State Grants Program for Technology-Related Assistance for Individuals With Disabilities

SUMMARY: The Secretary issues these final regulations for the State

Grants Program for Technology-Related Assistance for Individuals with

Disabilities. This program provides grants to States to support systems

change and advocacy activities designed to assist States in developing

and implementing consumer-responsive comprehensive Statewide programs

of technology-related assistance. These regulations are needed to

implement the Technology-Related Assistance for Individuals with

Disabilities Act Amendments of 1994. The final regulations incorporate

statutory requirements and provide rules for applying for and spending

Federal funds under this program.

EFFECTIVE DATES: These regulations take effect April 1, 1996.

Compliance with Secs. 345.30, 345.31, 345.42, 345.50, 345.53, and

345.55 is not required until the information collection requirements in

those sections have been approved by the Office of Management and

Budget (OMB).

FOR FURTHER INFORMATION CONTACT: Carol G. Cohen. Telephone: (202) 205-

5666. Individuals who use a telecommunications device for the deaf

(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-

877-8339 between 8 a.m. and 5 p.m., Eastern time, Monday through

Friday.

SUPPLEMENTARY INFORMATION: These proposed regulations would implement

Title I of the Technology-Related Assistance for Individuals with

Disabilities Act of 1988 (the Act), as amended by the Technology-

Related Assistance for Individuals with Disabilities Act Amendments of

1994 (1994 Amendments) (Pub. L. 103-218, enacted March 9, 1994). Title

I of the Act establishes the State Grants Program for Technology-

Related Assistance for Individuals with Disabilities. This program

provides grants to States to support systems change and advocacy

activities designed to assist States in developing and implementing

consumer-responsive comprehensive Statewide programs of technology-

related assistance.

On August 9, 1995, the Secretary published a notice of proposed

rulemaking for this program in the Federal Register (60 FR 40688). The

preamble to the notice of proposed rulemaking (60 FR 40688 - 40690)

included a summary and discussion of the 1994 Amendments and other

major issues that were addressed in the proposed regulations.

Analysis of Comments and Changes

In response to the Secretary's invitation in the notice of proposed

rulemaking, 5 parties submitted comments on the proposed regulations,

including one letter that represented the comments of 28 parties. An

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

publication of the notice of proposed rulemaking follows.

Major issues are grouped according to subject, with appropriate

sections of the regulations referenced in parentheses. Technical and

other minor changes are not addressed.

Purposes of the Program (Sec. 345.2)

Comments: Commenters stated that the proposed Sec. 345.2 omitted

two purposes pertaining to Federal policy as contained in sections 2(b)

(2) and (3) of the Act. The commenters recommended that the Secretary

include all purposes of the Act.

Discussion: The Secretary listed in the proposed regulations only

those purposes in section 2(b)(1) of the Act because section 102(e)(7)

of the Act specifically requires States to make an assurance that it

will carry out activities to meet the purposes in section 2(b)(1). The

Secretary did not intend to imply that sections 2(b) (2) and (3) were

not important purposes of the Act. The Secretary believes that the

purposes in sections 2(b) (2) and (3) authorize, but do not require,

grantees to carry out activities to accomplish these purposes.

Therefore, the Secretary believes that a reference to these purposes in

the regulatory provision that lists allowable program activities is

necessary.

Changes: The Secretary adds the purposes in sections 2(b)(2) and

(3) of the Act to Sec. 345.2. In addition, the Secretary adds paragraph

(4) to Sec. 345.20(b) to reflect that States may carry out activities

that accomplish the purposes in sections 2(b)(2) and (3). All cross-

references have been amended to reflect these changes.

Increases in Extension Grants (Sec. 345.3)

Comments: One commenter urged the Secretary to add the statutory

language ``with a wide geographic spread'' in Sec. 345.3 to clarify

which States are sparsely populated.

Discussion: The language ``sparsely populated, with a wide

geographic spread'' comes directly from the Act in section

103(c)(1)(D)(ii). The Secretary believes that adding the additional

statutory language ``with a wide geographic spread'' will help to

clarify ``sparsely populated''.

Changes: The Secretary has added the statutory language ``with a

wide geographic spread'' as stated in section 103(c)(1)(D)(ii) of the

Act.

Public Agencies and Lead Agencies (Sec. 345.4, 345.5)

Comments: One letter requested a clarification of what constitutes

a public agency. The commenter also asked whether a State must

designate both a responsible public agency and a lead agency.

Discussion: The regulations already refer to the definition of

``public'' in 34 CFR 77.1. The Secretary believes this definition is

sufficient guidance regarding what constitutes a public agency. The Act

does not require the lead agency also to be a public agency, but does

require that money received from this program must flow through a

public agency. Although a structure that uses two agencies could result

in additional administrative complexity, the Act permits this type of

arrangement which the Secretary is not authorized to change.

Changes: None.

University-Affiliated Program (Sec. 345.6)

Comments: Commenters thought it would be helpful if the Secretary

included in the regulations a notation that a university-affiliated

program is generally also a public agency.

Discussion: The Secretary does not believe it is necessary to add

the language that the commenters suggested. The Secretary believes it

could be confusing to add the word ``generally'' rather than giving a

specific rule. Also, the regulations already refer to the definition of

public in 34 CFR 77.1, which the Secretary believes is sufficient

guidance about whether a university-affiliated program constitutes a

public agency. Furthermore, the Developmental Disabilities Assistance

and Bill of Rights Act (Developmental Disabilities Assistance Act)

specifies that university-affiliated programs are public agencies if

they are associated with a public entity.

Changes: None.

Allowable Expenses (Sec. 345.20(d))

Comments: One commenter stated that the term ``in financial need''

used in Sec. 345.20(d) needs clarification. The commenter stated that

many definitions

[[Page 8159]]

would include only individuals receiving some State or Federal

assistance and would exclude many individuals who might otherwise be

unable to participate in the program activities. The commenter also

stated that the term ``eligible'' needed clarification.

Commenters also urged the Secretary to add to the list of examples

of allowable expenses items such as child care, respite care, drivers,

and other supportive services.

Discussion: In implementing this program, the Secretary has

attempted to give States and subrecipients the most flexibility and

autonomy possible while adhering to the purposes of the statute. The

Secretary believes that the State should make determinations regarding

financial need and which individuals to support. The Secretary believes

this matter is best determined on a case-by-case basis and that a

single regulatory rule would not meet all States' concerns. Also,

``eligible'' was used only in the preamble to the notice of proposed

rulemaking and not in the proposed regulations. As used in the preamble

to the notice of proposed rulemaking, ``eligible'' referred to those

participants that the State determined could participate in the

program.

Moreover, the regulations allow a State to include the suggested

additional examples as allowable expenses. The Secretary believes that

each State should have the flexibility to make its own determination

about what expenses may be necessary to ensure access to the

comprehensive statewide program.

Changes: None.

Development Grant Application Content (Sec. 345.30(b)(12)(i))

Comments: Commenters expressed their belief that the conjunction

between the Developmental Disabilities Assistance Act, the Protection

and Advocacy for Mentally Ill Individuals Act, and section 509 of the

Rehabilitation Act of 1973 should be an ``or'' rather than an ``and''.

The commenters stated that the ``and'' implies that a State must

contract with an entity that provides all three of these programs and

that in some States multiple entities provide these three programs.

Discussion: The conjunction connecting these three programs is

correct because it reflects the language of the Act. Awards under each

of these programs are made to the protection and advocacy system

designated for each State. Under the Developmental Disabilities

Assistance Act, there is only one designated protection and advocacy

system for each State.

Changes: None.

Contracting To Provide Protection and Advocacy Services

(Sec. 345.30(b)(12)(ii))

Comments: Commenters advised the Secretary that they believed the

regulations omitted a section of the Act that allows States to continue

to contract with an entity that is capable of performing the functions

that would otherwise be performed by the protection and advocacy

services providers.

Discussion: The Secretary provides for that statutory option in

Sec. 345.55(a)(i). The Secretary recognizes that the proposed

regulations did not refer to that statutory option in the regulatory

provisions regarding the content of an application for a development

grant. The Secretary believes it would be useful and helpful to users

of the regulations to refer to this option in discussing application

content.

Changes: In Sec. 345.30(b)(12)(i), the Secretary has added a

reference to the provision regarding the statutory option.

Indirect Costs (Sec. 345.30(b)(14))

Comments: Commenters stated that the Secretary should provide more

guidance regarding the implementation of the 10 percent cap on indirect

costs. The commenters requested more guidance on whether the 10 percent

cap on indirect costs applies to the lead agency, the lead agency's

subcontractors, or a combination of both. Another commenter, who is a

subcontractor under this program, stated that it had negotiated an

agreement, in the capacity as a lead agency, with another U.S. agency

to allocate 12.6 percent of its grants to indirect costs. Therefore,

the commenter suggested that the final regulations should allow

indirect costs for subcontractors to be limited to an approved indirect

cost rate, rather than left up to the lead agency to determine.

Discussion: As clearly explained in the preamble to the notice of

proposed rulemaking, the amount of indirect costs may not exceed 10

percent of the total amount of the grant as stated in section

102(e)(22) of the Act. Also in the preamble, on page 40689, the

Secretary states that the indirect cost rate must be negotiated by the

State and the subcontractor or subgrantee. The clarifying language used

in the preamble is confusing because there is no authority requiring a

State to negotiate an indirect cost rate with a subcontractor or

subgrantee; rather, the Secretary strongly encourages States to

negotiate indirect cost rates. The Secretary declines to regulate on

this issue because the Act leaves how to apportion the indirect cost

rate to the discretion of States and the Secretary supports giving

States the flexibility to negotiate these rates.

Changes: None.

