propose to add a new § 371.44 that describes the special requirements pertaining to the protection, use, and release of personal information.

Reasons:
Because the Department is proposing to remove part 369, which currently applies to the AIVRS program, we propose to incorporate the provisions related to the protection, use, and release of personal information into part 371. However, because vocational rehabilitation services provided under the AIVRS program are required to be, to the maximum extent feasible, comparable to vocational rehabilitation services provided under the State Vocational Rehabilitation program, we believe that the section in part 361 that describes the special requirements pertaining to the protection, use, and release of personal information would provide better guidance to the AIVRS projects.

Statute:
Section 20 of the Act requires all programs that provide services to individuals with disabilities under the Act to advise them or their representatives of the availability and purposes of the client assistance program under section 112, including information on means of seeking assistance under that program.

Current Regulations:
Current § 369.42(b) requires the AIVRS projects to advise applicants or recipients of services or, as appropriate, their parents, family members, guardians, advocates, or authorized representatives, of the availability and purposes of the State's Client Assistance Program, including

information on seeking assistance from that program.

Proposed Regulations:
We propose to move current § 369.42(b) into a new section of part 371, proposed § 371.45.

Reasons:
Because the Department is proposing to remove part 369, which currently applies to the AIVRS program, we propose to incorporate into part 371 the provisions related to the requirement to advise consumers about the existence and purpose of CAP and how to contact CAP, which now includes as a grantee the protection and advocacy system serving the American Indian Consortium.

Rehabilitation National Activities Program, 34 CFR Part 373

Background

The purpose of this program is to provide competitive grants (including cooperative agreements) to, or enter into contracts with, eligible entities to expand and improve the provision of vocational rehabilitation and other services authorized under the Act, or to support activities that increase the provision, extent, availability, scope, and quality of rehabilitation services, including related research and evaluation activities. The Department last published regulations for this program, on December 11, 2000 (65 FR 77433).

Summary of Proposed Changes

These proposed regulations would implement the changes WIOA made to section 303(b) of the Act. We are proposing a new name for the program—the Rehabilitation National Activities Program—that better describes the broad nature of the types of activities that may be funded under this authority. As appropriate, we propose to add a definition of “vocational rehabilitation services” and to replace the term “rehabilitation services” with “vocational rehabilitation services.” We will retain the more general term “rehabilitation services” in instances when the services listed go beyond vocational rehabilitation services. The change would clarify that the types of projects that may be funded under the Rehabilitation National Activities Program are not limited to vocational rehabilitation services as they are defined in title I of the Act but rather may address the broader range of services encompassed by the term “rehabilitation services.”

Further, we propose to add two new statutory priorities pertaining to transition from education to employment and competitive integrated employment and add four additional priorities to address the technical assistance and training needs of State vocational rehabilitation agencies and their personnel.

Significant Proposed Regulations

We arrange our discussion of proposed changes to this part by subject.

Title

Statute:
None.

Current Regulations:
The current part 373 is called “Special Demonstration Programs.”

Proposed Regulations:
We propose to change the name of the part to “Rehabilitation National Activities Program.”

Reasons:
The new name would better describe the activities funded under this program.

Cooperative Agreements

Statute:
None.

Current Regulations:
Although authorizing the awarding of grants, the current part 373 does not specifically state that the Department may also award cooperative agreements.

Proposed Regulations:
We propose to amend § 373.1 to state that grants and cooperative agreements may be awarded to serve the purpose of the Rehabilitation National Activities Program authorized under the Act.

Reasons:
The proposed change would clarify that the Secretary may make cooperative agreements, which are one type of grant, to pay all or part of the costs of the activities covered under this program.

Competitive Integrated Employment

Statute:
Section 303 of the Act, as amended by WIOA, mandates that, in announcing competitions for the special demonstration programs, the Commissioner shall give priority consideration to initiatives focused on improving transition from education to employment, particularly in competitive integrated employment, for youth who are individuals with significant disabilities and to increasing competitive integrated employment for individuals with significant disabilities. Section 7 of the Act now defines the term “competitive integrated employment.”

Current Regulations:
The current part 373 does not address competitive integrated employment.

Proposed Regulations:
We propose to include a provision in § 373.7 stating that the Commissioner will give priority consideration to activities on improving transition from education to employment, including competitive integrated employment. We also propose to add a definition of “competitive integrated employment” in § 373.4.

Reasons:
The proposed change is necessary to conform part 373 to the changes to the Act made by WIOA.

Vocational Rehabilitation Services

Statute:
The Act refers to the provision of “vocational rehabilitation services” throughout title I, and section 7 defines the term “vocational rehabilitation services.” Section 303 of the Act, however, does not refer to the term “vocational rehabilitation services” but rather authorizes special demonstration programs to expand and improve the provision of rehabilitation and other services under the Act.

Current Regulations:
There is no reference to the term “vocational rehabilitation services” in part 373. Also, part 373 includes a definition of “rehabilitation services” that is virtually identical to section 103(a) of the Act, which details vocational rehabilitation services for individuals.

