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DEPARTMENT OF EDUCATION www.regulations.gov. Therefore, State Vocational Rehabilitation commenters should be careful to Services Program 34 CFR Parts 361, 363, and 397 include in their comments only People with disabilities represent a RIN 1820–AB70 information that they wish to make vital and integral part of our society, publicly available. [Docket ID ED–2015–OSERS–OOO1] and we are committed to ensuring that FOR FURTHER INFORMATION CONTACT: individuals with disabilities have State Vocational Rehabilitation Janet LaBreck, U.S. Department of opportunities to compete for and enjoy Services Program; State Supported Education, 400 Maryland Avenue SW., high quality employment in the 21st Employment Services Program; Room 5086, PCP, Washington, DC century global economy. Some Limitations on Use of Subminimum 20202–2800. Telephone: (202) 245–7488 individuals with disabilities face Wage or by email: [email protected]. particular barriers to high quality If you use a telecommunications employment. Giving workers with AGENCY: Office of Special Education and device for the deaf (TDD) or a text disabilities the supports and the Rehabilitative Services, Department of opportunity to acquire the skills that Education. telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877– they need to pursue in-demand jobs and ACTION: Notice of proposed rulemaking. 8339. careers is critical to growing our economy, ensuring that everyone who SUMMARY: The Secretary proposes to SUPPLEMENTARY INFORMATION: works hard is rewarded, and building a amend the regulations governing the strong middle class. To help achieve Executive Summary State Vocational Rehabilitation Services this priority for individuals with program and the State Supported Purpose of This Regulatory Action: disabilities, the Rehabilitation Act of Employment Services program in order The Secretary proposes to amend the 1973, as amended by WIOA, seeks to to implement changes to the regulations governing the State empower individuals with disabilities Rehabilitation Act of 1973, as amended Vocational Rehabilitation Services to maximize employment, economic by the Workforce Innovation and program (VR program) (34 CFR part 361) self-sufficiency, independence, and Opportunity Act (WIOA) enacted on and State Supported Employment inclusion and integration into society. July 22, 2014. The Secretary also Services program) (Supported The VR program is authorized by title proposes to update, clarify, and improve Employment program) (34 CFR part I of the Act, as amended by WIOA (29 the current regulations. 363), administered by the Rehabilitation U.S.C. 720 et seq.), to provide support Finally, the Secretary proposes to Services Administration (RSA), to to each State to assist in operating a issue new regulations regarding implement changes to the Act made by statewide comprehensive, coordinated, limitations on the use of subminimum WIOA (P.L. 113–128), enacted on July effective, efficient, and accountable wages that are added by WIOA and 22, 2014. In so doing, the Secretary also State program as an integral part of a under the purview of the Department. proposes to update and clarify current statewide workforce development DATES: We must receive your comments regulations to improve program system; and to assess, plan, and provide on or before June 15, 2015. function. Finally, the Secretary proposes vocational rehabilitation (VR) services ADDRESSES: Submit your comments to promulgate regulations in 34 CFR to individuals with disabilities so that through the Federal eRulemaking Portal part 397 that implement the limitations those individuals may prepare for and or via postal mail, commercial delivery, on the payment of subminimum wages engage in competitive integrated or hand delivery. We will not accept to individuals with disabilities in employment consistent with their comments submitted by fax or by email section 511 of the Act that fall under the unique strengths, priorities, concerns, or those submitted after the comment purview of the Secretary. abilities, capabilities, interests, and informed choice. The Department last period. To ensure that we do not receive For a more detailed description of the published regulations for this program duplicate copies, please submit your purpose of these proposed regulatory in part 361 on January 17, 2001 (66 FR comments only once. In addition, please actions, see the Background section in 4382), to implement amendments made include the Docket ID at the top of your this notice of proposed rulemaking by the Workforce Investment Act of comments. (NPRM). • Federal eRulemaking Portal: Go to 1998. www.regulations.gov to submit your Summary of the Major Provisions of WIOA makes significant changes to comments electronically. Information This Regulatory Action: We summarize title I of the Act that affect the VR on using Regulations.gov, including here those proposed regulatory changes program. First, WIOA strengthens the instructions for accessing agency needed to implement the amendments alignment of the VR program with other documents, submitting comments, and to the Act made by WIOA. Under the components of the workforce viewing the docket, is available on the Proposed Changes section of this development system by imposing site under ‘‘Are you new to the site?’’ NPRM, we provide a more complete unified strategic planning requirements, • Postal Mail, Commercial Delivery, summary of these changes and a common performance accountability or Hand Delivery: If you mail or deliver detailed description of the substantive measures, and requirements governing your comments about these proposed proposed regulations for each part in the the one-stop delivery system. This regulations, address them to Janet order it appears in the Code of Federal alignment brings together entities LaBreck, U.S. Department of Education, Regulations (CFR). We also describe in responsible for administering separate 400 Maryland Avenue SW., Room 5086, detail under the Proposed Changes workforce and employment, Potomac Center Plaza (PCP), section the amendments to each part to educational, and other human resource Washington, DC 20202–2800. update, clarify, and improve the programs and funding streams to Privacy Note: The Department’s regulations. collaborate in the creation of a seamless policy is to make all comments received The Secretary proposes to implement custom-focused service delivery from members of the public available for the following changes to the VR network that integrates service delivery public viewing in their entirety on the program and Supported Employment across programs, enhances access to the Federal eRulemaking Portal at program made by WIOA. program’s services, and improves long-

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term employment outcomes for As a result, we propose to amend part disabilities. All of the proposed changes individuals receiving assistance. In so 361 throughout to emphasize the key demonstrate the continuum of services doing, WIOA places heightened role that the VR program plays in available to students and youth with emphasis on coordination and employment outcomes and preparing disabilities under the VR program to collaboration at the Federal, State, and individuals with disabilities to achieve maximize their potential to transition local levels to ensure a streamlined and competitive integrated employment in from school to postsecondary education coordinated service delivery system for the community. We propose, among and employment. other things, to amend the definition of job-seekers, including those with Supported Employment Program disabilities, and employers. Therefore, ‘‘employment outcome’’ to include only the Departments of Education and Labor those outcomes in competitive WIOA makes several significant propose to issue a joint NPRM to integrated employment or supported changes to title VI of the Act, which implement jointly administered employment, thereby eliminating governs the Supported Employment activities under title I of WIOA (e.g., uncompensated employment from the program. All of the amendments to title those related to Unified or Combined scope of employment outcomes for VI are consistent with those made State Plans, performance accountability, purposes of the VR program. We also throughout the Act, namely to maximize and the one-stop delivery system), propose to amend numerous other the potential of individuals with applicable to the workforce provisions throughout part 361 to disabilities, especially those with the development system’s core programs address