Compliance With Section 508 of the Rehabilitation Act of 1973

(Sec. 345.31(d))

Comments: Commenters expressed the belief that, because the

Secretary's interpretation of section 508 of the Rehabilitation Act of

1973 (section 508) was broad, the interpretation needed to be clarified

in the regulations. These commenters also pointed out that the language

in the preamble summarizing this section was overly inclusive because

it stated that section 508 would apply to ``all offices, agencies, and

entities in a State.'' Furthermore, commenters stated that the

Secretary needs to clarify what entities are included as a part of

``the State'' for the purposes of the assurance that the State will

comply with guidelines established under section 508.

Discussion: Based on the language in the Act and section 508, the

Secretary believes that the requirements of section 508 apply broadly.

In the proposed regulations, the Secretary intended to reflect that

section 508 applies to the State (including any State offices,

agencies, and entities) and all recipients and subrecipients of funds

made available to the State under the Act. The Secretary believes it is

unnecessary to regulate what entities are encompassed in the term ``the

State'' because each State should determine which of its entities are

considered part of the State. In addition, the Secretary believes that

a State needs only to submit an assurance regarding compliance with

section 508. The Secretary believes that a State should determine how

it will ensure that its subrecipients comply with section 508.

Changes: Because the language in the preamble and Sec. 345.31(d)

was unclear, the Secretary has modified the language to include a

reference to any subrecipients. This addition clarifies that all State

offices, agencies, and entities are required to comply with section

508.

Reporting Requirement (Sec. 345.50(b))

Comments: Commenters expressed concern that requiring States to

make reports readily available to the public at no extra cost could be

burdensome if States may not charge for reasonable duplication and

handling costs.

Discussion: This section of the regulations does not allow a State

to charge for duplication or handling costs, however, the provision

does not require a State to make copies and send them

[[Page 8160]]

out to individuals who request the report. The Secretary believes a

State could make a report readily available to the public through a

variety of means such as putting the report in a location to which the

public has access, a library for example, or making the report

available electronically. In making a report available to the public, a

State should ensure the public's access to the report and realize that

using only one method of making a report available may not be

sufficient.

Changes: None.

Minimum Amount for Protection and Advocacy Services (Sec. 345.55)

Comments: Commenters questioned the reliance on the size of a

State's grant in determining the minimum amount that a State must

expend on protection and advocacy services.

Another commenter stated that the language regarding the minimum

funding amounts to be received by the State protection and advocacy

systems was confusing. The commenter suggested that the Secretary add

the statement in the preamble that there is no statutory limit or

ceiling on the amount a State may expend on protection and advocacy

services.

Discussion: The Secretary does not rely solely on the size of the

State's grant in determining the minimum amount a State must spend on

protection and advocacy activities. As required by the Act, the

Secretary also considers other factors in determining the minimum

protection and advocacy amount. These factors include the needs of

individuals with disabilities within the State, the population of the

State, and the geographic size of the State. Because the Secretary

takes the population into account in determining the State's grant, the

Secretary believes it is appropriate to base the protection and

advocacy minimum primarily on the size of the State's.

The Secretary agrees that the language regarding the minimum

funding amounts to be received by the State protection and advocacy

systems may be confusing. The Secretary has clarified the language to

specify that a minimum amount is established for each State and the

minimum amount may range from $40,000 to $100,000. However, the

Secretary does not believe it is necessary to include in the

regulations the explanatory language used in the preamble. The preamble

and regulations clearly explain that each State may have a different

minimum amount and that there is no maximum amount. Additional

regulations on this issue are unnecessary.

Changes: In Sec. 345.55(e)(2)(ii), the Secretary has clarified the

language regarding the minimum amount.

State Redesignation of Protection and Advocacy Service Providers

(Sec. 345.63)

Comments: One commenter suggested that the Secretary specify the

hearing and posthearing procedures for cases that reach the Secretary

or incorporate the procedures that address redesignation under the

Developmental Disabilities Assistance Act. The commenter also suggested

that the Secretary require the type of notice and specific timelines

for giving individuals with disabilities and their representatives

timely notice and an opportunity for public comment.

In addition, the commenter made some suggestions regarding how to

give notification in an accessible format. The commenter suggested that

individuals be able to offer verbal or written comments in addition to

any public meetings.

Lastly, the commenter noted that the standard to meet the

protection and advocacy service needs in Sec. 345.63(a) is too high

because of limited available resources. The commenter suggested that

the Secretary require that an entity providing services may be changed

only if the protection and advocacy entity does not set priorities,

goals, and objectives in consultation with consumers and work toward

achieving those priorities, goals, and objectives.

Discussion: The Secretary believes using ``redesignate'' in this

context is confusing because of the particular meaning of

``redesignate'' in the Developmental Disabilities Assistance Act. The

procedures outlined in Sec. 345.63 apply only to situations in which

the State determines that the entity providing protection and advocacy

services under the Act has not met the protection and advocacy service

needs of the individuals with disabilities and their family members,

guardians, advocates, or authorized representatives under the Act. This

process is not to be confused with the redesignation of a protection

and advocacy agency when the entire agency is in jeopardy. If a

protection and advocacy agency is being redesignated, then the

procedures in the Developmental Disabilities Assistance Act will

govern.

The Secretary believes it is unnecessary to regulate the amount of

time and the format for giving notice and opportunity for public

comment. Section 345.30(b)(9) requires States to assure that they will

make available to individuals with disabilities and their family

members information concerning technology-related assistance in a form

that will allow individuals to effectively use the information. The

Secretary believes that States are capable of making determinations

regarding how to make information available and how to give notice and

to accept comments. Therefore, the Secretary gives States flexibility

to set their own procedures.

The Secretary disagrees with the commenter's belief that the

standard in Sec. 345.63(a) is too high given a limited amount of

resources. Before a protection and advocacy services provider may be

changed, the regulations require that there must be good cause to

provide the protection and advocacy services for the State through a

contract with a second entity. If the only reason a protection and

advocacy entity cannot meet the needs is because of limited resources,

other protection and advocacy entities will face the same difficulties.

If the State chooses to change a protection and advocacy services

provider under the Act, it may not change the provider simply because

the protection and advocacy entity does not have enough resources to

meet all the protection and advocacy services needs; the State must

also find another provider that it believes can better meet the needs.

The Secretary believes that the State and the protection and

advocacy services provider should work together to define an acceptable

and reasonable scope of work based on the amount of resources

available. Ideally the State and the protection and advocacy services

provider would negotiate to agree on deliverable services and expected

outcomes.

Changes: The Secretary changes the title of Sec. 345.63 so that

changing a protection and advocacy service provider under the Act is

not confused with redesignating a protection and advocacy entity.

Technical Assistance

Comments: Commenters pointed out that, on page 40689 of the

preamble, the Secretary made reference to providing information and

technical assistance to participating States, as well as to individuals

with disabilities, but that there was no mention of the provision of

technical assistance in the regulations.

Discussion: The provision of technical assistance is an activity

performed by the Secretary and, thus, is not required to be in

regulations. As a general Department policy, regulations are for

grantees' use and compliance and not for the purpose of regulating the

Department.

Changes: None.

[[Page 8161]]

Performance Guidelines

Comments: Commenters noted that the language regarding performance

guidelines on pages 40689-40690 of the preamble was not in the

regulations and existed only in the preamble. The commenters suggested

that the Secretary clarify the language. They also suggested that the

guidelines should be distributed well in advance of progress report and

application deadlines to allow States to collect needed information and

to understand what is expected of them.

Discussion: The Department is currently developing the performance

guidelines with input from the States. Once the performance guidelines

are finalized the Secretary will make them available to the States.

Under a new Department policy regarding non-competing continuation

grants, the Department will not require submissions of project

performance reports until seven months after the beginning of a project

period at the earliest. Thus, the guidelines will be available well in

advance of any reporting deadlines. The Secretary expects the

performance guidelines to remain the same for the entire authorization

of the program. Therefore, grantees may use the same guidelines every

year and will know exactly what is expected of them.

Because these guidelines are not binding, the Secretary will not

publish the guidelines in the regulations.

Changes: None.

Recycling Devices

Comments: Commenters suggested that in order for the Secretary to

administer the recycling of assistive technology devices as discussed

on page 40690 of the preamble, he would need to formally encourage

individuals and provide information regarding who to call to facilitate

recycling.

Discussion: The Secretary only recommends recycling and cannot

mandate recycling because it is allowable, not mandatory, under the

Act. The Secretary is gathering information about recycling devices and

will provide that information once the Department completes the

project.

Changes: None.

Access to Records

Comments: One commenter suggested that the Secretary add

requirements similar to the Developmental Disabilities Assistance Act

allowing access to client records.

Discussion: The Act does not authorize the Secretary to include

provisions regarding access to client records. To the extent the

Developmental Disabilities Assistance Act governs a protection and

advocacy system, those right of access provisions would apply.

Changes: None.

Executive Order 12866

These final regulations have been reviewed in accordance with

Executive Order 12866. Under the terms of the order the Secretary has

assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the final regulations are those

resulting from statutory requirements and those determined by the

Secretary to be necessary for administering this program effectively

and efficiently.

In assessing the potential costs and benefits--both quantitative

and qualitative--of these regulations, the Secretary has determined

that the benefits of the regulations justify the costs.

Summary of Potential Costs and Benefits

The potential costs and benefits of these final regulations are

discussed elsewhere in this preamble under the following heading:

Analysis of Comments and Changes.

Paperwork Reduction Act of 1995

Sections 345.30, 345.31, 345.42, 345.50, 345.53, and 345.55 contain

information collection requirements. As required by the Paperwork

Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department of Education

has submitted a copy of these sections to the OMB for its review.

Collection of Information: State Grants Program for Technology-

Related Assistance for Individuals with Disabilities.

States are eligible to apply for grants under these regulations.

The Department needs and uses the information to make grants and to

evaluate a recipient's performance. Annual public reporting burden for

this collection of information is estimated to be 30 hours per response

for 56 respondents, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information.