Proposed Regulations:
We propose to amend part 373 by replacing, when appropriate, the term “rehabilitation services” with the term “vocational rehabilitation services.” In addition, we propose adding a definition for the term “vocational rehabilitation services” that is identical to the current definition for the term “rehabilitation services.” Finally, we propose to change the definition of the term “rehabilitation services” in a manner that is broader than the proposed definition for the term “vocational rehabilitation services.”

Reasons:
These proposed changes are necessary to conform part 373 to titles I and III of the Act and to differentiate between rehabilitation services and vocational rehabilitation services. These proposed changes would clarify that the types of projects that may be funded under the Rehabilitation National Activities Program are not limited to vocational rehabilitation services but rather may address the broader range of services encompassed by the term “rehabilitation services” authorized by title III of the Act.

Supported Employment

Statute:
Section 303 of the Act mandates that, in announcing competitions under this program, the Commissioner shall give priority consideration to supported employment programs. Section 7 of the Act defines the term “supported employment.”

Current Regulations:
The current part 373 does not include a definition of the term “supported employment.”

Proposed Regulations:
We propose to amend § 373.4 to include a definition of “supported employment” that is currently contained in § 361.5(b)(53).

Reasons:
The proposed change would better assist eligible entities in determining how to comply with any requirement to address supported employment. Specifically, in implementing the priority listed in proposed § 373.7(a)(2), in which the term “supported employment” is used, we are proposing that the same definition of this term that is used in 34 CFR part 361 be used here.

Projects That May Be Funded

Statute:
Under section 303 of the Act, projects funded under the special demonstration programs may include special projects and demonstrations of service delivery, model demonstration projects, technical assistance projects, systems change projects, special studies and evaluations, and dissemination and utilization activities.

Current Regulations:
Part 373 lists these types of projects along with potential project priorities in § 373.6, which is entitled “What are the priorities and other factors and requirements for competitions?”

Proposed Regulations:
We propose to amend current § 373.6 to change the section title to “What types of projects may be funded?” and to include only the six types of projects authorized by the statute under this section.

Reasons:
The proposed change is necessary to conform part 373 to the Act and to clarify that the types of projects that may be funded under the Rehabilitation National Activities Program are not priorities for funding.

Priorities for Competitions

Statute:
Section 303(b)(5) of the Act, as amended by WIOA, adds transition from education to employment and competitive integrated employment to supported employment as priorities for competitions.

Current Regulations:
Section 373.6 lists three statutory priorities, two of which have been deleted by WIOA, and the third, pertaining to supported employment, does not contain the full statutory language.

Proposed Regulations:
We propose to amend part 373 by adding a new § 373.7 entitled “What are the priorities and other factors and requirements for competitions?” This proposed section contains the full statutory language for the two new statutory priorities pertaining to transition from education to employment and competitive integrated employment and for the preexisting statutory priority for supported employment.

Reasons:
The proposed change is necessary to conform part 373 to the new statutory priorities contained in WIOA.

Priorities and Other Factors and Requirements for Competitions

Statute:
Section 303 of the Act mandates that, in announcing competitions for grants and contracts under the special demonstration programs, the Commissioner shall give priority consideration to “priority for competitions” under section 303(b)(5)(A), and may require applicants to address one or more “additional competitions” under section 303(b)(5)(B).

Current Regulations:
Part 373 addresses priority projects in § 373.6 but does not specify or differentiate among “priority for competitions” and “additional competitions.”

Proposed Regulations:
We propose to move the content of priorities from the current § 373.6 into a new § 373.7. In addition to the statutory priorities that are listed in the current § 373.6, we propose that § 373.7 include the following four additional priorities for competitions under this program to address the technical assistance and training needs of State vocational rehabilitation agencies and their personnel:

§ 373.7(b)(6) Technical assistance to designated State units and their personnel in working with employers to identify competitive integrated employment opportunities and career exploration opportunities in order to facilitate the provision of vocational rehabilitation services and transition services for youth with disabilities and students with disabilities.

§ 373.7(b)(7) Consultation, training and technical assistance to businesses that have hired or are interested in hiring individuals with disabilities.

§ 373.7(b)(8) Technical assistance and training to designated State units and their personnel on establishment and maintenance of education and experience requirements, to ensure that the personnel have an understanding of the evolving labor force and the needs of individuals with disabilities. This would align with the work of the current Job Development Training and Technical Assistance Center.

§ 373.7(b)(9) Technical assistance to State vocational rehabilitation agencies and their partners to improve their performance to meet the requirements of WIOA designed to improve the numbers and quality of employment outcomes.

Finally, the proposed § 373.7 would also clarify that the Secretary may limit the priorities listed in paragraphs (a) and (b) of § 373.7 to address one or more of the factors in § 373.7(c).

