Independent Living Services Programs; Final Rule DEPARTMENT OF EDUCATION

SUMMARY: The Secretary issues new regulations and amends 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 regulations

are needed to implement Chapters 1 and 2 of Title VII of the

Rehabilitation Act of 1973 (Act), as amended.

EFFECTIVE DATE: These regulations take effect either 45 days after

publication in the Federal Register or later if the Congress takes

certain adjournments. If you want to know the effective date of these

regulations, call or write the Department of Education contact person.

A document announcing the effective date will be published in the

Federal Register.

FOR FURTHER INFORMATION CONTACT: John Nelson, U.S. Department of

Education, 400 Maryland Avenue, S.W., Room 3326, Mary E. Switzer

Building, Washington, D.C. 20202-2741. Telephone or TDD: (202) 205-

9362.

SUPPLEMENTARY INFORMATION: These regulations add a new Part 364 and

revise Parts 365, 366, and 367 of the regulations governing the SILS,

CIL, and OIB programs. The Secretary will issue final regulations on

Subpart G of Part 366 in a separate notice in the Federal Register.

The SILS, CIL, and OIB programs are an important part of the

National Education Goals. These programs support the National Education

Goal that, by the year 2000, 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.

On May 12, 1994, the Secretary published a notice of proposed

rulemaking (NPRM) in the Federal Register (59 FR 24814) proposing to

issue new regulations and to amend existing regulations for the SILS,

CIL, and OIB programs. The major issues related to these programs were

discussed in the preamble to the NPRM.

In general, the commenters agreed with the NPRM. However, in

response to public comments, there are some changes between the NPRM

and the final regulations. The final regulations clarify the joint

responsibility for the development of the State plan for IL; clarify

that a State may submit only one State plan for IL; require a service

provider to review a determination that an applicant is ineligible for

IL services whenever the service provider determines that the

applicant's status has materially changed; add as a selection criterion

the extent to which consumers are involved in developing a center's

application for a grant; and strengthen a consumer's control over the

release of personal information by a service provider.

The final regulations also clarify that an existing center that

applies for a grant as a new center by establishing a separate center

at a new location does not need to establish a separate governing board

for that new center; and impose a deadline of 90 days after the end of

the fiscal year for submitting the annual performance report required

for continuation funding.

Analysis of Comments and Changes

In response to the Secretary's invitation in the NPRM, 40 parties

submitted comments on the proposed regulations. An analysis of the

comments and of the changes in the regulations since publication of the

NPRM follows. General comments are discussed first, followed by

comments on specific sections of the regulations. Technical and other

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

authorized to make under the applicable statutory authority--are not

addressed.

General Comments

Comments: One commenter suggested that the 30-day comment period on

the NPRM be extended.

Discussion: The Secretary considered a 30-day comment period

necessary because a longer comment period would not have left enough

time to make competitive awards for new centers for independent living

(centers) under the CIL program for fiscal year (FY) 1994. 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.

Changes: None.

Comments: Two commenters agreed and two commenters disagreed with

changing the term ``severe'' to ``significant.'' Several commenters

approved of the regulations as written, without specifically addressing

the change in terms. The remainder of the commenters did not address

this issue, although they did address other issues.

Discussion: The Secretary published a notice of proposed rulemaking

on the nomenclature change from ``severe'' to ``significant'' on

October 27, 1993 (58 FR 57938). In its response to that nomenclature

NPRM, the independent living (IL) community expressed support for the

change. Therefore, the Secretary does not believe a change is

necessary.

Changes: None.

Part 364

Definitions (Sec. 364.4)

Comments: One commenter was concerned that the proposed definition

of ``advocacy'' may be interpreted to mean that only an attorney may be

an advocate or representative for a consumer. Another commenter

suggested a broader definition of ``advocacy'' that takes into account

different ``levels of advocacy.''

Discussion: The definition of ``advocacy'' in these regulations

does not require an advocate to be an attorney except in those

situations where State law or the rules of an agency require that an

advocate representing another individual be an attorney. In addition,

the definition of ``advocacy'' includes ``individual advocacy,''

``systemic advocacy,'' and ``self advocacy,'' which the Secretary

believes are sufficient to encompass all situations.

Changes: None.

Comments: Commenters suggested that the proposed definition of

``attendant care'' be revised to allow this service to be provided on

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

Discussion: The Secretary believes that the definition of

``attendant care'' provides adequate flexibility to allow attendant

care in a variety of situations.

Changes: None.

Comments: Commenters questioned why the words ``cognitive'' and

``sensory'' do not appear in the proposed definition of ``significant

disability.'' Another commenter suggested deleting the words

``cognitive'' and ``sensory'' from the proposed definition of an

``individual with a disability'' to make this definition consistent

with the Americans with Disabilities Act and section 504 of the Act.

Discussion: The Secretary agrees that the definitions of

``individual with a disability,'' ``individual with a significant

disability,'' and ``significant disability'' should be consistent with

each other and also that these definitions should be consistent with

the definitions in the Act. The Secretary believes that the concepts of

``physical'' and ``mental'' impairments in the statutory definitions

include the concepts of ``sensory'' and ``cognitive'' impairments,

respectively. Therefore, inclusion of the terms is not inconsistent.

Changes: The Secretary has added the words ``cognitive'' and

``sensory'' to the definitions of ``individual with a significant

disability'' and ``significant disability'' in the final regulations.

Comments: One commenter suggested revising the definition of

``nonresidential'' to allow centers to own and operate rental housing

that is available to the general public if the center has received a

residential facility as a bequest or trust intended primarily to enable

the center to benefit from the income of the property.

Discussion: The definition of ``center for independent living'' in

section 702(1) of the Act and the definition of ``eligible agency'' in

section 726 of the Act both include the term ``nonresidential.''

Congress clearly intended centers and eligible agencies that receive

funds under Chapter 1 of Title VII of the Act to be ``nonresidential.''

The Secretary believes that the definition of ``nonresidential'' in the

final regulations accurately reflects the intent of Congress. This

definition prohibits a center from receiving funds under Title VII of

the Act if the center operates or manages housing or shelter for

individuals with significant disabilities as an IL service on either a

temporary or long-term basis, unless the housing or shelter is

incidental to the overall operation of the center, necessary so that

the individual may receive an IL service, and limited to a period not

to exceed eight weeks during any six-month period. Therefore, a center

may not operate or manage a residential facility in a manner that is

inconsistent with this definition.

Changes: None.

Allowable Costs (Sec. 364.5)

Comments: Commenters objected to the limitation in proposed

Sec. 364.5 on reallocating expenditures after the initiation of an

audit or compliance review. These commenters considered this limitation

punitive and contrary to ordinary accounting procedures.

Discussion: The Secretary does not intend to require accounting

practices that are not widely practiced and acceptable. In addition,

the Secretary has decided that the policy on offsetting costs that have

been disallowed as a result of an audit or a monitoring review should

be uniform for all U.S. Department of Education (Department) programs.

No rationale exists for treating IL programs differently from other

Department programs.

Changes: The Secretary has deleted proposed Sec. 364.5.

Program Income (Sec. 364.5)

Comments: Commenters questioned whether funds raised by centers

pursuant to their statutory obligation to develop funding resources

other than Chapter 1 of Title VII of the Act are program income.

Discussion: The definition of program income in Sec. 364.5 includes

gross income received by a grantee under Title VII of the Act that is

directly generated by an activity supported under 34 CFR Parts 365,

366, or 367. The Secretary does not believe any adequate reason exists

to exempt funds raised by centers pursuant to their statutory

obligation to develop funding resources other than Chapter 1 of Title

VII of the Act from this definition.

Changes: The Secretary has deleted proposed Sec. 364.6(c) to

clarify that the carryover provision in section 19(a)(2) of the Act

applies to program income received under the IL programs.

Obligation of Federal Funds and Program Income (Sec. 364.6)

Comments: Commenters suggested 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 long-term financial instruments,

endowments and reserves.

Discussion: Pursuant to Sec. 364.6, which implements section

19(a)(2) of the Act, any program income received by a center that is

not obligated and expended prior to the beginning of the fiscal year

succeeding the fiscal year in which these funds were received remains

available for obligation and expenditure by the center during the

succeeding fiscal year. Therefore, program income, which includes funds

received by a center through fundraising activities carried out with

Title VII funds, may be available for obligation and expenditure for a

maximum of almost two years after it is received.

The Secretary agrees that centers should be allowed to use program

income to establish or augment endowments and other similar financial

instruments if the principal and income generated from the endowment

and other similar financial instruments are used solely to carry out

the purposes of the CIL program authorized under Part C of Chapter 1 of

Title VII of the Act. However, any program income received by a center

must be obligated and expended in accordance with Sec. 364.6(b).

The Secretary recognizes that the notice inviting applications for

new awards (application notice) published in the Federal Register on

July 6, 1994 (59 FR 34597) indicated that the Secretary anticipated

revising proposed Secs. 364.5 and 364.6. However, because nothing in

the proposed regulations prohibited centers from establishing or

augmenting endowments or other similar instruments, the Secretary has

decided that Secs. 364.5 and 364.6 do not need to be revised for this

purpose. This action does not affect the competition for new awards

under the CIL program.

Changes: None.

Approval of State Plans (Sec. 364.12)

Comments: Commenters expressed concern that paragraphs (c), (d),

and (e) of proposed Sec. 364.12 refer only to the designated State unit

(DSU) or the State and do not properly reflect the role of the

Statewide Independent Living Council (SILC) in the development of the

State plan. Similar concerns were expressed with respect to various

provisions in proposed Secs. 364.13 and 364.20.

Discussion: The Secretary has reviewed Secs. 364.12, 364.13, and

364.20 of the proposed regulations to ensure that the final regulations

reflect the appropriate role of the SILC.

Changes: The Secretary has added language to Secs. 364.12(c),

364.13(c) and 364.20 (e), (g), (h), and (i) of the final regulations to

clarify the SILC's role in the development of the State plan.

