# Independent Living Services Programs; Proposed Rule DEPARTMENT OF EDUCATION

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-11543

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** May 12, 1994

## Text

SUMMARY: The Secretary proposes to issue new regulations and to amend
existing regulations governing the State Independent Living Services
(SILS), Centers for Independent Living (CIL), and Independent Living
Services for Older Individuals Who Are Blind (OIB) programs. These
proposed regulations are needed to implement chapters 1 and 2 of title
VII of the Rehabilitation Act of 1973 (Act), as amended.

DATES: Comments must be received on or before June 13, 1994.

ADDRESSES: All comments concerning these proposed regulations should be
addressed to Commissioner, Rehabilitation Services Administration, U.S.
Department of Education, 400 Maryland Avenue, SW., room 3028, Mary E.
Switzer Building, Washington, DC 20202-2575.
A copy of any comments that concern information collection
requirements also should be sent to the Office of Management and Budget
at the address listed in the Paperwork Reduction Act section of this
preamble.

FOR FURTHER INFORMATION CONTACT: John Nelson, U.S. Department of
Education, 400 Maryland Avenue, SW., room 3326, Mary E. Switzer
Building, Washington, DC 20202-2741. Telephone or TDD: (202) 205-9362.

SUPPLEMENTARY INFORMATION: These proposed regulations would implement
chapters 1 and 2 of title VII of the Act by adding a new part 364 and
revising parts 365, 366, and 367 of the regulations governing the SILS,
CIL, and OIB programs.
The SILS, CIL, and OIB programs are an important part of the
National Education Goals. These programs support National Education
Goal 6 of the Goals 2000: Educate America Act: Every adult American
will be literate and will possess the knowledge and skills necessary to
compete in a global economy and exercise the rights and
responsibilities of citizenship.
Executive Order 12866 encourages Federal agencies to solicit
earlier and greater public participation in the development of
regulations. In response, the Assistant Secretary of the Office of
Special Education and Rehabilitative Services (OSERS) and the Acting
Commissioner of the Rehabilitation Services Administration (RSA) sent,
on December 20, 1993, over 400 letters, along with computer diskettes
that included the most up-to-date draft of the proposed regulations, to
State vocational rehabilitation (VR) agencies, Statewide Independent
Living Councils, centers for independent living (centers), constituent
organizations, and other interested parties and individuals, inviting
their participation in a series of public meetings and teleconferences
on the proposed regulations. On that same date, the Assistant Secretary
of OSERS and the Acting Commissioner of RSA also made available the
draft of the proposed regulations on the ``DIMENET'' and ``RSA BBS''
electronic bulletin boards. Public meetings were held on January 10 and
13 and February 1, 1994. The teleconferences were conducted on January
24, 25, and 26, 1994. A cross section of individuals representing a
wide variety of independent living (IL) organizations and viewpoints on
IL participated. In general, most commenters were pleased with the
draft regulations. The Secretary carefully considered all comments
received during the public meetings and teleconferences.
Because of the time needed to make competitive awards under part C
of chapter 1 and under chapter 2 of title VII of the Act, the Secretary
proposes a 30-day comment period for these proposed regulations. As
described in the ``Summary of Major Provisions,'' the Secretary already
has revised the proposed regulations in response to the extensive
comments received on the draft of these proposed regulations that was
distributed to the public on December 20, 1993. In addition, the
Secretary will make this notice of proposed rulemaking (NPRM) available
through electronic bulletin boards on the date of publication of the
NPRM in the Federal Register. The access numbers for the electronic
bulletin boards are as follows:

DIMENET Access Number: (508) 880-5412
RSA BBS Access Number: (202) 205-5574

Distribution through the electronic bulletin boards will ensure
timely availability of the NPRM. Therefore, the Secretary believes that
the public interest will be served best by allowing the public 30 days
to comment on the proposed regulations.

Summary of Major Provisions

The following is a summary of the major provisions in these
proposed regulations. The summary identifies changes in the regulations
that are mandated by changes in the statute. Other changes described in
the summary are regulations proposed by the Secretary. In addition,
significant changes made to the proposed regulations as a result of
public comments received during the public meetings and teleconferences
are discussed in this preamble.
In addition, the Secretary proposes to change all references to
``individual with a severe disability'' to ``individual with a
significant disability.'' The Secretary proposes to define an
individual with a significant disability to mean an individual with a
severe physical or mental impairment whose ability to function
independently in the family or community or whose ability to obtain,
maintain, or advance in employment is substantially limited and for
whom the delivery of IL services will improve the ability to function,
continue functioning, or move toward functioning independently in the
family or community or to continue in employment, respectively. This
definition is derived from the definition of an ``individual with a
severe disability'' in section 7(15)(B) of the Act. The Secretary is
concerned that the term ``severe'' has largely negative connotations
and associations in common usage and believes that the term
``significant'' may be preferred by persons with disabilities.
Consequently, the Secretary proposes to use the term ``significant
disability'' as a synonym for the term ``severe disability'' in
referring to an individual's disability. No change in meaning is
intended by this change in nomenclature.
On October 27, 1993, the Secretary published a separate NPRM in the
Federal Register (58 FR 57938) soliciting comments on this proposed
change. The comment period on the ``Nomenclature NPRM'' expired on
December 13, 1993. The Secretary received only 37 comments on the
change proposed in the ``Nomenclature NPRM,'' with no clear majority in
favor or against. These commenters expressed a wide range of views on
the proposed change. Commenters favoring the proposed change generally
expressed the view that the term ``significant'' is less pejorative
than the term ``severe'' in referring to an individual's disability
and, thus, would support a more positive philosophy. These comments
were generally received from commenters with an interest in the IL
services and CIL programs authorized by title VII of the Act.
Commenters opposing the change raised several issues. Some suggested
that the proposed change is not technically accurate and that a change
in meaning would result despite departmental assurances to the
contrary. Others suggested that the proposed change would be confusing
and burdensome to implement and that the proposed change should be made
through legislation rather than through rulemaking. These comments were
generally received from commenters with an interest in the VR services
programs authorized by title I of the Act.
Also on October 27, 1993, the Secretary published a separate NPRM
(58 FR 57942) on the indicators of minimum compliance with the
evaluation standards in section 725(b) of the Act. The ``Indicators
NPRM'' notified the public of the ``Nomenclature NPRM'' and advised the
public to limit comments on the proposed nomenclature change to the
``Nomenclature NPRM.'' However, many of the comments received on the
``Indicators NPRM'' also included comments on the proposed change in
terms from ``severe'' to ``significant.'' Of the 102 comments on the
``Indicators NPRM,'' only 4 expressed concern with the proposed change
of the term ``severe'' to ``significant.'' Approximately 28 commenters
specifically approved of the proposed change and 24 commenters used the
new terminology in their own comments, implicitly indicating their
approval of the proposed change. That is, these 24 commenters used the
term ``significant'' instead of the term ``severe'' in their comments,
even though they did not specifically approve of the proposed change.
The remaining 50 commenters expressed no views on the proposed change
and did not use either of the terms ``severe'' or ``significant'' in
their comments. Based on the number of comments received from the IL
community supporting the proposed change from ``severe'' to
``significant'' in the ``Indicators NPRM,'' the Secretary proposes to
substitute the term ``significant'' for the term ``severe'' in this
NPRM.
Further support for changing the term ``severe'' to ``significant''
in this NPRM is based on the fact that Congress totally revised title
VII of the Act when it passed the 1992 and 1993 Amendments. The
argument that it would be burdensome to implement the proposed change
(e.g., because of the need to revise existing forms and reporting
formats) is inapplicable to implementation of the changes made to the
IL programs by the 1992 and 1993 Amendments because the major changes
to title VII of the Act have necessitated major revisions to the
regulations implementing title VII. Thus, States and other recipients
of funds under title VII will have to make extensive revisions (e.g.,
in existing regulations, forms, and reporting formats) to be consistent
with these changes and substituting the term ``significant'' for
``severe'' as part of these revisions would not add any significant
additional burden.