Reasons:
The proposed changes are necessary to conform part 373 to the changes to the Act made by WIOA and to clarify the additional competition priorities and factors that the Secretary may apply to any competitions under this program. We expect that these proposed changes would expand and improve the Rehabilitation National Activities Program and further the purpose of the Act.

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

Background

The PAIR program is authorized under section 509 of the Act (29 U.S.C. 794e). The purpose of the PAIR program is to support the protection and advocacy system in each State to protect the legal and human rights of individuals with disabilities who need services that are beyond the scope of the CAP, and who are not eligible for services under the Protection and Advocacy for Persons with Developmental Disabilities and the Protection and Advocacy of Individuals with Mental Illness programs.

The Department last updated the regulations at 34 CFR part 381, which govern the PAIR program, on March 6, 1997 (62 FR 10404).

Summary of Proposed Changes

Both WIA and WIOA made a few significant changes to section 509 of the Act. With regard to the statutory changes made to section 509 by WIA, we propose to add the protection and advocacy system serving the American Indian Consortium as an entity eligible to receive a PAIR grant.

With regard to statutory changes made to section 509 by WIOA, we propose to clarify that PAIR grantees have the same general authorities, including to access records and program income, as the protection and advocacy system established under the Developmental Disabilities Assistance and Bill of Rights Act of 2000.

We propose to clarify that the Secretary may award funds for the provision of training and technical assistance for PAIR grantees through a grant, contract, or cooperative agreement.

Significant Proposed Regulations

We organize our discussion of proposed changes by subject and section.

The Definition of “State” (§ 381.2)

Statute:
Section 7(32) of the Act, as amended by WIA (29 U.S.C. 705(32)), deleted the Republic of Palau from the definition of the term “State.” As a result, “State” includes, in addition to each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Section 7(32) of the Act was renumbered as section 7(34) by WIOA.

Current Regulations:
Current part 381 makes several references to the Republic of Palau (
i.e.,
current § 381.2 regarding eligibility for a PAIR grant and current § 381.5 regarding definition of “State”).

Proposed Regulations:
We propose to delete all references to the Republic of Palau in part 381.

Reasons:
This change is necessary to implement the current statutory definition of “State,” which forms the basis for determining eligibility for grants under the Act.

Public School Programs (§ 381.3)

Statute:
None.

Current Regulations:
The current § 381.3(a)(3) permits PAIR grantees to provide information on, and make referrals to, programs and services that address the needs of individuals with disabilities, including those individuals with disabilities who are exiting public school programs. Current § 381.10(a)(4) requires PAIR grantees to make an assurance to provide information on and make referrals to programs and services that address the needs of individuals with disabilities, including those individuals with disabilities who are exiting public school programs.

Proposed Regulations:
We propose to make two changes in this part. First, we propose to amend current § 381.3(a)(3) to clarify that PAIR grantees are authorized to provide information and referral services to individuals with disabilities exiting any school program. Second, we propose to amend § 381.10(a)(4) to require PAIR grantees to assure that they will provide information and referral services to individuals with disabilities exiting any school program.

Reasons:
In proposing to use the term “school,” rather than “public school,” we recognize that many more individuals with disabilities are being educated in both public and private schools and that they may need information and referral services by PAIR grantees to enable them to participate in the programming offered in these settings.

Access to Records (§ 381.10)

Statute:
Section 509(f)(2) of the Act, as amended by WIOA (29 U.S.C. 794e(f)), requires that PAIR grantees have the same general authorities, including the authority to access records and program income, as given to the Protection and Advocacy for Persons with Developmental Disabilities program established under the Developmental Disabilities Assistance and Bill of Rights Act of 2000.

Current Regulations:
Current § 381.10(a)(2) gives that PAIR grantees the same general authorities, including to access records and program income, as in part C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000.

Proposed Regulations:
We propose to amend § 381.10(a)(2) to add specific reference to “title I” of the Developmental Disabilities Assistance and Bill of Rights Act of 2000.

Reasons:
The proposed change is necessary to conform to the language of section 509, as amended by WIOA. This proposed change is primarily technical in nature as this authority existed prior to enactment of WIOA.

Training and Technical Assistance (§ 381.22)

Statute:
Section 509(c)(1)(A) of the Act, as amended by WIOA (29 U.S.C. 794e(f)), clarifies that the training and technical assistance to PAIR grantees may be provided by the Secretary through a grant, cooperative agreement, or contract.

Current Regulations:
Current § 381.22(a)(1) establishes the set aside for training and technical assistance to eligible systems, but does not specify the allowable mechanisms for funding the training and technical assistance since this is a new statutory requirement.

Proposed Regulations:
We propose to amend § 381.22(a)(1) to clarify the funds for training and technical assistance may be awarded as a grant, contract, or cooperative agreement.

Reasons:
The proposed changes are necessary to conform to the changes in the Act made by WIOA. The changes are primarily technical, as the Secretary always could use these mechanisms for awarding funds to provide training and technical assistance to PAIR grantees.