the expansion of available most significant disabilities, to achieve (Adult, Dislocated Worker and Youth services, requirements related to the competitive integrated employment and programs; Adult Education and Literacy development of the individualized plan to expand services for youth with the programs; Wagner-Peyser Employment for employment, and order of selection most significant disabilities. First, WIOA amends the definition of Service program and the Vocational for services, all of which are intended to ‘‘supported employment’’ to make clear Rehabilitation program). These joint maximize the potential for individuals that supported employment outcomes proposed regulations are set forth in a with disabilities to prepare for, obtain, must be in competitive integrated separate NPRM published elsewhere in retain, and advance in the same high- employment or, if in an integrated this issue of the Federal Register. quality jobs, and high demand careers as persons without disabilities. setting that is not competitive integrated WIOA also makes corresponding employment, then in an integrated changes to title I of the Act. Third, WIOA places heightened emphasis on the provision of services to setting in which the individual is Consequently, we propose to make students and youth with disabilities to working on a short-term basis toward conforming changes throughout part 361 ensure that they have meaningful competitive integrated employment. By and align the VR program-specific opportunities to receive the training and adding a timeframe to this definition, regulations with the joint proposed other services they need to achieve Congress reinforces its intention that regulations to ensure consistency among employment outcomes in competitive individuals with disabilities should not all core programs. integrated employment. The Act, as be allowed to languish in subminimum Second, WIOA places heightened amended by WIOA, expands not only wage jobs under the Supported emphasis throughout the Act on the the population of students with Employment program. Thus, the achievement of competitive integrated disabilities who may receive services Secretary proposes to amend part 363 to employment. The foundation of the VR but also the kinds of services that the implement the revised definition of program is the principle that VR agencies may provide to youth and ‘‘supported employment.’’ The individuals with disabilities, including students with disabilities who are Secretary proposes to define ‘‘short-term those with the most significant transitioning from school to basis’’ in this context to mean no longer disabilities, are capable of achieving postsecondary education and than six months. We believe this high quality, competitive integrated employment. proposed change is consistent with the employment when provided the Most notably, the Act, as amended by Act, as amended by WIOA, in its necessary skills and supports. To WIOA, requires States to reserve 15 entirety as well as the stated increase the employment of individuals percent of their VR allotment to provide congressional intent. with disabilities in the competitive pre-employment transition services to Second, WIOA requires States to labor market, the workforce system must students with disabilities who are reserve at least 50 percent of their provide the opportunity for such eligible or potentially eligible for VR supported employment program individuals to participate in job-driven services. These pre-employment allotment for the provision of supported training and pursue high-quality transition services are designed to employment services to youth with the employment outcomes. The provide job exploration and other most significant disabilities. With these amendments to the Act—from the stated services, such as counseling and self- reserved funds, States may provide purpose of the Act, to the expansion of advocacy training, in the early stages of extended services, for a period up to services designed to maximize the the transition process. four years, to youth with the most potential of individuals with With the addition of these early pre- significant disabilities. Prior to the disabilities, including those with the employment transition services, the VR enactment of WIOA, extended services most significant disabilities, to achieve program can be characterized as were not permitted under either the VR competitive integrated employment, providing a continuum of VR services, program or the Supported Employment and, finally, to the inclusion of especially for students and youth with program. In addition, States must limitations on the payment of disabilities. To that end, we propose to provide a non-Federal share of 10 subminimum wages to individuals with amend numerous sections of part 361 to percent of the funds reserved for the disabilities—reinforce the congressional implement new definitions for the terms provision of supported employment intent that individuals with disabilities, ‘‘student with a disability’’ and ‘‘youth services to youth with the most with appropriate supports and services, with a disability’’ and new requirements significant disabilities. By requiring that are able to achieve the same kinds of related to pre-employment transition States use half of their supported competitive integrated employment as services and the provision of transition employment program funds and provide non-disabled individuals. services to students and youth with a match for these reserved funds,

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Congress reinforces the heightened Invitation to Comment: We invite you certificates under the FLSA. Although emphasis on the provision of services to to submit comments regarding these the Department of Labor administers the youth with disabilities. Congress makes proposed regulations. To ensure that FLSA, some requirements of section 511 clear that youth with significant your comments have maximum effect in fall under the purview of the Secretary. disabilities must be given every developing the final regulations, we Therefore, the Secretary proposes to add opportunity to receive the services urge you to identify clearly the specific a new part 397 to title 34 of the CFR to necessary to ensure the maximum section or sections of the proposed implement those particular provisions. potential to achieve competitive regulations that each of your comments These proposed changes are further integrated employment. Accordingly, addresses and to arrange your comments described under the Summary of the Secretary proposes to amend part in the same order as the proposed Proposed Changes and Significant 363 to implement new requirements regulations. Proposed Regulations sections of this regarding the reservation of funds, and We invite you to assist us in NPRM. WIOA also makes changes to the services to be provided with those complying with the specific other programs authorized under title I funds, to youth with the most requirements of Executive Orders 12866 of the Act, including the Client significant disabilities. and 13563 and their overall requirement Assistance Program and the American of reducing regulatory burden that Indian Vocational Rehabilitation Limitations on the Payment of might result from these proposed Services (AIVRS) program, as well as Subminimum Wages regulations. Please let us know of any discretionary grant programs authorized Section 511 of the Act, as added by further ways we could reduce potential under title III, the Protection and WIOA, imposes requirements on costs or increase potential benefits Advocacy of Individual Rights program employers who hold special wage while preserving the effective and under title V, and the Independent certificates under the Fair Labor efficient administration of the Living Services for Older Individuals Standards Act (FLSA) that must be Department’s programs and activities. Who are Blind program under title VII. satisfied before the employers may hire During and after the comment period, The Secretary proposes regulatory youth with disabilities at subminimum you may inspect all public comments changes to implement the amendments wage or continue to employ individuals about these proposed regulations by to these programs and projects made by with disabilities of any age at the accessing Regulations.gov. You may also WIOA through a separate, but related, subminimum wage level. Section 511 inspect the comments in person in room NPRM published elsewhere in this issue also establishes the roles and 5093, Potomac Center Plaza, 550 12th of the Federal Register. responsibilities of the designated