Part 364

Proposed part 364 contains general provisions that would be
applicable to the SILS and CIL programs, authorized by parts B and C,
respectively, of chapter 1 of title VII of the Act. In addition, some
provisions in proposed part 364 also are made specifically applicable
to the OIB program authorized by chapter 2 of title VII of the Act.
Proposed Sec. 364.4 lists the definitions that apply to these
programs, including ``administrative support services,'' ``advocacy,''
``attendant care,'' ``cross-disability,'' ``individual with a
significant disability,'' ``minority group,'' ``nonresidential,''
``peer relationships,'' ``peer role models,'' ``service provider,''
``significant disability,'' ``transportation,'' and ``unserved and
underserved.''
The definition of ``administrative support services'' is based on
the State plan requirement in section 704(c) of the Act regarding the
State's role if the CIL program is administered by the State pursuant
to section 723 of the Act. The definition of ``cross-disability'' is
based on section 725(b)(2) of the Act. The definition of an
``individual with a significant disability'' is the definition of
``individual with a severe disability'' used in section 7(15)(B) of the
Act. The definition of ``service provider'' is derived from the manner
in which this term is used in section 704(e) of the Act. The definition
of ``significant disability'' is derived from section 7(15)(B) of the
Act. The definition of ``unserved and underserved'' is derived from
sections 704(l), 713(7), and 725(c)(10) and (11) of the Act and the
legislative history of these statutory provisions.
The definitions of ``attendant care'' and ``transportation'' are
based on the definitions of these terms found in Sec. 365.1(c)(3) of
the existing regulations for the SILS. The definition of ``advocacy''
is the same definition used in the Client Assistance Program (CAP)
authorized under section 112 of the Act. The definition of ``minority
group'' is based on the general definition of this term used by the
U.S. Department of Education (ED). Finally, the definitions of
``nonresidential,'' ``peer relationships,'' and ``peer role models''
are derived from the generally accepted understanding of these terms in
the IL community.
Proposed Sec. 364.5 would not allow the use of expenditures made
with non-Federal funds in a particular fiscal year as an allowable cost
to offset any costs disallowed in a notice of disallowance decision or
preliminary departmental decision unless the expenditures were reported
as costs charged to the program on the final financial status reports
for that program prior to the commencement of the audit or compliance
review that formed the basis for the disallowance. This provision is
designed to lessen the confusion surrounding the use of unreported
costs as an offset against disallowed costs and to lessen the
litigation costs associated with this practice. This provision also
incorporates the Department's current practice with respect to programs
under the Act.
Proposed Sec. 364.6 would define and address the use of ``program
income'' for grantees under the IL programs authorized under title VII
of the Act. Program income could be used for additional program
expenditures or as a deduction from total allowable costs, but not to
meet the non-Federal share requirement under 34 CFR 365.12(b).
Proposed Sec. 364.7 would incorporate section 19 of the Act that
permits the carryover of unobligated Federal funds from one fiscal year
to the next. However, pursuant to the 1993 Amendments, proposed
Sec. 364.7(b) would not permit recipients of discretionary grants under
sections 722 and 752 of the Act to carry over Federal funds.
Proposed Sec. 364.13 would implement section 706(a) of the Act
concerning when the Secretary may withhold, reduce, limit, or terminate
payments to a State under chapter 1 of title VII of the Act. The
Secretary has revised proposed Sec. 364.13 to make it more consistent
with section 107(c), which is incorporated into title VII of the Act
through section 706(a)(2)(A).
Proposed Sec. 364.20 would implement the State plan requirements in
section 704 of the Act. These requirements relate to the State plan's
form and content, duration (three years), development, and periodic
review and revision (at least once every three years), and to public
hearings on the State plan.
Proposed Sec. 364.20(c) would incorporate the requirement in
section 704(a)(2) of the Act that the designated State unit (DSU) and
the Statewide Independent Living Council (SILC) must jointly develop
the State's IL plan and that the Director of the DSU and the
chairperson of the SILC must jointly sign the State's IL plan.
Proposed Secs. 364.20(d) and 364.22(c) would incorporate the
statutory requirement in section 704(a) as it applies to the
development and submission of a State's IL plan under section 704 of
the Act and part 364. Section 704 of the Act requires a single State IL
plan to be developed and signed by the DSU and the SILC. Nothing in the
language of section 704 permits a DSU for individuals who are blind to
submit a separate State IL plan for serving individuals who are blind.
However, Sec. 364.20(d) of the proposed regulations would require that,
in a State where there is a separate State agency that is the sole
State agency authorized by law to provide IL services to individuals
who are blind, that separate agency for individuals who are blind also
must be included in the development of, and sign, the State IL plan.
Proposed Sec. 364.20(e) would require an assurance in the State
plan that the DSU actively consults with the Director of the CAP
authorized by section 112 of the Act during the development of the
State plan.
Proposed Sec. 364.20(g) would require an assurance in the State
plan that the DSU conducts public meetings to provide all segments of
the public, including interested groups, organizations, and
individuals, an opportunity to comment on the State plan prior to its
submission to the Secretary and on any revisions to the approved State
plan. The Secretary revised proposed Sec. 364.20(g) to explain more
comprehensively what a State is expected to do to comply with section
704 (a) and (m)(6) of the Act.
Finally, proposed Sec. 364.20(h) would require an assurance in the
State plan that, at the public meetings to develop the State plan, the
DSU identifies those provisions in the State plan that are State-
imposed requirements (i.e., requirements imposed by State rule or
policy that are beyond what would be required to comply with the
regulations in proposed 34 CFR parts 364, 365, 366, and 367).
In response to public comment on the draft regulations, the
Secretary has added language to proposed Sec. 364.21 that establishes
the SILC's responsibility for funds it receives under section 705(e) of
the Act and protects the SILC's independence. In addition, the
Secretary has added language to this section that requires the State
plan to include a description of the resource plan for the SILC that is
required by section 705(e) of the Act.
Proposed Secs. 364.23 and 364.24 would revise the staffing and
staff development requirements in existing 34 CFR 365.6 and 365.7 to
reflect the changes made by the 1992 Amendments (Pub. L. 102-569) and
the 1993 Amendments (Pub. L. 103-73). These requirements would apply to
all service providers.
Proposed Sec. 364.23(a) would require the State plan to include an
assurance that service providers have personnel who are specialists in
the development and provision of IL services to individuals with
significant disabilities and in the development of and support to
centers for independent living (centers). Proposed Sec. 364.23(b) would
require the State plan to include an assurance that service providers
have personnel available who are able to communicate with applicants
for and recipients of IL services under title VII of the Act who need
special modes of communication or whose English proficiency is limited.
In response to public comment on the draft regulations, the Secretary
added language to this section to include specific examples of special
modes of communication that should be available for individuals who
need special modes of communication. Finally, proposed Sec. 364.24
would require the State plan to include an assurance that the service
provider has adequate staff development programs to ensure that staff
are able to provide quality services to meet the needs of individuals
with significant disabilities.
These proposed staffing requirements, which are in Secs. 365.6 and
365.7 of the existing regulations for the SILS program, are consistent
with section 504 of the Act, the Americans with Disabilities Act of
1990 (Pub. L. 101-336, 42 U.S.C. 12101-12213), and title VI of the
Civil Rights Act of 1964 (Pub. L. 88-352, 42 U.S.C. 2000d-2000d-6).
These proposed staffing requirements have proven useful in the past,
and centers have identified staff development as a significant area of
need.
Proposed Sec. 364.28 would implement the statutory requirement that
a State must incorporate into the State plan required by section 704 of
the Act any new methods or approaches for the provision of IL services
to older individuals who are blind that are developed under a project
funded under chapter 2 of title VII of the Act. A DSU would be required
to incorporate into and describe in the State plan any new methods or
approaches that are developed under a project funded under chapter 2 of
title VII of the Act that the DSU determines to be effective.
In response to public comment on the draft regulations, the
Secretary has added language to proposed Sec. 364.30 that would require
service providers to provide information about the CAP in formats that
are accessible to individuals who seek or receive IL services.
Proposed Sec. 364.40(a) would incorporate the statutory provision
that makes any individual with a significant disability eligible for IL
services under the SILS and CIL programs. In addition, proposed
Sec. 364.40(b) would make it clear that any individual could seek
information about IL services under these programs and request referral
to other services and programs for individuals with significant
disabilities, as appropriate.
Proposed Sec. 364.41 would require the State to provide an
assurance that eligibility requirements are applied in a
nondiscriminatory manner and that no State or local residence
requirement will be imposed for IL services. The purpose of the
prohibition on a residency requirement is to ensure continuity of
services if an individual moves from one State to another during the
time he or she is receiving IL services. Proposed Sec. 364.41 is
consistent with section 101(a)(14) of the Act regarding the prohibition
on residency requirements for VR services.
In response to public comment on the draft regulations, the
Secretary has specified additional information that would have to be
included in the statement of the objectives that would be required by
proposed Sec. 364.42. The Secretary believes that the statement of
objectives required by section 704(d) of the Act should reflect the
importance of this part of the State plan to the State IL services
programs and address the overall goals and mission of the State's IL
programs and services, the various priorities for services and
populations to be served (including the priorities established by
centers pursuant to section 725(c)(4) of the Act), the types of
services to be provided, the financial plan for the use of Federal and
non-Federal funds to meet the objectives in the State plan, and how
funds received under sections 711, 721, and 752 of the Act will further
the objectives in the State plan.
Proposed Sec. 364.43(b) would incorporate the statutory
requirements in section 704(e) and (f) of the Act. Section 704(e) of
the Act requires that the State must provide IL services to individuals
with a significant disability with Federal, State, or other funds.
Proposed Sec. 364.43(b) would permit a State to meet its statutory
mandate under section 704(e) with Federal, State, or other funds.
Proposed Sec. 364.43(e) would incorporate the statutory requirement
in section 725(b)(2) of the Act that, in the determination of
eligibility, if a State contracts with or awards a grant for the
general operation of a center, it must delegate to the center all
functions related to the determination of eligibility for services. If
a State contracts with or awards a grant for the provision of specific
IL services to individuals, the State may choose either to delegate to
the IL service provider all authority for the determination of
eligibility for these services and for the development of an IL plan
for individuals receiving these services or to retain this authority.
Proposed Secs. 364.50 through 364.56 would impose post-award
conditions on the State and its subgrantees or contractors regarding
the processing of referrals and applications (Sec. 364.50),
determinations of eligibility and ineligibility (Sec. 364.51),
initiation and development of an IL plan (Sec. 364.52), maintenance of
consumer service records (Sec. 364.53), prohibition on durational
limitations for IL services (Sec. 364.54), compliance with standards
for service providers (Sec. 364.55), and procedures for the protection,
use, and release of personal information (Sec. 364.56).
Proposed Secs. 364.51, 364.52, and 364.53 would incorporate
sections 704(e) and 725(b)(2) of the Act. In addition, proposed
Sec. 364.53 would be consistent with the proposed indicators of what
constitutes compliance with the evaluation standards in section 725(b)
of the Act.
Proposed Secs. 364.54, 364.55, and 364.56 would keep important
protections for consumers of IL services that exist in the current SILS
regulations. In particular, the Secretary revised proposed Sec. 364.56
to make it more consistent with the current SILS regulations.
Proposed Sec. 364.57 also would permit the DSU to delegate its
functions and responsibilities under proposed Secs. 364.50, 364.51
(subject to proposed Sec. 364.43(d)), 364.52, 364.53, and 364.56 to the
service provider to which the DSU awards a grant or with which the DSU
contracts to provide IL services in the State. Allowing the DSUs to
delegate these functions and responsibilities permits the States
greater flexibility in the operation of the SILS program.
In response to public comment on the draft regulations, the
Secretary has added a new proposed Sec. 364.58 that would require each
service provider to establish appeals procedures and policies that an
individual could use to obtain review of decisions made by the service
provider concerning the individual's request for IL services or the
provision of IL services to the individual. Proposed Sec. 364.58 also
would require the service provider to inform each individual who seeks
or receives IL services about those appeals procedures and policies in
formats that are accessible to individuals who seek or receive IL
services.
Proposed Sec. 364.59 would require a State to include in its State
plan any financial needs test that would be used by a service provider
to determine whether an individual with a significant disability could
obtain IL services at no cost to the individual. Proposed
Sec. 364.59(d)(1) would require a service provider to maintain written
policies covering the specific types of IL services for which a
financial needs test could be applied and to maintain documentation of
an individual's participation in the costs of any IL services.

