Centers for Independent Living; Inviting Applications for New Awards for Fiscal Year (FY) 1994

DEPARTMENT OF EDUCATION

[CFDA No.: 84.132A]

Centers for Independent Living; Inviting Applications for New

Awards for Fiscal Year (FY) 1994

Purpose of Program

This program provides support for planning, conducting,

administering, and evaluating centers for independent living (centers)

that comply with the standards and assurances in section 725 of the

Rehabilitation Act of 1973 (Act), as amended, consistent with the State

plan for establishing a statewide network of centers. Centers are

consumer-controlled, community-based, cross-disability, nonresidential

private nonprofit agencies that are designed and operated within local

communities by individuals with disabilities and provide an array of

independent living (IL) services.

Eligible Applicants

An applicant is eligible to apply as a new center if the applicant

meets the requirements of Secs. 366.2(a) and 366.24 and either-- (1) Is

not currently receiving funds under Part C of Chapter 1 of Title VII of

the Act; or (2) proposes the expansion of an existing center through

the establishment of a separate and complete center (except that the

governing board of the existing center may serve as the governing board

of the new center) in a different geographical location. Eligibility

under this competition is limited to those entities proposing to serve

areas that are unserved or underserved in the States and territories

listed under AVAILABLE FUNDS.

Deadline for Transmittal of Applications: August 5, 1994.

Deadline for Intergovernmental Review: September 6, 1994.

Applications Available: July 6, 1994.

Available Funds: $2,776,432 as distributed in the following--

American Samoa............................................. $154,046

Arkansas................................................... 80,107

Arizona.................................................... 80,107

Delaware................................................... 32,531

D.C........................................................ 64,720

Florida.................................................... 247,814

Georgia.................................................... 227,776

Guam....................................................... 44,641

Hawaii..................................................... 51,546

Indiana.................................................... 54,588

Iowa....................................................... 58,755

Louisiana.................................................. 80,107

Maryland................................................... 80,107

Nevada..................................................... 80,107

New Hampshire.............................................. 80,107

New Jersey................................................. 284,293

North Carolina............................................. 227,885

North Dakota............................................... 80,107

Ohio....................................................... 378,894

Puerto Rico................................................ 80,107

South Carolina............................................. 80,107

South Dakota............................................... 80,107

Washington................................................. 56,892

Wyoming.................................................... 80,107

Estimated Range of Awards: $32,000 to $200,000.

Estimated Number of Awards: 1 to 5 per eligible State or territory.

Note: The Department is not bound by any estimates in this

notice.

Project Period: Up to 60 months.

Applicable Regulations: (a) The Education Department General

Administrative Regulations (EDGAR) in 34 CFR Parts 74, 75, 77, 79, 80,

81, 82, 85, and 86; and (b) The program regulations in 34 CFR Parts 364

and 366.

It is the policy of the Department of Education not to solicit

applications before the publication of final regulations. However, in

this case, it is essential to solicit applications on the basis of the

notice of proposed rulemaking (NPRM) published in the Federal Register

on May 12, 1994 (59 FR 24814), because the Department's authority to

obligate these funds will expire on September 30, 1994.

The comment period for the NPRM ended on June 13, 1994. A total of

40 comments were received from centers (21), State agencies (11),

Statewide Independent Living Councils and other statewide organizations

(4), national constituent organizations (3), and an individual (1). The

comments were generally favorable and constructive. The following is a

summary of the substantive comments received on the NPRM and of the

changes that are expected to be made, based on public comments, in the

final regulations that are currently undergoing review and that may

affect applicants under this competition. Technical and other minor

changes--and suggested changes the Secretary is not legally authorized

to make under the applicable statutory authority--are not addressed.

Only one commenter objected to the 30-day comment period. The

Secretary considered a 30-day comment period necessary because a longer

comment period would not have left enough time to publish this notice

inviting applications for competitive awards for new centers under this

program for fiscal year (FY) 1995. The Secretary also considered a 30-

day comment period adequate because of the extensive opportunity for

input and comment that was afforded to the public prior to publishing

the NPRM. The Secretary does not believe it is necessary to extend the

comment period.

Part 364

Two commenters objected to the change in terminology from an

individual with ``severe'' disabilities to an individual with

``significant'' disabilities. Although only one comment specifically

complimenting the Department on the use of ``significant'' rather than

``severe'' was received in response to the NPRM, the IL community

previously expressed overwhelming support for the change in comments to

the notice of proposed rulemaking on the proposed nomenclature change

published on October 27, 1993 (58 FR 57938). Therefore, the Secretary

does not expect any change in the final regulations.

A number of commenters suggested changes to the definitions in

proposed Sec. 364.4.

Two commenters were concerned that the proposed definition of

``advocacy'' may be interpreted to require an advocate to be an

attorney. One of these commenters suggested a broader definition of

``advocacy.''