State Street SW., Washington, DC, between Summary of Proposed Changes units (DSU) for the VR program and 8:30 a.m. and 4:00 p.m., Washington, State and local educational agencies in DC time, Monday through Friday of The Secretary proposes to implement assisting individuals with disabilities, each week except Federal holidays. the following changes to the VR including youth with disabilities, to Please contact the person listed under program and Supported Employment maximize opportunities to achieve FOR FURTHER INFORMATION CONTACT. program made by WIOA. competitive integrated employment Assistance to Individuals with through services provided by VR and State Vocational Rehabilitation Disabilities in Reviewing the Services Program the local educational agencies. Rulemaking Record: On request we will The addition of section 511 to the Act provide an appropriate accommodation The VR program is authorized by title is consistent with all other amendments or auxiliary aid to an individual with a I of the Act, as amended by WIOA (29 to the Act made by WIOA. Throughout disability who needs assistance to U.S.C. 720 through 731, and 733), to the Act, Congress makes clear that review the comments or other provide support to each State to assist individuals with disabilities, including documents in the public rulemaking in operating a statewide comprehensive, those with the most significant record for these proposed regulations. If coordinated, effective, efficient, and disabilities, can achieve competitive you want to schedule an appointment accountable State VR program as an integrated employment if provided the for this type of accommodation or integral part of a statewide workforce necessary supports and services. The auxiliary aid, please contact the person development system; and to assess, limitations imposed by section 511 listed under FOR FURTHER INFORMATION plan, and provide VR services to reinforce this belief by requiring CONTACT. individuals with disabilities so that individuals with disabilities, including those individuals may prepare for and youth with disabilities, to satisfy certain Background engage in competitive integrated service-related requirements in order to The Workforce Innovation and employment consistent with their start or maintain, as applicable, Opportunity Act (WIOA) (Pub L. 113– unique strengths, priorities, concerns, subminimum wage employment. To that 128), enacted July 22, 2014, made abilities, capabilities, interests, and end, the Secretary proposes to develop significant changes to the Rehabilitation informed choice. new regulations at part 397 that would Act of 1973 (hereafter referred to as the The Department last published implement requirements of section 511 Act). As a result, the Secretary proposes regulations for this program in part 361 that fall under the purview of the to amend parts 361 and 363 of title 34 on January 17, 2001 (66 FR 4382), to Department. of the CFR. These parts, respectively, implement amendments made by the Costs and Benefits: The potential implement the: Workforce Investment Act of 1998 costs associated with this regulatory • State Vocational Rehabilitation (VR) (WIA). action are those resulting from statutory Services program; and In implementing the amendments to requirements and those we have • State Supported Employment the VR program made by WIOA, the determined as necessary for Services program. numerous proposed regulatory changes administering the Department’s In addition, WIOA added section 511 to part 361 improve employment programs and activities. Further to title V of the Act. Section 511 limits outcomes for individuals with information related to costs and benefits the payment of subminimum wages to disabilities by: (1) Strengthening the may be found in the Regulatory Impact individuals with disabilities by alignment of the VR program with other Analysis section later in this NPRM. employers holding special wage components of the workforce

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development system through unified individuals with disabilities served all employment outcomes achieved strategic planning requirements, through the VR program and the costs through the VR program be in common performance accountability of serving them, and reports of progress competitive integrated employment or measures, and requirements governing on goals and priorities at such time and supported employment, thereby the one-stop delivery system; (2) in such manner determined by the eliminating uncompensated outcomes, emphasizing the achievement of Secretary, thereby resolving such as homemakers and unpaid family competitive integrated employment by inconsistencies in reporting workers, from the scope of the individuals with disabilities, including requirements within section 101(a) of definition for purposes of the VR individuals with the most significant the Act. Finally, we clarify in proposed program. We will provide guidance and disabilities; and (3) expanding services § 361.20 when designated State agencies technical assistance to VR agencies to to support the transition of students and must conduct public hearings to obtain assist them in implementing this youth with disabilities to postsecondary comment on substantive changes to proposed change. education and employment. policies and procedures governing the We propose additional regulatory To implement jointly administered VR program. changes to ensure that individuals with activities under title I of WIOA (e.g., We propose to implement the changes disabilities are provided a full those related to Unified or Combined to section 106 of the Act made by WIOA opportunity through the VR program to State Plans, performance accountability through proposed § 361.40, by replacing participate in job-driven training and and the one-stop delivery system), the the current standards and indicators pursue high-quality employment U.S. Departments of Labor and used to assess the performance of the outcomes. Proposed § 361.42(a)(1)(iii) Education are proposing a set of joint VR program under current § 361.80 would clarify that an applicant meeting regulations applicable to the workforce through § 361.89 with a cross-reference all other eligibility criteria may be development system’s core programs, to the joint regulations for the common determined eligible if he or she requires including the VR program. Through performance accountability measures services to advance in employment, not these proposed joint regulations, we lay for the core programs of the workforce just obtain or maintain employment. We the foundation for establishing a development system. Similarly, we also propose to clarify in proposed comprehensive, accessible, and high propose to provide a cross-reference in §§ 361.48(b)(6)and 361.49, that VR quality workforce development system current § 361.23, regarding the roles and services are available to assist that serves all individuals in need of responsibilities of the VR program in the individuals with disabilities to obtain employment services, including one-stop delivery system, to the joint graduate level education needed for this individuals with disabilities, and regulations implementing requirements purpose. We clarify in proposed employers in a manner that is customer- for the one-stop delivery system. § 361.42(c)(1) the prohibition against a focused and that supports an integrated WIOA makes extensive changes to duration of residency requirement and service design and delivery model. title I of the Act to improve the VR in § 361.42(c)(2) those factors that These joint proposed regulations are in services provided to, and the cannot be considered when determining a separate NPRM published elsewhere employment outcomes achieved by, the eligibility of VR program applicants. in this issue of the Federal Register. individuals with disabilities, including We propose removing the option to use WIOA makes corresponding changes those with the most significant extended evaluations, as a limited to title I of the Act regarding the disabilities. Embedded throughout the exception to trial work experiences, to submission, approval, and disapproval provisions of WIOA and the explore an individual’s abilities, of the VR services portion of the Unified amendments to the Act is the principle capabilities, and capacity to perform in or Combined State Plan; the standards that individuals with disabilities, work situations by deleting paragraph (f) and indicators used to assess VR including those with the most from current § 361.42. To enable program performance; and the significant disabilities, are capable of