Part 365

Proposed part 365 contains regulations for the SILS program
authorized by part B of chapter 1 of title VII of the Act. Pursuant to
proposed Sec. 365.11(c), if a State has designated a DSU to provide IL
services for the general population of individuals with disabilities
and a separate DSU to provide IL services for individuals who are
blind, the State would have total discretion, without any interference
from ED, to determine how it would divide the funds allotted to the
State under part 365 between these two DSUs. The division of funds is a
matter internal to the States, and the regulations would not exclude or
mandate the involvement of the SILC in this decision.
Proposed Sec. 365.13 would impose requirements that a State would
have to meet to satisfy its non-Federal share matching requirement
under section 712(b) of the Act and proposed Sec. 365.12. Proposed
Sec. 365.13(b) would prohibit a State from using cash contributions to
satisfy its non-Federal share matching requirement if the contribution
is for expenditures that benefit or will benefit in any way the donor,
an individual to whom the donor is related by blood or marriage or with
whom the donor has a close personal relationship, or an individual,
entity, or organization with whom the donor shares a financial
interest. Pursuant to proposed Sec. 365.13(c), the receipt of a grant,
subgrant, or contract under section 713 of the Act or a grant,
subgrant, or assistance contract under section 723 of the Act from the
DSU would not be considered a benefit to the donor if the grant,
subgrant, or contract was awarded under the State's regular competitive
procedures.
Conversely, proposed Sec. 365.14(a) would prohibit a State from
conditioning the award of a grant, subgrant, or contract under section
713 of the Act or a grant, subgrant, or assistance contract under
section 723 of the Act on a cash or in-kind contribution from an
applicant. Proposed Sec. 365.14(b) also would prohibit an individual,
entity, or organization that is a grantee or subgrantee of the State,
or has a contract with the State, from conditioning the award of a
subgrant or subcontract on a cash or in-kind contribution to the State
or to the grantee or contractor of the State.
Proposed Sec. 365.15 would impose the restrictions in Sec. 365.14
on a State's use of in-kind contributions to meet the matching
requirement in section 712(b) of the Act. The Secretary has not
proposed to impose on in-kind contributions the restrictions in
Sec. 365.13 because fewer problems have arisen in the past as a result
of the use of this type of contribution for matching purposes.
The proposed limitations on the use of restricted contributions to
meet a State's matching requirement would clarify the limitations in
existing 34 CFR part 365. (See existing 34 CFR 361.76, which is
incorporated by reference into the existing SILS program regulations by
existing 34 CFR 365.15.) The proposed limitations would prevent States
from making awards based on an applicant's ability to contribute the
matching funds rather than on the programmatic merit of the applicant's
proposal. The proposed limitations would not prohibit a State from
accepting restricted contributions for providing services or benefits
to a particular individual or group of individuals. The proposed
limitations would prohibit a State only from using these restricted
contributions to meet its matching share requirement if the donor of
the cash contributions has restricted their use to expenditures that
benefit or will benefit in any way the donor, an individual to whom the
donor is related by blood or marriage or with whom the donor has a
close personal relationship, or an individual, entity, or organization
with whom the donor shares a financial interest.
The proposed limitations on the use of restricted contributions to
meet a State's matching requirement would ensure that the services and
benefits that are provided under a program funded with 90 percent
Federal money would be available to an eligible individual without
regard to the individual's relationship to the donor. The proposed
limitations also would ensure that an eligible applicant that is unable
to contribute the State's share of expenditures for the program would
not be disqualified from receiving a grant, subgrant, or contract under
the program. To allow a State to condition the award of a grant,
subgrant, or contract on the recipient's contribution of the State's
matching requirement would be tantamount to allowing the State to
impose additional eligibility requirements to participate in the
program. This action would contradict 34 CFR 76.770(g), which prohibits
a State from acting in any manner that prevents eligible applicants
from applying under the program.
Finally, the proposed limitations on the use of restricted
contributions to meet a State's matching requirement also are intended
to prevent the sale of grants, subgrants, or contracts by the States to
the highest bidder. ED has always required, unless directed by law to
do otherwise, that the award of grants, subgrants, or contracts by
States be made under a fair competitive process that is free from
favoritism on the assumption that fair competition will result in the
best qualified applicant receiving the grant, subgrant, or contract. To
allow a State to award a grant, subgrant, or contract on the basis of
the amount that the eligible applicant can contribute to the State's
matching requirement would be inconsistent with the advantages that ED
has always presumed result from fair competition.
Proposed Sec. 365.16 would implement the requirements in Office of
Management and Budget (OMB) Circulars A-87 and A-122 that the following
must be treated as a reduction of expenditures charged to the grant,
subgrant, or contract awarded under part 365 and may not be used for
meeting the State's matching requirement: Rebates, deductions, refunds,
discounts, or reductions to the price of goods, products, equipment,
rental property, real property, or services; and premiums, bonuses,
gifts, and any other payments related to the purchase of goods,
products, equipment, rental property, real property, or services.
Proposed Secs. 365.20 and 365.21 would incorporate the requirements
in sections 704(e) and (f) and 713 of the Act. As stated previously,
section 704(e) of the Act requires that the State must provide IL
services to individuals with a significant disability. Section 704(f)
of the Act permits the State to provide these IL services through
grants or contracts with third parties. Section 713 of the Act permits
the State to use funds received under part B of chapter 1 of title VII
of the Act to provide the resources described in section 705(e) of the
Act relating to the SILC and to fund various activities related to IL
services and centers. Proposed Sec. 365.20(a) would permit the State to
use funds received under part B of chapter 1 of title VII of the Act to
provide the IL services required pursuant to section 704(e) of the Act.
Proposed Sec. 365.21(b) would allow a State to provide information
and referral services independent of other IL services. Frequently,
individuals without a disability seek information from centers on
behalf of an individual with a significant disability. Allowing States
to provide information and referral services furthers the dissemination
of information and the provision of IL services to individuals with
significant disabilities. Proposed Sec. 365.21(b) also would allow a
State to provide information and referral services without regard to
subpart G of part 366. (Subpart G includes the indicators of what
constitutes minimum compliance with the evaluation standards in section
725(b) of the Act and was published separately in the October 27, 1993
``Indicators NPRM'' referred to previously. When these regulations are
published in final, subpart G will be included in 34 CFR part 366,
along with any changes made to Subpart G as a result of the public
comment received on the ``Indicators NPRM.'')
Proposed Sec. 365.23 identifies the Education Department General
Administrative Regulations and requirements that would apply if a State
makes a subgrant or enters into a contract.
Proposed Sec. 365.30 would require the DSU to develop, establish,
and maintain written standards and procedures to be applied by the
service provider to ensure expeditious and equitable handling of
referrals and applications for IL services from individuals with
significant disabilities.
Proposed Sec. 365.31 would require the DSU to develop, establish,
and maintain written standards for the provision of IL services to be
met by service providers that do not meet the standards and assurances
in section 725 of the Act and Subparts F and G of 34 CFR part 366 and
that are used by the DSU to provide IL services to individuals with
significant disabilities. Proposed Sec. 365.31 also would require the
DSU to assure that participating service providers meet all applicable
State licensure or certification requirements. Providers used by the
DSU to provide IL services that meet the requirements of section 725 of
the Act and proposed subparts F and G of part 366 would not have to
meet the standards developed by the DSU if the standards developed by
the DSU are different than the Federal requirements. The requirements
for written standards in Secs. 365.30 and 365.31, which existed in the
former regulations for the SILS program, provide important protections
for consumers of IL services.

Part 366

Proposed part 366 contains regulations regarding the CIL program
authorized by part C of chapter 1 of title VII of the Act.
Under proposed Sec. 366.2(b), the expansion of an existing center
through the establishment of a physically separate and complete
facility at a different geographical location would be considered the
same as establishing a new center for purposes of section 722(d) of the
Act and proposed Secs. 366.24 and 366.25, which would establish the
procedures for making an award to a new center. This proposed provision
would facilitate the expansion of the CIL program and the establishment
of statewide networks of centers through the use of the expertise of
currently existing centers. However, pursuant to proposed
Sec. 366.22(a)(1), any funds received by an existing center to
establish a new center at a different geographical location pursuant to
proposed Sec. 366.2(b)(2) would not be included in determining the
level of funding to the existing center in any fiscal year that the new
center applies for and receives funds as a separate center.
Proposed Sec. 366.3 lists the various activities that the Secretary
is authorized by statute to fund under the CIL program. Pursuant to
proposed Sec. 366.3(a), an eligible agency may use funds awarded under
subpart B of this part to carry out training and technical assistance
activities described in proposed Sec. 366.11(b). Pursuant to proposed
Sec. 366.3(b), an eligible agency may use funds under Subparts C and D
of Part 366 to plan, conduct, administer, and evaluate centers, and to
carry out activities that would further a center's compliance with the
evaluation standards in section 725(b) of the Act and with the
assurances in section 725(c) of the Act.
Pursuant to proposed Sec. 366.14, the Secretary would use the
selection criteria in proposed Sec. 366.15 to evaluate applications
from entities with experience in the operation of centers for awards to
provide training and technical assistance to eligible agencies,
centers, and SILCs to plan, develop, conduct, administer, and evaluate
centers. The selection criteria are based on section 721(b) of the Act
and Sec. 75.210 of the Education Department General Administrative
Regulations (EDGAR).
Proposed Secs. 366.20 through 366.28 would incorporate the
statutory requirements that apply if the amount of Federal funds
allotted to the State under section 721(c) and (d) of the Act to
support the general operation of centers is greater than the amount of
State funds earmarked for the same purpose, as determined pursuant to
proposed Secs. 366.30 and 366.31, or that apply even if this condition
is met but the Director of the DSU (Director) does not submit to the
Secretary and obtain approval of an application to award grants under
section 723 of the Act and proposed Sec. 366.32.
Pursuant to proposed Sec. 366.22(b) if, after meeting the
priorities in proposed Sec. 366.22(a)(1) and (2), there are
insufficient funds under the State's allotment to fund a new center
under proposed Sec. 366.22(a)(3), the Secretary may use the excess
funds in the State to assist existing centers or may reallot these
funds in accordance with section 721(d) of the Act. This proposed
provision is designed to give the Secretary added flexibility to
respond to the local needs within a State.
Pursuant to proposed Sec. 366.26, the Secretary would use the
statutory selection criteria from section 722(d)(2)(B) of the Act, as
incorporated in proposed Sec. 366.27, to evaluate applications for
awards to centers under section 722 of the Act. In response to public
comment on the draft regulations, the Secretary has increased the value
of the ``Extent of the need for the project'' from 15 to 20 points and
decreased the value of the ``Plan of operation'' from 25 to 20 points
in proposed Sec. 366.27 (a) and (g), respectively. The Secretary also
has added language to the selection criterion on the ``Extent of the
need for the project'' that would encourage an applicant to provide
information on whether the applicant proposes to serve an area that has
been identified in the State plan as a priority service area.
Proposed Sec. 366.28 would clarify existing authority implicit in
the Act permitting the Secretary to use funds from the allotment of one
State to award a grant to a center located in another State if the
Secretary determines that the proposal of the out-of-State center to
serve individuals with significant disabilities who reside in the other
State is consistent with the State plan of the State in which these
individuals reside. Nothing in the Act limits the award of funds
allotted to a State under section 721 of the Act to eligible agencies
only in that State. This proposed provision would allow the Secretary
to fund the most qualified applicant and would facilitate the provision
of services to unserved and underserved areas in a State in the most
efficient and economical manner.
Proposed Secs. 366.29 through 366.38 would incorporate the
statutory requirements applicable if the Director submits to the
Secretary and obtains approval of an application to award grants under
section 723 of the Act and proposed Sec. 366.32 and the amount of State
funds earmarked to support the general operation of centers is equal to
or greater than the amount of Federal funds allotted to the State for
the same purpose, as determined pursuant to proposed Secs. 366.29 and
366.31.
Proposed Sec. 366.29(a)(2) would incorporate section
723(a)(1)(A)(i) of the Act. Pursuant to proposed Sec. 366.29(a)(2), if
a State submits an application for a fiscal year to award grants under
section 723 of the Act and subpart D of 34 CFR part 366, the Secretary
would determine whether the amount of State funds that were earmarked
by the State to support the general operation of centers meeting the
requirements of part C of chapter 1 of title VII of the Act in the
second fiscal year preceding the fiscal year for which the application
is submitted equaled or exceeded the amount of funds allotted to the
State under section 721 (c) and (d) of the Act (or part B of title VII
of the Act as in effect on October 28, 1992) for that preceding fiscal
year.
Pursuant to proposed Sec. 366.29(c), the second fiscal year
preceding the fiscal year for which the State submits an application to
administer the CIL program under section 723 of the Act and subpart D
of 34 CFR part 366 would be considered the ``preceding fiscal year''
for purposes of section 723(a)(1)(A)(iii) of the Act. For example, if
fiscal year (FY) 1995 is the fiscal year for which the State submits an
application to administer the CIL program under this subpart, FY 1993
would be the ``preceding fiscal year.'' The Secretary chose the second
fiscal year preceding the fiscal year for which the State submits an
application to administer the CIL program as the ``preceding fiscal
year'' because that year would be the most recent year for which
complete financial data would be available to the Secretary to make his
determination. The Secretary would make any adjustments necessary to
accommodate a State's multi-year funding cycle or fiscal year that does
not coincide with the Federal fiscal year.
Pursuant to proposed Sec. 366.30(a), the amount of State funds that
are earmarked by a State to support the general operation of centers
would not include: (1) Federal funds used for the general operation of
centers; (2) State funds used to purchase services from a center,
including State funds used for grants or contracts for personal
assistance or skills training; (3) State attendant care funds; or (4)
Social Security Administration reimbursement funds. Proposed
Sec. 366.30(c) implements congressional intent as expressed in S. Rep.
No. 102-357, 102d Cong., 2d Sess. 92 (1992).
Pursuant to proposed Sec. 366.30(b), ``earmarked funds'' would mean
funds appropriated by the State and expressly or clearly identified as
State expenditures in the relevant fiscal year for the sole purpose of
funding the general operation of centers. ``Earmarked funds'' would be
described in this manner for purposes of this proposed provision to
ensure consistency among the States for what should be included as
``earmarked funds.''
Pursuant to proposed Sec. 366.31, if the State submits an
application to administer the CIL program under section 723 of the Act
and subpart D of 34 CFR part 366 for a fiscal year, but did not earmark
the amount of State funds required by proposed Sec. 366.29(a)(2) in the
preceding fiscal year, the State would be ineligible to make grants
under section 723 of the Act and subpart D of 34 CFR part 366 after the
end of the fiscal year succeeding the preceding fiscal year and for
each succeeding fiscal year.

Example: A State meets the earmarking requirement in FY 1995.
However, in reviewing the State's application to administer the CIL
program in FY 1998, the Secretary determines that the State failed
to meet the earmarking requirement in FY 1996. The State could
continue to award grants in FY 1997 but could not do so in FY 1998
and succeeding fiscal years.