Thus, the total annual reporting and recordkeeping burden for this

collection is estimated to be 1,680 hours.

Intergovernmental Review

This program is subject to the requirements of Executive Order

12372 and the regulations in 34 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

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 Part 345

Disabled, Education, Grant program-education, Handicapped,

Reporting and recordkeeping requirements, Science and technology.

Dated: January 16, 1996.

Howard R. Moses,

Acting Assistant Secretary for Special Education and Rehabilitative

Services.

(Catalog of Federal Domestic Assistance Number 84.224--State Grants

Program for Technology-Related Assistance for Individuals with

Disabilities)

The Secretary amends Title 34 of the Code of Federal Regulations by

revising Part 345 to read as follows:

PART 345--STATE GRANTS PROGRAM FOR TECHNOLOGY-RELATED ASSISTANCE

FOR INDIVIDUALS WITH DISABILITIES

Subpart A--General

Sec.

345.1 What is the State Grants Program for Technology-Related

Assistance for Individuals with Disabilities?

345.2 What are the purposes of the State grants program for

technology-related assistance for individuals with disabilities?

345.3 What are the types of awards under this program?

345.4 Who is eligible to receive a development grant?

345.5 What are the responsibilities of the lead agency or public

agency in applying for and in administering a development grant?

345.6 How does a State designate the lead agency?

345.7 Who is eligible to receive an extension grant?

345.8 What are the responsibilities of the lead agency in applying

for and in administering an extension grant?

345.9 What regulations apply to this program?

[[Page 8162]]

345.10 What definitions apply to this program?

Subpart B--What Kinds of Activities Does the Department Support?

345.20 What types of activities are authorized under this program?

Subpart C--How Does a State Apply for a Grant?

345.30 What is the content of an application for a development

grant?

345.31 What is the content of an application for an extension

grant?

Subpart D--How Does the Secretary Make a Grant?

345.40 How does the Secretary evaluate an application for a

development grant under this program?

345.41 What other factors does the Secretary take into

consideration in making development grant awards under this program?

345.42 What is the review process for an application for an

extension grant?

345.43 What priorities does the Secretary establish?

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

345.50 What are the reporting requirements for the recipients of

development and extension grants?

345.51 When is a State making significant progress?

345.52 Who retains title to devices provided under this program?

345.53 What are the requirements for grantee participation in the

Secretary's progress assessments?

345.54 How may grant funds be used under this program?

345.55 What are the responsibilities of a State in carrying out

protection and advocacy services?

Subpart F--What Compliance Procedures May the Secretary Use?

345.60 Who is subject to a corrective action plan?

345.61 What penalties may the Secretary impose on a grantee that is

subject to corrective action?

345.62 How does a State redesignate the lead agency when it is

subject to corrective action?

345.63 How does a State change the entity responsible for providing

protection and advocacy services?

Authority: 29 U.S.C. 2201-2217, unless otherwise noted.

PART 345--STATE GRANTS PROGRAM FOR TECHNOLOGY-RELATED ASSISTANCE

FOR INDIVIDUALS WITH DISABILITIES

Subpart A--General

Sec. 345.1 What is the State Grants Program for Technology-Related

Assistance for Individuals with Disabilities?

This program provides grants to States to support systems change

and advocacy activities designed to assist States in developing and

implementing consumer-responsive comprehensive Statewide programs of

technology-related assistance that accomplish the purposes in

Sec. 345.2.

(Authority: 29 U.S.C. 2211(a); Section 101(a) of the Act)

Sec. 345.2 What are the purposes of the State grants program for

technology-related assistance for individuals with disabilities?

The purposes of this program are to provide financial assistance to

States to support systems change and advocacy activities designed to

assist each State in developing and implementing a consumer-responsive

comprehensive statewide program of technology-related assistance, for

individuals with disabilities of all ages, that is designed to--

(a)(1) Increase the availability of, funding for, access to, and

provision of, assistive technology devices and assistive technology

services;

(2) Increase the active involvement of individuals with

disabilities and their family members, guardians, advocates, and

authorized representatives, in the planning, development,

implementation, and evaluation of the program;

(3) Increase the involvement of individuals with disabilities and,

if appropriate, their family members, guardians, advocates, or

authorized representatives, in decisions related to the provision of

assistive technology devices and assistive technology services;

(4) Increase the provision of outreach to underrepresented

populations and rural populations, to enable the two populations to

enjoy the benefits of programs carried out to accomplish the purposes

described in this section to the same extent as other populations;

(5) Increase and promote coordination among State agencies, and

between State agencies and private entities, that are involved in

carrying out activities under this part, particularly providing

assistive technology devices and assistive technology services, that

accomplish a purpose described in another paragraph of this section;

(6)(i) Increase the awareness of laws, regulations, policies,

practices, procedures, and organizational structures, that facilitate

the availability or provision of assistive technology devices and

assistive technology services; and

(ii) Facilitate the change of laws, regulations, policies,

practices, procedures, and organizational structures, that impede the

availability or provision of assistive technology devices and assistive

technology services;

(7) Increase the probability that individuals with disabilities of

all ages will, to the extent appropriate, be able to secure and

maintain possession of assistive technology devices as these

individuals make the transition between services offered by human

service agencies or between settings of daily living;

(8) Enhance the skills and competencies of individuals involved in

providing assistive technology devices and assistive technology

services;

(9) Increase awareness and knowledge of the efficacy of assistive

technology devices and assistive technology services among--

(i) Individuals with disabilities and their family members,

guardians, advocates, and authorized representatives;

(ii) Individuals who work for public agencies, or for private

entities (including insurers), that have contact with individuals with

disabilities;

(iii) Educators and related services personnel;

(iv) Technology experts (including engineers);

(v) Employers; and

(vi) Other appropriate individuals;

(10) Increase the capacity of public agencies and private entities

to provide and pay for assistive technology devices and assistive

technology services on a statewide basis for individuals with

disabilities of all ages; and

(11) Increase the awareness of the needs of individuals with

disabilities for assistive technology devices and for assistive

technology services.

(b)(1) Identify Federal policies that facilitate payment for

assistive technology devices and assistive technology services.

(2) Identify Federal policies that impede this payment.

(3) Eliminate inappropriate barriers to this payment.

(c) Enhance the ability of the Federal Government to provide States

with--

(1) Technical assistance, information, training, and public

awareness programs relating to the provision of assistive technology

devices and assistive technology services; and

(2) Funding for demonstration projects.

(Authority: 29 U.S.C. 2201(b); Section 2(b) of the Act)

Sec. 345.3 What are the types of awards under this program?

(a) Under this program, the Secretary--

(1) Awards three-year development grants to assist States in

developing and

[[Page 8163]]

implementing consumer-responsive comprehensive statewide programs that

accomplish the purposes in Sec. 345.2;

(2) May award an initial two-year extension grant to any State that

meets the standards in Sec. 345.42(a); and

(3) May award a second extension grant, for a period of not more

than 5 years, to any State that meets the standards in Sec. 345.42(b).

(b) The Secretary calculates the amount of the development grants

in paragraph (a)(1) of this section on the basis of--

(1) Amounts available for making grants under this part;

(2) The population of the State or territory concerned; and

(3) The types of activities proposed by the State relating to the

development of a consumer-responsive comprehensive statewide program of

technology-related assistance.

(c) The Secretary calculates the amount of the extension grants in

paragraph (a)(2) of this section on the basis of--

(1) Amounts available for making grants;

(2) The population of the State;

(3) The types of assistance proposed by the State in its

application; and

(4) A description in its application of the amount of resources

committed by the State and available to the State from other sources to

sustain the program after federal funding ends.

(d)(1) In providing any increases in initial extension grants in

paragraph (a)(2) of this section above the amounts provided to States

for Fiscal Year 1993, the Secretary may give priority to States (other

than the territories) that--

(i) Have the largest populations, based on the most recent census

data; and

(ii) Are sparsely populated, with a wide geographic spread.

(2) To be eligible for the priority in paragraph (d)(1) of this

section, the circumstances in paragraphs (d)(1)(i) or (ii) must have

impeded the development of a consumer-responsive, comprehensive

statewide program of technology-related assistance in a State.

(e) During the fourth and fifth years of a State's second extension

grant, the amount received by a State will be reduced to 75% and 50%,

respectively, of the amount paid to the State for the third year of the

grant.

(Authority: 29 U.S.C. 2212(b), 2213(a), 2213(c)(1)(B) and (2), and

2213(c)(1)(D); Sections 102(b), 103(a), 103(c)(1)(B) and (2),

103(c)(1)(D) of the Act)

Sec. 345.4 Who is eligible to receive a development grant?

A State is eligible to receive a development grant under this

program, provided that the Governor has designated a lead agency to

carry out the responsibilities contained in Sec. 345.5.

(Authority: 29 U.S.C. 2212(a)(1) and 2212 (d)(1); Section 102(a) and

102(d)(1) of the Act)

Sec. 345.5 What are the responsibilities of the lead agency or public

agency in applying for and in administering a development grant?

(a) The lead agency is responsible for the following:

(1) Submitting the application containing the information and

assurances contained in Sec. 345.30.

(2) Administering and supervising the use of amounts made available

under the grant.

(3)(i) Coordinating efforts related to, and supervising the

preparation of, the application;

(ii) Coordinating the planning, development, implementation, and

evaluation of the consumer-responsive comprehensive statewide program

of technology-related assistance among public agencies and between

public agencies and private agencies, including coordinating efforts

related to entering into interagency agreements; and

(iii) Coordinating efforts related to, and supervising, the active,

timely, and meaningful participation by individuals with disabilities

and their family members, guardians, advocates, or authorized

representatives, and other appropriate individuals, with respect to

activities carried out under the grant.

(4) The delegation, in whole or in part, of any responsibilities

described in paragraphs (a)(1) through (3) of this section to one or

more appropriate offices, agencies, entities, or individuals.