individuals with disabilities, including involvement of the VR program in the achieving competitive integrated students and youth with disabilities, to one-stop delivery system. Consequently, employment when provided the receive VR services in a timely manner, we propose to amend current § 361.10 to necessary skills and supports. As a proposed § 361.45(e) would require the require that all assurance and result, we propose to adopt a definition individualized plan for employment of descriptive information previously of ‘‘competitive integrated employment’’ each individual to be developed within submitted through the VR State plan in § 361.5(c)(9) that combines, clarifies, 90 days following the determination of and supported employment supplement and enhances the two separate eligibility. Finally, if a State VR agency be submitted through the VR services definitions of ‘‘competitive is operating under an order of selection portion of the Unified or Combined employment’’ and ‘‘integrated setting’’ for services, it would have the option State Plan under sections 102 and 103 for the purpose of employment in under proposed § 361.36 to indicate in of the Act, respectively, of WIOA. We current § 361.5(b)(11) and (b)(33)(ii). its portion of the Unified or Combined also propose to implement changes We propose to incorporate this State Plan that it will serve eligible specific to the content of the VR services principle throughout part 361, from the individuals with disabilities outside portion of the Unified or Combined statement of program purpose in that order who have an immediate need State Plan by amending current proposed § 361.1, to a requirement in for equipment or services to maintain § 361.29(a) to require that the proposed § 361.46(a) that the employment. comprehensive statewide needs individualized plan for employment WIOA enhances the VR agency’s assessment include the results of the include a specific employment goal focus on coordination and collaboration needs of students and youth with consistent with the general goal of with other entities by emphasizing disabilities for VR services, including competitive integrated employment. coordination with employers, non- pre-employment transition services. This principle is most evident in the educational agencies working with Additionally, we propose to clarify in definition of ‘‘employment outcome’’ in youth, AIVRS programs, and other current § 361.29 that States will report proposed § 361.5(c)(15), which agencies and programs providing to the Secretary updates to the statewide specifically identifies customized services to individuals with disabilities needs assessment and goals and employment as an employment outcome to support the achievement of priorities, estimates of the numbers of under the VR program, and requires that competitive integrated employment.

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Proposed § 361.24 reflects the program the definitions contained in 2 significant disabilities, are afforded a enhancements. The collaboration with CFR part 200, Uniform Administrative full opportunity to prepare for, obtain, employers is essential to the success of Requirements, Cost Principles, and maintain, advance in, or re-enter VR program participants and proposed Audit Requirements. We also propose to competitive integrated employment, § 361.32 would describe the training make numerous conforming changes to including supported or customized and technical assistance services that align with 2 CFR 200 to ensure employment. Proposed § 363.1 would can be provided to employers hiring, or consistency. require that supported employment be interested in hiring, individuals with We propose three changes to current in competitive integrated employment disabilities. § 361.65 regarding the allotment of VR or, if not, in an integrated setting in We propose to implement the program funds. First, we propose adding which the individual is working toward emphasis on serving students and youth a new paragraph (a)(3) to § 361.65 that competitive integrated employment on a with disabilities contained in the would require the State to reserve not short-term basis not to exceed six amendments to the Act made by WIOA less than 15 percent of its allotment for months. Proposed § 363.50(b)(1) would in many regulatory changes to part 361. the provision of pre-employment extend the time from 18 months to 24 We propose new definitions of ‘‘student transition services described in months for the provision of supported with a disability’’ and ‘‘youth with a proposed § 361.48(a). Second, we employment services. Proposed § 363.22 disability’’ in § 361.5(c)(51) and (c)(59), propose to amend current § 361.65(b)(2) would require a reservation of 50 respectively. These definitions would to clarify that reallotment occurs in the percent of a State’s allotment under this assist VR agencies to determine the fiscal year the funds were appropriated; part for the provision of supported appropriate transition and other services however, the funds may be obligated or employment services, including that may be provided to each group. We expended during the period of extended services, to youth with the propose in § 361.48(a) to implement the performance, provided that matching most significant disabilities. Proposed requirements of new sections 110(d) and requirements are met. Finally, we § 363.23 would require not less than a 113 of the Act requiring VR agencies to propose to add a new paragraph (b)(3) 10 percent match for the amount of reserve at least 15 percent of the Federal to § 361.65 that would describe the funds reserved to serve youth with the allotment, to provide and arrange, in Secretary’s authority to determine the most significant disabilities. Proposed coordination with local educational criteria to be used to reallot funds when § 363.51 would reduce the amount of agencies, for the provision of pre- the amount requested exceeds the funds that may be spent on employment transition services to amount of funds relinquished. We administrative costs. students with disabilities. We propose provide a full discussion of these and in § 361.49 to clarify the technical other changes to part 361 in the Limitation on Use of Subminimum assistance VR agencies can provide to Significant Proposed Regulations Wages educational agencies and to permit the section of this notice. The Secretary proposes to promulgate provision of transition services for the new regulations in part 397 to State Supported Employment Services benefit of groups of students and youth implement new requirements for Program with disabilities. To enable VR agencies designated State units (DSUs) and and local educational agencies to better Under the Supported Employment educational agencies under the purview determine their respective program authorized under title VI of the of the Department that are imposed by responsibilities for the provision of Act (29 U.S.C. 795g et seq.), the section 511 of the Act, which was added transition services, including pre- Secretary provides grants to assist States by WIOA. Section 511 imposes employment transition services, through in developing and implementing limitations on employers who hold greater interagency collaboration, we collaborative programs with appropriate special wage certificates, commonly propose in § 361.22(c) to clarify that entities to provide supported known as 14(c) certificates, under the nothing in this part is to be construed employment services for individuals FLSA (29 U.S.C. 214(c)) that must be as reducing the responsibility of the with the most significant disabilities, satisfied before the employers may hire local educational agencies or any other including youth with the most youth with disabilities at subminimum agencies under the Individuals with significant disabilities, to enable them to wage or continue to employ individuals Disabilities Education Act to provide or achieve supported employment with disabilities of any age at the pay for transition services that are also outcomes in competitive integrated subminimum wage level. The proposed considered to be special education or employment. Grants made under the regulations in part 397 focus exclusively related services necessary for the Supported Employment program on the related roles and responsibilities provision of a free appropriate public supplement grants issued to States of educational agencies and DSUs for education to students with disabilities. under the VR program (34 CFR part the VR program. The proposed So that VR agencies can recruit the 361). regulations in part 397 are consistent qualified