Once the Secretary determines that a State failed to earmark the
required amount of funds in the second fiscal year preceding the fiscal
year for which the State submits an application to administer the CIL
program, the State would be precluded from administering the CIL
program in succeeding fiscal years. The Secretary believes that this
proposed result most clearly reflects the intent of Congress. The
Secretary also believes that allowing States to re-qualify would be
disruptive to the consistent administration of the CIL program within a
State.
In those States in which there is both a DSU responsible for
providing IL services to the general population and a DSU responsible
for providing IL services for individuals who are blind, proposed
Sec. 366.32(d) would provide that the word ``Director,'' as used in
subparts D and E of part 366, would mean ``the Director of the general
DSU.'' This provision is proposed because only the general agency in a
State has authority under State law to provide IL services on a cross-
disability basis. However, both State units would be required to
consult with each other with respect to the provision of services for
individuals who are blind.
Because the Department distinguishes between procurement contracts
and assistance contracts at the State level, proposed Sec. 366.32(e)
would permit the Director to enter into assistance contracts with
centers to carry out section 723 of the Act. The Department considers
assistance contracts awarded by a State as equivalent to subgrants.
Proposed Sec. 366.32(e) would define an assistance contract awarded by
a State as an instrument whose principal purpose is merely to transfer
funds allotted to the State under section 721 (c) and (d) of the Act
and 34 CFR part 366 to an eligible agency to carry out section 723 of
the Act rather than as an instrument to procure services under specific
terms and conditions determined by the Director. If the DSU were to use
an assistance contract to award funds under section 723 of the Act, the
DSU would not be permitted to add any requirements, terms, or
conditions to the assistance contract other than those that would be
permitted if the assistance contract were a subgrant. Under an
assistance contract, the DSU would assume a role consistent with that
of the Secretary under section 722 of the Act; i.e., the role of the
DSU would be to ensure that the terms of the assistance contract (which
are established by chapter 1 of title VII of the Act and the
implementing regulations in 34 CFR parts 364, 365, and 366) are
satisfied.
Conversely, proposed Sec. 366.32(f) would implement congressional
intent to prohibit the Director from entering into procurement
contracts with centers to carry out section 723 of the Act. See H.R.
Rep. No. 102-822, 102d Cong., 2d Sess. 137 (1992) and S. Rep. No. 102-
357, 92. Proposed Sec. 366.32(f) would define a procurement contract as
an instrument whose principal purpose is to acquire (by purchase,
lease, or barter) property or services for the direct benefit or use of
the DSU. Under a procurement contract, the DSU prescribes the specific
services it intends to procure and the terms and conditions of the
procurement.
Pursuant to proposed Sec. 366.32(g), in the enforcement of any
breach of the terms and conditions of an assistance contract, the DSU
would be required to follow the procedures established in proposed
Secs. 366.40 through 366.45.
Pursuant to proposed Sec. 366.34(b), if the order of priorities in
proposed Sec. 366.22 is followed and, after meeting the priorities in
proposed Sec. 366.22(a) (1) and (2), there are insufficient funds under
the State's allotment under section 721 (c) and (d) of the Act to fund
a new center under proposed Sec. 366.22(a)(3), the Director would be
permitted to use any excess funds in the State to assist existing
centers or to return these funds to the Secretary for reallotment in
accordance with section 721(d) of the Act. Proposed Sec. 366.34(b)
would give the Director of a DSU the same discretion that the Secretary
would have under proposed Sec. 366.22(b).
Proposed Secs. 366.39 through 366.45 would establish the
enforcement and appeals procedures if the Secretary or the Director
determines that a center receiving funds under section 722 or 723,
respectively, of the Act is not in compliance with the standards and
assurances in section 725 (b) and (c) of the Act and subparts F and G
of part 366. Pursuant to section 722(g)(1) of the Act, if the Secretary
determines that a center receiving funds under section 722(a) of the
Act is not in compliance with the standards and assurances in section
725(b) of the Act, the Secretary is required to notify the center of
the center's noncompliance. Pursuant to section 722(g)(2) of the Act,
the Secretary is required to terminate funds 90 days after notifying a
center that it is not in compliance with the standards and assurances
in section 725(b) of the Act unless the center submits a corrective
action plan to achieve compliance within 90 days after the Secretary's
notification and the plan is approved by the Secretary. Proposed
Sec. 366.39 (a) and (b) would implement section 722(g) (1) and (2) of
the Act.
Pursuant to proposed Sec. 366.39(a), the Secretary would notify the
center that the Secretary will offer technical assistance to a center
to develop a corrective action plan to comply with the standards and
assurance. Pursuant to proposed Sec. 366.39(b)(2), the Secretary would
notify the center that termination of funds would occur within 90 days
after the center received notice of its noncompliance unless the center
requests a hearing pursuant to proposed Sec. 366.39 (c) or (d).
Proposed Sec. 366.39(c) would give a center 30 days from the date
it receives the Secretary's written notice disapproving its corrective
action plan to file a formal written appeal with the Secretary.
Pursuant to proposed Sec. 366.39(f), the Secretary would issue a
written decision to terminate funds after a hearing if the center is
found out of compliance with the standards and assurances in section
725(b) of the Act and subparts F and G of 34 CFR part 366 or the
center's corrective action plan cannot be approved.
Proposed Secs. 366.40 through 366.43 would incorporate similar
statutory requirements related to enforcement and appeals procedures
that the Director shall use before terminating a center's funds or
taking other significant adverse action against a center. The due
process procedures in proposed Secs. 366.40 through 366.43 are designed
to provide every opportunity for a dispute between a Director and a
center to be resolved at the State level before the dispute is appealed
to the Secretary.
Pursuant to proposed Sec. 366.40(b), unless a center submits and
obtains approval of a corrective action plan, the Director would
terminate all funds to a center under section 723 of the Act 90 days
after the date that the center receives the initial written notice of
its noncompliance from the Director or 90 days after the date that the
center receives the Secretary's final decision pursuant to proposed
Sec. 366.46(c), whichever is later.
Proposed Sec. 366.41 describes the minimum amount of information
that the Secretary believes the initial written notice sent from the
Director to the center would have to contain to meet the statutory
requirement of providing notice to the center of the center's
noncompliance, including notice to the center that it would have 90
days from the date of receipt of the Director's initial written notice
to submit a corrective action plan to the Director and 120 days from
the date of receipt of the Director's initial written notice to appeal
to the Secretary the decision described in a Director's initial written
notice.
Pursuant to proposed Sec. 366.42, if the center submits a
corrective action plan, the Director would have to provide the center
with a final written decision approving or disapproving the center's
corrective action plan and informing the center, if appropriate, of the
termination of funds or other proposed significant adverse action
against the center. Pursuant to proposed Sec. 366.42(c), a Director's
final written decision would not take effect until 30 days after the
center receives it or, if appealed to the Secretary, until the
Secretary issues a final decision.
Proposed Sec. 366.43 describes the minimum amount of information
that the Secretary believes the final written decision from the
Director would have to contain to meet the statutory requirement of
providing notice to the center of the center's noncompliance with
statutory requirements, including the reasons why the Director could
not approve the center's corrective action plan, if such a plan was
submitted by the center, and notice to the center that it has the right
to appeal the Director's final written decision to the Secretary.
Proposed Sec. 366.44 describes the procedures that a center would
have to follow to appeal to the Secretary a final written decision from
the Director. Pursuant to proposed Sec. 366.44(a), if a Director did
not approve a center's corrective action plan, the center would be
given 30 days following receipt of the Director's final written
decision to appeal to the Secretary. Pursuant to proposed
Sec. 366.44(b), if a center does not submit a corrective action plan,
the center would be given 120 days following receipt of the Director's
initial written notice to appeal to the Secretary.
Proposed Sec. 366.44(c) through (f) describe how a center would
file an appeal to the Secretary. Proposed Sec. 366.44(g) would allow
the center to request an informal hearing with the Secretary, to which
the Director also would be invited to attend.
Proposed Sec. 366.44(h) would stay a Director's decision to
terminate funds as of the date that the center files a formal written
appeal with the Secretary.
Proposed Sec. 366.45 describes the procedures that a Director would
have to follow upon receipt of a copy of the formal written appeal that
the center files with the Secretary.
Proposed Sec. 366.46 describes the review procedures the Secretary
would follow upon receipt of a formal written appeal from a center.
All of the proposed provisions in proposed subpart E regarding the
enforcement of statutory requirements that centers must meet are
designed to ensure due process and fairness.
In response to public comment on the draft regulations, the
Secretary has added language to clarify the intent of proposed
Sec. 366.50. Section 725(c)(2) of the Act requires that the governing
board of a center must be composed of a majority of individuals with a
significant disability. The statutory definition of an individual with
a significant disability is limited to individuals who are receiving or
who could benefit from receiving IL services. If the statutory
definition is used to determine membership on the governing board,
those individuals with a significant disability who already have gained
their independence, either through the receipt of IL services or on
their own, could not be part of the majority of the governing board.
Therefore, the Secretary has added language at the end of proposed
Sec. 366.50(b) that would modify the definition of an individual with a
significant disability for purposes of this proposed section only. The
proposed definition would permit those individuals with a significant
disability who already have gained their independence, either through
the receipt of IL services or on their own, to be part of the majority
of the governing board.

Part 367

Proposed part 367 contains regulations regarding the OIB program,
authorized by chapter 2 of title VII of the Act.
In addition to incorporating the definitions in proposed
Sec. 364.4, proposed Sec. 367.5 includes the statutory definitions for
``older individual who is blind'' and ``independent living services for
older individuals who are blind.''
Pursuant to proposed Sec. 367.21, the Secretary would use the
selection criteria in proposed Sec. 367.22, which are based on
Sec. 75.210 of EDGAR, to evaluate applications for discretionary grants
under section 752(b)(1) of the Act.
In response to public comment on the draft regulations, the
Secretary has increased the value of ``Plan of operation'' from 20 to
25 points and decreased the value of ``Likelihood of sustaining the
program'' from 15 to 10 points in proposed Sec. 367.22(b) and (h),
respectively.
Pursuant to proposed Sec. 367.23, the Secretary also would consider
the geographic distribution of projects in awarding these discretionary
grants. The Secretary believes that it is important to have this
program operate in as many States as possible, and this proposed
provision would give the Secretary the flexibility to accomplish this
purpose.
Finally, proposed Sec. 367.41(a)(1) would incorporate section
752(g) of the Act that gives the designated State agency discretion to
operate or administer the OIB program or projects under Part 367
through grants to public or private nonprofit agencies or
organizations. In addition, proposed Sec. 367.41(a)(2) would
incorporate section 752(i)(2)(A) of the Act that gives the designated
State agency discretion to operate or administer the program or
projects under Part 367 either directly or through grants, as permitted
by section 752(g) of the Act and Sec. 367.41(a), or contracts. The
general authority to operate or administer the OIB through grants or
contracts given to States in section 752(i)(2)(A) of the Act is
overridden by the specific language in section 752(g) of the Act
limiting a State's authority to award grants only to public or private
nonprofit agencies or organizations. Because Congress could have added
contracts to section 752(g) or deleted the very specific reference to
public or private nonprofit agencies or organizations in section
752(g), proposed Sec. 367.41(a)(2) permits a State to contract only
with individuals, entities, or organizations that are not public or
private nonprofit agencies or organizations. However, proposed
Sec. 367.41(b) would permit States to use assistance contracts awarded
by a State (which are similar to subgrants), but not procurement
contracts, in a manner consistent with 34 CFR 366.32(e) through
366.32(g).

Executive Order 12866

Assessment of Costs and Benefits

These proposed regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those determined by the
Secretary to be necessary for administering these programs effectively
and efficiently. Burdens specifically associated with information
collection requirements, if any, are identified and explained elsewhere
in this preamble under the heading Paperwork Reduction Act of 1980.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has
determined that the benefits of the proposed regulations justify the
costs.
The Secretary also determined that this regulatory action does not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
To assist the Department in complying with the specific
requirements of Executive Order 12866, the Secretary invites comment on
whether there may be further opportunities to reduce any potential
costs or increase potential benefits resulting from these proposed
regulations without impeding the effective and efficient administration
of the program.