Withholding, Reduction, Limitation, or Termination (Sec. 364.13)

Comments: One commenter found the references to the ``Department's

final decision'' in proposed Sec. 364.13(h) and to the ``Secretary's

final decision'' in proposed Sec. 364.13(i) inconsistent and confusing.

Discussion: The references to the final decisions of the Department

and the Secretary in Sec. 364.13 (h) and (i) of these regulations are

consistent with 34 CFR 81.44, which applies to all Department programs.

The Secretary finds no reason to change these references for the IL

programs.

Changes: None.

Comments: One commenter suggested that proposed Sec. 364.13(f) be

revised to allow the SILC to seek review of an administrative law

judge's initial decision.

Discussion: Only a recipient of grant funds that receives a written

notice of a disallowance decision may appeal the Department's attempt

to recover grant funds. Pursuant to 34 CFR 81.7, a non-party (i.e, a

non-recipient) may apply to participate in a recovery of funds

proceeding under 34 CFR Part 81. Section 364.13(f) is consistent with

34 CFR Part 81.

Changes: None.

Comments: One commenter asked whether the reference to ``State'' in

proposed Sec. 364.13(i) means the DSU, the SILC, or both. Discussion:

The reference to ``State'' in Sec. 364.13(i) means only the DSU.

Changes: None.

State Plan Requirements (Sec. 364.20)

Comments: Two commenters objected to the prohibition against

separate State plans in those States in which one State agency is

responsible for providing vocational rehabilitation (VR) services to

the general population and a separate agency is responsible for

providing VR services to individuals who are blind. One commenter

suggested that the definitions in the Act and the long-established

policy of the Rehabilitation Services Administration allow a separate

State plan for providing VR services to individuals who are blind.

Other commenters noted that, although the preamble to the proposed

regulations indicates that only a single State plan is permitted under

Title VII (even in States with an agency that provides VR services to

individuals who are blind), the proposed regulations are not as clear

on this issue.

Discussion: Section 704 of the Act requires ``a State plan'' that

addresses how IL services will be provided to all individuals with a

significant disability in the State. The words ``a State plan''

indicate a single State plan for IL, not two or more State plans for

IL, regardless of the existence of two or more agencies that may

provide services to different groups of individuals with a significant

disability in the State.

In addition, a State plan that only addresses the IL services to be

provided to individuals with a significant disability who are blind

could not be comprehensive enough to satisfy the requirement in section

704(g) of the Act that the State plan include a design for the

establishment of a statewide network of centers that comply with the

standards and assurance in section 725 of the Act.

An agency that is authorized to provide VR services to individuals

who are blind may not provide IL services to individuals with a

significant disability who are not blind. Section 725(b)(2) requires

that centers provide IL services on a ``cross-disability basis.'' This

means that a center may not restrict the services that it provides to

individuals with any particular type or combination of types of

disabilities. An agency that is authorized to provide VR services to

individuals who are blind could not comply with this requirement.

Therefore, an agency that is authorized to provide VR services to

individuals who are blind may not submit a separate State plan for IL.

Changes: The Secretary has added language to Sec. 364.22(c) of the

final regulations to clarify that an agency that is authorized to

provide VR services to individuals who are blind may not submit a

separate State plan for IL.

Comments: Commenters recommended that proposed Sec. 364.20(e) be

amended to require that the Director of the Client Assistance Program

(CAP) be given the opportunity to participate in public hearings or

contribute as a member of the SILC. Two commenters suggested that the

Director of the CAP should not be involved in the review of the State

plan.

Discussion: Nothing in Sec. 364.20(e) or any other section of these

regulations prevents the Director of the CAP from participating at any

public hearings held by either the DSU or SILC on the development of

the State plan.

Changes: None.

Statewide Independent Living Council (Sec. 364.21)

Comments: One commenter suggested that the regulations should

contain a dispute resolution process to resolve impasses between a

SILC, a DSU, and the Office of the Governor. This commenter was

concerned that, as a result of the single State plan provision, a

smaller State agency for individuals who are blind may hold up IL

services for all individuals with a significant disability in the State

because it disagrees with the State plan.

Discussion: The resolution of issues that may arise between the DSU

and the SILC during the development of the State plan should be

resolved at the State level.

Changes: None.

Comments: One commenter recommended adding a provision to allow the

public to challenge the qualifications of SILC members appointed by the

Governor.

Discussion: If a question arises whether a SILC member appointed by

the Governor meets the qualifications in Sec. 364.21(c), the issue may

be raised to the Governor or to the Secretary in the same manner as any

other question regarding the proper implementation of these

regulations.

Changes: None.

Comments: Commenters suggested that the conflict of interest

provision in proposed Sec. 364.21(l) either be deleted or revised to

exempt SILC members who are affiliated with a center. These commenters

considered this provision to be too broad and easily subject to abuse.

Discussion: The Secretary agrees that it is unnecessary to have a

conflict of interest provision for IL programs that differs from the

conflict of interest provision applicable to all Department programs.

Changes: The Secretary has revised Sec. 364.21(l) of the final

regulations to apply the code of conduct provisions in 34 CFR 74.162

and the conflict of interest provisions in 34 CFR 75.524 and 75.525 to

members of the SILC.

Staffing Requirements (Sec. 364.23)

Comments: One commenter objected to the requirement in proposed

Sec. 364.23(b)(2) that each center provide non-English language

interpreters.

Discussion: The Secretary believes that centers should be required,

to the maximum extent feasible, to make available personnel able to

communicate 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. A center is not

required to hire non-English language interpreters as full-time

employees. However, a center is required to ensure that someone is

available as needed to comply with this requirement.

Changes: None.

Staff Development (Sec. 364.24)

Comments: One commenter objected to the requirement in proposed

Sec. 364.24 that each center provide staff development programs.

Discussion: The Secretary believes that staff development programs

are necessary for the proper and efficient administration of IL

programs funded under Chapter 1 of Title VII of the Act.

Changes: None.

IL Services for Older Individuals Who Are Blind (Sec. 364.28)

Comments: One commenter recommended including older individuals who

are blind in the selection of new methods and approaches for the

provision of IL services pursuant to proposed Sec. 364.28.

Discussion: The selection and incorporation into the State plan of

any new approaches for the provision of IL services to older

individuals who are blind requires a revision to the State plan.

Because Sec. 366.20(g) requires the DSU and the SILC to hold public

hearings prior to the submission of the State plan to the Secretary and

prior to any revisions to the State plan, the Secretary believes that

the views of older individuals who are blind will be adequately

addressed by this requirement.

Changes: None.

Outreach (Sec. 364.32)

Comments: One commenter objected to proposed Sec. 364.32, which the

commenter believes permits SILCs to define the ``unserved'' and

``underserved'' groups for which individual centers must provide

``aggressive outreach.''

Discussion: Section 364.32(b) of these regulations requires that

the State plan must identify the ``unserved and underserved''

populations to be designated for targeted outreach efforts and the

geographic areas in which these populations reside. Both the DSU and

the SILC are jointly responsible for the development of the State plan.

In addition, the DSU and the SILC must give the public an opportunity

to comment on the State plan before it is submitted to the Secretary

for approval. Therefore, it is inaccurate to state that the SILC is

permitted to define ``unserved and underserved populations'' for

purposes of Sec. 364.32(b).

Changes: None.

Access to Records (Sec. 364.37)

Comments: Commenters expressed concern that the access to records

proposed in Sec. 364.37(c) may be unnecessarily intrusive and

inconsistent with commitments that providers make to their consumers.

These commenters also suggested that the regulations should permit

centers to expunge personal information from consumer case records or

files.

Discussion: Access to individual case records or files, or consumer

service records, including personal information that may be included in

those records or files, is necessary for the proper and efficient

administration and monitoring of IL programs. Section 364.37(c) limits

this access to the Secretary and the Comptroller General of the United

States, or any of their duly authorized representatives for the purpose

of conducting audits, examinations, and compliance reviews. The

Secretary does not believe that this access is unreasonable.

Changes: None.

Assurances Regarding Eligibility (Sec. 364.41)

Comments: One commenter objected to proposed Sec. 364.41(b), which

the commenter characterized as requiring every center to serve every

person who requests services regardless of the person's residence. This

commenter stated that this requirement is an unfair cost burden and

will force centers to incur the costs of serving persons who should be

served by other centers.

Discussion: The Secretary believes that a service provider should

provide IL services to any individual who is present in a State and who

is otherwise eligible for IL services. This policy is consistent with

section 101(a)(14) of the Act and with most other Federal programs.

Changes: None.

Objectives and Information in the State Plan (Sec. 364.42)

Comments: Commenters suggested that proposed Sec. 364.42(a)(2) be

amended to include identification of the various funding sources that

the State plans to use to fund the various activities under the State

plan.

Discussion: The Secretary agrees that identification of the various

funding sources that the State plans to use to fund the various

activities under the State plan will assist the Department in

determining the effectiveness of the State's compliance with section

704(j) and (k) of the Act. Section 704(j) is implemented by Sec. 364.27

of these regulations and requires the coordination of IL services with

other services to avoid unnecessary duplication with other Federal,

State, and local programs. Section 704(k) of the Act is implemented by

Sec. 364.29 of these regulations and requires the coordination of

Federal and State funding for centers and IL services also to avoid

unnecessary duplication with other Federal, State, and local programs.

Requiring the identification of the Federal and non-Federal funds that

the DSU intends to use to meet the objectives of the State plan will

assist the Secretary in determining a State's compliance with

Secs. 364.27 and 364.29.

Changes: The Secretary has revised Sec. 364.42(a)(2) of the final

regulations to provide that the financial plan required under this

section must include the identity and amounts of other Federal and non-

Federal funds that the DSU anticipates using to meet the objectives in

the State plan.