personnel needed to provide The regulations in 34 CFR part 363, with the changes proposed for parts 361 the services and engage in the activities governing the Supported Employment and 363, which govern the VR program summarized here, we propose in program, were last updated February 18, and Supported Employment program, § 361.18 changes to the requirements for 1993 (59 FR 8331). Therefore, the respectively. a comprehensive system of personnel changes proposed in part 363 would Through amendments to the Act, development. The proposed regulations incorporate statutory changes made by WIOA prioritizes, and places would establish minimum educational WIOA, as well as update the regulations heightened emphasis upon, the requirements and experience and to improve the program and ensure provision of services that maximize eliminate the requirement to retrain staff consistency with changes proposed for opportunities for competitive integrated not meeting the VR agency’s personnel part 361 governing the VR program. employment for individuals with standard for qualified staff. The changes made to the Supported disabilities, including those with the Finally, we propose changes to part Employment program by WIOA are most significant disabilities, consistent 361 to improve the fiscal administration intended to ensure that individuals with with their unique strengths, resources, of the VR program. Proposed § 361.5(b) the most significant disabilities, priorities, concerns, abilities, would make applicable to the VR especially youth with the most capabilities, interests, and informed

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choice. WIOA also places heightened referral services to individuals with 720(a)(1)(C)), highlights competitive emphasis on the provision of services disabilities, regardless of age, who are integrated employment as the type of necessary to assist youth with currently employed at a subminimum employment that individuals with disabilities to achieve competitive wage level. disabilities, including individuals with integrated employment in the The proposed regulations in this part the most significant disabilities, are community, including supported or focus exclusively on those requirements capable of achieving if appropriate customized employment. To that end, under the purview of the Department of supports and services are provided. This amendments to the Act require DSUs to Education. To that end, we propose in section, as revised, also incorporates reserve specified percentages of their VR part 397: (1) Documentation economic self-sufficiency as a criterion or supported employment allotments for requirements that local educational to consider when providing VR services the provision of services to students or agencies and DSUs would be required to to an individual. The focus on youth with disabilities, as applicable. satisfy; and (2) information and career competitive integrated employment is These amendments, along with the counseling-related services DSUs would also reflected in changes made to addition of section 511, demonstrate the be required to provide. Requirements section 100(a)(3)(B) of the Act. intent that individuals with disabilities, imposed on employers are under the Current Regulations: Current especially youth with disabilities, must purview of the Department of Labor, § 361.1(b) refers only to gainful be afforded a full opportunity to prepare which administers the FLSA. employment, not competitive integrated for, obtain, maintain, advance in, or re- employment. It also does not include enter competitive integrated Significant Proposed Regulations economic self-sufficiency as a criterion employment. The Secretary proposes to amend the Section 511 places limitations on the implementing regulations for the VR to consider when providing VR services. payment of subminimum wages by program (part 361) and the Supported Proposed Regulations: We propose to entities (e.g., employers) holding special Employment program (part 363). The amend current § 361.1(b) by: (1) wage certificates under the FLSA. In Secretary also proposes to issue new Replacing the term ‘‘gainful particular, such employers are regulations in part 397 to implement employment’’ with ‘‘competitive prohibited from hiring youth with limitations on the payment of integrated employment’’; and (2) disabilities at a subminimum wage level subminimum wages to individuals with incorporating ‘‘economic self- unless the youth are afforded disabilities. We discuss substantive sufficiency’’ as a new criterion that must meaningful opportunities to access issues within each subpart, by section or be considered to ensure that the VR services, including transition services subject. services provided are consistent with under the Act or IDEA, so they may Generally, we do not address the individual’s unique circumstances. achieve competitive integrated proposed changes that are technical or Reasons: The regulatory changes are employment in the community. For the otherwise minor in effect, such as necessary to implement statutory purposes of these requirements, a changes to the authority cited in the amendments to section 100 of the Act ‘‘youth with a disability’’ is anyone who Act. that emphasize the ability of individuals is 24 years or younger. This age range with disabilities, including individuals is consistent with the definition of a Part 361—State Vocational Rehabilitation Services Program with the most significant disabilities, to ‘‘youth with a disability’’ in section achieve competitive integrated 7(42) of the Act. Additionally, Organizational Changes employment, not ‘‘gainful employers are prohibited from employment,’’ the term previously used continuing to employ individuals with Although the proposed regulations under the Act, as amended by WIA. We disabilities, regardless of age, at the maintain the current structure of believe this change is significant given subminimum wage level unless other subparts A, B, and C, we propose that section 7(5) of the Act, as amended requirements are satisfied. Specifically, organizational changes to other subparts by WIOA, includes a new term, the individual with a disability, or the within this part. First, we propose to ‘‘competitive integrated employment,’’ individual’s parent or guardian if reserve subparts within part 361 where that includes mandatory criteria related applicable, must receive certain we plan to incorporate the three to, among other things, compensation, information and career counseling- subparts we are proposing in a separate, advancement, and the integrated nature related services from the DSU every six but related, NPRM (the joint regulations months during the first year of such proposed by the Departments of of the workplace. We also believe it is employment and annually thereafter for Education and Labor implementing significant that Congress added as long as the individual receives changes to title I of WIOA) published economic self-sufficiency to the list of compensation at the subminimum wage elsewhere in this issue of the Federal areas that must be considered when level. Register. Please see that NPRM for more providing VR services to an individual In addition to the requirements information about how these subparts because it reinforces a key element of imposed on employers holding special will be incorporated into part 361. ‘‘competitive integrated employment,’’ wage certificates, section 511 of the Act Second, we propose to remove §§ 361.80 namely requirements related to requires DSUs to provide certain career through 361.89, since the VR-specific compensation and benefits. counseling services. Further, standards and indicators are no longer See the discussion of the term educational agencies and the DSUs must applicable given amendments made by ‘‘competitive integrated employment’’ develop a process, or use an existing WIOA. Finally, we propose to eliminate in this Significant Proposed Regulations process, for the timely provision of Appendix A to current part 361— section of the notice for a full documentation necessary to Questions and Responses. We will explanation of this term for purposes of demonstrate completion of required consider issuing guidance after the the VR program. activities, as appropriate, to youth publication of the final regulations. seeking employment, at a subminimum Applicable Definitions (§ 361.5) Purpose (§ 361.1) wage level. Finally, DSUs must provide Definitions in 34 CFR 77.1 documentation of the provision of Statute: Section 100(a)(1)(C) of the career counseling and information and Act, as amended by WIOA (29 U.S.C. Statute: None.