The American Indian Consortium (§ 381.22)

Statute:
Section 509(c)(1)(B) of the Act, as amended by WIA (29 U.S.C. 794e(c)), requires the Secretary to reserve $50,000 to make a grant to the protection and advocacy system serving the American Indian Consortium, established under section 102 of the Developmental Disabilities Assistance and Bill of rights Act of 2000, for any fiscal year in which appropriations for the PAIR program is at least $10.5 million.

Current Regulations:
Current § 381.22 does not address the funding of the protection and advocacy system serving the American Indian Consortium because part 381 was last updated prior to the 1998 amendments to the Act.

Proposed Regulations:
We propose to amend § 381.22 by adding a new paragraph (a)(2) to require a minimum grant of $50,000 to the protection and advocacy system serving the American Indian Consortium when the total PAIR appropriation equals or exceeds $10.5 million. We also propose to make related changes to four other sections in this part.

Current § 381.2 would be amended to include the American Indian Consortium as an eligible entity for a PAIR grant.

Current § 381.3 would be amended to clarify that the protection and advocacy system serving the American Indian Consortium has the authority to provide information, provide advocacy and legal representation, and make referrals for individuals with disabilities within the American Indian Consortium when describing the authorized activities of PAIR grantees.

Current § 381.5 would be amended to incorporate references to tribal governmental agencies in the definition of “advocacy.”

Current § 381.10 would be amended to require the protection and advocacy system serving the American Indian Consortium to submit assurances as a PAIR grantee when applying for funding as part of the application requirements.

Reasons:
The proposed changes are necessary to implement the amendments to the Act made by WIA in 1998. Previously, this protection and advocacy system was eligible for funding under other components of the protection and advocacy system, including the Protection and Advocacy of Persons with Developmental Disabilities and the Protection and Advocacy of Individuals with Mental Illness programs, but not under the PAIR program.

Reallotment (§ 381.22)

Statute:
Section 509(e) of the Act (29 U.S.C. 794e(e)) sets forth the process by which the Secretary reallots PAIR funds when a grantee cannot use all funds allotted to it. This statutory provision remains unchanged.

Current Regulations:
Current § 381.22 addresses how the Secretary allocates funds but does not cover the reallotment requirements.

Proposed Regulations:
We propose to add a new paragraph (d) to § 381.22 to clarify that the Secretary may reallot funds to other eligible systems when an existing eligible system within the State is not able to expend its funds in that fiscal year or the subsequent fiscal year.

Reasons:
While the reallotment of PAIR funds has been permitted under section 509 of the Act, PAIR grantees have not returned funds to the Department for this purpose. However, we believe it is important to describe the reallotment requirements in this part in the event reallotment funds become available.

Program Income (§ 381.33)

Statute:
Section 19 of the Act governs the use of program income received by grantees, including PAIR grantees, under the Act. This statutory provision remains unchanged.

Current Regulations:
Current § 381.33 describes how a grantee may use or carry over funds but it does not address how a grantee may spend program income

Proposed Regulations:
We propose to add a new paragraph (e) to § 381.33 that defines program income, identifies its uses, permits it to be treated as either an addition or deduction to the PAIR award, and permits program income to be carried over into the fiscal year succeeding that in which it was earned.

Reasons:
These proposed regulations are necessary to govern the use and treatment of program income, consistent with sections 19 and 509 of the Act. Although this is not a new statutory requirement, we believe it is important to include these regulations into part 381 since PAIR grantees frequently receive large sums of program income.

Rehabilitation Training Program, 34 CFR Part 385

Background

The Rehabilitation Training program is designed to: (1) ensure that skilled personnel are available to provide rehabilitation services to individuals with disabilities through vocational, medical, social, and psychological rehabilitation programs, through independent living services programs, and through client assistance programs; (2) maintain and upgrade basic skills and knowledge of personnel trained to deliver rehabilitation services; and (3) provide training and information to individuals with disabilities, and their parents, families, guardians, advocates, and authorized representatives, to develop the skills necessary to access the rehabilitation system and to become active decision makers in the vocational rehabilitation process. The Department last published regulations for this program, on March 6, 1997 (62 FR 10398).

Summary of Proposed Changes

We propose to add supported employment and economic and business development programs to the list of programs that may benefit individuals with disabilities.

We propose to emphasize the importance of maintaining and upgrading the skills of personnel who provide supported employment services and customized employment services to individuals with the most significant disabilities, as well as personnel assisting individuals with disabilities whose employment outcome is self-employment, business ownership, or telecommuting.

We propose to add a definition of “vocational rehabilitation services” and to replace the term “rehabilitation services” with “vocational rehabilitation services” as appropriate. We will retain the more general term “rehabilitation services” in instances when the services listed go beyond vocational rehabilitation services. Finally, we would add definitions of “supported employment” and “assistive technology” consistent with definitions in title I of the Act.