Determinations of Eligibility or Ineligibility (Sec. 364.51)

Comments: Commenters were concerned that the requirement in

proposed Sec. 364.51(b)(2)(i) that an advocate or representative must

be ``legally authorized'' may be misinterpreted to require an advocate

or representative to be an attorney or legal guardian. Another

commenter suggested that proposed Sec. 364.51(b)(2)(i) be amended to

permit the consumer to choose as an advocate or representative an

individual who may not be technically ``legally authorized'' to act on

behalf of the consumer.

Discussion: An individual's authority to represent or advocate on

behalf of an individual with significant disabilities is determined

pursuant to State law. Similarly, a consumer may choose as an advocate

or representative an individual who may not be technically ``legally

authorized'' to the extent such a choice is permitted by State law.

Nothing in Sec. 364.51(b)(2) of these regulations requires that an

advocate or representative must be an attorney or legal guardian.

However, the Secretary recognizes that clarification of this issue is

necessary.

Changes: The Secretary has added a definition of ``legally

authorized advocate or representative'' to Sec. 364.4 of the final

regulations. This new definition recognizes that non-attorneys may

advocate for or represent a consumer if permitted by State law.

Comments: One commenter suggested that language should be added to

proposed Sec. 364.51(c) to require a service provider to review an

ineligibility determination if the individual's status changes. This

commenter was concerned that a service provider could satisfy the

review requirement in proposed Sec. 364.51(c) by conducting a review of

the ineligibility determination on the same day that the determination

is made and, thus, circumvent the intent of this provision.

Discussion: The Secretary agrees that a service provider must

review an ineligibility determination whenever there has been a

material change in an applicant's status.

Changes: The Secretary has added language to Sec. 364.51(c) of the

final regulations that requires a service provider to review a

determination of ineligibility whenever the service provider determines

that the applicant's status has materially changed but no less than

once within 12 months after making the ineligibility determination.

IL Plan (Sec. 364.52)

Comments: Two commenters objected to the absence of requirements in

proposed Sec. 364.52 regarding the content of a waiver. One of these

commenters also suggested that the service provider be required to

advise the consumer, before obtaining a waiver, of the need for and

importance of an IL plan and how an IL plan helps to protect a

consumer's rights. Another commenter suggested deleting proposed

Sec. 364.52(d) or revising it to allow the consumer to choose whether

or not to comply with this provision, which requires that the

development of a consumer's IL plan and the provision of IL services be

coordinated with the individualized written rehabilitation program

(IWRP) for VR services, the individualized habilitation program (IHP)

prepared under the Developmental Disabilities Assistance and Bill of

Rights Act, and the individualized education program (IEP) prepared

under Part B of the Individuals with Disabilities Education Act.

Discussion: The Secretary does not believe it is necessary to

prescribe what should be included in the waiver permitted by

Sec. 364.52(a)(2) of these regulations. However, the Secretary agrees

that it is important to add safeguards to this provision to prevent the

possibility of service providers coercing consumers to sign waivers.

Finally, the Secretary believes that requiring service providers to

coordinate a consumer's IL plan with the consumer's IWRP, IHP, and IEP

is necessary to avoid unnecessary duplication of services provided by

these programs.

Changes: The Secretary has added the words ``knowingly and

voluntarily'' before the word ``signs'' in Sec. 364.52(a)(2) of the

final regulations.

Maintenance of Records (Sec. 364.53)

Comments: Commenters suggested that proposed Sec. 364.53 be revised

to recognize the fact that records may be electronic as well as

written.

Discussion: The Secretary recognizes that records may be produced

electronically and supports the recording of information by electronic

means.

Changes: The Secretary has revised Sec. 364.53 in the final

regulations to clarify that records may be maintained either

electronically or in written form, except that all IL plans, if

consumers choose to develop one, and all waivers of an IL plan, if

consumers choose to sign one, must be in writing.

Comments: One commenter objected to the recordkeeping requirements

in proposed Sec. 364.53. This commenter believed that ``a simple record

showing that an identified consumer has one or more identified

disabilities and received specific services on a specific date is

sufficient.''

Discussion: The Secretary believes that the recordkeeping

requirements in Sec. 364.53 of these regulations are necessary for the

proper and efficient administration of IL programs funded under Title

VII of the Act. In addition, the Secretary believes these requirements

are necessary to ensure that determinations of eligibility are made in

accordance with the Act and these regulations; service providers comply

with the IL plan and waiver requirements; the IL services provided to

consumers are the IL services requested by consumers; and service

providers record the IL goals and objectives established and achieved

by consumers. However, the Secretary does not believe a center should

be required to maintain a case service record for individuals who seek

or receive only information and referral services from a center.

Changes: The Secretary has revised Sec. 364.53 of the final

regulations to exempt individuals who seek or receive only information

and referral services from the requirement that a center maintain

consumer service records for individuals who apply for or receive IL

services.

Standards for Service Providers (Sec. 364.55)

Comments: Commenters suggested that the standards developed by the

DSU pursuant to proposed Sec. 364.55(a) should not exceed the standards

in section 725 of the Act.

Discussion: The standards referred to in proposed Sec. 364.55 are

the standards that the DSU is required to develop pursuant to

Sec. 365.31 for those service providers that are not centers and for

centers that are providing specialized IL services under a contract

with the DSU. These standards may or may not exceed the standards in

section 725 of the Act.

Changes: The Secretary has revised Sec. 365.31 of the final

regulations to clarify that State standards developed pursuant to this

section may differ from the standards in section 725 of the Act and may

apply to centers that are providing specialized IL services under a

contract with the DSU.

Protection, Use, and Release of Personal Information (Sec. 364.56)

Comment: One commenter suggested deleting proposed

Sec. 364.56(a)(3)(v) or specifying the agencies that will routinely

receive personal information about a consumer.

Discussion: The Secretary does not believe it is necessary or

possible to identify in these regulations the agencies to which each

service provider may routinely release information.

Changes: None.

Comments: One commenter objected to the words ``other information''

in proposed Sec. 364.56(c)(2) because service providers may use this

language to withhold information from a consumer.

Discussion: Section 364.56(c)(2) of these regulations does not

permit a service provider to withhold information from a consumer.

Section 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.

Changes: None.

Comments: One commenter suggested deleting proposed

Sec. 364.56(e)(2) because this provision does not provide consumer

control over personal information that is maintained by a service

provider. This commenter also noted that routine release of information

to other agencies is contrary to the IL philosophy of consumer control.

Discussion: The Secretary agrees that a consumer should have

control over the release (pursuant to Sec. 364.56(e)(2) of these

regulations) of medical or psychological information to another agency

or organization by a service provider.

Changes: The Secretary has revised Sec. 364.56(e)(2) of the final

regulations to require a consumer's informed written consent to release

to another agency or organization medical or psychological information.

Financial Needs Test (Sec. 364.59)

Comments: One commenter suggested that proposed Sec. 364.59 be

revised to clarify that a State may choose whether or not to adopt a

financial needs test for receiving IL services.

Discussion: Implicit in proposed Sec. 364.59 was the fact that a

State is neither required nor prohibited from requiring consumers to

contribute to the costs of the IL services they seek from a service

provider. Also implicit in proposed Sec. 364.59 was the fact that, if a

State chooses to require consumers to contribute to the costs of the IL

services they seek from a service provider, a State is neither required

nor prohibited from applying a financial needs test to determine the

amount that a particular consumer may be required to contribute to the

costs of the IL services he or she seeks from a service provider. The

Secretary agrees with the need to revise proposed Sec. 364.59 to

clarify its meaning.

Changes: The Secretary has revised Sec. 364.59 of the final

regulations to clarify that the decision to allow service providers to

charge consumers for the cost of providing IL services or to allow

service providers to apply a financial needs test to determine the

amount of a particular consumer's participation in the costs of IL

services must be made in accordance with the State plan.

Part 365

Funds to Provide IL Core Services (Sec. 365.22) and Additional IL

Services (Sec. 365.21)

Comments: One commenter suggested revising proposed Sec. 365.21 to

clarify that a State does not have to provide the IL core services with

funds made available under Part B of Chapter 1 of Title VII of the Act,

if the State is providing the IL core services with other resources.

The same commenter suggested a similar revision to proposed

Sec. 364.22.

Discussion: The Secretary agrees with the commenters that proposed

Secs. 365.21(a) and 365.22 should be revised as they suggest.

Changes: The Secretary has amended Secs. 365.21(a) and 365.22 of

the final regulations to make it clear that a State may use either

funds provided under Part B of Chapter 1 of Title VII of the Act or

other funds to provide the IL core services and other additional IL

services.

Comments: One commenter asked whether a State can award a grant or

subgrant on a non-competitive basis.

Discussion: The requirements applicable to the awarding of

subgrants by grantees pursuant to the regulations in 34 CFR Part 365

are addressed in 34 CFR 76.51, which gives a State wide latitude on how

to award subgrants.

Changes: None.

Part 366

Eligibility for Assistance Under the CIL Program (Sec. 366.2)

Comments: None.

Discussion: Since publication of the NPRM, the Secretary has

reviewed this section and wants to clarify that a center may serve a

community within the State in which the center is located or a

community in a bordering State. The Secretary also wants to clarify

that a center that is not receiving funds under Part C of Chapter 1 of

Title VII of the Act may apply as a new center, even if the center

receives funds under Part B of Chapter 1 of Title VII of the Act.

Finally, the Secretary feels that it is important to clarify that a

center that proposes the expansion of an existing center through the

establishment of a separate and complete center does not need to

establish a separate governing board for the new center. The governing

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

new center.

Changes: The Secretary has revised Sec. 366.2(a)(1)(i), (b)(1),

(b)(2), and (b)(3) of the final regulations to reflect these changes.

The Secretary made similar corresponding changes to Secs. 366.28(a) and

366.29(a) of the final regulations.

Activities the Secretary Funds (Sec. 366.3)

Comments: One commenter suggested that the word ``such'' be

included in proposed Sec. 366.3(b)(4) because its absence makes this

provision unclear and may lead centers to believe that an IL plan is

necessary before a consumer may receive IL services.