(b) If the lead agency is not a public agency, a public agency

shall have the responsibility of controlling and administering amounts

received under the grant.

(Authority: 29 U.S.C. 2212(d)(1) and 2212(e)(12)(A); Section

102(d)(1) and 102(e)(12)(A) of the Act)

Sec. 345.6 How does a State designate the lead agency?

(a) The Governor may designate--

(1) A commission appointed by the Governor;

(2) A public-private partnership or consortium;

(3) A university-affiliated program;

(4) A public agency;

(5) A council established under Federal or State law; or

(6) Another appropriate office, agency, entity, or individual.

(b) The State shall provide evidence that the lead agency has the

ability--

(1) To respond to assistive technology needs across disabilities

and ages;

(2) To promote the availability throughout the State of assistive

technology devices and assistive technology services;

(3) To promote and implement systems change and advocacy

activities;

(4) To promote and develop public-private partnerships;

(5) To exercise leadership in identifying and responding to the

technology needs of individuals with disabilities and their family

members, guardians, advocates, and authorized representatives;

(6) To promote consumer confidence, responsiveness, and advocacy;

and

(7) To exercise leadership in implementing effective strategies for

capacity building, staff and consumer training, and enhancement of

access to funding for assistive technology devices and assistive

technology services across agencies.

(Authority: 29 U.S.C. 2212(d)(2) and (3); Sections 102(d)(2) and (3)

of the Act)

Sec. 345.7 Who is eligible to receive an extension grant?

A State is eligible to receive an extension grant under this

program.

Sec. 345.8 What are the responsibilities of the lead agency in

applying for and in administering an extension grant?

(a) To be eligible to receive an initial extension grant, the lead

agency shall--

(1) Submit an application containing the information and assurances

in Sec. 345.31; and

(2) Hold a public hearing in the third year of a program carried

out under a development grant, after providing appropriate and

sufficient notice to allow interested groups and organizations and all

segments of the public an opportunity to comment on the program.

(b) To be eligible to receive a second extension grant, the lead

agency shall--

(1) Submit an application containing the information and assurances

in Sec. 345.31; and

(2) Hold a public hearing in the second year of a program carried

out under an initial extension grant, after providing appropriate and

sufficient notice to allow interested groups and organizations and all

segments of the public an opportunity to comment on the program.

(Authority: 29 U.S.C. 2213(d) and (e); Section 103(d) and (e) of the

Act)

Sec. 345.9 What regulations apply to this program?

The following regulations apply to the State Grants Program for

Technology-

[[Page 8164]]

Related Assistance for Individuals with Disabilities:

(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);

(2) 34 CFR Part 75 (Direct Grant Programs), except Sec. 75.618;

(3) 34 CFR Part 77 (Definitions That Apply to Department

Regulations);

(4) 34 CFR Part 79 (Intergovernmental Review of Department of

Education Programs and Activities);

(5) 34 CFR Part 80 (Uniform Administrative Requirements for Grants

and Cooperative Agreements to State and Local Governments), except

Secs. 80.32(a) and 80.33(a);

(6) 34 CFR Part 81 (General Education Provisions Act--Enforcement);

(7) 34 CFR Part 85 (Governmentwide Debarment and Suspension

(Nonprocurement) and Governmentwide Requirements for Drug-Free

Workplace (Grants)); and

(8) Part 86 (Drug-Free Schools and Campuses).

(b) The regulations in this part.

(Authority: 29 U.S.C. 2201-2217; Sections 101-107 of the Act)

Sec. 345.10 What definitions apply to this program?

(a) Definitions in EDGAR. The following terms used in this part are

defined in 34 CFR 77.1:

Applicant

Application

Award

Department

EDGAR

Fiscal year

Grant period

Nonprofit

Nonpublic

Private

Project

Project period

Public

(b) Definitions in the Technology-Related Assistance for

Individuals with Disabilities Act of 1988.

(1) The following terms used in this part are defined in section 3

of the Act:

Advocacy services

Assistive technology device

Assistive technology service

Comprehensive statewide program of technology-related assistance

Consumer-responsive

Disability

Individual with a disability; individuals with disabilities

Institution of higher education

Protection and advocacy services

Secretary

State

Systems change and related activities

Technology-related assistance

Underrepresented population

(2) The following term used in this part is defined in section

102(b)(5) of the Act:

Territory

(d) Other definitions. The following definitions also apply to this

part:

Initial extension grant means the two-year extension grant

following a three-year development grant under this program.

Second extension grant means the extension grant following the

initial extension grant under this program. The period of this grant is

for a period of not more than 5 years.

(Authority: 29 U.S.C. 2201-2217; Sections 101-107 of the Act)

Subpart B--What Kinds of Activities Does the Department Support

Sec. 345.20 What type of activities are authorized under this program?

Any State that receives a development or extension grant shall use

the funds made available through the grant to accomplish the purposes

described in Sec. 345.2(a) and, in accomplishing such purposes, may

carry out any of the following systems change and advocacy activities:

(a) Support activities to increase access to, and funding for,

assistive technology, including--

(1) The development, and evaluation of the efficacy, of model

delivery systems that provide assistive technology devices and

assistive technology services to individuals with disabilities, that

pay for devices and services, and that, if successful, could be

replicated or generally applied, such as--

(i) The development of systems for the purchase, lease, other

acquisition, or payment for the provision, of assistive technology

devices and assistive technology services; or

(ii) The establishment of alternative State or privately financed

systems of subsidies for the provision of assistive technology devices

and assistive technology services, such as--

(A) A loan system for assistive technology devices;

(B) An income-contingent loan fund;

(C) A low interest loan fund;

(D) A revolving loan fund;

(E) A loan insurance program; or

(F) A partnership with private entities for the purchase, lease, or

other acquisition of assistive technology devices and the provision of

assistive technology services;

(2) The demonstration of assistive technology devices, including--

(i) The provision of a location or locations within the State where

the following individuals can see and touch assistive technology

devices, and learn about the devices from personnel who are familiar

with such devices and their applications:

(A) Individuals with disabilities and their family members,

guardians, advocates, and authorized representatives;

(B) Education, rehabilitation, health care, and other service

providers;

(C) Individuals who work for Federal, State, or local government

entities; and

(D) Employers.

(ii) The provision of counseling and assistance to individuals with

disabilities and their family members, guardians, advocates, and

authorized representatives to determine individual needs for assistive

technology devices and assistive technology services; and

(iii) The demonstration or short-term loan of assistive technology

devices to individuals, employers, public agencies, or public

accommodations seeking strategies to comply with the Americans with

Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and section 504 of

the Rehabilitation Act of 1973 (29 U.S.C. 794); and

(3) The establishment of information systems about, and recycling

centers for, the redistribution of assistive technology devices and

equipment that may include device and equipment loans, rentals, or

gifts.

(b) Support activities to--

(1) Identify and coordinate Federal and State policies, resources,

and services, relating to the provision of assistive technology devices

and assistive technology services, including entering into interagency

agreements;

(2) Convene interagency work groups to enhance public funding

options and coordinate access to funding for assistive technology

devices and assistive technology services for individuals with

disabilities of all ages, with special attention to the issues of

transition (such as transition from school to work, and transition from

participation in programs under part H of the Individuals with

Disabilities Education Act (20 U.S.C. 1471 et seq.), to participation

in programs under part B of such Act (20 U.S.C. 1411 et seq.)) home

use, and individual involvement in the identification, planning, use,

delivery, and evaluation of such devices and services; or

(3) Document and disseminate information about interagency

activities that promote coordination with respect to assistive

technology devices and

[[Page 8165]]

assistive technology services, including evidence of increased

participation of State and local special education, vocational

rehabilitation, and State medical assistance agencies and departments.

(c) Carry out activities to encourage the creation or maintenance

of, support, or provide assistance to, statewide and community-based

organizations, or systems, that provide assistive technology devices

and assistive technology services to individuals with disabilities or

that assist individuals with disabilities in using assistive technology

devices or assistive technology services. The activities may include

outreach to consumer organizations and groups in the State to

coordinate the activities of the organizations and groups with efforts

(including self-help, support groups, and peer mentoring) to assist

individuals with disabilities and their family members, guardians,

advocates, or authorized representatives, to obtain funding for, and

access to, assistive technology devices and assistive technology

services.

(d) Pay for expenses, including travel expenses, and services,

including services of qualified interpreters, readers, and personal

assistants services that may be necessary to ensure access to the

comprehensive statewide program of technology-related assistance by

individuals with disabilities who are determined by the State to be in

financial need. The expenses must be incurred by participants in

activities associated with the state technology program.

(e) Conduct a statewide needs assessment that may be based on data

in existence on the date on which the assessment is initiated and may

include--

(1) Estimates of the numbers of individuals with disabilities

within the State, categorized by residence, type and extent of

disabilities, age, race, gender, and ethnicity;

(2) In the case of an assessment carried out under a development

grant, a description of efforts, during the fiscal year preceding the

first fiscal year for which the State received a grant, to provide

assistive technology devices and assistive technology services to

individuals with disabilities within the State, including--

(i) The number of individuals with disabilities who received

appropriate assistive technology devices and assistive technology

services; and

(ii) A description of the devices and services provided;

(3) Information on the number of individuals with disabilities who

are in need of assistive technology devices and assistive technology

services, and a description of the devices and services needed;

(4) Information on the cost of providing assistive technology

devices and assistive technology services to all individuals with

disabilities within the State who need such devices and services;

(5) A description of State and local public resources and private

resources (including insurance) that are available to establish a

consumer-responsive comprehensive statewide program of technology-

related assistance;

(6) Information identifying Federal and State laws, regulations,

policies, practices, procedures, and organizational structures, that

facilitate or interfere with the operation of a consumer responsive

comprehensive statewide program of technology related assistance;

(7) A description of the procurement policies of the State and the

extent to which such policies will ensure, to the extent practicable,

that assistive technology devices purchased, leased, or otherwise

acquired with assistance made available through a development or

extension grant under this part are compatible with other technology

devices, including technology devices designed primarily for use by--

(i) Individuals who are not individuals with disabilities;

(ii) Individuals who are elderly; or

(iii) Individuals with particular disabilities; and

(8) Information resulting from an inquiry about whether a State

agency or task force (composed of individuals representing the State

and individuals representing the private sector) should study the

practices of private insurance companies holding licenses within the

State that offer health or disability insurance policies under which an

individual may obtain reimbursement for--

(i) The purchase, lease, or other acquisition of assistive

technology devices; or

(ii) The use of assistive technology services.