Clarity of the Regulations

Executive Order 12866 requires each agency to write regulations
that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
(1) Are the requirements in the proposed regulations clearly
stated?
(2) Do the regulations contain technical terms or other wording
that interferes with their clarity?
(3) Does the format of the regulations (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce their
clarity? Would the regulations be easier to understand if they were
divided into more (but shorter) sections? (A ``section'' is preceded by
the symbol ``Sec. '' and a numbered heading; for example, Sec. 364.10.)
(4) Is the description of the regulations in the ``Supplementary
Information'' section of this preamble helpful in understanding the
regulations? How could this description be more helpful in making the
regulations easier to understand?
(5) What else could the Department do to make the regulations
easier to understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 400 Maryland Avenue SW. (room 5125, FOB-6), Washington, DC
20202-2241.

Regulatory Flexibility Act Certification

The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The small entities that would be affected by these proposed
regulations are centers receiving Federal funds under these programs.
However, the regulations would not have a significant economic impact
on the centers affected because the regulations would not impose
excessive regulatory burdens or require unnecessary Federal
supervision. The regulations would impose minimal requirements to
ensure the proper expenditure of program funds.

Paperwork Reduction Act of 1980

Sections 364.10, 364.11, 364.12, 364.13, 364.20, 364.21, 364.22,
364.23, 364.24, 364.25, 364.26, 364.27, 364.28, 364.29, 364.30, 364.31,
364.32, 364.33, 364.34, 364.35, 364.36, 364.37, 364.38, 364.39, 364.40,
364.41, 364.42, 364.43, 364.51, 364.52, 364.53, 365.2, 365.10, 365.30,
365.31, 366.2, 366.12, 366.15, 366.21, 366.22, 366.23, 366.24, 366.25,
366.27, 366.28, 366.29, 366.32, 366.33, 366.37, 366.38, 366.39, 366.40,
366.41, 366.42, 366.43, 366.44, 366.45, 366.50, 367.10, 367.11, 367.22,
367.31, 367.32, and 367.42 contain information collection requirements.
As required by the Paperwork Reduction Act of 1980, the Department of
Education will submit a copy of these sections to the Office of
Management and Budget (OMB) for its review. (44 U.S.C. 3504(h).)
State agencies and centers are eligible to apply for grants under
these proposed regulations. The Department needs and uses the
information to make grants. Annual public reporting burden for this
collection of information is estimated to average 40 hours per response
for 240 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, room 3002, New Executive
Office Building, Washington, DC 20503; Attention: Daniel J. Chenok.

Intergovernmental Review

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

Invitation To Comment

Interested persons are invited to submit comments and
recommendations regarding these proposed regulations.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in room 3214, Mary E. Switzer Building, 330 C Street SW.,
Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Monday
through Friday of each week except Federal holidays.

Assessment of Educational Impact

The Secretary particularly requests comments on whether the
proposed regulations in this document would require transmission of
information that is being gathered by or is available from any other
agency or authority of the United States.

List of Subjects in 34 CFR Parts 364, 365, 366, and 367

Centers for independent living, Independent living services for
older individuals who are blind, Reporting and recordkeeping
requirements, State independent living services.

(Catalog of Federal Domestic Assistance Numbers: 84.132 Centers for
Independent Living; 84.169 State Independent Living Services; and
84.177 Independent Living Services for Older Individuals Who Are
Blind)

Dated: May 9, 1994.
Richard W. Riley,
Secretary of Education.

The Secretary proposes to amend title 34 of the Code of Federal
Regulations by adding a new part 364 and by revising parts 365, 366,
and 367 to read as follows:

PART 364--STATE INDEPENDENT LIVING SERVICES PROGRAM AND CENTERS FOR
INDEPENDENT LIVING PROGRAM: GENERAL PROVISIONS

Subpart A--General

Sec.
364.1 What programs are covered?
364.2 What is the purpose of the programs authorized by Chapter 1
of Title VII?
364.3 What regulations apply?
364.4 What definitions apply?
364.5 What are the limitations on allowable costs?
364.6 What is program income and how may it be used?
364.7 What requirements apply to the obligation of Federal funds
and program income?
Subpart B--What Are the Application Requirements?
364.10 What are the application requirements?
364.11 When must the State plan be submitted for approval?
364.12 How does the Secretary approve State plans?
364.13 Under what circumstances may funds be withheld, reduced,
limited, or terminated?

Subpart C--What Are the State Plan Requirements?

364.20 What are the general requirements for a State plan?
364.21 What are the requirements for the statewide Independent
Living Council (SILC)?
364.22 What is the State's responsibility for administration of the
programs authorized by Chapter 1 of Title VII?
364.23 What are the staffing requirements?
364.24 What assurances are required for staff development?
364.25 What are the requirements for a statewide network of centers
for independent living?
364.26 What are the requirements for cooperation, coordination, and
working relationships?
364.27 What are the requirements for coordinating independent
living (IL) services?
364.28 What requirements relate to IL services for older
individuals who are blind?
364.29 What are the requirements for coordinating Federal and State
sources of funding?
364.30 What notice must be given about the Client Assistance
Program (CAP)?
364.31 What are the affirmative action requirements?
364.32 What are the requirements for outreach?
364.33 What is required to meet minority needs?
364.34 What are the fiscal and accounting requirements?
364.35 What records must be maintained?
364.36 What are the reporting requirements?
364.37 What access to records must be provided?
364.38 What methods of evaluation must the State plan include?
364.39 What requirements apply to the administration of grants
under the Centers for Independent Living program?
364.40 Who is eligible to receive IL services?
364.41 What assurances must be included regarding eligibility?
364.42 What objectives and information must be included in the
State plan?
364.43 What requirements apply to the provision of State IL
services?
Subpart D--What Conditions Must Be Met After an Award?
364.50 What requirements apply to the processing of referrals and
applications?
364.51 What requirements apply to determinations of eligibility or
ineligibility?
364.52 What are the requirements for an IL plan?
364.53 What records must be maintained for the individual?
364.54 What are the durational limitations on IL services?
364.55 What standards shall service providers meet?
364.56 What are the special requirements pertaining to the
protection, use, and release of personal information?
364.57 What functions and responsibilities may the State delegate?
364.58 What appeal procedures must be available to consumers?
364.59 May the financial need of an individual be considered to
determine his or her participation in the costs of IL services?

Authority: 29 U.S.C. 796-796f-5, unless otherwise noted.

Subpart A--General

Sec. 364.1 What programs are covered?

(a) This part includes general requirements applicable to the
conduct of the following programs authorized under title VII of the
Rehabilitation Act of 1973, as amended:
(1) The State Independent Living Services (SILS) program (34 CFR
part 365).
(2) The Centers for Independent Living (CIL) program (34 CFR part
366).
(b) Some provisions in this part also are made specifically
applicable to the Independent Living Services for Older Individuals Who
Are Blind (OIB) program (34 CFR part 367).

(Authority: 29 U.S.C. 711(c) and 796-796f-5)

Sec. 364.2 What is the purpose of the programs authorized by chapter 1
of title VII?

The purpose of the SILS and CIL programs authorized by chapter 1 of
title VII of the Act is to promote a philosophy of independent living
(IL), including a philosophy of consumer control, peer support, self-
help, self-determination, equal access, and individual and system
advocacy, to maximize the leadership, empowerment, independence, and
productivity of individuals with significant disabilities, and to
promote and maximize the integration and full inclusion of individuals
with significant disabilities into the mainstream of American society
by providing financial assistance to States--
(a) For providing, expanding, and improving the provision of IL
services;
(b) To develop and support statewide networks of centers for
independent living (centers); and
(c) For improving working relationships among--
(1) SILS programs;
(2) Centers;
(3) Statewide Independent Living Councils (SILCs) established under
section 705 of the Act;
(4) State vocational rehabilitation (VR) programs receiving
assistance under title I and under part C of title VI of the Act;
(5) Client assistance programs receiving assistance under section
112 of the Act;
(6) Programs funded under other titles of the Act;
(7) Programs funded under other Federal law; and
(8) Programs funded through non-Federal sources.

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

Sec. 364.3 What regulations apply?

The following regulations apply to the SILS and CIL programs:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 74 (Administration of Grants to Institutions of
Higher Education, Hospitals, and Nonprofit Organizations), with respect
to grants or subgrants to an eligible agency that is not a State or
local government or Indian tribal organization.
(2) 34 CFR part 75 (Direct Grant Programs), with respect to grants
under subparts B and C of 34 CFR part 366.
(3) 34 CFR part 76 (State-Administered Programs), with respect to
grants under 34 CFR part 365 and subpart D of 34 CFR part 366.
(4) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(5) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(6) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments), with
respect to grants to an eligible agency that is a State or local
government or Indian tribal organization.
(7) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(8) 34 CFR part 82 (New Restrictions on Lobbying).
(9) 34 CFR part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants)).
(10) 34 CFR part 86 (Drug-Free Schools and Campuses).
(b) The regulations in this part 364.
(c) The regulations in 34 CFR parts 365 and 366 as applicable.

(Authority: 29 U.S.C. 711(c))

Sec. 364.4 What definitions apply?

(a) Definitions in EDGAR. The following terms used in this part and
in 34 CFR parts 365, 366, and 367 are defined in 34 CFR 77.1:

Applicant
Application
Award
Department
EDGAR
Fiscal year
Nonprofit
Private
Project
Public
Secretary

(b) Other definitions. The following definitions also apply to this
part and to 34 CFR parts 365, 366, and 367:
Act means the Rehabilitation Act of 1973, as amended.
Administrative support services mean assistance to support IL
programs and the activities of centers and may include financial and
technical assistance in planning, budget development, and evaluation of
center activities, and support for financial management (including
audits), personnel development, and recordkeeping activities.

(Authority: 29 U.S.C. 796c(c)(2))

Advocacy means pleading an individual's cause or speaking or
writing in support of an individual. To the extent permitted by State
law or the rules of the agency before which an individual is appearing,
a non-lawyer may engage in advocacy on behalf of another individual.
Advocacy may--
(1) Involve representing an individual--
(i) Before private entities or organizations, government agencies
(whether State, local, or Federal), or in a court of law (whether State
or Federal); or
(ii) In negotiations or mediation, in formal or informal
administrative proceedings before government agencies (whether State,
local, or Federal), or in legal proceedings in a court of law; and
(2) Be on behalf of--
(i) A single individual, in which case it is individual advocacy;
(ii) A group or class of individuals, in which case it is systems
(or systemic) advocacy; or
(iii) Oneself, in which case it is self advocacy.
Attendant care means a personal assistance service provided to an
individual with significant disabilities in performing a variety of
tasks required to meet essential personal needs in areas such as
bathing, communicating, cooking, dressing, eating, homemaking,
toileting, and transportation.

(Authority: 20 U.S.C. 706(30)(B)(vi))

Center for independent living means a consumer-controlled,
community-based, cross-disability, nonresidential, private nonprofit
agency that--
(1) Is designed and operated within a local community by
individuals with disabilities; and
(2) Provides an array of IL services.

(Authority: 29 U.S.C. 796a(1))

Consumer control means, with respect to a center or eligible
agency, that the center or eligible agency vests power and authority in
individuals with disabilities, including individuals who are or have
been recipients of IL services.

(Authority: 29 U.S.C. 796a(2))

Cross-disability means, with respect to a center, that a center
provides IL services to individuals representing a range of significant
disabilities and does not require the presence of one or more specific
significant disabilities before determining that an individual is
eligible for IL services.

(Authority: 29 U.S.C. 796a(1))

Designated State agency or State agency means the sole State agency
designated to administer (or supervise local administration of) the
State plan for VR services. The term includes the State agency for
individuals who are blind, if that agency has been designated as the
sole State agency with respect to that part of the State VR plan
relating to the vocational rehabilitation of individuals who are blind.

(Authority: 29 U.S.C. 706(3) and 721(a)(1)(A))

Designated State unit means either--
(1) The State agency VR bureau, division, or other organizational
unit that is primarily concerned with the vocational rehabilitation, or
vocational and other rehabilitation, of individuals with disabilities
and that is responsible for the administration of the VR program of the
State agency; or
(2) The independent State commission, board, or other agency that
has the vocational rehabilitation, or vocational and other
rehabilitation, of individuals with disabilities as its primary
function.