The proposed definition of ``advocacy'' specifically states that,

to the extent permitted by State law or the rules of any agency before

which an individual is appearing, a non-lawyer may engage in advocacy

on behalf of another individual. The Secretary does not interpret this

definition as requiring an advocate to be an attorney in all cases, but

only in those situations where State law or the rules of an agency

require that an advocate representing another individual be an

attorney.

Therefore, the Secretary does not expect any change to this

definition in the final regulations.

Commenters suggested that the proposed definition of ``attendant

care'' be revised to make it clear that this service may be provided on

the job and in the community, as well as at home.

The Secretary believes the proposed definition provides adequate

flexibility to allow attendant care in a variety of situations.

Therefore, the Secretary does not expect any change to this definition

in the final regulations.

Commenters questioned why the words ``cognitive'' and ``sensory''

do not appear in the proposed definition of ``individual with

significant disabilities.'' These commenters noted that the proposed

definition conflicts with the proposed definition of an ``individual

with a disability.''

The concepts of ``physical'' and ``mental'' impairments in the

statutory definitions of ``individual with a severe disability'' and

``individual with a disability'' include the concepts of ``sensory''

and ``cognitive'' impairments, respectively. However, the Secretary

agrees that the definitions of ``individual with a significant

disability'' and ``individual with a disability'' should be consistent.

Therefore, the Secretary anticipates adding the words ``sensory'' and

``cognitive'' to the definition of ``individual with a significant

disability'' in the final regulations.

In proposed Sec. 364.5, commenters objected to the limitation on

reallocating expenditures after the initiation of an audit or

compliance review and considered it punitive and contrary to ordinary

accounting procedures.

The Secretary agrees that a change is necessary to make this

requirement consistent with acceptable accounting practices. Therefore,

the Secretary anticipates changing Sec. 364.5 in the final regulations

to allow costs that a grantee intends to use as an offset against

disallowed costs, if those costs are reported on the final financial

status reports within 90 days after the completion of an audit or

compliance review.

Commenters objected to the language in proposed Secs. 364.6 and

364.7 regarding program income. Commenters asserted that the resource

development requirement in evaluation standard 7 in section 725(b)(7)

of the Act should be interpreted to permit centers to accumulate funds

over several years to create, among other financial instruments,

endowments and reserves.

The Secretary agrees that imposing time limits on the use of

program income may be inconsistent with long-term ``resource

development,'' which may include endowment drives and the solicitation

of gifts and bequests that may produce long-term income. Therefore, the

Secretary anticipates changing the language in proposed Secs. 364.6 and

364.7 in the final regulations to allow centers to use program income

to establish endowments and other similar financial instruments, but

only if the corpus and income generated from the endowment and other

similar financial instruments are used solely to carry out the purposes

of the Center for Independent Living (CIL) program authorized under

Part C of Chapter 1 of Title VII of the Act.

One commenter objected to the use of the term ``special'' when

referring to reasonable accommodation and ``alternative'' modes of

communication in proposed Secs. 364.20, 364.23, and 364.56.

The Secretary agrees with the commenter and anticipates

substituting the word ``alternative'' for the word ``special'' in these

sections of the final regulations.

Commenters expressed concern regarding access to records in

proposed Sec. 364.37(c) on the grounds that access to individual

records may be unnecessarily intrusive and inconsistent with

commitments that providers make to their consumers.

The Secretary believes that access to individual case records or

files or consumer service records is necessary for the proper and

efficient administration and monitoring of the CIL program. Proposed

Sec. 364.37(c) limits this access to the Secretary and the Comptroller

General of the United States, or any of their duly authorized

representatives. The Secretary does not believe that this access is

unreasonable or that it will be abused. Therefore, the Secretary does

not expect any change in the final regulations.

Commenters were concerned that the references to ``legally

authorized representative'' in proposed Sec. 364.51 may be interpreted

to require an attorney or legal guardian.

The Secretary does not intend to require that only an attorney or

legal guardian may represent an individual for purposes of proposed

Sec. 364.51(b)(2)(requirements pertaining to ineligibility

determinations). Therefore, the Secretary anticipates adding a

definition of ``legally authorized representative'' to the final

regulations to clarify that an individual's authority to represent or

advocate on behalf of an individual with significant disabilities is

determined pursuant to State law.

Two commenters objected to the absence of requirements in proposed

Sec. 364.52 regarding the content of a waiver and the appropriate

solicitation of a waiver. One of the commenters also was concerned that

the absence of conditions on the use of waivers could allow service

providers to circumvent the requirements of proposed Secs. 364.43

(provision of IL services by the State) and 364.53 (documentation of IL

services provided to individuals). One of the commenters also suggested

that the regulations should require that consumers be advised of the

need for an IL plan and how the IL plan helps protect the consumer's

rights.

The Secretary agrees in part with the commenters and anticipates

adding the words ``knowingly and voluntarily'' before the word

``signs'' in Sec. 364.52(a)(2) of the final regulations. The Secretary

believes this is adequate protection to prevent the possibility of

service providers forcing consumers to sign ``waivers.'' The Secretary

does not believe that it is necessary to add further requirements

regarding the waiver of an IL plan.