Significant Proposed Regulations

We organize our discussion by subject.

Purpose

Statute:
Section 301(a) of the Act states the purpose of the programs authorized under Title III of the Act and describes the types of programs whose personnel may benefit from rehabilitation training. Section 301(a)(1) authorizes the Commissioner to make grants and contracts to train personnel who work in economic and business development programs. WIOA added language to section 302(a)(1)(E) specifically highlighting the need to train personnel in programs that provide supported employment and customized employment for individuals with the most significant disabilities. Section 302(a)(1)(F) describes personnel assisting individuals with disabilities whose employment outcome is self-employment, business ownership, or telecommuting.

Current Regulations:
The current part 385 does not specifically address training personnel who deliver supported employment services and customized employment services to individuals with the most significant disabilities, nor is training personnel who assist individuals with disabilities whose employment outcome is self-employment, business ownership, or telecommuting specifically mentioned.

Proposed Regulations:
We propose to amend current § 385.1(a)(1) by adding supported employment and economic and business development programs to the list of programs that may benefit individuals with disabilities. We also propose to amend current § 385.1(a)(2) to emphasize the importance of maintaining and upgrading the skills both of personnel who provide supported employment services and customized employment services to individuals with the most significant disabilities and personnel assisting individuals with disabilities whose employment outcome is self-employment, business ownership, or telecommuting.

Reasons:
The proposed changes in the regulations are necessary to conform the regulations to current sections 301(a) and 302(a) of the Act.

Assistive Technology Terms

Statute:
Section 302(a)(1)(H) of the Act, as amended by WIOA, authorizes the Rehabilitation Training program to assist eligible entities to provide rehabilitation personnel training in providing assistive technology services.

Current Regulations:
The current part 385 does not address “assistive technology services” although the term “rehabilitation technology” is used in § 385.1(a)(2), and § 385.4 includes definitions of “assistive technology device” and “assistive technology services.”

Proposed Regulations:
We propose to add a definition of “assistive technology” to the definitions “assistive technology device” and “assistive technology services” already in current § 385.4. Specifically we define “assistive technology” to mean “technology designed to be utilized in an assistive technology device or assistive technology service.” In addition, we propose to add to the definition of “assistive technology services” services that would expand the availability of access to technology, including electronic and information technology, to individuals with disabilities.

Reasons:
The proposed changes are necessary to conform part 385 to the changes to the Act made by WIOA.

Definition of State

Statute:
The Workforce Investment Act of 1998 deleted the Republic of Palau from the definition of the term “State” in section 7(32). As a result, “State” includes, in addition to each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands, but it has excluded the Republic of Palau.

Current Regulations:
The current § 385.4 includes the Republic of Palau in the definition of “State.”

Proposed Regulations:
We propose to delete the Republic of Palau from the areas included in the definition of “State.”

Reasons:
The change conforms the definition of “State” to the current statutory definition.

Vocational Rehabilitation Services

Statute:
The Act refers to “vocational rehabilitation services” throughout title I, and section 7 defines the term “vocational rehabilitation services.”

Current Regulations:
The current part 385 does not include a definition of “vocational rehabilitation services.”

Proposed Regulations:
We propose to amend part 385 by adding a definition of “vocational rehabilitation services.” The proposed definition mirrors the definition provided in section 7 of the Act. We also propose to replace the term “rehabilitation services” with “vocational rehabilitation services” in part 385 as appropriate. We would retain the more general term “rehabilitation services” in instances when the services listed go beyond vocational rehabilitation services.

Reasons:
The proposed changes are necessary to conform part 385 to titles I and III of the Act.

Supported Employment

Statute:
The changes to section 302 of the Act made by WIOA include a new authority in 302(a)(1) to train rehabilitation personnel to deliver supported employment services and customized employment services to individuals with the most significant disabilities. In addition, section 7(38) of the Act, as amended by WIOA, includes a definition of “supported employment.”

Current Regulations:
The current part 385 does not address the provision of training for rehabilitation personnel to deliver supported employment services and customized employment services to individuals with the most significant disabilities.

Proposed Regulations:
We propose to amend the definitions of “supported employment” and “supported employment services” in current § 385.4 to address the amendments made to the Act by WIOA.

Reasons:
The proposed changes are necessary to conform part 385 to changes to section 7(38) of the Act made by WIOA. The fact that supported employment services now include “customized employment” and the fact that supported employment services may be provided for up to 24 months are changes that need to be reflected in the regulations.

Rehabilitation Long-Term Training Program, 34 CFR Part 386

Background

The purpose of the Rehabilitation Long-Term Training program is to provide financial assistance for projects that provide basic or advanced training leading to an academic degree or certificate in one of 30 fields of study and for projects that provide support for medical residents enrolled in training programs in physical medicine and rehabilitation. The program is designed to provide academic training that leads to an academic degree or academic certificate in areas of personnel shortages. The Department last published regulations for this program on March 6, 1997 (62 FR 10398).