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Current Regulations: Current include capital expenditures, as defined competitive integrated employment by regulations highlight only a few terms in 2 CFR 200.13. individuals with disabilities. To that contained in 34 CFR 77.1. Reasons: The proposed change is end, amendments made by WIOA Proposed Regulations: In paragraph necessary to clarify the scope of require that assessments for determining (a) of § 361.5, we propose to incorporate administrative costs, with regard to eligibility and VR needs of individuals by reference all definitions contained in operating and maintenance with disabilities must rely on 34 CFR 77.1. expenditures, thereby ensuring information about the individual’s Reasons: This change is necessary to consistency with 2 CFR part 200. There experiences in integrated employment clarify that all definitions in 34 CFR has been confusion among VR grantees and in other integrated community 77.1 are applicable to part 361. as to whether operating or maintenance settings. The Act clearly places an expenses, in the context of emphasis on integrated settings by Adoption of 2 CFR Part 200 administrative costs, include capital requiring that VR agencies rely on Statute: None. expenditures. Operating or maintenance information learned from the Current Regulations: Current § 361.5, expenses in the context of individual’s experiences in these which contains definitions relevant to administrative costs under the VR settings, to the maximum extent the VR program and was last updated in program are those costs incurred to possible, when conducting an 2001, does not include definitions from maintain facilities, equipment, and assessment. Nonetheless a DSU is not 2 CFR part 200 since those regulations grounds in good working order; precluded from determining an were promulgated in 2014. whereas, capital expenditures, as individual’s eligibility for VR services Proposed Regulations: We propose defined in 2 CFR 200.13, are those based on other information obtained redesignating current paragraph (b) as expenditures that ‘‘materially increase through the assessment process when paragraph (c) and adding a new their value or useful life.’’ We want to the individual cannot participate in paragraph (b) that incorporates by make clear that capital expenditures are integrated community-based work reference all definitions in 2 CFR part permitted under the VR program in experiences. accordance with 2 CFR 200.439, but not 200, subpart A (Uniform Administrative as an administrative cost. Assistive Technology Terms Requirements, Cost Principles, and Statute: Section 7(3) of the Act, as Audit Requirements). Proposed Assessment for Determining Eligibility amended by WIOA (29 U.S.C. 705(3)), substantive changes to paragraph (c) and Vocational Rehabilitation Needs adds a new definition of ‘‘assistive will be discussed throughout this NPRM Statute: Section 7(2)(B)(v) of the Act, technology’’ and combines the previous in conjunction with the relevant topical as amended by WIOA (29 U.S.C. 705(2)), definitions of ‘‘assistive technology discussion. adds a new requirement that VR device’’ and ‘‘assistive technology Reasons: OMB issued the Uniform agencies must, to the maximum extent service’’ under the heading ‘‘assistive Administrative Requirements, Cost possible, rely on information from the technology terms.’’ Principles, and Audit Requirements for individual’s experiences obtained in an Current Regulations: Current Federal Awards on January 1, 2014. The integrated employment setting in the § 361.5(b)(7) defines ‘‘assistive new regulations supersede and community or in other integrated technology device’’ and current streamline requirements from OMB community settings when using existing § 361.5(b)(8) defines ‘‘assistive Circulars A–21, A–87, A–89, A–102, A– information or conducting a technology service.’’ There is no 110, A–122, and A–133, as well as the comprehensive assessment for definition for ‘‘assistive technology’’ guidance in Circular A–50 on Single determining eligibility and the need for since this is a new statutory term. Audit Act follow-up. These regulations, VR services for an individual with a Proposed Regulations: We propose to codified in 2 CFR part 200, have been disability. add the heading ‘‘assistive technology adopted by the Secretary in 2 CFR part Current Regulations: Current terms’’ in proposed § 361.5(c)(6), under 3474, which took effect on December 26, § 361.5(b)(6) defines ‘‘assessment for which we would incorporate definitions 2014. Consequently, terms and determining eligibility and vocational for the new term ‘‘assistive technology’’ definitions that previously were not rehabilitation needs,’’ but does not and for the existing terms ‘‘assistive used in the VR program, such as include the requirement related to technology device’’ and ‘‘assistive ‘‘subaward’’ (2 CFR 200.92), will be reliance on information about the technology service.’’ We also propose to applicable given the Department’s individual’s experiences in integrated delete current § 361.5(b)(7) and (b)(8), as adoption of 2 CFR part 200. settings because this is a new statutory these separate definitions would no Administrative Cost requirement. longer be necessary. Proposed Regulations: We propose to Reasons: The proposed changes are Statute: Section 7(1) of the Act, which amend the current regulations to necessary to implement the new defines ‘‘administrative costs,’’ remains conform to the statute in section 7(2)(B) statutory definition in section 7(3) of the unchanged by WIOA. of the Act by adding language to the Act, as amended by WIOA. The Current Regulations: The current definition of ‘‘assessment for proposed definition streamlines the definition in § 361.5(b)(2) mirrors the determining eligibility and vocational definitions of the various terms by statute and defines ‘‘administrative rehabilitation needs’’ in proposed referencing the Assistive Technology costs’’ as including, among other things, § 361.5(c)(5)(ii)(E) that would make Act of 1998. the costs of operating and maintaining clear that a comprehensive assessment, DSU facilities, equipment, and grounds. to the maximum extent possible, relies Competitive Integrated Employment Proposed Regulations: We propose to on information obtained from the Statute: WIOA adds a new term, amend § 361.5(c)(2)(viii), as eligible individual’s experiences in ‘‘competitive integrated employment,’’ redesignated by other changes made in integrated employment settings in the in section 7(5) of the Act (29 U.S.C. this part, by clarifying that operating community and other integrated settings 705(5)). Although this is a new statutory and maintenance expenses, for purposes in the community. term, the term and its definition of the definition of ‘‘administrative Reasons: WIOA places a heightened generally represent a consolidation of costs’’ for the VR program, do not emphasis on the achievement of two separate definitions and their terms