(Authority: 29 U.S.C. 706(3) and 721(a)(2)(A))

Eligible agency means a consumer-controlled, community-based,
cross-disability, nonresidential, private, nonprofit agency.

(Authority: 29 U.S.C. 796f-5)

Independent living core services mean, for purposes of services
that are supported under the SILS or CIL programs--
(1) Information and referral services;
(2) IL skills training;
(3) Peer counseling, including cross-disability peer counseling;
and
(4) Individual and systems advocacy.

(Authority: 29 U.S.C. 706(29))

Independent living services includes the independent living core
services and--
(1) Counseling services, including psychological,
psychotherapeutic, and related services;
(2) Services related to securing housing or shelter, including
services related to community group living, that are supportive of the
purposes of the Act, and adaptive housing services, including
appropriate accommodations to and modifications of any space used to
serve, or to be occupied by, individuals with significant disabilities;
(3) Rehabilitation technology;
(4) Mobility training;
(5) Services and training for individuals with cognitive and
sensory disabilities, including life skills training and interpreter
and reader services;
(6) Personal assistance services, including attendant care and the
training of personnel providing these services;
(7) Surveys, directories, and other activities to identify
appropriate housing, recreation opportunities, and accessible
transportation, and other support services;
(8) Consumer information programs on rehabilitation and IL services
available under the Act, especially for minorities and other
individuals with significant disabilities who have traditionally been
unserved or underserved by programs under the Act;
(9) Education and training necessary for living in a community and
participating in community activities;
(10) Supported living;
(11) Transportation, including referral and assistance for
transportation;
(12) Physical rehabilitation;
(13) Therapeutic treatment;
(14) Provision of needed prostheses and other appliances and
devices;
(15) Individual and group social and recreational services;
(16) Training to develop skills specifically designed for youths
who are individuals with significant disabilities to promote self-
awareness and esteem, develop advocacy and self-empowerment skills, and
explore career options;
(17) Services for children;
(18) Services under other Federal, State, or local programs
designed to provide resources, training, counseling, or other
assistance of substantial benefit in enhancing the independence,
productivity, and quality of life of individuals with significant
disabilities;
(19) Appropriate preventive services to decrease the need of
individuals with significant disabilities assisted under the Act for
similar services in the future;
(20) Community awareness programs to enhance the understanding and
integration into society of individuals with significant disabilities;
and
(21) Any other services that may be necessary to improve the
ability of an individual with a significant disability to function,
continue functioning, or move toward functioning independently in the
family or community or to continue in employment and that are not
inconsistent with any other provisions of the Act.

(Authority: 29 U.S.C. 796e-2(1))

Individual with a disability means an individual who--
(1) Has a physical, mental, cognitive, or sensory impairment that
substantially limits one or more of the individual's major life
activities;
(2) Has a record of such an impairment; or
(3) Is regarded as having such an impairment.

(Authority: 29 U.S.C. 706(8)(B))

Individual with a significant disability means an individual with a
severe physical or mental impairment whose ability to function
independently in the family or community or whose ability to obtain,
maintain, or advance in employment is substantially limited and for
whom the delivery of IL services will improve the ability to function,
continue functioning, or move toward functioning independently in the
family or community or to continue in employment.

(Authority: 29 U.S.C. 706(15)(B))

Minority group means Alaskan Natives, American Indians, Asian
Americans, Blacks (African Americans), Hispanic Americans, Native
Hawaiians, and Pacific Islanders.
Nonresidential means, with respect to a center, that the center, as
of October 1, 1994, does not operate or manage housing or shelter to
individuals as an IL service on either a temporary or long-term basis
unless the housing or shelter is--
(1) Incidental to the overall operation of the center;
(2) Necessary so that the individual may receive an IL service; and
(3) Limited to a period not to exceed eight weeks during any six-
month period.

(Authority: 29 U.S.C. 796a, 796f-1(f) and 706f-2(f))

Peer relationships mean relationships involving mutual support and
assistance among individuals with significant disabilities who are
actively pursuing IL goals.
Peer role models mean individuals with significant disabilities
whose achievements can serve as a positive example for other
individuals with significant disabilities.
Personal assistance services mean a range of IL services, provided
by one or more persons, designed to assist an individual with a
significant disability to perform daily living activities on or off the
job that the individual would typically perform if the individual did
not have a disability. These IL services must be designed to increase
the individual's control in life and ability to perform everyday
activities on or off the job.

(Authority: 29 U.S.C. 706(11))

Service provider means--
(1) A DSU that directly provides IL services to individuals with
significant disabilities;
(2) A center that receives financial assistance under parts B and C
of Chapter 1 of Title VII of the Act; or
(3) Any other entity or individual that meets the requirements of
Sec. 364.43(e) and provides IL services under a grant or contract from
the DSU pursuant to Sec. 364.43(b).

(Authority: 29 U.S.C. 711(c) and 796(e))

Significant disability means a severe physical or mental impairment
that substantially limits an individual's ability to function
independently in the family or community or to obtain, maintain, or
advance in employment.
State means, except for sections 711(a)(2)(A) and 721(c)(2)(A) and
where otherwise specified in the Act, 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, the Commonwealth of the Northern Mariana Islands, and
the Republic of Palau (until the Compact of Free Association with Palau
takes effect).

(Authority: 29 U.S.C. 706(16))

State plan means the State IL plan required under section 704 of
Title VII of the Act.
Transportation means travel and related expenses that are necessary
to enable an individual with a significant disability to benefit from
another IL service and travel and related expenses for an attendant or
aide if the services of that attendant or aide are necessary to enable
an individual with a significant disability to benefit from that IL
service.

(Authority: 29 U.S.C. 706(30)(B)(xi) and 711(c))

Unserved and underserved groups or populations, with respect to
groups or populations of individuals with significant disabilities in a
State, include, but are not limited to, groups or populations of
individuals with significant disabilities who--
(1) Have cognitive and sensory impairments;
(2) Are members of racial and ethnic minority groups;
(3) Live in rural areas; or
(4) Have been identified by the eligible agency as unserved or
underserved within a center's project area.

(Authority: 29 U.S.C. 706, 711(c), and 796f--796f-5)

Sec. 364.5 What are the limitations on allowable costs?

Expenditures made with non-Federal funds in a particular fiscal
year that are not reported as costs charged to the program on the final
financial status reports for that program prior to the commencement of
an audit or compliance review for that year may not be used as an
allowable cost to offset any costs disallowed in a notice of
disallowance decision or preliminary departmental decision based on
that audit or compliance review.

(Authority: 29 U.S.C. 711(c))

Sec. 364.6 What is program income and how may it be used?

(a) Definition. Program income means gross income received by a
grantee under Title VII of the Act that is directly generated by an
activity supported under 34 CFR part 365, 366, or 367.
(b) Sources. Sources of program income include, but are not limited
to, payments received from workers' compensation funds or fees for
services to defray part or all of the costs of services provided to
particular clients.
(c) Use of program income. (1) Program income, whenever earned,
must be used for the provision of IL services or the administration of
the State plan, as appropriate.
(2) A service provider is authorized to treat program income as--
(i) A deduction from total allowable costs charged to a Federal
grant, in accordance with 34 CFR 80.25(g)(1); or
(ii) An addition to the grant funds to be used for additional
allowable program expenditures, in accordance with 34 CFR 80.25(g)(2).
(3) Program income may not be used to meet the non-Federal share
requirement under 34 CFR 365.12(b).

(Authority: 29 U.S.C. 711(c); 34 CFR 80.25)

Sec. 364.7 What requirements apply to the obligation of Federal funds
and program income?

(a) Except as provided in paragraphs (b) and (c) of this section,
any Federal funds, including reallotted funds, that are appropriated
for a fiscal year to carry out a program under 34 CFR part 365, 366, or
367 that are not obligated by the DSU or center prior to the beginning
of the succeeding fiscal year, and any program income received during a
fiscal year that is not obligated by the DSU or center prior to the
beginning of the succeeding fiscal year, must remain available for
obligation by the DSU or center during that succeeding fiscal year.
(b) Federal funds appropriated for a fiscal year under part B of
chapter 1 and under chapter 2 of title VII of the Act remain available
for obligation in the succeeding fiscal year only to the extent that
the DSU complied with any matching requirement by obligating, in
accordance with 34 CFR 76.707, the non-Federal share in the fiscal year
for which the funds were appropriated.
(c) The provisions of paragraphs (a) and (b) of this section do not
apply to discretionary grants awarded by the Secretary under sections
722 and 752 of the Act.

(Authority: 29 U.S.C. 718)

Subpart B--What Are the Application Requirements?

Sec. 364.10 What are the application requirements?

To receive a grant from a State's allotment of funds under parts B
and C of chapter 1 of title VII of the Act and 34 CFR parts 365 and
366, a State shall submit to the Secretary, and obtain approval of, a
three-year State plan meeting the requirements in subpart C of this
part.

(Authority: 29 U.S.C. 796c(a)(1))

Sec. 364.11 When must the State plan be submitted for approval?

The designated State unit (DSU) shall submit to the Secretary for
approval the three-year State plan no later than July 1 of the year
preceding the first fiscal year of the three-year period for which the
State plan is submitted.

(Authority: 29 U.S.C. 796c(a)(4))

Sec. 364.12 How does the Secretary approve State plans?

(a) General. The Secretary approves a State plan that the Secretary
determines meets the requirements of section 704 of the Act and
subparts B through D of this part and disapproves a plan that does not
meet these requirements.
(b) Informal resolution. If the Secretary intends to disapprove the
State plan, the Secretary attempts to resolve disputed issues
informally with State officials.
(c) Notice of formal hearing. If, after reasonable effort has been
made to resolve the dispute informally, no resolution has been reached,
the Secretary provides written notice to the DSU of the intention to
disapprove the State plan and of the opportunity for a hearing.
(d) Hearing. (1) If the DSU requests a hearing, the Secretary
designates one or more individuals, either from the Department or
elsewhere, not responsible for or connected with the Department's
administration of the programs authorized by Title VII of the Act, to
conduct a hearing.
(2) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of
the Hearing Panel. If one individual is designated, that individual is
the Hearing Official.
(e) Judicial review. A State may appeal the Secretary's decision to
disapprove its State plan by filing a petition for review with the U.S.
Court of Appeals for the circuit in which the State is located, in
accordance with section 107(d) of the Act.

(Authority: 29 U.S.C. 711(c) and 796d-1(a))

Sec. 364.13 Under what circumstances may funds be withheld, reduced,
limited, or terminated?

(a) When withheld, reduced, limited, or terminated. Payments to a
State under chapter 1 of title VII of the Act may be withheld, reduced,
limited, or terminated as provided by section 107(c) of the Act if the
Secretary finds that--
(1) The State plan has been so changed that it no longer conforms
with the requirements of section 704 of the Act; or
(2) In the administration of the State plan, there is a failure to
comply substantially with any provision of the plan.
(b) Informal resolution. If the Secretary intends to withhold,
reduce, limit, or terminate payment of funds to a State under Title VII
of the Act as provided by section 107(c) of the Act, the Secretary
attempts to resolve disputed issues informally with State officials.
(c) Notice of formal hearing. If, after reasonable effort has been
made to resolve the dispute informally, no resolution has been reached,
the Secretary provides written notice to the DSU of the intention to
withhold, reduce, limit, or terminate payment of funds under Title VII
of the Act and of the opportunity for a hearing.
(d) Hearing. If the DSU requests a hearing, the Secretary
designates an administrative law judge (ALJ) in the Office of
Administrative Law Judges to conduct a hearing in accordance with the
provisions of 34 CFR part 81, subpart A.
(e) Initial decision. The ALJ issues an initial decision in
accordance with 34 CFR 81.41.
(f) Petition for review of an initial decision. The DSU may seek
the Secretary's review of an ALJ's initial decision in accordance with
34 CFR 81.42.
(g) Review by the Secretary. The Secretary reviews an ALJ's initial
decision in accordance with 34 CFR 81.43.
(h) Final decision of the Department. The ALJ's initial decision
becomes the final decision of the Department in accordance with 34 CFR
81.44.
(i) Judicial review. A State may appeal the Secretary's final
decision to withhold, reduce, limit, or terminate payment of funds to a
State under Title VII of the Act by filing a petition for review with
the U.S. Court of Appeals for the circuit in which the State is
located, in accordance with section 107(d) of the Act.