Discussion: The Secretary agrees that the omission of the word

``such'' from proposed Sec. 366.3(b)(4) leaves the meaning of this

provision unclear. An eligible agency is not required to facilitate the

development and achievement of IL goals for an individual with a

significant disability who does not seek assistance to develop and

achieve IL goals. In addition, section 704(e) of the Act specifically

allows a consumer to waive the development of an IL plan. However, the

waiver of an IL plan does not preclude a consumer from developing and

seeking to achieve IL goals with assistance from the center.

Changes: The Secretary has revised Sec. 366.3(b)(4) of the final

regulations to clarify that an eligible agency may use funds awarded

under Subparts C and D of 34 CFR Part 366 to facilitate the development

and achievement of IL goals selected by individuals with significant

disabilities who seek assistance in the development and achievement of

IL goals.

Order of Priorities (Sec. 366.22)

Comments: Commenters observed that, if any funds are left over

after the Secretary awards grants to existing centers under Part C of

Chapter 1 of Title VII of the Act, proposed Sec. 366.22(b) allows the

Secretary to use these excess funds to assist existing centers or to

reallot these excess funds to another State. These commenters suggested

that, under these circumstances, proposed Sec. 366.22(b) should be

amended to require the Secretary to consult with the DSU and the SILC

before making this decision.

Discussion: The Secretary may use excess funds only to assist

existing centers in the State or for reallotment if these funds are

insufficient to fund a new center in the State. The Secretary will make

any decision to use excess funds to assist existing centers in a State

in a manner that is consistent with the State plan of the State in

which the excess funds exist. The Secretary believes this will ensure

that a State's concerns will be adequately addressed and that it is not

necessary to include in these final regulations any requirement that

the Secretary consult with the DSU or the SILC.

Changes: The Secretary has revised Sec. 366.22(b)(1) of the final

regulations to require that the use of excess funds to assist existing

centers in a State will be consistent with the State plan.

Selection Criteria (Sec. 366.27)

Comments: One commenter suggested revising the selection criteria

in proposed Sec. 366.27 to require that the governing board be

reflective of the localities to be served by the proposed center.

Discussion: Section 702(1)(A) of the Act requires that a center be

``designed and operated within a local community.'' The Secretary

believes that this requirement provides sufficient safeguard to ensure

that a center's governing board will be reflective of the localities

the center proposes to serve.

Changes: None.

Comments: One commenter suggested that the selection criteria in

proposed Sec. 366.27 should include a requirement that centers take

affirmative action to hire and promote individuals with significant

disabilities.

Discussion: Pursuant to section 725(c)(5) of the Act, the State

plan required by section 704(a)(1) of the Act 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. The Secretary does not believe it is necessary

to include this requirement as a selection criterion, which a center

could then choose whether or not to address in its application.

Changes: None.

Comments: One commenter believed that the selection criterion on

need in proposed Sec. 366.27(a)(2) is too vague and suggested that it

be expanded to ``not appear to be the traditional `needs assessment'

that creates more service providers.'' This commenter suggested that

the criterion should be based on how supportive a center is of IL and

of advocating for change.

Discussion: 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 also believes that there is adequate

emphasis on advocacy in the regulations.

Changes: None.

Comments: One commenter objected that the selection criteria,

particularly Sec. 366.27 (a) through (c), place too much emphasis on

past performance.

Discussion: Only the selection criterion in Sec. 366.27(b) of these

regulations addresses an applicant's past performance. In addition,

this selection criterion accounts for only 5 points out of a total of

100 points.

Changes: None.

Comments: 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.

Discussion: The Secretary believes that the points assigned to the

``plan of operation'' selection criterion appropriately reflect its

value. The Secretary also believes that Sec. 366.27(h)(2) of these

regulations sufficiently covers the involvement of individuals with

significant disabilities in conducting center activities. However, the

Secretary agrees that participation of individuals with significant

disabilities in the preparation of applications is important and should

be emphasized.

Changes: The Secretary has substituted the phrase ``developing the

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

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

Order of Priorities (Sec. 366.34)

Comments: One commenter suggested that the order of priorities for

funding in proposed Sec. 366.34(a) be listed in the State plan to

ensure that the expenditure of funds meets the requirements and

purposes of Title VII of the Act.

Discussion: The Secretary agrees that requiring a State that

administers the CIL program pursuant to section 723 of the Act to

include in its State plan the order of priorities for allocating funds

within the State is important.

Changes: Because the suggested change is to the State plan

requirements, the Secretary has revised Sec. 364.39 of the final

regulations to require that, 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, including the order of

priorities that the State may establish pursuant to 34 CFR 366.34(a)

Comments: Commenters suggested that the Director of the DSU should

be required to consult with the SILC before determining how excess

funds should be used.

Discussion: Whether a Director of the DSU consults with the SILC

before determining, pursuant to Sec. 366.34(b), how excess funds should

be used is an issue that should be resolved at the State level,

preferably during the joint development of the State plan by the DSU

and the SILC that is mandated by section 705(c)(1) of the Act. To the

extent that this situation is addressed by the State plan, the

consultation will already have taken place. If the State plan does not

address this issue, the Director of the DSU should ensure that the use

of any excess funds is consistent with the State plan.

Changes: The Secretary has revised Sec. 366.34(b)(1) of the final

regulations to require the Director of the DSU, if the DSU plans to use

excess funds to assist existing centers in a State, to use these funds

in a manner consistent with the State plan.

Enforcement (Sec. 366.39)

Comments: One commenter recommended that a corrective action plan

should require a center to comply with the standards and assurances

within six months after a center receives approval of its plan.

Discussion: The Secretary believes that the length of a corrective

action plan must be determined on a case-by-case basis. In some cases,

immediate corrective action may be required. In other cases, six months

may be unrealistically short. The Secretary believes it would be unwise

to establish a rigid timeframe for corrective action plans.

Changes: None.

Assurances (Sec. 366.50)

Comments: None.

Discussion: Although no parties commented on proposed

Sec. 366.50(n), the Secretary believes it is important to establish a

deadline for the submission of the annual performance report because it

is necessary to enable the Secretary to make timely continuation

grants. A 90-day period before the end of the fiscal year is consistent

with other reporting requirements in the Education Department General

Administrative Regulations.

Changes: The Secretary has revised Sec. 366.50 in the final

regulations to require that the annual performance report be submitted

within 90 days of the end of the fiscal year.

Part 367

Definitions (Sec. 367.5)

Comments: One commenter recommended adding a definition of

``capacity building'' to proposed Sec. 367.5.

Discussion: Section 725(b)(6) of the Act describes ``activities to

increase community capacity'' as activities ``to increase the capacity

of communities . . . to meet the needs of individuals with

[significant] disabilities.'' The Secretary believes that the term

``capacity building'' should be interpreted in a manner consistent with

section 725(b)(6) of the Act and does not need to be further defined.

Changes: None.

Selection Criteria (Sec. 367.22)

Comments: One commenter suggested that the list of services under

the selection criterion in proposed Sec. 367.22(g) should be the same

as that provided in proposed Sec. 367.3(b).

Discussion: The Secretary agrees that the list of services in these

referenced provisions should be consistent. The services listed in

Sec. 367.22(g) include the services listed in Sec. 367.3(b).

Changes: The Secretary has changed Secs. 367.3(b) and 367.22(g)(2)

in the final regulations to clarify that the services listed in

Sec. 367.22 include the services listed in Sec. 367.3(b).

Comments: One commenter suggested that proposed Sec. 367.22(g)

should be clarified to allow a designated State agency (DSA) to use

funds received under Chapter 2 of Title VII of the Act in a way that

will not duplicate services that the State may be providing with other

funds.

Discussion: The Secretary agrees that Chapter 2 funds should be

used in a way that will supplement, rather than duplicate, services

that may already be available through other sources.

Changes: The Secretary has revised Sec. 367.22(g)(2) of the final

regulations to clarify that an application will be evaluated on the

extent to which the DSA will use Chapter 2 funds to meet the unmet IL

needs of individuals in the State.

Awarding Grants or Contracts (Sec. 367.41)

Comments: Two commenters recommended deleting proposed

Sec. 367.41(b), which restricts a DSA's flexibility to enter into

procurement contracts with public and private nonprofit agencies.

Discussion: Although section 752(i)(2)(A) of the Act is a general

provision that allows the DSA to operate or administer this program

either directly or through grants or contracts, section 752(g) of the

Act specifically requires that a State's awards to public and private

nonprofit agencies and organizations under this program be made only

through grants.

Changes: None.

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.

Assessment of Educational Impact

In the notice of proposed rulemaking, the Secretary requested

comments on whether the proposed regulations would require transmission

of information that is being gathered by or is available from any other

agency or authority of the United States.

Based on the response to the proposed regulations and on its own

review, the Department has determined that the regulations in this

document do not 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

Aged, Blind, Disabled, Grant programs--education, Independent

living services, Reporting and recordkeeping requirements, Vocational

rehabilitation.

(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: August 3, 1994.

Richard W. Riley,

Secretary of Education.

The Secretary amends 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 is program income and how may it be used?

364.6 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 an individual's ability to pay be considered in

determining 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 (CAPs) receiving assistance under

section 112 of the Act;

(6) Programs funded under other titles of the Act;

(7) Programs funded under other Federal laws; 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 or the bureau, division, or other

organizational unit within a State agency 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, mental, cognitive, or sensory 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))

Legally authorized advocate or representative means an individual

who is authorized under State law to act or advocate on behalf of

another individual. Under certain circumstances, State law permits only

an attorney, legal guardian, or individual with a power of attorney to

act or advocate on behalf of another individual. In other

circumstances, State law may permit other individuals to act or

advocate on behalf of another individual.

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

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 for

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 designated State unit (DSU) that directly provides IL

services to individuals with significant disabilities;

(2) A center that receives financial assistance under Parts B or 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, mental, cognitive,

or sensory 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 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 consumers.