Summary of Changes

We propose to add two areas to the training areas supported by this program: (1) Assisting and supporting individuals with disabilities pursuing self-employment, business ownership, and telecommuting, and (2) supported employment services and customized employment services to individuals with the most significant disabilities.

We are also proposing to reduce from 75 percent to 65 percent the required percentage of the total award that grantees must spend on financial assistance to scholars.

We propose to prohibit scholars from concurrently receiving financial assistance from multiple grants.

We propose that the grantee must document that the scholar will seek employment in the field of study in which the scholar was trained or where the field of study is directly relevant to the job functions being performed.

We are proposing a number of changes to the exit processes that will help scholars be more aware of the requirements of their service obligation.

We propose to set out the consequences for a grantee that has failed to request or maintain the required documentation for a scholar who does not meet the service obligation.

We propose to allow some scholars to start satisfying the service obligation before completion of the program of study but to prohibit other scholars who do not complete the program of study from performing the service obligation.

We propose to disallow internships, practicums, or any other work-related requirement necessary to complete the educational program as qualifying employment for the service obligation.

Finally, we propose some changes regarding deferrals and exceptions. For an exception based on disability, the scholar must have a disability either that did not exist at the time the scholar entered the program or that has worsened since the scholar entered the program. We are proposing that documentation of disability be less than three months old. With regard to deferrals, we propose to allow for up to four years deferral for a member on active duty in the Armed Forces, an increase from the three years in current regulations. We are proposing to restrict a deferral based on a scholar's pursuing higher education only to advanced education that is in the rehabilitation field.

Significant Proposed Regulations

We organize our discussion by section number and subject.

Section 386.1 (Purpose)

Statute:
Section 302(a)(1) of the Act provides examples of the types of personnel who can be trained with funds under the long-term training program. Specifically, section 302(a)(1)(F) references the need to train personnel assisting and supporting individuals with disabilities pursuing self-employment, business ownership, and telecommuting. In addition, section 302(a)(1)(E) lists the need for personnel specifically trained to deliver supported employment services and customized employment services to individuals with the most significant disabilities.

Current Regulations:
Current § 386.1(b) lists the categories of personnel who may receive training through the Rehabilitation Long-Term Training Program but does not include the categories in sections 302(a)(1)(E) and (F).

Proposed Regulations:
In the list of personnel who may receive training through the Rehabilitation Long-Term Training Program in current § 386.1(b), we propose to add paragraph (1) listing personnel assisting and supporting individuals with disabilities pursuing self-employment, business ownership,

and telecommuting. In paragraph (3) of proposed § 386.1(b), we would combine paragraphs (2) and (30) in current § 386.1(b) into one item on rehabilitation technology. In paragraph (14) of proposed § 386.1(b), we would combine paragraphs (13) and (29) in current § 386.1(b) into one item on therapeutic recreation. In paragraph (17) of current § 386.1(b), we would clarify the meaning of the specialty of “rehabilitation of individuals who are blind or visually impaired” by providing two examples of the types of personnel in this specialty area. Finally, in paragraph (28) of proposed § 386.1(b), we would include customized employment in addition to supported employment.

Reasons:
We are proposing these changes in § 386.1(b) to better align the regulations with the Act and to clarify language in current regulations.

Section 386.4 (Definitions)

Statute:
None.

Current Regulations:
Current § 386.4(b) defines terms that apply to the Rehabilitation Long-Term Training Program.

Proposed Regulations:
We proposed to clarify two terms appearing in the list in current § 386.4(b), Other definitions. First, we would clarify that a “scholarship” may cover the costs of books and supplies, in addition to student stipends, tuition and fees, and student travel in conjunction with training assignments. We would also clarify that the “State vocational rehabilitation agency” is the same as the designated State agency referenced in current § 361.5(b)(13).

Reasons:
With regard to the definition of “scholarship,” our policy has been to consider “books and supplies” as allowable expenses to be covered with scholarship funds under this program; we are simply incorporating this policy into the regulations. The proposed changes to the definition of “State vocational rehabilitation agency” would clarify the meaning of the current definition.

Section 386.21 (Applications)

Statute:
Section 302(b)(2) of the Act describes application requirements for grantees receiving support under the Rehabilitation Training program.

Current Regulations:
These application requirements are not contained in current regulations.

Proposed Regulations:
We propose to incorporate the application requirements in section 302(b)(2) into a new § 386.21.

Reasons:
Including these application requirements in the regulations will help to make grantees aware of the statutory requirement.

Section 386.30 (Matching requirements)

Statute:
Section 302(a)(1) states that grants under this program pay part of the costs of the projects.

Current Regulations:
Current § 386.30 states that the Federal share cannot be greater than 90 percent of the total project cost.

Proposed Regulations:
Current § 386.30 has been reworded to state that the grantee is required to contribute at least ten percent of the total cost of the project.