(f) Support--

(1)(i) A public awareness program designed to provide information

relating to the availability and efficacy of assistive technology

devices and assistive technology services for--

(A) Individuals with disabilities and their family members,

guardians, advocates, or authorized representatives;

(B) Individuals who work for public agencies, or for private

entities (including insurers), that have contact with individuals with

disabilities;

(C) Educators and related services personnel;

(D) Technology experts (including engineers);

(E) Employers; and

(F) Other appropriate individuals and entities; or

(ii) Establish and support the program if no such program exists.

(2) A public awareness program that may include the--

(i) Development and dissemination of information relating to the--

(A) Nature of assistive technology devices and assistive technology

services;

(B) Appropriateness, cost, and availability of, and access to,

assistive technology devices and assistive technology services; and

(C) Efficacy of assistive technology devices and assistive

technology services with respect to enhancing the capacity of

individuals with disabilities;

(ii) Development of procedures for providing direct communication

among public providers of assistive technology devices and assistive

technology services and between public providers and private providers

of devices and services (including employers); and

(iii) Development and dissemination of information relating to the

use of the program by individuals with disabilities and their family

members, guardians, advocates, or authorized representatives,

professionals who work in a field related to an activity described in

this section, and other appropriate individuals.

(g) Carry out directly, or may provide support to a public or

private entity to carry out, training and technical assistance

activities that--

(1)(i) Are provided for individuals with disabilities and their

family members, guardians, advocates, and authorized representatives,

and other appropriate individuals; and

(ii) May include--

(A) Training in the use of assistive technology devices and

assistive technology services;

(B) The development of written materials, training, and technical

assistance describing the means by which agencies consider the needs of

an individual with a disability for assistive technology devices and

assistive technology services in developing, for the individual, any

individualized education program described in section 614(a)(5) of the

Individuals with Disabilities Education Act (20 U.S.C. 1414(a)(5)), any

individualized written rehabilitation program described in section 102

of the Rehabilitation Act of

[[Page 8166]]

1973 (29 U.S.C. 722), any individualized family service plan described

in section 677 of the Individuals with Disabilities Education Act (20

U.S.C. 1477), and any other individualized plans or programs;

(C) Training regarding the rights of the persons described in

paragraph (f)(1)(i) of this section to assistive technology devices and

assistive technology services under any law other than this Act, to

promote fuller independence, productivity, and inclusion in and

integration into society of such persons; and

(D) Training to increase consumer participation in the

identification, planning, use, delivery, and evaluation of assistive

technology devices and assistive technology services; and

(2)(i) Enhance the assistive technology skills and competencies

of--

(A) Individuals who work for public agencies or for private

entities (including insurers) that have contact with individuals with

disabilities;

(B) Educators and related services personnel;

(C) Technology experts (including engineers);

(D) Employers; and

(E) Other appropriate personnel; and

(ii) Include taking actions to facilitate the development of

standards, or, when appropriate, the application of standards, to

ensure the availability of qualified personnel.

(h) Support the compilation and evaluation of appropriate data

related to a program described in Sec. 345.1.

(i)(1) Develop, operate, or expand a system for public access to

information concerning an activity carried out under another paragraph

of this section, including information about assistive technology

devices and assistive technology services, funding sources and costs of

assistance, and individuals, organizations, and agencies capable of

carrying out such an activity for individuals with disabilities.

(2) Access to the system may be provided through community-based

entities, including public libraries, centers for independent living

(as defined in section 702(1) of the Rehabilitation Act of 1973 (29

U.S.C. 796a(1)), and community rehabilitation programs, as defined in

section 7(25) of such Act (29 U.S.C. 706(25)).

(3) In developing, operating, or expanding a system described in

paragraph (i)(1) of this section, the State may--

(i) Develop, compile, and categorize print, large print, braille,

audio, and video materials, computer disks, compact discs (including

compact discs formatted with read-only memory), information that can be

used in telephone-based information systems, and other media as

technological innovation may make appropriate;

(ii) Identify and classify existing funding sources, and the

conditions of and criteria for access to such sources, including any

funding mechanisms or strategies developed by the State;

(iii) Identify existing support groups and systems designed to help

individuals with disabilities make effective use of an activity carried

out under another paragraph of this section; and

(iv) Maintain a record of the extent to which citizens of the State

use or make inquiries of the system established in paragraph (i)(1) of

this section, and of the nature of inquiries.

(4) The information system may be organized on an interstate basis

or as part of a regional consortium of States in order to facilitate

the establishment of compatible, linked information systems.

(j)(1) The State may enter into cooperative agreements with other

States to expand the capacity of the States involved to assist

individuals with disabilities of all ages to learn about, acquire, use,

maintain, adapt, and upgrade assistive technology devices and assistive

technology services that individuals need at home, at school, at work,

or in other environments that are part of daily living.

(2) The State may operate or participate in a computer system

through which the State may electronically communicate with other

States to gain technical assistance in a timely fashion and to avoid

the duplication of efforts already undertaken in other States.

(k) Support the establishment or continuation of partnerships and

cooperative initiatives between the public sector and the private

sector to promote the greater participation by business and industry in

the--

(1) Development, demonstration, and dissemination of assistive

technology devices; and

(2) Ongoing provision of information about new products to assist

individuals with disabilities.

(l) Provide advocacy services.

(m) Utilize amounts made available through development and

extension grants for any systems change and advocacy activities, other

than the activities described in another paragraph of this section,

that are necessary for developing, implementing, or evaluating the

consumer-responsive comprehensive statewide program of technology-

related assistance.

(n)(1) Accomplish the purposes in Sec. 345.2(b) and (c).

(Authority: 29 U.S.C. 2201(b) and 2211(b); Sections 2(b)(2), 2(b)(3)

and 101(b) of the Act)

Subpart C--How Does a State Apply for a Grant?

Sec. 345.30 What is the content of an application for a development

grant?

(a) Applicants for development grants under this program shall

include the following information in their applications:

(1) Information identifying the lead agency designated by the

Governor under Sec. 345.4 and the evidence described in Sec. 345.6(b).

(2) A description of the nature and extent of involvement of

various State agencies, including the State insurance department, in

the preparation of the application and the continuing role of each

agency in the development and implementation of the consumer-responsive

comprehensive statewide program of technology-related assistance,

including the identification of the available resources and financial

responsibility of each agency for paying for assistive technology

devices and assistive technology services.

(3)(i) A description of procedures that provide for--

(A)(1) The active involvement of individuals with disabilities and

their family members, guardians, advocates, and authorized

representatives, and other appropriate individuals, in the development,

implementation, and evaluation of the program; and

(2) To the maximum extent appropriate, the active involvement of

individuals with disabilities who use assistive technology devices or

assistive technology services, in decisions relating to such devices

and services; and

(B) Mechanisms for determining consumer satisfaction and

participation of individuals with disabilities who represent a variety

of ages and types of disabilities, in the consumer-responsive

comprehensive statewide program of technology-related assistance.

(ii) A description of the nature and extent of the--

(A) Involvement, in the designation of the lead agency under

Sec. 345.4, and in the development of the application, of--

(1) Individuals with disabilities and their family members,

guardians, advocates, or authorized representatives;

(2) Other appropriate individuals who are not employed by a State

agency; and

(3) Organizations, providers, and interested parties, in the

private sector; and

(B) Continuing role of the individuals and entities described in

paragraph

[[Page 8167]]

(a)(3)(ii)(A) of this section in the program.

(4) A tentative assessment of the extent of the need of individuals

with disabilities in the State, including individuals from

underrepresented populations or rural populations for a statewide

program of technology-related assistance and a description of previous

efforts and efforts continuing on the date of the application to

develop a consumer-responsive comprehensive statewide program of

technology-related assistance.

(5) A description of State resources and other resources (to the

extent this information is available) that are available to commit to

the development of a consumer-responsive comprehensive statewide

program of technology-related assistance.

(6) Information on the program with respect to the--

(i) Goals and objectives of the State for the program;

(ii) Systems change and advocacy activities that the State plans to

carry out under the program; and

(iii) Expected outcomes of the State for the program, consistent

with the purposes described in Sec. 345.2(a).

(7)(i) A description of the data collection system used for

compiling information on the program, consistent with requirements

established by the Secretary for systems, and, when a national

classification system is developed pursuant to section 201 of the Act,

consistent with the classification system; and

(ii) Procedures that will be used to conduct evaluations of the

program.

(8) A description of the policies and procedures governing

contracts, grants, and other arrangements with public agencies, private

nonprofit organizations, and other entities or individuals for the

purpose of providing assistive technology devices and assistive

technology services consistent with this part.

(b) Applicants for development grants shall include the following

assurances in their applications:

(1)(i) An assurance that the State will use funds from a

development or extension grant to accomplish the purposes described in

Sec. 345.2(a) and the goals, objectives, and outcomes described in

paragraph (a)(6) of this section, and to carry out the systems change

and advocacy activities described in paragraph (a)(6)(ii) of this

section, in a manner that is consumer-responsive.