(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. 364.6 What requirements apply to the obligation of Federal funds

and program income?

(a) Except as provided in paragraph (b) 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 or expended 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 or expended by the

DSU or center prior to the beginning of the succeeding fiscal year in

which the program income was received, remain available for obligation

and expenditure 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.

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527.)

(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 and the SILC 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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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 and SILC 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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

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

(e) The State plan must assure that, as appropriate, the DSU and

SILC actively consult in the development of the State plan with the

Director of the CAP 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

and SILC conduct 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 and

SILC 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 and SILC establish and

maintain a written description of procedures for conducting public

meetings in accordance with the following requirements:

(i) The DSU and SILC 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 and SILC shall make reasonable accommodation to

individuals with disabilities who rely on alternative modes of

communication in the conduct of the public meetings, including

providing sign language interpreters and audio-loops.

(iii) The DSU and SILC 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 alternative modes of communication.

(h) The State plan must assure that, at the public meetings to

develop the State plan, the DSU and SILC identify those provisions in

the State plan that are State-imposed requirements. For purposes of

this section, a State-imposed requirement includes any State law,

regulation, 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 implementing 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.

(i) The State plan also must address how the specific requirements

in Secs. 364.21 through 364.43 and in Secs. 364.56 and 364.59 will be

met.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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

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. The code of conduct provisions in 34 CFR

74.162 and the conflict of interest provisions in 34 CFR 75.524 and

75.525 apply to members of the SILC. For purposes of this paragraph and

34 CFR 74.162, 75.524, and 75.525, a SILC is not considered a

government, governmental entity, or governmental recipient.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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. However, a State agency

designated pursuant to this paragraph may not submit a separate State

plan.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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) Alternative 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

alternative 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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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 and practice in the IL

philosophy.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

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

(Approved by the Office of Management and Budget under control

number 1820-0527)

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

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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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 State 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 targeted outreach efforts under paragraph (a) of this section and

the geographic areas (i.e., communities) in which they reside.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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 of Title VII of

the Act will submit reports that the Secretary determines to be

appropriate.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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 Part 365, 366, or 367,

including names, addresses, photographs, and records of evaluation

included in those individual case records or files or consumer service

records.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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, including the order of priorities that the State may

establish pursuant to 34 CFR 366.34(a), that are consistent with

section 723 of the Act to govern the awarding of grants to centers and

the oversight of these centers.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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, color, creed, gender,

national origin, race, religion, 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 under the

plan any individual who is present in the State and who is otherwise

eligible for IL services from receiving IL services.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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. The financial plan must identify the source

and amounts of other Federal and non-Federal funds to be used 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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(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) Unless the individual signs a waiver stating that an IL plan is

unnecessary, 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.

(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.

(Approved by the Office of Management and Budget under control

number 1820-0527)

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

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 CAP 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 determination. (1) If an applicant for

IL services has been found ineligible, the service provider shall

review the applicant's ineligibility at least once within 12 months

after the ineligibility determination has been made and whenever the

service provider determines that the applicant's status has materially

changed.

(2) The review need not be conducted in situations where the

applicant has refused the review, the applicant is no longer present in

the State, or the applicant's whereabouts are unknown.

(Approved by the Office of Management and Budget under control

number 1820-0527)

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

Sec. 364.52 What are the requirements for an IL plan?

(a) General. (1) Unless the individual who is to be provided IL

services under this part signs a waiver in accordance with paragraph

(a)(2) of this section, the service provider, in collaboration with the

individual with a significant disability, shall develop and

periodically review an IL plan for the individual in accordance with

the requirements in Sec. 364.43(c) and paragraphs (b) through (e) of

this section.

(2) The requirements of this section with respect to an IL plan do

not apply if the individual knowingly and voluntarily signs a waiver

stating that an IL plan is unnecessary.

(3) Subject to paragraph (a)(2) of this section, the service

provider shall provide each IL service in accordance with the IL plan.

(b) Initiation and development of an IL plan. (1) Development of an

individual's IL plan must be initiated after documentation of

eligibility under Sec. 364.51(a) and must indicate the goals or

objectives established, the services to be provided, and the

anticipated duration of the service program and each component service.

(2) The IL plan must be developed jointly and signed by the

appropriate staff member of the service provider and the individual

with a significant disability or, if consistent with State law and the

individual chooses, the individual's guardian, parent, or other legally

authorized advocate or representative.

(3) A copy of the IL plan, and any amendments, must be provided in

an accessible format to the individual with a significant disability

or, if consistent with State law and the individual chooses, the

individual's guardian, parent, or other legally authorized advocate or

representative.

(c) Review. (1) The IL plan must be reviewed as often as necessary

but at least on an annual basis to determine whether services should be

continued, modified, or discontinued, or whether the individual should

be referred to a program of VR services under 34 CFR Part 361 or to any

other program of assistance.

(2) Each individual with a significant disability or, if consistent

with State law and the individual chooses, the individual's guardian,

parent, or other legally authorized advocate or representative, must be

given an opportunity to review the IL plan and, if necessary, jointly

redevelop and agree by signature to its terms.

(d) Coordination with vocational rehabilitation, developmental

disabilities, and special education programs. The development of the IL

plan and the provision of IL services must be coordinated to the

maximum extent possible with any individualized--

(1) Written rehabilitation program for VR services for that

individual;

(2) Habilitation program for the individual prepared under the

Developmental Disabilities Assistance and Bill of Rights Act; and

(3) Education program for the individual prepared under Part B of

the Individuals with Disabilities Education Act.

(e) Termination of services. If the service provider intends to

terminate services to an individual receiving IL services under an IL

plan, the service provider shall follow the procedures in

Sec. 364.51(b)(2)(ii) through (iv) and (c).

(Approved by the Office of Management and Budget under control

number 1820-0527)

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

Sec. 364.53 What records must be maintained for the individual?

For each applicant for IL services (other than information and

referral) and for each individual receiving IL services (other than

information and referral), the service provider shall maintain a

consumer service record that includes--

(a) Documentation concerning eligibility or ineligibility for

services;

(b) The services requested by the consumer;

(c) Either the IL plan developed with the consumer or a waiver

signed by the consumer stating that an IL plan is unnecessary;

(d) The services actually provided to the consumer; and

(e) The IL goals or objectives--

(1) Established with the consumer, whether or not in the consumer's

IL plan; and

(2) Achieved by the consumer.

(f) A consumer service record may be maintained either

electronically or in written form, except that the IL plan and waiver

must be in writing.

(Approved by the Office of Management and Budget under control

number 1820-0527)

(Authority: 29 U.S.C. 711(c), 712 and 796c(m)(4)(B))

Sec. 364.54 What are the durational limitations on IL services?

The service provider may not impose any uniform durational

limitations on the provision of IL services, except as otherwise

provided by Federal law or regulation.

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

Sec. 364.55 What standards shall service providers meet?

In providing IL services to individuals with significant

disabilities, service providers shall comply with--

(a) The written standards for IL service providers established by

the DSU pursuant to 34 CFR 365.31; and

(b) All applicable State or Federal licensure or certification

requirements.

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

Sec. 364.56 What are the special requirements pertaining to the

protection, use, and release of personal information?

(a) General provisions. The State plan must assure that each

service provider will adopt and implement policies and procedures to

safeguard the confidentiality of all personal information, including

photographs and lists of names. These policies and procedures must

assure that--

(1) Specific safeguards protect current and stored personal

information;

(2) All applicants for, or recipients of, IL services and, as

appropriate, those individuals' legally authorized representatives,

service providers, cooperating agencies, and interested persons are

informed of the confidentiality of personal information and the

conditions for gaining access to and releasing this information;

(3) All applicants or their legally authorized representatives are

informed about the service provider's need to collect personal

information and the policies governing its use, including--

(i) Identification of the authority under which information is

collected;

(ii) Explanation of the principal purposes for which the service

provider intends to use or release the information;

(iii) Explanation of whether providing requested information to the

service provider is mandatory or voluntary and the effects to the

individual of not providing requested information;

(iv) Identification of those situations in which the service

provider requires or does not require informed written consent of the

individual or his or her legally authorized representative before

information may be released; and

(v) Identification of other agencies to which information is

routinely released;

(4) Persons who are unable to communicate in English or who rely on

alternative modes of communication must be provided an explanation of

service provider policies and procedures affecting personal information

through methods that can be adequately understood by them;

(5) At least the same protections are provided to individuals with

significant disabilities as provided by State laws and regulations; and

(6) Access to records is governed by rules established by the

service provider and any fees charged for copies of records are

reasonable and cover only extraordinary costs of duplication or making

extensive searches.

(b) Service provider use. All personal information in the

possession of the service provider may be used only for the purposes

directly connected with the provision of IL services and the

administration of the IL program under which IL services are provided.

Information containing identifiable personal information may not be

shared with advisory or other bodies that do not have official

responsibility for the provision of IL services or the administration

of the IL program under which IL services are provided. In the

provision of IL services or the administration of the IL program under

which IL services are provided, the service provider may obtain

personal information from other service providers and cooperating

agencies under assurances that the information may not be further

divulged, except as provided under paragraphs (c), (d), and (e) of this

section.

(c) Release to recipients of IL services. (1) Except as provided in

paragraphs (c)(2) and (c)(3) of this section, if requested in writing

by a recipient of IL services, the service provider shall release all

information in that individual's record of services to the individual

or the individual's legally authorized representative in a timely

manner.

(2) Medical, psychological, or other information that the service

provider determines may be harmful to the individual may not be

released directly to the individual, but must be provided through a

qualified medical or psychological professional or the individual's

legally authorized representative.

(3) If personal information has been obtained from another agency

or organization, it may be released only by, or under the conditions

established by, the other agency or organization.