(Authority: 29 U.S.C. 727(c)-(d) and 796d-1(a)) Subpart C--What Are
the State Plan Requirements?

Sec. 364.20 What are the general requirements for a State plan?

(a) Form and content. The State plan must contain, in the form
prescribed by the Secretary, the information required by this part and
any other information requested by the Secretary.
(b) Duration. (1) The State plan must cover a three-year period and
must be amended whenever necessary to reflect any material change in
State law, organization, policy, or agency operations that affects the
administration of the State plan.
(2) The Secretary may require a State to submit an interim State
plan for a period of less than three years following a reauthorization
of the Act and prior to the effective date of final regulations.
(c) Joint development-single agency. The State plan must be
jointly--
(1) Developed by the DSU and the SILC; and
(2) Signed by the--
(i) Director of the DSU (Director); and
(ii) Chairperson of the SILC, acting on behalf of and at the
direction of the SILC.
(d) Joint development-separate agency for individuals who are
blind. If a separate State agency is authorized by State law as the
sole State agency with authority to administer or supervise the
administration of that part of the State plan relating to the
vocational rehabilitation of individuals who are blind, the State plan
must be jointly--
(1) Developed by the DSU, the SILC, and the separate State agency
authorized to provide VR services for individuals who are blind; and
(2) Signed by the--
(i) Director;
(ii) Director of the separate State agency authorized to provide VR
services for individuals who are blind; and
(iii) Chairperson of the SILC, acting on behalf of and at the
direction of the SILC.

(Cross-reference: See Sec. 364.22(c).)

(e) The State plan must assure that, as appropriate, the DSU
actively consults in the development of the State plan with the
Director of the client assistance program authorized under section 112
of the Act.
(f) Periodic review and revision. The State plan must provide for
the review and revision of the plan, at least once every three years,
to ensure the existence of appropriate planning, financial support and
coordination, and other assistance to appropriately address, on a
statewide and comprehensive basis, the needs in the State for--
(1) Providing State IL services;
(2) Developing and supporting a statewide network of centers; and
(3) Working relationships between--
(i) Programs providing IL services and supporting or establishing
centers; and
(ii) The VR program established under title I of the Act, and other
programs providing services for individuals with disabilities.
(g) Public hearings. (1) The State plan must assure that the DSU
conducts public meetings to provide all segments of the public,
including interested groups, organizations, and individuals, an
opportunity to comment on the State plan prior to its submission to the
Secretary and on any revisions to the approved State plan. The DSU may
meet the public participation requirement by holding the public
meetings before a preliminary draft State plan is prepared or by
providing a preliminary draft State plan for comment at the public
meetings.
(2) The State plan must assure that the DSU establishes and
maintains a written description of procedures for conducting public
meetings in accordance with the following requirements:
(i) The DSU shall provide appropriate and sufficient notice of the
public meetings. Appropriate and sufficient notice means notice
provided at least 30 days prior to the public meeting through various
media available to the general public, such as newspapers and public
service announcements, and through specific contacts with appropriate
constituency groups and organizations identified by the DSU and SILC.
(ii) The DSU shall make reasonable accommodation to individuals
with disabilities who rely on special modes of communication in the
conduct of the public meetings, including providing sign language
interpreters and audio-loops.
(iii) The DSU shall provide the notices of the public meetings, any
written material provided prior to or at the public meetings, and the
approved State plan in accessible formats for individuals who rely on
special modes of communication.
(h) The State plan must assure that, at the public meetings to
develop the State plan, the DSU identifies those provisions in the
State plan that are State-imposed requirements. For purposes of this
section, a State-imposed requirement includes any State rule or policy
relating to the DSU's administration or operation of IL programs under
title VII of the Act, including any rule or policy based on State
interpretation of any Federal law, regulation, or guideline, that is
beyond what would be required to comply with the regulations in 34 CFR
parts 364, 365, 366, and 367.

(Authority: 29 U.S.C. 711(c) and 796c (a) and (m)(6))

Sec. 364.21 What are the requirements for the Statewide Independent
Living Council (SILC)?

(a) Establishment. (1) To be eligible to receive assistance under
chapter 1 of title VII of the Act, each State shall establish a SILC
that meets the requirements of section 705 of the Act.
(2) The SILC may not be established as an entity within a State
agency, including the designated State agency or DSU. The SILC shall be
independent of the DSU and all other State agencies.
(b) Appointment and composition--(1) Appointment. Members of the
SILC must be appointed by the Governor or the appropriate entity within
the State responsible, in accordance with State law, for making
appointments.
(2) Composition. (i) The SILC must include--
(A) At least one director of a center chosen by the directors of
centers within the State; and
(B) As ex officio, nonvoting members, a representative from the DSU
and representatives from other State agencies that provide services to
individuals with disabilities.
(ii) The SILC may include--
(A) Other representatives from centers;
(B) Parents and legal guardians of individuals with disabilities;
(C) Advocates of and for individuals with disabilities;
(D) Representatives from private businesses;
(E) Representatives from organizations that provide services for
individuals with disabilities; and
(F) Other appropriate individuals.
(iii) A majority of the members of the SILC must be individuals
with disabilities, as defined in Sec. 364.4(b), and not employed by any
State agency or center.
(c) Qualifications. The SILC must be composed of members--
(1) Who provide statewide representation;
(2) Who represent a broad range of individuals with disabilities;
and
(3) Who are knowledgeable about centers and IL services.
(d) Voting members. A majority of the voting members of the SILC
must be individuals with disabilities, as defined in Sec. 364.4(b), and
not employed by any State agency or center.
(e) Chairperson--(1) In general. Except as provided in paragraph
(e)(2) of this section, the SILC shall select a chairperson from among
the voting membership of the SILC.
(2) Designation by Governor. In States in which the Governor does
not have veto power pursuant to State law, the Governor shall designate
a voting member of the SILC to serve as the chairperson of the SILC or
shall require the SILC to so designate a voting member.
(f) Terms of appointment. Each member of the SILC shall serve for a
term of three years, except that--
(1) A member appointed to fill a vacancy occurring prior to the
expiration of the term for which a predecessor was appointed must be
appointed for the remainder of that term;
(2) The terms of service of the members initially appointed must be
(as specified by the appointing authority) for the fewer number of
years as will provide for the expiration of terms on a staggered basis;
and
(3) No member of the SILC may serve for more than two consecutive
full terms.
(g) Duties. The SILC shall--
(1) Jointly develop and sign (in conjunction with the DSU) the
State plan required by section 704 of the Act and Sec. 364.20;
(2) Monitor, review, and evaluate the implementation of the State
plan;
(3) Coordinate activities with the State Rehabilitation Advisory
Council established under section 105 of the Act and councils that
address the needs of specific disability populations and issues under
other Federal law;
(4) Ensure that all regularly scheduled meetings of the SILC are
open to the public and sufficient advance notice is provided; and
(5) Submit to the Secretary all periodic reports as the Secretary
may reasonably request and keep all records, and afford access to all
records, as the Secretary finds necessary to verify the periodic
reports.
(h) Hearings. The SILC is authorized to hold any hearings and
forums that the SILC determines to be necessary to carry out its
duties.
(i) Resource plan. (1) The SILC shall prepare, in conjunction with
the DSU, a resource plan for the provision of resources, including
staff and personnel, made available under parts B and C of chapter 1 of
title VII of the Act, part C of title I of the Act, and from other
public and private sources that may be necessary to carry out the
functions of the SILC under this part.
(2) The SILC's resource plan must, to the maximum extent possible,
rely on the use of resources in existence during the period of
implementation of the State plan.
(3) No conditions or requirements may be included in the SILC's
resource plan that may compromise the independence of the SILC.
(4) The SILC is responsible for the proper expenditure of funds and
use of resources that it receives under the resource plan.
(5) A description of the SILC's resource plan required by paragraph
(i)(1) of this section must be included in the State plan.
(j) Staff. (1) The SILC shall, consistent with State law, supervise
and evaluate its staff and other personnel as may be necessary to carry
out its functions under this section.
(2) While assisting the SILC in carrying out its duties, staff and
other personnel made available to the SILC by the DSU may not be
assigned duties by the designated State agency or DSU, or any other
agency or office of the State, that would create a conflict of
interest.
(k) Reimbursement and compensation. The SILC may use the resources
described in paragraph (i) of this section to reimburse members of the
SILC for reasonable and necessary expenses of attending SILC meetings
and performing SILC duties (including child care and personal
assistance services) and to pay compensation to a member of the SILC,
if the member is not employed or must forfeit wages from other
employment, for each day the member is engaged in performing SILC
duties.
(l) Conflict of interest. No member of the SILC is permitted to
cast a vote on any matter that may provide direct financial benefit to
the member or the member's organization, that creates some other
conflict of interest, or that otherwise gives the appearance of a
conflict of interest under State law, unless that member announces
publicly to all members of the SILC and to the public prior to his or
her vote of the possible financial benefit, conflict of interest, or
appearance of a conflict of interest.

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

Sec. 364.22 What is the State's responsibility for administration of
the programs authorized by Chapter 1 of Title VII?

(a) General. The State plan must identify the DSU as the entity
that, on behalf of the State, shall--
(1) Receive, account for, and disburse funds received by the State
under part B of chapter 1 and section 723 of title VII of the Act (and
34 CFR parts 365 and 366, as applicable) based on the plan;
(2) Provide, as applicable, administrative support services for the
SILS and CIL programs under part B of chapter 1 and section 723 of
title VII of the Act, respectively, and 34 CFR parts 365 and 366,
respectively;
(3) Keep records and afford access to these records as the
Secretary finds to be necessary with respect to the SILS and CIL
programs; and
(4) Submit additional information or provide assurances as the
Secretary may require with respect to the SILS and CIL programs.
(b) Provision of administrative support services. The State plan
must describe the administrative support services to be provided by the
DSU under paragraph (a)(2) of this section.
(c) Designation of State unit for individuals who are blind. The
State plan may designate a State agency or the organizational unit of a
State agency that is authorized under State law to provide VR services
to individuals who are blind under a State VR plan as the DSU to
administer that part of the State IL plan under which IL services are
provided to individuals who are blind.

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

Sec. 364.23 What are the staffing requirements?

(a) General staffing requirement. The State plan must assure that
the staff of the service provider includes personnel who are
specialists in the development and provision of IL services and in the
development and support of centers.
(b) Special communication needs staffing. The State plan must also
assure that, to the maximum extent feasible, the service provider makes
available personnel able to communicate--
(1) With individuals with significant disabilities who rely on
special modes of communication, such as manual communication, nonverbal
communication devices, Braille, or audio tapes, and who apply for or
receive IL services under title VII of the Act; and
(2) In the native languages of individuals with significant
disabilities whose English proficiency is limited and who apply for or
receive IL services under title VII of the Act.

(Authority: 29 U.S.C. 711(c) and 796c(a)(1))

Sec. 364.24 What assurances are required for staff development?

The State plan must assure that the service provider establishes
and maintains a program of staff development for all classes of
positions involved in providing IL services and, if appropriate, in
administering the CIL program. The staff development program must
emphasize improving the skills of staff directly responsible for the
provision of IL services, including knowledge of the IL philosophy.

(Authority: 29 U.S.C. 711(c) and 796c(a)(1))

Sec. 364.25 What are the requirements for a statewide network of
centers for independent living?

(a) The State plan must include a design for the establishment of a
statewide network of centers that comply with the standards and
assurances in section 725(b) and (c) of the Act and subparts F and G of
34 CFR part 366.
(b) The design required by paragraph (a) of this section must
identify unserved and underserved areas and must provide an order of
priority for serving these areas.