Reasons:
Although having the same meaning, the proposed language more clearly states the requirement in terms of the amount of the cost the grantee must cover. We believe this affirmative language would lead to less confusion and greater compliance with the match requirement.

Section 386.31 (Funding Requirements)

Statute:
None.

Current Regulations:
In § 386.31(a), grantees are required to expend 75 percent of their award on financial assistance to scholars.

Proposed Regulations:
We would reduce this 75 percent requirement and are instead proposing in § 386.31(a) that a minimum of 65 percent of the total project cost (including both the Federal grant and the cost share) must be expended on financial assistance for scholars. In addition, in § 386.31(c), we are proposing a new provision to clarify that scholars may not receive concurrent scholarships from more than one project under this program.

Reasons:
Many grantees have had problems meeting the current regulatory provision in § 386.31(a). Specifically, we have found that requiring grantees to dedicate 75 percent of their Federal award and their non-Federal share to scholarships leaves very little flexibility in their budgets and makes administering these grants problematic. Therefore, we are proposing to reduce the percentage that the grantee is required to expend on financial assistance for scholars. This proposed change is also consistent with the threshold used by the Office of Special Education Programs in their personnel preparation grants under the Individuals with Disabilities Education Act (IDEA).

The additional provision in proposed § 386.31(c) is necessary because some grantees have funded scholars from multiple grants under this program. While it can be difficult to ensure that scholarships are not duplicative, we are also concerned that scholars who receive simultaneous scholarships under multiple grants under this program would be responsible for service obligations for each scholarship received, which could, at a minimum, double the scholar's service obligation. This proposed provision would make the grantee's reporting on scholars clear and would also avoid confusion on the part of the scholar regarding the service obligation.

Section 386.32 (Allowable Costs)

Statute:
Section 302(b)(4) allows grants to provide scholarships and necessary stipends and allowances.

Current Regulations:
In addition to allowable costs described in the statute as well as in the Education Department General Administrative Regulations, other allowable costs under the Rehabilitation Long-Term Training Program are described in § 386.32. In current regulations, these costs include student stipends, tuition and fees, and student travel in conjunction with training assignments.

Proposed Regulations:
We have clarified that allowable costs, which grantees may cover as part of the financial assistance they provide to scholars, may include the costs of books and supplies.

Reasons:
Our policy has been to consider “books and supplies” as allowable expenses to be covered with scholarship funds under this program; we are simply proposing to incorporate this policy into the regulations.

Section 386.33 (Disbursing Scholarships)

Statute:
None.

Current Regulations:
Current § 386.33 allows permanent residents of the Republic of the Marshall Islands, the Federated States of Micronesia, the Republic of Palau, and the Commonwealth of the Northern Mariana Islands to be eligible for scholarships.

Proposed Regulations:
In § 386.33(a)(1)(ii), we have deleted references to the Republic of the Marshall Islands, Federated States of Micronesia, and Republic of Palau (referred to as the Freely Associated States (FAS)) as areas from which permanent residents can qualify for scholarships. We have also added Puerto Rico, the United States Virgin Islands, Guam, and American Samoa as areas from which permanent residents can qualify for scholarships.

Reasons:
Because only States are eligible to receive grants under title I of the Act, the FAS are no longer eligible to receive title I grants to carry out Rehabilitation Act programs within their jurisdictions. Additionally, section 302(b)(2) of the Act requires each

applicant for a long-term training grant to include a description how the State rehabilitation agency designated under title I will participate in the project and to identify potential employers that would satisfy the service obligation requirements for scholars. According to § 386.40(a)(6), these employers must be the State rehabilitation agency or have an arrangement with that agency to provide rehabilitation services. Given that the FAS are no longer eligible to receive grants to carry out programs under title I of the Act, there are no State agencies designated under title I or other potential employers for the service obligation available in the FAS. Thus, there is no authority in the Act to allow permanent residents of the FAS to continue to be eligible for scholarships. FAS permanent residents, however, would still be eligible for scholarships, in the same manner as citizens or permanent residents of any other country, as long as they demonstrate that they are eligible under the remaining provisions in § 386.33(a),
i.e.
being a lawful permanent resident of the United States or being in the United States with the intention of becoming a citizen or permanent resident.

We also amend this section to include Puerto Rico, the United States Virgin Islands, Guam, and American Samoa as areas from which permanent residents may be identified as eligible for scholarships. These areas are considered “States” as that term is defined in section 7 of the Act and, as a result, are eligible to receive grant funds under the title I of the Act to carry out vocational rehabilitation and other programs authorized by the Act.

Statute:
None.

Proposed Regulations:
We propose to renumber and reorganize current § 386.33. Also, in proposed § 386.33(c), we would clarify that the grantee must document that the scholar will seek employment in the field of study in which the scholar was provided training or employment where it can be demonstrated that the field of study is directly relevant to the job functions being performed.