(d) Release for audit, evaluation, and research. Personal

information may be released to an organization, agency, or individual

engaged in audit, evaluation, or research activities only for purposes

directly connected with the administration of an IL program, or for

purposes that would significantly improve the quality of life for

individuals with significant disabilities and only if the organization,

agency, or individual assures that--

(1) The information will be used only for the purposes for which it

is being provided;

(2) The information will be released only to persons officially

connected with the audit, evaluation, or research;

(3) The information will not be released to the involved

individual;

(4) The information will be managed in a manner to safeguard

confidentiality; and

(5) The final product will not reveal any personally identifying

information without the informed written consent of the involved

individual or the individual's legally authorized representative.

(e) Release to other programs or authorities. (1) Upon receiving

the informed written consent of the individual or, if appropriate, the

individual's legally authorized representative, the service provider

may release personal information to another agency or organization for

the latter's program purposes only to the extent that the information

may be released to the involved individual and only to the extent that

the other agency or organization demonstrates that the information

requested is necessary for the proper administration of its program.

(2) Medical or psychological information may be released pursuant

to paragraph (e)(1) of this section if the other agency or organization

assures the service provider that the information will be used only for

the purpose for which it is being provided and will not be further

released to the individual.

(3) The service provider shall release personal information if

required by Federal laws or regulations.

(4) The service provider shall release personal information in

response to investigations in connection with law enforcement, fraud,

or abuse, unless expressly prohibited by Federal or State laws or

regulations, and in response to judicial order.

(5) The service provider also may release personal information to

protect the individual or others if the individual poses a threat to

his or her safety or to the safety of others.

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

Sec. 364.57 What functions and responsibilities may the State

delegate?

A DSU may carry out the functions and responsibilities described in

Secs. 364.50, 364.51 (subject to 364.43(d)), 364.52, 364.53, and 364.56

or, except as otherwise provided, may delegate these functions and

responsibilities to the appropriate service provider with which the DSU

subgrants or contracts to provide IL services.

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

Sec. 364.58 What appeal procedures must be available to consumers?

Each service provider shall--

(a) Establish policies and procedures that an individual may 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; and

(b) Use formats that are accessible to inform each individual who

seeks or is receiving IL services from the service provider about the

procedures required by paragraph (a) of this section.

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

Sec. 364.59 May an individual's ability to pay be considered in

determining his or her participation in the costs of IL services?

(a) No Federal requirement or prohibition.

(1) A State is neither required to allow nor prohibited from

allowing service providers to charge consumers for the cost of IL

services.

(2) If a State allows service providers to charge consumers for the

cost of IL services, a State is neither required to allow nor

prohibited from allowing service providers to consider the ability of

individual consumers to pay for the cost of IL services in determining

how much a particular consumer must contribute to the costs of a

particular IL service.

(b) State plan requirements. If a State chooses to allow service

providers to charge consumers for the cost of IL services or if a State

chooses to allow service providers to consider the ability of

individual consumers to pay for the cost of IL services, the State plan

must--

(1) Specify the types of IL services for which costs may be charged

and for which a financial need test may be applied; and

(2) Assure that any consideration of financial need is applied

uniformly so that all individuals who are eligible for IL services are

treated equally.

(c) Financial need. Consistent with paragraph (b) of this section,

a service provider may choose to charge consumers for the cost of IL

services or may choose to consider the financial need of an individual

who is eligible for IL services.

(d) Written policies and documentation. If the service provider

chooses to consider financial need--

(1) It shall maintain written policies covering the specific types

of IL services for which a financial need test will be applied; and

(2) It shall document the individual's participation in the cost of

any IL services, including the individual's financial need.

(Approved by the Office of Management and Budget under control

number 1820-0527)

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

PART 365--STATE INDEPENDENT LIVING SERVICES

Subpart A--General

Sec.

365.1 What is the State Independent Living Services (SILS) program?

365.2 Who is eligible for an award?

365.3 What regulations apply?

Subpart B--How Does the Secretary Make a Grant to a State?

365.10 How does a State apply for a grant?

365.11 How is the allotment of Federal funds for State independent

living (IL) services computed?

365.12 How are payments from allotments for IL services made?

365.13 What requirements apply if the State's non-Federal share is

in cash?

365.14 What conditions relating to cash or in-kind contributions

apply to awards to grantees, subgrantees, or contractors?

365.15 What requirements apply if the State's non-Federal share is

in kind?

365.16 What requirements apply to refunds and rebates?

Subpart C--For What Purpose Are Funds Authorized or Required To Be

Used?

365.20 What are the authorized uses of funds?

365.21 What funds may the State use to provide the IL core

services?

365.22 What additional IL services may the State provide?

365.23 How does a State make a subgrant or enter into a contract?

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

365.30 What are the standards for processing referrals and

applications?

365.31 What are the standards for service providers?

Authority: 29 U.S.C. 796e-796e-2, unless otherwise noted.

Subpart A--General

Sec. 365.1 What is the State Independent Living Services (SILS)

program?

The Secretary provides financial assistance to States under the

SILS program authorized by Part B of Chapter 1 of Title VII of the Act

to--

(a) Provide the resources described in the resource plan required

by section 705(e) of the Act and 34 CFR 364.21(d) relating to the

Statewide IL Council (SILC);

(b) Provide to individuals with significant disabilities the

independent living (IL) services required by section 704(e) of the Act;

(c) Demonstrate ways to expand and improve IL services;

(d) Support the operation of centers for independent living

(centers) that are in compliance with the standards and assurances in

section 725 (b) and (c) of the Act and Subparts F and G of 34 CFR Part

366;

(e) Support activities to increase the capacities of public or

nonprofit agencies and organizations and other entities to develop

comprehensive approaches or systems for providing IL services;

(f) Conduct studies and analyses, gather information, develop model

policies and procedures, and present information, approaches,

strategies, findings, conclusions, and recommendations to Federal,

State, and local policy makers in order to enhance IL services for

individuals with significant disabilities;

(g) Train individuals with significant disabilities, individuals

with disabilities, individuals providing services to individuals with

significant disabilities, and other persons regarding the IL

philosophy; and

(h) Provide outreach to populations that are unserved or

underserved by programs under Title VII of the Act, including minority

groups and urban and rural populations.

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

Sec. 365.2 Who is eligible for an award?

Any designated State unit (DSU) identified by the State pursuant to

34 CFR 364.22 is eligible to apply for assistance under this part in

accordance with 34 CFR 364.10 and 364.11.

(Approved by the Office of Management and Budget under control

number 1820-0527)

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

Sec. 365.3 What regulations apply?

The following regulations apply to this part:

(a) The regulations in 34 CFR Part 364.

(b) The regulations in this Part 365.

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

Subpart B--How Does the Secretary Make a Grant to a State?

Sec. 365.10 How does a State apply for a grant?

To receive a grant under this part, a State shall submit to the

Secretary and obtain approval of a State plan that meets the

requirements of Part A of Title VII of the Act and Subparts B and C of

34 CFR Part 364.

(Approved by the Office of Management and Budget under control

number 1820-0527.)

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

Sec. 365.11 How is the allotment of Federal funds for State

independent living (IL) services computed?

(a) The allotment of Federal funds for State IL services for each

State is computed in accordance with the requirements of section

711(a)(1) of the Act.

(b) The allotment of Federal funds for Guam, American Samoa, the

United States Virgin Islands, the Commonwealth of the Northern Mariana

Islands, and the Republic of Palau is computed in accordance with

section 711(a)(2) of the Act.

(c) If the State plan designates, pursuant to Sec. 364.22(c), a

unit to administer the part of the plan under which State IL services

are provided for individuals who are blind and a separate or different

unit to administer the rest of the plan, the division of the State's

allotment between these two units is a matter for State determination.

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

Sec. 365.12 How are payments from allotments for IL services made?

(a) From the allotment of a State for a fiscal year under

Sec. 365.11, the Secretary pays to the State the Federal share of the

expenditures incurred by the State during the year in accordance with

the State plan approved under section 706 of the Act. After any

necessary adjustments resulting from previously made overpayments or

underpayments, the payments may be made in advance or by reimbursement,

in installments, and on conditions that the Secretary may determine.

(b)(1) The Federal share with respect to any State for any fiscal

year is 90 percent of the expenditures incurred by the State during

that fiscal year under its State plan approved under section 706 of the

Act.

(2) The non-Federal share of the cost of any project that receives

assistance through an allotment under this part may be provided in cash

or in kind, fairly evaluated, including plant, equipment, or services.

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

Sec. 365.13 What requirements apply if the State's non-Federal share

is in cash?

(a) Except as further limited by paragraph (b) of this section,

expenditures that meet the requirements of 34 CFR 80.24(a) through

(b)(6) may be used to meet the non-Federal share matching requirement

under section 712(b) of the Act if--

(1) The expenditures are made with funds made available by

appropriation directly to the designated State agency or with funds

made available by allotment or transfer from any other unit of State or

local government;

(2) The expenditures are made with cash contributions from a donor

that are deposited in the account of the designated State agency in

accordance with State law for expenditure by, and at the sole

discretion of, the DSU for activities identified or described in the

State plan and authorized by Sec. 365.20; or

(3) The expenditures are made with cash contributions from a donor

that are earmarked for meeting the State's share for--

(i) Providing particular services (e.g., personal assistance

services);

(ii) Serving individuals with certain types of disabilities (e.g.,

older individuals who are blind);

(iii) Providing services to specific groups that State or Federal

law permits to be targeted for services (e.g., children of migrant

laborers); or

(iv) Carrying out particular types of administrative activities

permissible under State law.

(b) Cash contributions are permissible under paragraph (a)(3) of

this section only if the cash contributions are not used 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.

(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 is not considered a benefit to the donor of

a cash contribution for purposes of paragraph (b) of this section if

the grant, subgrant, or contract was awarded under the State's regular

competitive procedures.

(d) For purposes of this section, a donor may be a private agency,

a profit-making or nonprofit organization, or an individual.

(Authority: 29 U.S.C. 711(c) and 796e-1(b))

Sec. 365.14 What conditions relating to cash or in-kind contributions

apply to awards to grantees, subgrantees, or contractors?