(ii) An assurance that the State, in carrying out systems change

and advocacy activities, shall carry out the following activities,

unless the State demonstrates through the progress reports required

under Sec. 345.50 that significant progress has been made in the

development and implementation of a consumer-responsive comprehensive

statewide program of technology-related assistance, and that other

systems change and advocacy activities will increase the likelihood

that the program will accomplish the purposes described in

Sec. 345.2(a):

(A) The development, implementation, and monitoring of State,

regional, and local laws, regulations, policies, practices, procedures,

and organizational structures, that will improve access to, provision

of, funding for, and timely acquisition and delivery of, assistive

technology devices and assistive technology services;

(B) The development and implementation of strategies to overcome

barriers regarding access to, provision of, and funding for, such

devices and services, with priority for identification of barriers to

funding through State education (including special education) services,

vocational rehabilitation services, and medical assistance services or,

as appropriate, other health and human services, and with particular

emphasis on overcoming barriers for underrepresented populations and

rural populations;

(C) Coordination of activities among State agencies, in order to

facilitate access to, provision of, and funding for, assistive

technology devices and assistive technology services;

(D) The development and implementation of strategies to empower

individuals with disabilities and their family members, guardians,

advocates, and authorized representatives, to successfully advocate for

increased access to, funding for, and provision of, assistive

technology devices and assistive technology services, and to increase

the participation, choice, and control of individuals with disabilities

and their family members, guardians, advocates, and authorized

representatives in the selection and procurement of assistive

technology devices and assistive technology services;

(E) The provision of outreach to underrepresented populations and

rural populations, including identifying and assessing the needs of

such populations, providing activities to increase the accessibility of

services to such populations, training representatives of such

populations to become service providers, and training staff of the

consumer-responsive comprehensive statewide program of technology-

related assistance to work with such populations; and

(F) The development and implementation of strategies to ensure

timely acquisition and delivery of assistive technology devices and

assistive technology services, particularly for children.

(2) An assurance that the State will conduct an annual assessment

of the consumer-responsive comprehensive statewide program of

technology-related assistance, in order to determine--

(i) The extent to which the State's goals and objectives for

systems change and advocacy activities, as identified in the State plan

under paragraph (a)(6) of this section, have been achieved; and

(ii) The areas of need that require attention in the next year.

(3) An assurance that amounts received under the grant will be

expended in accordance with the provisions of this part;

(4) An assurance that amounts received under the grant--

(i) Will be used to supplement amounts available from other sources

that are expended for technology-related assistance, including the

provision of assistive technology devices and assistive technology

services; and

(ii) Will not be used to pay a financial obligation for technology-

related assistance (including the provision of assistive technology

devices or assistive technology services) that would have been paid

with amounts available from other sources if amounts under the grant

had not been available, unless--

(A) The payment is made only to prevent a delay in the receipt of

appropriate technology-related assistance (including the provision of

assistive technology devices or assistive technology services) by an

individual with a disability; and

(B) The entity or agency responsible subsequently reimburses the

appropriate account with respect to programs and activities under the

grant in an amount equal to the amount of the payment;

(5) An assurance that--

(i) A public agency shall control and administer amounts received

under the grant; and

(ii) A public agency or an individual with a disability shall--

(A) Hold title to property purchased with such amounts; and

(B) Administer such property.

(6) An assurance that the State will--

(i) Prepare reports to the Secretary in the form and containing

information required by the Secretary to carry out the Secretary's

functions under this part; and

(ii) Keep records and allow access to records as the Secretary may

require to

[[Page 8168]]

ensure the correctness and verification of information provided to the

Secretary under this paragraph of this section.

(7) An assurance that amounts received under the grant will not be

commingled with State or other funds;

(8) An assurance that the State will adopt fiscal control and

accounting procedures as may be necessary to ensure proper disbursement

of an accounting for amounts received under the grant;

(9) An assurance that the State will--

(i) Make available to individuals with disabilities and their

family members, guardians, advocates, or authorized representatives

information concerning technology-related assistance in a form that

will allow individuals to effectively use the information; and

(ii) In preparing information for dissemination, consider the

media-related needs of individuals with disabilities who have sensory

and cognitive limitations and consider the use of auditory materials,

including audio cassettes, visual materials, including video cassettes

and video discs, and braille materials.

(10) An assurance that, to the extent practicable, technology-

related assistance made available with amounts received under the grant

will be equitably distributed among all geographical areas of the

State;

(11) An assurance that the lead agency will have the authority to

use funds made available through a development or extension grant to

comply with the requirements of this part, including the ability to

hire qualified staff necessary to carry out activities under the

program;

(12)(i) An assurance that the State will annually provide, from the

funds made available to the State through a development or extension

grant under this part, an amount calculated in accordance with section

102(f)(4) of the Act in order to make a grant to, or enter into a

contract with--

(A) An entity to support protection and advocacy services through

the systems established to provide protection and advocacy under the

Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.

6000 et seq.), the Protection and Advocacy for Mentally Ill Individuals

Act (42 U.S.C. 10801 et seq.), and section 509 of the Rehabilitation

Act of 1973 (29 U.S.C. 794e); or

(B) An entity described in Sec. 345.55(a)(1).

(ii) The State need not provide the assurance in paragraph

(b)(12)(i) of this section, if the State requests in its annual

progress report or first or second extension application, as

applicable, that the Secretary annually reserve, from the funds made

available for a development or extension grant, an amount calculated in

accordance with section 102(f)(4) of the Act, in order for the

Secretary to make a grant to or enter into a contract with a system to

support protection and advocacy services.

(13) An assurance that the State--

(i) Will develop and implement strategies for including personnel

training regarding assistive technology within existing Federal- and

State-funded training initiatives, in order to enhance assistive

technology skills and competencies; and

(ii) Will document the training;

(14) An assurance that the percentage of the funds received under

the grant that is used for indirect costs (as defined in OMB Circular

A-87 incorporated by reference in 34 CFR 80.22(b)) shall not exceed 10

percent of the total amount of the grant; and

(15) An assurance that the lead agency will coordinate the

activities funded through a development or extension grant under this

part with the activities carried out by councils within the State,

including--

(i) Any council or commission specified in the assurance provided

by the State in accordance with section 101(a)(36) of the

Rehabilitation Act of 1973 (29 U.S.C. 721(a)(36));

(ii) The Statewide Independent Living Council established under

section 705 of the Rehabilitation Act of 1973 (29 U.S.C. 796d));

(iii) The advisory panel established under section 613(a)(12) of

the Individuals with Disabilities Education Act (20 U.S.C.

1413(a)(12));

(iv) The State Interagency Coordinating Council established under

section 682 of the Individuals with Disabilities Education Act (20

U.S.C. 1482));

(v) The State Planning Council described in section 124 of the

Developmental Disabilities Assistance and Bill of Rights Act (20 U.S.C.

6024);

(vi) The State mental health planning council established under

section 1914 of the Public Health Service Act (42 U.S.C. 300x-3);

(vii) Any council established under section 204, 206(g)(2)(A), or

712(a)(3)(H) of the Older Americans Act of 1965 (42 U.S.C. 3015,

3017(g)(2)(A), or 3058g(a)(3)(H)).

(16) An assurance that there will be coordination between the

activities funded through the grant and other related systems change

and advocacy activities funded by either Federal or State sources.

(c) Applicants for development grants shall provide any other

related information and assurances that the Secretary may reasonably

require.

(Authority: 29 U.S.C. 2212(e); Section 102(e) of the Act)

345.31 What is the content of an application for an extension grant?

A State that seeks an extension grant shall include the following

in an application:

(a) The information and assurances described in Sec. 345.30, except

the preliminary needs assessment described in Sec. 345.30(a)(4).

(b) A description of the following:

(1) The needs relating to technology-related assistance of

individuals with disabilities (including individuals from

underrepresented populations or rural populations) and their family

members, guardians, advocates, or authorized representatives, and other

appropriate individuals within the State.

(2) Any problems or gaps that remain with the development and

implementation of a consumer-responsive comprehensive statewide program

of technology-related assistance in the State.

(3) The strategies that the State will pursue during the grant

period to remedy the problems or gaps with the development and

implementation of a program.

(4) Outreach activities to be conducted by the State, including

dissemination of information to eligible populations, with special

attention to underrepresented populations and rural populations.

(5)(i) The specific systems change and advocacy activities

described in Sec. 345.20 (including the activities described in

Sec. 345.30(b)(1)) carried out under the development grant received by

the State, or, in the case of an application for a second extension

grant, under an initial extension grant received by the State under

this section, including--

(A) A description of systems change and advocacy activities that

were undertaken to produce change on a permanent basis for individuals

with disabilities of all ages;

(B) A description of activities undertaken to improve the

involvement of individuals with disabilities in the program, including

training and technical assistance efforts to improve individual access

to assistive technology devices and assistive technology services as

mandated under other laws and regulations in effect on the date of the

application, and including actions undertaken to improve the

participation of underrepresented populations and rural populations,

such as outreach efforts; and

[[Page 8169]]

(C) An evaluation of the impact and results of the activities

described in paragraph (b)(5)(i)(A) and (B) of this section.

(ii) The relationship of systems change and advocacy activities to

the development and implementation of a consumer-responsive

comprehensive statewide program of technology-related assistance.

(iii) The progress made toward the development and implementation

of a consumer-responsive comprehensive statewide program of technology-

related assistance.

(6)(i) In the case of an application for an initial extension

grant, a report on the hearing described in Sec. 345.8(a)(2) or, in the

case of an application for a second extension grant, a report on the

hearing described in Sec. 345.8(b)(2).

(ii) A description of State actions, other than a hearing, designed

to determine the degree of satisfaction of individuals with

disabilities, and their family members, guardians, advocates, or

authorized representatives, public service providers and private

service providers, educators and related service providers, technology

experts (including engineers), employers, and other appropriate

individuals and entities with--

(A) The degree of their ongoing involvement in the development and

implementation of the consumer-responsive comprehensive statewide

program of technology-related assistance;

(B) The specific systems change and advocacy activities described

in Sec. 345.20 (including the activities described in

Sec. 345.30(b)(1)) carried out by the State under the development grant

or the initial extension grant;

(C) Progress made toward the development and implementation of a

consumer-responsive comprehensive statewide program of technology-

related assistance; and

(D) The ability of the lead agency to carry out the activities

described in Sec. 345.6(b).