Reasons:
The proposed requirements that employment must be in the field of study in which the training was received and where the job functions must be directly relevant to the field of study in which the training was received merely reflect current policy. We believe it is advisable to clarify this practice through regulations to ensure a consistent approach among all grantees as they inform scholars about the requirements to carry out the service obligation for the financial assistance they receive. Without these requirements, it is not clear whether scholars may obtain employment that does not directly use the skills they learned while pursuing a degree or certificate under the Rehabilitation Long-Term Training Program.

Section 386.34 (Assurances)

Statute:
Section 302(b)(5) of the Act requires that grantees assure that each scholar will enter into an agreement with the grantee to perform the service obligation or repay the costs of the scholarship.

Current Regulations:
Current § 386.34 lists the assurances that a grantee wishing to provide scholarships must provide.

Proposed Regulations:
We are proposing the following:

• In § 386.34(a) that, for each year after the initial payback agreement has been signed, the grantee and scholar must have a signed executed agreement containing the terms and conditions outlined in the section.

• In § 386.34(c) that the scholar be informed annually of the total indebtedness.

• In § 386.34(c) incorporating by reference the provisions of current § 386.40 rather than repeating them here as in the current regulations.

• In § 386.34(f) clarifying that the grantee must provide the scholar with certain information related to the scholar's payback obligation upon the scholar's exiting the program and the scholar must then sign a certificate acknowledging the receipt of such information.

• In § 386.34(g)(1) that the grantee obtain the name of the scholar's supervisor, the duties the scholar will perform, and whether the position is full- or part-time.

• In § 386.34(j) that records be maintained not less than one year beyond the date that all scholars provided financial assistance under the grant have completed their service obligation or otherwise entered into repayment status.

Reasons:
We are proposing these revisions for the following reasons:

• Proposed § 386.34(a) and (c) would bring this information to the forefront for scholars. Requiring that such information be provided only once, at the beginning of the scholarship support, has resulted in misunderstandings and disagreements about the nature of the obligations.

• Proposed § 386.34(c) would be streamlined rather than repeating provisions in § 386.40 for the sake of efficiency.

• Proposed § 386.34(f) would be more specific about the need for grantees to provide scholars with certain information upon their exit from the program and would emphasize the need for grantees to ask scholars to sign the certification acknowledging receipt of the information. We believe that the more that can be done to help scholars understand their obligations, the fewer instances of misunderstanding will occur and the more likely it will be that scholars will complete their service obligations.

• Proposed § 386.34(g)(1) would assist the grantee in determining whether or not a scholar's employment qualifies to repay the scholarship.

• Proposed § 386.34(i) would ensure that the Department has sufficient information to properly monitor and administer the grant as contemplated by 34 CFR 75.730-75.732, and it would ensure that sufficient time would be available to resolve any disputes about whether a scholar's service obligation has been met or whether repayment must be initiated.

Section 386.36 (Incomplete or Inaccurate Information)

Statute:
None.

Current Regulations:
The current regulations do not plainly describe the grantee's liability for failing to provide accurate and complete scholar information to the Department.

Proposed Regulations:
We propose to add a new paragraph in § 386.36 describing the consequences for a grantee that has failed to request or maintain the documentation required in current § 386.34 for a scholar who does not meet the service obligation. Specifically, the Department would be able to recover, in whole or in part, from the grantee the debt amount and any collection costs described in current §§ 386.40 and 386.43, if the Department: (a) Is unable to collect, or improperly collected, some or all of these amounts or costs from a scholar, and (b) determines that the grantee failed to provide to the Department accurate and complete documentation described in current §§ 386.34 and 386.40.

Reasons:
We propose to add this section to clarify the grantee's responsibilities to report complete and accurate information on scholars and their payback obligations and to clarify the consequences associated with noncompliance. The authority of the Department to recover collection costs is new and may be necessary to fully reimburse a scholar who is eligible for a refund for any debt that has already been referred to the U.S. Treasury for collection. While the Department has always had the authority in EDGAR to recover the debt amount, we propose

this language to ensure that grantees are more aware of this authority.

Section 386.40 (Requirements for Scholars)

Statute:
Section 302(b)(5) of the Act requires a scholar to perform a service obligation or repay the cost of the scholarship.

Current Regulations:
Current § 386.40 outlines the requirements for scholars, although some of the payback requirements are described in current § 386.34(c).

Proposed Regulations:
We have proposed to add the following:

• § 386.40(a)(6) describing the payback obligations in current § 386.34(c) and clarifying that the service obligation must be in the field of study the scholar pursued or where the field of study is directly relevant to the job functions performed.

• § 386.40(b)(1) allowing scholars who are in multi-year programs of study and who are currently employed or are seeking employment to start satisfying the service obligation after completion of at least one year of study. This provision would also prohibit scholars who do not complete the program of study from performing the service obligation, except for scholars who complete at least one year of a multi-year program. We request specific comments on this proposal.

• § 386.40(b)(2) making it clear that an internship, practicum, or any other work-related req

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-05535. Public record. Not legal advice.