(a) A State may not condition 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 the requirement

that the applicant for the grant or subgrant make a cash or in-kind

contribution of any particular amount or value to the State.

(b) An individual, entity, or organization that is a grantee or

subgrantee of the State, or has a contract with the State, may not

condition the award of a subgrant or subcontract under section 713 of

the Act or section 723 of the Act on the requirement that the applicant

for the subgrant or subcontract make a cash or in-kind contribution of

any particular amount or value to the State or to the grantee or

contractor of the State.

(Authority: 29 U.S.C. 711(c) and 796e-1(b))

Sec. 365.15 What requirements apply if the State's non-Federal share

is in kind?

Subject to Sec. 365.14, in-kind contributions may be--

(a) Used to meet the matching requirement under section 712(b) of

the Act if the in-kind contributions meet the requirements of 34 CFR

80.24 (b)(7) through (g) and if the in-kind contributions would be

considered allowable costs under this part, as determined by the cost

principles made applicable by either Subpart Q of 34 CFR Part 74 or 34

CFR 80.22, as appropriate; and

(b) Made to the program or project by the State or by a third party

(i.e., an individual, entity, or organization, whether local, public,

private, for profit, or nonprofit), including a third party that is a

grantee, subgrantee, or contractor that is receiving or will receive

assistance under section 713 or 723 of the Act.

(Authority: 29 U.S.C. 711(c) and 796e-1(b))

Sec. 365.16 What requirements apply to refunds and rebates?

The following must be treated as a reduction of expenditures

charged to the grant, subgrant, or contract awarded under this part and

may not be used for meeting the State's matching requirement under

section 712(b) of the Act:

(a) Rebates, deductions, refunds, discounts, or reductions to the

price of goods, products, equipment, rental property, real property, or

services.

(b) Premiums, bonuses, gifts, and any other payments related to the

purchase of goods, products, equipment, rental property, real property,

or services.

(Authority: 29 U.S.C. 711(c), 796e-1(b), and OMB Circulars A-87 and

A-122)

Subpart C--For What Purpose Are Funds Authorized or Required To Be

Used?

Sec. 365.20 What are the authorized uses of funds?

The State may use funds received under this part to support the

activities listed in Sec. 365.1 and to meet its obligation under

section 704(e) of the Act and 34 CFR 364.43(b).

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

Sec. 365.21 What funds may the State use to provide the IL core

services?

(a) In providing IL services as required under section 704(e) of

the Act and 34 CFR 364.43(b), a State may use funds provided under this

part to provide directly, or through grants or contracts, the following

IL core services:

(1) Information and referral services.

(2) IL skills training.

(3) Peer counseling, including cross-disability peer counseling.

(4) Individual and systems advocacy.

(b) Information and referral services may be provided independently

of the other services described in paragraph (a) of this section and

without regard to Subpart G of 34 CFR Part 366.

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

Sec. 365.22 What additional IL services may the State provide?

In addition to the IL core services that the State may provide

pursuant to Sec. 365.21(a) with funds received under Part B of Chapter

1 of Title VII of the Act, the State also may use funds received under

Part B of Chapter 1 of Title VII of the Act to provide other IL

services defined in 34 CFR 364.4 (Independent living services).

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

Sec. 365.23 How does a State make a subgrant or enter into a contract?

If a State makes a subgrant or enters into a contract to provide IL

services to meet its obligation under section 704(e) of the Act--

(a) The provisions of this part apply to both the State and the

entity or individual to whom it awards a subgrant or with whom it

enters into a contract; and

(b) The provisions concerning the administration of subgrants and

contracts in 34 CFR Parts 76 and 80 apply to the State.

(c) Cross-reference: See 34 CFR Parts 74, 76, and 80.

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

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

Sec. 365.30 What are the standards for processing referrals and

applications?

The DSU shall develop, establish, and maintain written standards

and procedures to be applied by service providers to assure expeditious

and equitable handling of referrals and applications for IL services

from individuals with significant disabilities.

(Approved by the Office of Management and Budget under control

number 1820-0527.)

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

Sec. 365.31 What are the standards for service providers?

(a) The DSU shall develop, establish, make available to the public,

maintain, and implement written minimum standards for the provision

of--

(1) IL services to be met by service providers that are not

centers; and

(2) Specialized IL services to individuals with significant

disabilities by centers under a contract with the DSU.

(b) The minimum standards developed pursuant to paragraph (a)(2) of

this section may differ from the standards and assurances in section

725 of the Act and Subparts F and G of 34 CFR Part 366.

(c) The DSU shall assure that participating service providers meet

all applicable State licensure or certification requirements.

(Approved by the Office of Management and Budget under control

number 1820-0527.)

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

PART 366--CENTERS FOR INDEPENDENT LIVING

Subpart A--General

Sec.

366.1 What is the Centers for Independent Living (CIL) program?

366.2 What agencies are eligible for assistance under the CIL

program?

366.3 What activities may the Secretary fund?

366.4 What regulations apply?

366.5 How are program funds allotted?

Subpart B--Training and Technical Assistance

366.10 What agencies are eligible for assistance to provide

training and technical assistance?

366.11 What financial assistance does the Secretary provide for

training and technical assistance?

366.12 How does the Secretary make an award?

366.13 How does the Secretary determine funding priorities?

366.14 How does the Secretary evaluate an application?

366.15 What selection criteria does the Secretary use?

Subpart C--Grants to Centers for Independent Living (Centers) in States

in Which Federal Funding Exceeds State Funding

366.20 When does the Secretary award grants to centers?

366.21 What are the application requirements for existing eligible

agencies?

366.22 What is the order of priorities?

366.23 What grants must be made to existing eligible agencies?

366.24 How is an award made to a new center?

366.25 What additional factor does the Secretary use in making a

grant for a new center under Sec. 366.24?

366.26 How does the Secretary evaluate an application?

366.27 What selection criteria does the Secretary use?

366.28 Under what circumstances may the Secretary award a grant to

a center in one State to serve individuals in another State?

Subpart D--Grants to Centers in States in Which State Funding Equals or

Exceeds Federal Funding

Determining Whether State Funding Equals or Exceeds Federal Funding

366.29 When may the Director of the designated State unit (DSU)

award grants to centers?

366.30 What are earmarked funds?

366.31 What happens if the amount of earmarked funds does not equal

or exceed the amount of Federal funds for a preceding fiscal year?

Awarding Grants

366.32 Under what circumstances may the DSU make grants?

366.33 What are the application requirements for existing eligible

agencies?

366.34 What is the order of priorities?

366.35 What grants must be made to existing eligible agencies?

366.36 How is an award made to a new center?

366.37 What procedures does the Director of the DSU (Director) use

in making a grant for a new center?

366.38 What are the procedures for review of centers?

Subpart E--Enforcement and Appeals Procedures

366.39 What procedures does the Secretary use for enforcement?

366.40 How does the Director initiate enforcement procedures?

366.41 What must be included in an initial written notice from the

Director?

366.42 When does a Director issue a final written decision?

366.43 What must be included in the Director's final written

decision?

366.44 How does a center appeal a decision included in a Director's

initial written notice or a Director's final written decision?

366.45 What must a Director do upon receipt of a copy of a center's

formal written appeal to the Secretary?

366.46 How does the Secretary review a center's appeal of a

decision included in a Director's initial written notice or a

Director's final written decision?

Subpart F--Assurances for Centers

366.50 What assurances shall a center provide and comply with?

366.60-366.69 [Reserved]

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

noted.

Subpart A--General

Sec. 366.1 What is the Centers for Independent Living (CIL) program?

The CIL program provides financial assistance for planning,

conducting, administering, and evaluating centers for independent

living (centers) that comply with the standards and assurances in

section 725(b) and (c) of the Act, consistent with the design included

in the State plan pursuant to 34 CFR 364.25 for establishing a

statewide network of centers.

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

Sec. 366.2 What agencies are eligible for assistance under the CIL

program?

(a) In any State in which the Secretary has approved the State plan

required by section 704 of the Act, an applicant may receive a grant

under Subpart C or D of this part, as applicable, if the applicant

demonstrates in its application submitted pursuant to Sec. 366.21,

366.24, 366.33, 366.35, or 366.36 that it--

(1) Has the power and authority to--

(i) Carry out the purpose of Part C of Title VII of the Act and

perform the functions listed in section 725(b) and (c) of the Act and

Subparts F and G of this part within a community located within that

State or in a bordering State; and

(ii) Receive and administer--

(A) Funds under this part;

(B) Funds and contributions from private or public sources that may

be used in support of a center; and

(C) Funds from other public and private programs; and

(2) Is able to plan, conduct, administer, and evaluate a center

consistent with the standards and assurances in section 725(b) and (c)

of the Act and Subparts F and G of this part.

(b) An applicant that meets the requirements of paragraph (a) of

this section is eligible to apply as a new center under Secs. 366.24 or

366.36 if it--

(1) Is not 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) at a different geographical location; and

(3) Meets the requirements of Sec. 366.24;

(c) A State that received assistance in fiscal year (FY) 1993 to

directly operate a center in accordance with section 724(a) of the Act

is eligible to continue to receive assistance under this part to

directly operate that center for FY 1994 or a succeeding fiscal year

if, for the fiscal year for which assistance is sought--

(1) No nonprofit private agency submits and obtains approval of an

acceptable application under section 722 or 723 of the Act or

Sec. 366.21 or Sec. 366.24 to operate a center for that fiscal year

before a date specified by the Secretary; or

(2) After funding all applications so submitted and approved, the

Secretary determines that funds remain available to provide that

assistance.

(d) Except for the requirement that the center be a private

nonprofit agency, a center that is operated by a State that receives

assistance under paragraph (a), (b), or (c) of this section shall

comply with all of the requirements of Part C of Title VII of the Act

and the requirements in Subpart C or D, as applicable, and F of this

part.

(e) Eligibility requirements for assistance under Subpart B of this

part are described in Sec. 366.10.