Commenters suggested that proposed Sec. 364.53 be modified to

recognize the fact that records may be electronic as well as written.

The Secretary agrees with the commenters. With the exception of an

IL plan or a waiver of an IL plan, both of which require a consumer's

signature, the Secretary anticipates revising Sec. 364.53 in the final

regulations to allow records to be maintained electronically.

Commenters suggested that the State standards in proposed

Sec. 364.55 should not be permitted to exceed the standards in section

725 of the Act.

The standards referred to in proposed Sec. 364.55 are actually the

standards that the designated State unit (DSU) is required to develop

pursuant to proposed Sec. 365.31 for those service providers that are

not centers or for centers that are providing specialized IL services

under a contract with the DSU. The Secretary anticipates adding

language to the final regulations to make this clear.

One commenter objected to the words ``other information'' in

proposed Sec. 364.56(c)(2) because of the possibility that service

providers may use this language to withhold information from a

consumer.

Proposed Sec. 364.56(c)(2) does not permit a service provider to

withhold information from a consumer. Proposed Sec. 364.56(c)(2) merely

requires that, if a service provider determines that releasing medical,

psychological, or other information may be harmful if released directly

to the consumer, the service provider shall release this information to

the consumer through a qualified medical or psychological professional

or the individual's legally authorized representative. The Secretary

does not expect any change to Sec. 364.56(c)(2) in the final

regulations.

Part 366

One commenter suggested adding a requirement to the selection

criteria in proposed Sec. 366.27 that the governing board be reflective

of the localities to be served by the proposed center.

The Secretary believes that, rather than adding the suggested

language to the selection criteria in proposed Sec. 366.27, replacing

the words ``another'' and ``other'' in proposed Sec. 366.28(a) with

``bordering'' and adding similar language in Secs. 366.2(a)(1)(i),

366.28(a), and 366.29(a) of the final regulations is more appropriate.

In this manner, centers will be limited to operating within a ``local

community,'' as required by section 702(1)(A) of the Act.

One commenter considered the selection criterion in proposed

Sec. 366.27(a)(2) too vague and suggested that it be expanded to ``not

appear to be the traditional `needs assessment' that creates more

service providers.''

The Secretary believes that the criterion adequately explains how

an applicant can be expected to identify the need for a new center in a

community and how the applicant plans to address this identified need.

The Secretary does not expect any change in the final regulations.

Commenters suggested reducing the points allotted to ``plan of

operation'' and increasing points for ``involvement of individuals with

significant disabilities'' in the selection criteria in proposed

Sec. 366.27(g) and (h), respectively. Commenters also felt that the

proposed selection criteria should include the involvement of

individuals with significant disabilities in the preparation of a

center's application.

The Secretary believes that the points assigned to the ``plan of

operation'' selection criterion appropriately reflect its value. The

Secretary agrees that participation of individuals with significant

disabilities in the preparation of applications is important and

anticipates substituting the phrase ``developing the center's

application'' for the phrase ``conducting center activities'' in

Sec. 366.27(h)(1) of the final regulations.

Selection Criteria

In evaluating applications for grants under this competition, the

Secretary uses the selection criteria in Sec. 366.27 of the notice of

proposed rulemaking published in the Federal Register on May 12, 1994

(59 FR 24814, 24838-24839), with the anticipated changes discussed in

this notice.

Applicants should prepare their applications based on the proposed

regulations, as modified by the expected changes contained in this

notice. If additional changes are made in the final regulations that

are currently undergoing review, applicants will be given the

opportunity to revise or resubmit their applications.

FOR APPLICATIONS: Telephone (202) 205-9315. Individuals who use a

telecommunications device for the deaf (TDD) may call the Federal

Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8

p.m., Eastern time, Monday through Friday. Individuals may write to

receive an application from Donald Thayer, U.S. Department of

Education, 400 Maryland Avenue, SW., Room 3326 Switzer Building,

Washington, DC 20202-2741.

FOR FURTHER INFORMATION CONTACT: Donald Thayer, telephone: (202) 205-

9315, or John Nelson, telephone: (202) 205-9362 (Voice and TDD), U.S.

Department of Education, 400 Maryland Avenue, SW., Room 3326 Switzer

Building, Washington, DC 20202-2741.

Information about the Department's funding opportunities, including

copies of application notices for discretionary grant competitions, can

be viewed on the Department's electronic bulletin board (ED Board),

telephone (202) 260-9950; or on the Internet Gopher Server at

GOPHER.ED.GOV (under Announcements, Bulletins, and Press Releases).

However, the official application notice for a discretionary grant

competition is the notice published in the Federal Register.

Program Authority: 29 U.S.C. 721(c) and (e) and 796(f).

Dated: June 30, 1994.

Judith E. Heumann,

Assistant Secretary for the Office of Special Education and

Rehabilitative Services.

[FR Doc. 94-16288 Filed 7-5-94; 8:45 am]

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