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in current regulations—‘‘competitive Department policy, practice, and the from the business equal to or exceeding employment’’ and ‘‘integrated setting.’’ heightened emphasis on competitive applicable minimum wage rates, In addition, the new statutory definition integrated employment throughout the particularly in the early stages of incorporates a criterion related to Act, as amended by WIOA. operation. Hence, proposed advancement in employment that is not In implementing these proposed § 361.5(c)(9)(i)(C) would clarify that self- included in either of the two current regulations and determining whether an employed individuals with disabilities regulatory definitions. individual with a disability has can be considered to be receiving Current Regulations: Current achieved an employment outcome in competitive compensation if their § 361.5(b)(11) defines ‘‘competitive ‘‘competitive integrated employment,’’ a income is comparable to that of employment’’ and current § 361.5(b)(33) DSU must consider, on a case-by case- individuals without disabilities in defines ‘‘integrated setting.’’ Current basis, each of the criteria described in similar occupations or performing regulations do not define ‘‘competitive the proposed definition of ‘‘competitive similar tasks who possess the same level integrated employment’’ since this is a integrated employment.’’ While most of of training, experience, and skills. new statutory term. the criteria are familiar and self- Finally, to ensure consistency with the Proposed Regulations: We propose to explanatory, we believe additional American Indian Vocational replace the term ‘‘competitive guidance is warranted here to explain Rehabilitation Services program under employment’’ in current § 361.5(b)(11) those few new criteria contained in the part 371, we interpret subsistence with the new term ‘‘competitive statutory and proposed regulatory employment as a form of self- integrated employment’’ in proposed definitions, especially with regard to the employment common to cultures of § 361.5(c)(9). The proposed definition of criteria for an integrated employment many American Indian tribes. ‘‘competitive integrated employment’’ setting. As a result, we further explain Integrated Location: While the would mirror the statutory definition in these criteria, highlighting those aspects integrated setting criteria of the section 7(5) of the Act, as amended by that historically have raised the most proposed definition of ‘‘competitive WIOA, as well as provide two questions from DSUs. integrated employment’’ are consistent clarifications with respect to the criteria Competitive Earnings: The with the statutory definition in section for integrated work locations. compensation criteria of the proposed 7(5)(B) of the Act, as amended by First, proposed § 361.5(c)(9)(ii)(A) definition of ‘‘competitive integrated WIOA, and the current definition of would clarify that the employment employment,’’ which mirror the ‘‘integrated setting’’ in § 361.5(b)(33)(ii), location must be in ‘‘a setting typically statutory definition, are consistent with the proposed definition would provide found in the community.’’ Second, those found in the current regulatory important clarifications that are proposed § 361.5(c)(9)(ii)(B) would definition of ‘‘competitive employment’’ necessary to ensure consistency with clarify that the employee with a in § 361.5(b)(11). Proposed expressed congressional intent and disability’s interaction with other § 361.5(c)(9)(i)(A) would continue to current Departmental guidance. employees and others, as appropriate require that, to be considered First, we propose to require that the (e.g., customers and vendors), who are ‘‘competitive integrated employment,’’ work location be in ‘‘a setting typically not persons with disabilities (other than the individual must perform full- or found in the community’’ as required by supervisors and service providers) must part-time work in which he or she earns current § 361.5(b)(33)(ii), meaning that be to the same extent that employees at least the higher of the minimum wage an integrated setting must be one that is without disabilities in similar positions rate established by Federal or applicable typically found in the competitive labor interact with these same persons. This State law. Because several jurisdictions market. This particular criterion is interaction must occur as part of the have established minimum wage rates included in the current definition of individual’s performance of work duties substantially higher than those provided ‘‘integrated setting’’ and, thus, its and must occur both in the particular for under Federal or State law, the incorporation in the proposed definition work unit and the entire work site, as statutory definition and proposed of ‘‘competitive integrated employment’’ applicable. We further propose to § 361.5(c)(9)(i)(A) would require that the would ensure consistency between the amend the definition of ‘‘integrated individual’s earnings be at least equal to two terms. Furthermore, this long- setting’’ in proposed § 361.5(c)(32)(ii) to the legally established local minimum standing Department interpretation is conform to the clarifications provided in wage rate if that rate is higher than both consistent with the expressed the proposed definition of ‘‘competitive the Federal and State rates. Also, as has congressional intent throughout the Act, integrated employment’’ in proposed been the case under the current as well as with past legislative history. § 361.5(c)(9)(ii) to ensure consistency definition of ‘‘competitive Specifically, integrated setting ‘‘. . . is between the two terms. employment,’’ section 7(5) of the Act intended to mean a work setting in a Finally, we propose to replace the requires and proposed § 361.5(c)(9)(i)(D) typical labor market site where people terms ‘‘competitive employment’’ and would require that the individual with with disabilities engage in typical daily ‘‘employment in an integrated setting,’’ the disability must be eligible for the work patterns with co-workers who do as appropriate, with ‘‘competitive same level of benefits provided to not have disabilities; and where workers integrated employment’’ throughout this employees without disabilities in with disabilities are not congregated part. similar positions. In implementing the . . .’’ (Senate Report 105–166, page 10, Reasons: These proposed changes are statute, the proposed definition would March 2, 1998). Therefore, we continue necessary to implement and to clarify establish additional criteria with respect to maintain the long-standing statutory amendments made by WIOA. to competitive earnings. First, proposed Department policy that settings Because the proposed definition of § 361.5(c)(9)(i)(B) would require that the established by community rehabilitation ‘‘competitive integrated employment’’ DSU take into account the training, programs specifically for the purpose of reflects, for the most part, a experience, and level of skills possessed employing individuals with disabilities consolidation of two existing regulatory by the employees without disabilities in (e.g., sheltered workshops) do not definitions, the substance of this similar positions. Second, the proposed constitute integrated settings because proposed definition is familiar to DSUs definition recognizes that individuals, these settings are not typically found in and does not represent a divergence with or without disabilities, in self- the competitive labor market. We from current regulations, long-standing employment may not receive an income believe this criterion of the integrated