(Approved by the Office of Management and Budget under control

number 1820-0018.)

(Authority: 29 U.S.C. 711(c), 796f-1(b) and (d)(3), 796f-2(b), and

796f-3(a)(2) and (b))

Sec. 366.3 What activities may the Secretary fund?

(a) An eligible agency may use funds awarded under Subpart B of

this part to carry out activities described in Sec. 366.11(b).

(b) An eligible agency may use funds awarded under Subparts C and D

of this part to--

(1) Plan, conduct, administer, and evaluate centers that comply

with the standards and assurances in section 725(b) and (c) of the Act;

(2) Promote and practice the independent living (IL) philosophy in

accordance with Evaluation Standard 1 (``Philosophy'');

(3) Provide IL services (including IL core services and, as

appropriate, a combination of any other IL services specified in

section 7(30)(B) of the Act) to individuals with a range of significant

disabilities in accordance with Evaluation Standards 2 and 5

(``Provision of services'' and ``Independent living core services,''

respectively);

(4) Facilitate the development and achievement of IL goals selected

by individuals with significant disabilities who seek assistance in the

development and achievement of IL goals from the center in accordance

with Evaluation Standard 3 (``Independent living goals'');

(5) Increase the availability and improve the quality of community

options for independent living in order to facilitate the development

and achievement of IL goals by individuals with significant

disabilities in accordance with Evaluation Standard 4 (``Community

options'');

(6) Increase the capacity of communities within the service area of

the center to meet the needs of individuals with significant

disabilities in accordance with Evaluation Standard 6 (``Activities to

increase community capacity'');

(7) Conduct resource development activities to obtain funding from

sources other than Chapter 1 of Title VII of the Act in accordance with

Evaluation Standard 7 (Resource development activities); and

(8) Conduct activities necessary to comply with the assurances in

section 725(c) of the Act, including, but not limited to the following:

(i) Aggressive outreach regarding services provided through the

center in an effort to reach populations of individuals with

significant disabilities that are unserved or underserved by programs

under Title VII of the Act, especially minority groups and urban and

rural populations.

(ii) Training for center staff on how to serve unserved and

underserved populations, including minority groups and urban and rural

populations.

(9) Cross-reference: See Sec. 366.71 in Subpart G.

(Authority: 29 U.S.C. 796f through 796f-4)

Sec. 366.4 What regulations apply?

The following regulations apply to the CIL program:

(a) The regulations in 34 CFR Part 364.

(b) The regulations in this Part 366.

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

Sec. 366.5 How are program funds allotted?

(a) The Secretary allots Federal funds appropriated for FY 1994 and

subsequent fiscal years for the CIL program to each State in accordance

with the requirements of section 721 of the Act.

(b)(1) After the Secretary makes the reservation required by

section 721(b) of the Act, the Secretary makes an allotment, from the

remainder of the amount appropriated for a fiscal year to carry out

Part C of Title VII of the Act, to each State whose State plan has been

approved under section 706 of the Act and 34 CFR Part 364.

(2) The Secretary makes the allotment under paragraph (b)(1) of

this section subject to sections 721(c)(1)(B) and (C), 721(c)(2) and

(3), and 721(d) of the Act.

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

Subpart B--Training and Technical Assistance

Sec. 366.10 What agencies are eligible for assistance to provide

training and technical assistance?

Entities that have experience in the operation of centers are

eligible to apply for grants to provide training and technical

assistance under section 721(b) of the Act to eligible agencies,

centers, and Statewide Independent Living Councils (SILCs).

(Authority: 29 U.S.C. 796f(b)(1))

Sec. 366.11 What financial assistance does the Secretary provide for

training and technical assistance?

(a) From funds, if any, reserved under section 721(b)(1) of the Act

to carry out the purposes of this subpart, the Secretary makes grants

to, and enters into contracts, cooperative agreements, and other

arrangements with, entities that have experience in the operation of

centers.

(b) An entity receiving assistance in accordance with paragraph (a)

of this section shall provide training and technical assistance to

eligible agencies, centers, and SILCs to plan, develop, conduct,

administer, and evaluate centers.

(Authority: 29 U.S.C. 796f(b)(1)-(3))

Sec. 366.12 How does the Secretary make an award?

(a) To be eligible to receive a grant or enter into a contract or

other arrangement under section 721(b) of the Act and this subpart, an

applicant shall submit an application to the Secretary containing a

proposal to provide training and technical assistance to eligible

agencies, centers, and SILCs and any additional information at the time

and in the manner that the Secretary may require.

(b) The Secretary provides for peer review of grant applications by

panels that include persons who are not Federal government employees

and who have experience in the operation of centers.

(Approved by the Office of Management and Budget under control

number 1820-0018.)

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

Sec. 366.13 How does the Secretary determine funding priorities?

In making awards under this section, the Secretary determines

funding priorities in accordance with the training and technical

assistance needs identified by the survey of SILCs and centers required

by section 721(b)(3) of the Act.

(Authority: 29 U.S.C. 796f(b)(3))

Sec. 366.14 How does the Secretary evaluate an application?

(a) The Secretary evaluates each application for a grant under this

subpart on the basis of the criteria in Sec. 366.15.

(b) The Secretary awards up to 100 points for these criteria.

(c) The maximum possible score for each criterion is indicated in

parentheses.

(Authority: 29 U.S.C. 796f(b)(3))

Sec. 366.15 What selection criteria does the Secretary use?

The Secretary uses the following criteria to evaluate applications

for new awards for training and technical assistance:

(a) Meeting the purposes of the program (30 points). The Secretary

reviews each application to determine how well the project will be able

to meet the purpose of the program of providing training and technical

assistance to eligible agencies, centers, and SILCs with respect to

planning, developing, conducting, administering, and evaluating

centers, including consideration of--

(1) The objectives of the project; and

(2) How the objectives further training and technical assistance

with respect to planning, developing, conducting, administering, and

evaluating centers.

(b) Extent of need for the project (20 points). The Secretary

reviews each application to determine the extent to which the project

meets specific needs recognized in Title VII of the Act, including

consideration of--

(1) The needs addressed by the project;

(2) How the applicant identified those needs;

(3) How those needs will be met by the project; and

(4) The benefits to be gained by meeting those needs.

(c) Plan of operation (15 points). The Secretary reviews each

application for information that shows the quality of the plan of

operation for the project, including--

(1) The quality of the design of the project;

(2) The extent to which the plan of management ensures proper and

efficient administration of the project;

(3) How well the objectives of the project relate to the purpose of

the program;

(4) The quality of the applicant's plan to use its resources and

personnel to achieve each objective; and

(5) How the applicant will ensure that project participants who are

otherwise eligible to participate are selected without regard to race,

color, national origin, gender, age, or disability.

(d) Quality of key personnel (7 points).

(1) The Secretary reviews each application for information that

shows the qualifications of the key personnel the applicant plans to

use on the project, including--

(i) The qualifications of the project director, if one is to be

used;

(ii) The qualifications of each of the other management and

decision-making personnel to be used in the project;

(iii) The time that each person referred to in paragraphs (d)(1)(i)

and (ii) of this section will commit to the project;

(iv) How the applicant, as part of its nondiscriminatory employment

practices, will ensure that its personnel are selected for employment

without regard to race, color, national origin, gender, age, or

disability; and

(v) The extent to which the applicant, as part of its

nondiscriminatory employment practices, encourages applications for

employment from persons who are members of groups that have been

traditionally under-represented, including members of racial or ethnic

minority groups, women, persons with disabilities, and elderly

individuals.

(2) To determine personnel qualifications under paragraphs

(d)(1)(i) and (ii) of this section, the Secretary considers--

(i) Experience and training in fields related to the objectives of

the project; and

(ii) Any other qualifications that pertain to the objectives of the

project.

(e) Budget and cost effectiveness (5 points). The Secretary reviews

each application for information that shows the extent to which--

(1) The budget is adequate to support the project; and

(2) Costs are reasonable in relation to the objectives of the

project.

(f) Evaluation plan (5 points). The Secretary reviews each

application to determine the quality of the evaluation plan for the

project, including the extent to which the applicant's methods of

evaluation--

(1) Are appropriate to the project;

(2) Will determine how successful the project is in meeting its

goals and objectives; and

(3) Are objective and produce data that are quantifiable.

(4) Cross-reference: See 34 CFR 75.590.

(g) Adequacy of resources (3 points). The Secretary reviews each

application to determine the adequacy of the resources that the

applicant plans to devote to the project, including facilities,

equipment, and supplies.

(h) Extent of prior experience (15 points). The Secretary reviews

each application to determine the extent of experience the applicant

has in the operation of centers and with providing training and

technical assistance to centers, including--

(1) Training and technical assistance with planning, developing,

and administering centers;

(2) The scope of training and technical assistance provided,

including methods used to conduct training and technical assistance for

centers;

(3) Knowledge of techniques and approaches for evaluating centers;

and

(4) The capacity for providing training and technical assistance as

demonstrated by previous experience in these areas.

(Approved by the Office of Management and Budget under control

number 1820-0018.)

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

Subpart C--Grants to Centers for Independent Living (Centers) in

States in Which Federal Funding Exceeds State Funding

Sec. 366.20 When does the Secretary award grants to centers?

The Secretary awards grants to centers in a State in a fiscal year

if--

(a) 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 Secs. 366.29 and 366.31; or

(b) The Director of a designated State unit (DSU) does not submit

to the Secretary and obtain approval of an application to award grants

under section 723 of the Act and Sec. 366.32(a) and (b).

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

Sec. 366.21 What are the application requirements for existing

eligible agencies?

To be eligible for assistance, an eligible agency shall submit--

(a) An application at the time, in the manner, and containing the

information that is required;

(b) An assurance that the eligible agency meets the requirements of

Sec. 366.2; and

(c) The assurances required by section 725(c) of the Act and

Subpart F of this part.

(Approve

This text is long and has been trimmed here. Open the source document for the complete record.