(Authority: 29 U.S.C. 711(c) and 796c(g))

Sec. 364.26 What are the requirements for cooperation, coordination,
and working relationships?

(a) The State plan must include steps that will be taken to
maximize the cooperation, coordination, and working relationships
among--
(1) The SILS program, the SILC, and centers; and
(2) The DSU, other State agencies represented on the SILC, other
councils that address the needs of specific disability populations and
issues, and other public and private entities determined to be
appropriate by the SILC.
(b) The State plan must identify the entities to which the DSU and
the SILC will relate in carrying out the requirements of paragraph (a)
of this section.

(Authority: 29 U.S.C. 796c(i))

Sec. 364.27 What are the requirements for coordinating independent
living (IL) services?

The State plan must describe how IL services funded under chapter 1
of title VII of the Act will be coordinated with, and complement, other
services, to avoid unnecessary duplication with other Federal, State,
and local programs, including the OIB program authorized by chapter 2
of title VII of the Act, that provide IL- or VR-related services. This
description must include those services provided by State and local
agencies administering the special education, vocational education,
developmental disabilities services, public health, mental health,
housing, transportation, and veterans' programs, and the programs
authorized under titles XVIII through XX of the Social Security Act
within the State.

(Authority: 29 U.S.C. 796c(j) and 752(i)(2)(C))

Sec. 364.28 What requirements relate to IL services for older
individuals who are blind?

The State plan must include an assurance that the DSU will seek to
incorporate into and describe in the State plan any new methods or
approaches for the provision to older individuals who are blind of IL
services that are developed under a project funded under chapter 2 of
title VII of the Act and that the DSU determines to be effective.

(Authority: 29 U.S.C. 711(c), 796c(j), and 796k(h))

Sec. 364.29 What are the requirements for coordinating Federal and
State sources of funding?

(a) The State plan must describe efforts to coordinate Federal and
State funding for centers and IL services.
(b) The State plan must identify the amounts, sources, and purposes
of the funding to be coordinated under paragraph (a) of this section,
including the amount of State funds earmarked for the general operation
of centers.

(Authority: 29 U.S.C. 796c(k))

Cross-reference: See 34 CFR 366.30(a).

Sec. 364.30 What notice must be given about the Client Assistance
Program (CAP)?

The State plan must include satisfactory assurances that all
service providers will use formats that are accessible to notify
individuals seeking or receiving IL services under Chapter 1 of title
VII about--
(a) The availability of the CAP authorized by section 112 of the
Act;
(b) The purposes of the services provided under the CAP; and
(c) How to contact the CAP.

(Authority: 29 U.S.C. 718a and 796c(m)(1))

Sec. 364.31 What are the affirmative action requirements?

The State plan must include satisfactory assurances that all
recipients of financial assistance under parts B and C of chapter 1 of
title VII of the Act will take affirmative action to employ and advance
in employment qualified individuals with significant disabilities on
the same terms and conditions required with respect to the employment
of individuals with disabilities under section 503 of the Act.

(Authority: 29 U.S.C. 796c(m)(2))

Sec. 364.32 What are the requirements for outreach?

(a) With respect to IL services and centers funded under chapter 1
of title VII of the Act, the plan must include steps to be taken
regarding outreach to populations in the State that are unserved or
underserved by programs under title VII, including minority groups and
urban and rural populations.
(b) The State plan must identify the populations to be designated
for special outreach efforts under paragraph (a) of this section and
the geographic areas in which they reside.

(Authority: 29 U.S.C. 796c(l))

Sec. 364.33 What is required to meet minority needs?

The State plan must demonstrate how the State will address the
needs of individuals with significant disabilities from minority group
backgrounds.

(Authority: 29 U.S.C. 711(c), 718b(b), and 796c(l))

Sec. 364.34 What are the fiscal and accounting requirements?

In addition to complying with applicable EDGAR fiscal and
accounting requirements, the State plan must include satisfactory
assurances that all recipients of financial assistance under parts B
and C of chapter 1 of title VII of the Act will adopt those fiscal
control and fund accounting procedures as may be necessary to ensure
the proper disbursement of and accounting for those funds.

(Authority: 29 U.S.C. 796c(m)(3))

Sec. 364.35 What records must be maintained?

In addition to complying with applicable EDGAR recordkeeping
requirements, the State plan must include satisfactory assurances that
all recipients of financial assistance under parts B and C of chapter 1
of title VII of the Act will maintain--
(a) Records that fully disclose and document--
(1) The amount and disposition by the recipient of that financial
assistance;
(2) The total cost of the project or undertaking in connection with
which the financial assistance is given or used;
(3) The amount of that portion of the cost of the project or
undertaking supplied by other sources; and
(4) Compliance with the requirements of chapter 1 of title VII of
the Act and this part; and
(b) Other records that the Secretary determines to be appropriate
to facilitate an effective audit.

(Authority: 29 U.S.C. 796c(m)(4))

Sec. 364.36 What are the reporting requirements?

With respect to the records that are required by Sec. 364.35, the
State plan must include satisfactory assurances that all recipients of
financial assistance under parts B and C of Chapter 1 and under chapter
2 of title VII of the Act will submit reports that the Secretary
determines to be appropriate.

(Authority: 29 U.S.C. 796c(m)(4)(D))

Sec. 364.37 What access to records must be provided?

For the purpose of conducting audits, examinations, and compliance
reviews, the State plan must include satisfactory assurances that all
recipients of financial assistance under parts B and C of chapter 1 and
Chapter 2 of title VII of the Act will provide access to the Secretary
and the Comptroller General, or any of their duly authorized
representatives, to--
(a) The records maintained under Sec. 364.35;
(b) Any other books, documents, papers, and records of the
recipients that are pertinent to the financial assistance received
under chapter 1 of title VII of the Act; and
(c) All individual case records or files or consumer service
records of individuals served under 34 CFR parts 365, 366, or 367,
including names, addresses, photographs, and records of evaluation
included in those individual case records or files or consumer service
records.

(Authority: 29 U.S.C. 711(c) and 796c(m)(4)(c) and (5))

Sec. 364.38 What methods of evaluation must the State plan include?

The State plan must establish a method for the periodic evaluation
of the effectiveness of the plan in meeting the objectives established
in Sec. 364.42, including evaluation of satisfaction by individuals
with significant disabilities who have participated in the program.

(Authority: 29 U.S.C. 796c(n))

Sec. 364.39 What requirements apply to the administration of grants
under the Centers for Independent Living program?

In States in which State funding for centers equals or exceeds the
amount of funds allotted to the State under part C of title VII of the
Act, as determined pursuant to 34 CFR 366.29 and 366.31, and in which
the State elects to administer the CIL program as provided in section
723 of the Act, the State plan must include policies, practices, and
procedures that are consistent with section 723 of the Act to govern
the awarding of grants to centers and the oversight of these centers.

(Authority: 29 U.S.C. 796c(g) and (h), 796f-1(d), and 796f-2(d)).

Sec. 364.40 Who is eligible to receive IL services?

The State plan must assure that--
(a) Any individual with a significant disability, as defined in
Sec. 364.4(b), is eligible for IL services under the SILS and CIL
programs authorized under chapter 1 of title VII of the Act;
(b) Any individual may seek information about IL services under
these programs and request referral to other services and programs for
individuals with significant disabilities, as appropriate; and
(c) The determination of an individual's eligibility for IL
services under the SILS and CIL programs meets the requirements of
Sec. 364.51.

(Authority: 29 U.S.C. 706(15)(B) and 796b)

Sec. 364.41 What assurances must be included regarding eligibility?

(a) The State plan must assure that the service provider applies
eligibility requirements without regard to age, gender, race, creed,
color, national origin, or type of significant disability of the
individual applying for IL services.
(b) The State plan must assure that the service provider does not
impose any State or local residence requirement that excludes from IL
services under the plan any individual who is present in the State and
who is otherwise eligible for IL services.

(Authority: 29 U.S.C. 711(c) and 796c(a)(1))

Sec. 364.42 What objectives and information must be included in the
State plan?

(a) The State plan must specifically describe--
(1) The objectives to be achieved;
(2) The financial plan for the use of Federal and non-Federal funds
to meet these objectives; and
(3) How funds received under sections 711, 721, and 752 of the Act
will further these objectives.
(b) The objectives required by paragraph (a) of this section must
address--
(1) The overall goals and mission of the State's IL programs and
services;
(2) The various priorities for the types of services and
populations to be served; and
(3) The types of services to be provided.
(c) In developing the objectives required by paragraph (a) of this
section, the DSU and the SILC shall consider, and incorporate if
appropriate, the priorities and objectives established by centers
pursuant to section 725(c)(4) of the Act.
(d) The State plan must establish timeframes for the achievement of
the objectives required by paragraph (a) of this section.
(e) The State plan must explain how the objectives required by
paragraph (a) of this section are consistent with and further the
purpose of chapter 1 of title VII of the Act, as stated in section 701
of the Act and Sec. 364.2.

(Authority: 29 U.S.C. 796c(d))

Sec. 364.43 What requirements apply to the provision of State IL
services?

(a) The State plan must describe the extent and scope of IL
services to be provided under title VII of the Act to meet the
objectives stated in Sec. 364.42.
(b) The State plan must provide that the State directly, or through
grants or contracts, will provide IL services with Federal, State, or
other funds.
(c) IL services provided to individuals with significant
disabilities must be in accordance with an IL plan that meets the
requirements of Sec. 364.52 and that is mutually agreed upon by--
(1) An appropriate staff member of the service provider; and
(2) The individual, unless the individual signs a waiver stating
that an IL plan is unnecessary.
(d) If the State provides the IL services that it is required to
provide by paragraph (b) of this section through grants or contracts
with third parties, the State plan must describe these arrangements.
(e) If the State contracts with or awards a grant to a center for
the general operation of the center, the State shall delegate to the
center the determination of an individual's eligibility for services
from that center. If the State contracts with or awards a grant to a
third party to provide specific IL services, the State may choose to
delegate to the IL service provider the determination of eligibility
for these services and the development of an IL plan for individuals
who receive these services.

(Authority: 29 U.S.C. 711(c), 796c(e)-(f), and 796f-4(b)(2))

Cross-reference: See 34 CFR Part 365.

Subpart D--What Conditions Must Be Met After an Award?

Sec. 364.50 What requirements apply to the processing of referrals and
applications?

The service provider shall apply the standards and procedures
established by the DSU pursuant to 34 CFR 365.30 to ensure expeditious
and equitable handling of referrals and applications for IL services
from individuals with significant disabilities.

(Authority: 29 U.S.C. 711(c) and 796-796f-5)

Sec. 364.51 What requirements apply to determinations of eligibility
or ineligibility?

(a) Eligibility. (1) Before or at the same time as an applicant for
IL services may begin receiving IL services funded under this part, the
service provider shall determine the applicant's eligibility and
maintain documentation that the applicant has met the basic
requirements specified in Sec. 364.40.
(2) The documentation must be dated and signed by an appropriate
staff member of the service provider.
(b) Ineligibility. (1) If a determination is made that an applicant
for IL services is not an individual with a significant disability, the
service provider shall provide documentation of the ineligibility
determination that is dated and signed by an appropriate staff member.
(2)(i) The service provider may determine an applicant to be
ineligible for IL services only after full consultation with the
applicant or, if the applicant chooses, the applicant's parent,
guardian, or other legally authorized advocate or representative, or
after providing a clear opportunity for this consultation.
(ii) The service provider shall notify the applicant in writing of
the action taken and inform the applicant or, if the applicant chooses,
the applicant's parent, guardian, or other legally authorized advocate
or representative, of the applicant's rights and the means by which the
applicant may appeal the action taken.

(Cross-reference: See Sec. 364.58(a).)

(iii) The service provider shall provide a detailed explanation of
the availability and purposes of the client assistance program
established within the State under section 112 of the Act, including
information on how to contact the program.
(iv) If appropriate, the service provider shall refer the applicant
to other agencies and facilities, including the State's VR program
under 34 CFR part 361.
(c) Review of ineligibility d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-11543. Public record. Not legal advice.