(c) A summary of any comments received concerning the issues

described in paragraph (b)(6) of this section and response of the State

to such comments, solicited through a public hearing or through other

means, from individuals affected by the consumer-responsive

comprehensive statewide program of technology-related assistance,

including--

(1) Individuals with disabilities and their family members,

guardians, advocates, or authorized representatives;

(2) Public service providers and private service providers;

(3) Educators and related services personnel;

(4) Technology experts (including engineers);

(5) Employers; and

(6) Other appropriate individuals and entities.

(d) An assurance that the State, any recipient, and any

subrecipient of funds made available to the State under the Act will

comply with guidelines established under section 508 of the

Rehabilitation Act of 1973 (29 U.S.C. 794d).

(e)(1) A copy of the protection and advocacy contract or grant

agreement entered into by the State;

(2) Evidence of ongoing negotiations with an entity to provide

protection and advocacy services, if the State has not yet entered into

a grant or contract; or

(3) A request that the Secretary enter into a grant agreement with

an entity to provide protection and advocacy services, pursuant to

Sec. 345.30(b)(12)(ii).

(Authority: 29 U.S.C. 2213 (d) and (e); Section 103 (d) and (e) of

the Act).

Subpart D--How Does the Secretary Make a Grant?

Sec. 345.40 How does the Secretary evaluate an application for a

development grant under this program?

The Secretary evaluates each application using the selection

criteria in 34 CFR 75.210.

(Authority: 29 U.S.C. 2212(a); Section 102(a) of the Act)

Sec. 345.41 What other factors does the Secretary take into

consideration in making development grant awards under this program?

In making development grants under this program, the Secretary

takes into consideration, to the extent feasible--

(a) Achieving a balance among States that have differing levels of

development of consumer-responsive comprehensive statewide programs of

technology-related assistance; and

(b) Achieving a geographically equitable distribution of the

grants.

(Authority: 29 U.S.C. 2212(c); Section 102(c) of the Act)

Sec. 345.42 What is the review process for an application for an

extension grant?

(a) The Secretary may award an initial extension grant to any State

that--

(1) Provides the evidence described in Sec. 345.6(b) and makes the

demonstration described in paragraph (a)(2) of this section;

(2) Demonstrates that the State has made significant progress, and

has carried out systems change and advocacy activities that have

resulted in significant progress, toward the development and

implementation of a consumer-responsive comprehensive statewide program

of technology-related assistance, consistent with this part; and

(3) Holds a public hearing in the third year of a program carried

out under a development grant, after providing appropriate and

sufficient notice to allow interested groups and organizations and all

segments of the public an opportunity to comment on the program.

(b) The Secretary may award a second extension grant to any State

that-(1) Provides the evidence described in Sec. 345.6(b) and makes the

demonstration described in paragraph (a)(2) of this section;

(2) Describes the steps the State has taken or will take to

continue on a permanent basis the consumer-responsive comprehensive

statewide program of technology-related assistance with the ability to

maintain, at a minimum, the outcomes achieved by the systems change and

advocacy activities;

(3) Identifies future funding options and commitments for the

program from the public and private sector and the key individuals,

agencies, and organizations to be involved in, and to direct future

efforts of, the program; and

(4) Holds a public hearing in the second year of a program carried

out under an initial extension grant, after providing appropriate and

sufficient notice to allow interested groups and organizations and all

segments of the public an opportunity to comment on the program.

(c) In making any award to a State for a second extension grant,

the Secretary makes an award contingent on a determination, based on

the on-site visit in Sec. 345.53, that the State is making significant

progress toward development and implementation of a consumer-responsive

comprehensive statewide program of technology-related assistance,

except where the Secretary determines that the on-site visit is

unnecessary. If the Secretary determines that the State is not making

significant progress, the Secretary may take an action described in

Sec. 345.61.

(Authority: 29 U.S.C. 2213 (b) and (e) and 2215(a)(2); Section 103

(b) and (e) and 105(a)(2) of the Act)

Sec. 345.43 What priorities does the Secretary establish?

(a) The Secretary gives, in each of the 2 fiscal years succeeding

the fiscal year in which amounts are first appropriated for carrying

out development grants, priority for funding to States that received

development grants under this

[[Page 8170]]

part during the fiscal year preceding the fiscal year concerned.

(b) For States that are applying for initial extension grants, the

Secretary gives, in any fiscal year, priority to States that received

initial extension grants during the fiscal year preceding the fiscal

year concerned.

(c) The Secretary may establish other appropriate priorities under

the Act.

(Authority: 29 U.S.C. 2212(b)(4) and 2213(c); Section 102(b)(4) and

103(c) of the Act)

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

Sec. 345.50 What are the reporting requirements for the recipients of

development and extension grants?

(a) States receiving development and extension grants shall submit

annually to the Secretary a report that documents significant progress

in developing and implementing a consumer-responsive comprehensive

statewide program of technology-related assistance documenting the

following:

(1) The progress the State has made, as determined in the State's

annual assessment (consistent with the guidelines established by the

Secretary under Sec. 345.51) in achieving the State's goals,

objectives, and outcomes as identified in the State's application, and

areas of need that require attention in the next year, including

unanticipated problems with the achievement of the goals, objectives,

and outcomes described in the application, and the activities the State

has undertaken to rectify these problems.

(2) The systems change and advocacy activities carried out by the

State including--

(i) An analysis of the laws, regulations, policies, practices,

procedures, and organizational structure that the State has changed,

has attempted to change, or will attempt to change during the next

year, to facilitate and increase timely access to, provision of, or

funding for, assistive technology devices and assistive technology

services; and

(ii) A description of any written policies and procedures that the

State has developed and implemented regarding access to, provision of,

and funding for, assistive technology devices and assistive technology

services, particularly policies and procedures regarding access to,

provision of, and funding for, such devices and services under

education (including special education), vocational rehabilitation, and

medical assistance programs.

(3) The degree of involvement of various State agencies, including

the State insurance department, in the development, implementation, and

evaluation of the program, including any interagency agreements that

the State has developed and implemented regarding access to, provision

of, and funding for, assistive technology devices and assistive

technology services such as agreements that identify available

resources for, assistive technology devices and assistive technology

services and the responsibility of each agency for paying for such

devices and services.

(4) The activities undertaken to collect and disseminate

information about the documents or activities analyzed or described in

paragraphs (a) (1) through (3) of this section, including outreach

activities to underrepresented populations and rural populations and

efforts to disseminate information by means of electronic

communication.

(5) The involvement of individuals with disabilities who represent

a variety of ages and types of disabilities in the planning,

development, implementation, and assessment of the consumer-responsive

comprehensive statewide program of technology-related assistance,

including activities undertaken to improve such involvement, such as

consumer training and outreach activities to underrepresented

populations and rural populations.

(6) The degree of consumer satisfaction with the program, including

satisfaction by underrepresented populations and rural populations.

(7) Efforts to train personnel as well as consumers.

(8) Efforts to reduce the service delivery time for receiving

assistive technology devices and assistive technology services.

(9) Significant progress in the provision of protection and

advocacy services, in each of the areas described in

Sec. 345.55(c)(1)(ii).

(b) The State shall make these reports readily available to the

public at no extra cost.

(c) The State shall submit on an annual basis--

(1) A copy of the protection and advocacy contract or grant

agreement entered into by the State;

(2) Evidence of ongoing negotiations with an entity to provide

protection and advocacy services, if the State has not yet entered into

a grant or contract; or

(3) A request that the Secretary enter into a grant agreement with

an entity to provide protection and advocacy services, pursuant to

Sec. 345.30(b)(12)(ii).

(Authority: 29 U.S.C. 2212(e)(16)(A) and 2214(b); Sections

102(e)(16)(A) and 104(b) of the Act)

Sec. 345.51 When is a State making significant progress?

A State is making significant progress when it carries out--

(a) The systems change and advocacy activities listed in

Sec. 345.30(b)(1)(ii)(A) through (F); or

(b) Other systems change and advocacy activities, if the State

demonstrates through the progress reports developed by the Secretary

and required to be submitted by a State in Sec. 345.50 that it has

accomplished the purposes of the program listed in Sec. 345.2(a).

(Authority: 29 U.S.C. 2212(e)(7) and 2214(a); Sections 102(e)(7) and

104(a) of the Act)

Sec. 345.52 Who retains title to devices provided under this program?

Title to devices purchased with grant funds under this part, either

directly or through any contract or subgrant, must be held by a public

agency or by an individual with a disability who is the beneficiary of

the device. If the disabled individual does not have legal status to

hold title, the title may be retained by a parent or legal guardian.

(Authority: 29 U.S.C. 2212(e)(12)(B); Section 102(e)(12)(B) of the

Act)

Sec. 345.53 What are the requirements for grantee participation in the

Secretary's progress assessments?

Recipients of development grants shall participate in the

Secretary's assessment of the extent to which States are making

significant progress by--

(a) Participating in the on-site monitoring visits that will be

made to each grantee during the final year of the development grant;

(b) Participating in an on-site monitoring visit, that is in

addition to the visit in paragraph (a), if the State applies for a

second extension grant and whose initial on-site visit occurred prior

to the date of the enactment of the Technology-Related Assistance for

Individuals with Disabilities Act Amendments of 1994, unless the

Secretary determines that the visit is not necessary.

(c) Providing written evaluations of the State's progress toward

fulfilling its goals and the objectives of the project, and such other

documents as the Secretary may reasonably require to complete the

required assessment.

(Authority: 29 U.S.C. 2215(a); Section 105(a) of the Act)

Sec. 345.54 How may grant funds be used under this program?

(a) States receiving funds under this part shall comply with the

assurances provided under Secs. 345.30 and 345.31.

[[Page 8171]]

(b) A State receiving a grant may make contracts or subgrants to

the eligible entities in Sec. 345.6, provided that--

(1) A designated public agency maintains fiscal responsibility and

accountability; and

(2) All appropriate provisions related to data collection,

recordkeeping, and cooperation with the Secretary's evaluation and

program monitoring efforts are applied to all subcontractors and

subgrantees as well as to the agency receiving the grant.

(Authority: 29 U.S.C. 2212(e), 2213(d), and 2215(a)(5); Sections

102(e), 103(d), and 105(a)(5) of the Act; Section 437 of the General

Education Provisions Act; 20 U.S.C. 1232f)

Sec. 345.55 What are the responsibilities of a State in carrying out

protection and advocacy services?

(a)(1) A State is eligible to receive funding to provide protection

and advocacy services if--

(i) The State, as of June 30, 1993, has provided for protection and

advocacy services through an entity that is capable of performing the

functions that would otherwise be performed under Sec. 345.30(b)(12) by

the system described in that section; and

(ii) The entity referred to in Sec. 345.30(b)(12)(i) is not a

system described in that section.

(b) A State that meets both of the descriptions in paragraph (a)(1)

of this section also shall comply with the same requirements of this

part as a system that receives funding under Sec. 345.30(b)(12).

(c)(1) A system that receives funds under Sec. 345.30(b)(12)(i) to

carry out the protection and advocacy services described in

Sec. 345.30(b)(12)(i) in a State, or an entity described in paragraph

(a)(1) of this section, shall prepare reports that contain the

information required by the Secretary, including the following:

(i) A description of the activities carried out by the system or

entity with the funds;

(ii) Documentation of significant progress, in providing protection

and advocacy services, in each of the following areas:

(A) Conducting activities that are consumer-responsive, including

activities that will lead to increased access to funding for assistive

technology devices and assistive technology services.

(B) Executing legal, administrative, and other appropriate means of

representation to implement systems change and advocacy activities.

(C) Developing and implementing strategies designed to enhance the

long-term abilities of individuals with disabilities and their family

members, guardians, advocates, and authorized representatives to

successfully advocate for assistive technology devices and assistive

technology services to which the individuals with disabilities are

entitled under law other than this Act.

(D) Coordinating activities with protection and advocacy services

funded through sources other than this Act, and coordinating activities

with the systems change and advocacy activities carried out by the

State lead agency.

(2) The system or entity shall submit the reports to the lead

agency in the State not less often than every 6 months.

(3) The system or entity shall provide monthly updates to the lead

agency concerning the activities and information described in paragraph

(c) of this section.

(d) Before making a grant or entering into a contract under

Sec. 345.30(b)(12)(ii) to support the protection and advocacy services

described in Sec. 345.30(b)(12)(ii) in a State, the Secretary shall

solicit and consider the opinions of the lead agency in the State with

respect to the terms of the grant or contract.

(e)(1) In each fiscal year, the Secretary specifies for each State

receiving a development or an extension grant the minimum amount that

the State shall use to provide protection and advocacy services.

(2)(i) Except as provided for in paragraphs (e) (3) and (4), the

Secretary calculates this minimum amount based on the size of the

grant, the needs of individuals with disabilities within the State, the

population of the State, and the geographic size of the State.

(ii) The Secretary establishes a minimum amount for each State that

ranges from at least $40,000 up to $100,000.

(3) If a State receives a second extension grant, the Secretary

specifies a minimum amount for the fourth year (if any) of the grant

period that equals 75 percent of the minimum amount specified for the

State for the third year of the second extension grant of the State.

(4) If a State receives a second extension grant, the Secretary

specifies a minimum amount for the fifth year (if any) of the grant

period that equals 50 percent of the minimum amount specified for the

State for the third year of the second extension grant of the State.

(5) After the fifth year (if any) of the grant period, no Federal

funds may be made available under this title by the State to a system

described in Sec. 345.30(b)(12) or an entity described in paragraph (a)

of this section.

(Authority: 29 U.S.C. 2212(f); Section 102(f) of the Act)

Subpart F--What Compliance Procedures May the Secretary Use?

Sec. 345.60 Who is subject to a corrective action plan?

(a) Any State that fails to comply with the requirements of this

part is subject to a corrective action plan.

(b) A State may appeal a finding that it is subject to corrective

action within 30 days of being notified in writing by the Secretary of

the finding.

(Authority: 29 U.S.C. 2215(b)(1); Section 105(b)(1) of the Act)

Sec. 345.61 What penalties may the Secretary impose on a grantee that

is subject to corrective action?

A State that fails to comply with the requirements of this part may

be subject to corrective actions such as--

(a) Partial or complete termination of funds;

(b) Ineligibility to participate in the grant program in the

following year;

(c) Reduction in funding for the following year; or

(d) Required redesignation of the lead agency.

(Authority: 29 U.S.C. 2215(b)(2); Section 105(b)(2) of the Act)

Sec. 345.62 How does a State redesignate the lead agency when it is

subject to corrective action?

(a) Once a State becomes subject to a corrective action plan under

Sec. 345.60, the Governor of the State, subject to approval by the

Secretary, shall appoint, within 30 days after the submission of the

plan to the Secretary, a monitoring panel consisting of the following

representatives:

(1) The head of the lead agency designated by the Governor;

(2) Two representatives from different public or private nonprofit

organizations that represent the interests of individuals with

disabilities;

(3) Two consumers who are users of assistive technology devices and

assistive technology services and who are not--

(i) Members of the advisory council, if any, of the consumer-

responsive comprehensive statewide program of technology-related

assistance; or

(ii) Employees of the State lead agency; and

(4) Two service providers with knowledge and expertise in assistive

technology devices and assistive technology services.

(b) The monitoring panel must be ethnically diverse. The panel

shall select a chairperson from among the members of the panel.

[[Page 8172]]

(c) The panel shall receive periodic reports from the State

regarding progress in implementing the corrective action plan and shall

have the authority to request additional information necessary to

determine compliance.

(d) The meetings of the panel to determine compliance shall be open

to the public (subject to confidentiality concerns) and held at

locations that are accessible to individuals with disabilities.

(e) The panel shall carry out the duties of the panel for the

entire period of the corrective action plan, as determined by the

Secretary.

(f) A failure by a Governor of a State to comply with the

requirements of paragraphs (a) through (e) of this section results in

the termination of funding for the State under this part.

(g) Based on its findings, a monitoring panel may determine that a

lead agency designated by a Governor has not accomplished the purposes

described in Sec. 345.2(a) and that there is good cause for

redesignation of the agency and the temporary loss of funds by the

State under this part.

(h) For the purposes of this section, ``good cause'' includes the

following:

(1) Lack of progress with employment of qualified staff;

(2) Lack of consumer-responsive activities;

(3) Lack of resource allocation to systems change and advocacy

activities;

(4) Lack of progress with meeting the assurances in Sec. 345.30(b);

or

(5) Inadequate fiscal management.

(i) If a monitoring panel determines that the lead agency should be

redesignated, the panel shall recommend to the Secretary that further

remedial action be taken or that the Secretary order the Governor to

redesignate the lead agency within 90 days or lose funds under this

part. The Secretary, based on the findings and recommendations of the

monitoring panel, and after providing to the public notice and

opportunity for comment, shall make a final determination regarding

whether to order the Governor to redesignate the lead agency. The

Governor shall make any redesignation in accordance with the

requirements that apply to designations under Sec. 345.6.

(Authority: 29 U.S.C. 2215(c); Section 105(c) of the Act)

Sec. 345.63 How does a State change the entity responsible for

providing protection and advocacy services?

(a) The Governor of a State, based on input from individuals with

disabilities and their family members, guardians, advocates, or

authorized representatives, may determine that the entity providing

protection and advocacy services has not met the protection and

advocacy service needs of the individuals with disabilities and their

family members, guardians, advocates, or authorized representatives,

for securing funding for and access to assistive technology devices and

assistive technology services, and that there is good cause to provide

the protection and advocacy services for the State through a contract

with a second entity.

(b) On making the determination in paragraph (a) of this section,

the Governor may not enter into a contract with a second entity to

provide the protection and advocacy services unless good cause exists

and unless--

(1) The Governor has given the first entity 30 days notice of the

intention to enter into the contract, including specification of good

cause, and an opportunity to respond to the assertion that good cause

has been shown;

(2) Individuals with disabilities and their family members,

guardians, advocates, or authorized representatives, have timely notice

of the determination and opportunity for public comment; and

(3) The first entity has the opportunity to appeal the

determination to the Secretary within 30 days of the determination on

the basis that there is not good cause to enter into the contract.

(c)(1) When the Governor of a State determines that there is good

cause to enter into a contract with a second entity to provide the

protection and advocacy services, the Governor shall hold an open

competition within the State and issue a request for proposals by

entities desiring to provide the services.

(2) The Governor shall not issue a request for proposals by

entities desiring to provide protection and advocacy services until the

first entity has been given notice and an opportunity to respond. If

the first entity appeals the determination to the Secretary, the

Governor shall issue such request only if the Secretary decides not to

overturn the determination of the Governor. The Governor shall issue

such request within 30 days after the end of the period during which

the first entity has the opportunity to respond, or after the decision

of the Secretary, as appropriate.

(3) The competition shall be open to entities with the same

expertise and ability to provide legal services as a system in

Sec. 345.30(b)(12). The competition shall ensure public involvement,

including a public hearing and adequate opportunity for public comment.

(Authority: 29 U.S.C. 2215(d); Section 105(d) of the Act)

[FR Doc. 96-4861 Filed 2-29-96; 8:45 am]

BILLING CODE 4000-01-P