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setting component of the proposed the criteria for an integrated location, so Opportunities for Advancement: To definition of competitive integrated long as the employee with the disability ensure that the employment of persons employment is the first of two interacts with employees in similar with disabilities is equivalent in all thresholds that must be satisfied. positions and other persons without respects to that of persons without Second, once the first threshold is disabilities to the same extent that these disabilities, section 7(5) of the Act, as met, we believe it is essential, consistent persons without disabilities interact amended by WIOA, establishes a new with the current definition of with others, though this interaction criterion not contained in current ‘‘integrated setting,’’ that individuals need not be face-to-face. regulations. Proposed § 361.5(c)(9)(iii) with disabilities have the opportunity to The proposed definition of mirrors the language in section 7(5) of interact with non-disabled co-workers ‘‘competitive integrated employment’’ the Act and would require that the during the course of performing their would further clarify, consistent with employee with the disability have the work duties to the same extent that their the general principles contained in the same opportunities for advancement as non-disabled co-workers have to current definition of ‘‘integrated employees without disabilities in interact with each other when setting,’’ that the DSU is to consider the similar positions. We believe this new performing the same work. To that end, interaction between employees with criterion is consistent with current proposed § 361.5(c)(9)(ii)(B) would disabilities and those without definitions of ‘‘competitive clarify that ‘‘other persons’’ as used in disabilities that is specific to the employment’’ and ‘‘integrated settings’’ the statutory definition means other performance of the employee’s job and should pose no hardship on DSUs employees without disabilities with duties, and not the casual, to implement. whom the employee with the disability As explained here, the definition of conversational, and social interaction works within the specific work unit and ‘‘competitive integrated employment’’ that takes place in the workplace. As a from across the entire work site. We in section 7(5) of the Act, as amended result, it would not be pertinent to its want to make clear that this proposed by WIOA, and as proposed in determination of an integrated setting clarification is contained, more § 361.5(c)(9) establishes three essential for a DSU to consider interactions in the generally, in the current definition of criteria of employment—income lunchrooms and other common areas of ‘‘integrated setting.’’ Furthermore, we (earnings and benefits), integration, and the work site in which employees with believe this clarification is consistent advancement—thereby ensuring that disabilities and those without with congressional intent, past individuals with disabilities are disabilities are not engaged in legislative history, current Departmental provided through the VR program the performing work responsibilities. This guidance, and current regulations. full opportunity to participate in the determination, particularly with regard Historically, this element regarding same jobs available to persons without to the level of interaction, would be integrated settings has raised many disabilities in the public. questions; therefore, we provide specific applicable regardless of whether the Again, we want to make clear that two clarity with regard to certain job settings individual with a disability is an of the criteria—those related to in which employees primarily interact employee of the work site or a compensation and the integrated nature with persons from outside the work community rehabilitation program hires of the worksite—are similar, if not unit, such as vendors and customers, the individual with a disability under a identical, to criteria contained in the rather than each other, while performing service contract for that work site. current definitions of ‘‘competitive their job duties. We believe the focus of Specifically, individuals with employment’’ and ‘‘integrated setting.’’ whether the setting is integrated should disabilities hired by community Thus, the substance of this definition is be on the interaction between rehabilitation programs to perform work familiar to the DSUs and should pose no employees with and without under service contracts, either alone or hardship to implement. disabilities, and not solely on the in groups (e.g., landscaping or janitorial interaction of employees with crews), whose interaction with persons Customized Employment disabilities with people outside of the without disabilities (other than their Statute: Section 7(7) of the Act, as work unit. For example, the interaction supervisors and service providers) is amended by WIOA (29 U.S.C. 705 (7)), of individuals with disabilities with persons working in or visiting the adds and defines the term ‘‘customized employed in a customer service center work locations (and not with employees employment,’’ which means, in general, with other persons over the telephone, of the community rehabilitation competitive integrated employment regardless of whether these persons programs without disabilities in similar designed to meet both the specific have disabilities, would be insufficient positions) would not be performing abilities of the individual with a by itself to satisfy the definition. work in an integrated setting. In significant disability and the business Instead, the interaction of primary summary, the DSU must determine, on needs of an employer. consideration should be that between a case-by-case basis, that a work Current Regulations: None. the employee with the disability and his location is in an integrated setting if it Proposed Regulations: We propose to or her colleagues without disabilities in both is typically found in the add § 361.5(c)(11), to define similar positions. community, and is one in which the ‘‘customized employment’’ to mirror the Nonetheless, we recognize that employee with the disability interacts statute. individuals who are self-employed or with employees and other persons, as Reasons: The proposed regulation is who telecommute may interact more appropriate to the position, who do not necessary to implement the new frequently with persons such as vendors have disabilities to the same extent that statutory term and definition because and customers than with other employees without disabilities interact the Act, as amended by WIOA, uses the employees. Since these persons often with these persons. Finally, the DSU is term in a variety of contexts, including work alone from their own homes rather to consider the interaction between the incorporating it into definitions of than together in a single location, and employee with the disabilities and these employment outcome and supported may have little contact with fellow other persons that takes place for the employment, and incorporating it into employees, we have long maintained purpose of performing his or her job the list of individualized services that self-employment and duties, not mere casual and social permissible under the VR program. telecommuting are considered to meet interaction. Customized employment provides

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flexibility in developing individualized integrated employment. The Act, as family workers. Over the past 35 years and customized strategies that are amended by WIOA, makes clear—from the percentage of such outcomes has specific to an individual with a the stated purpose of the Act, the steadily and significantly decreased. For significant disability’s unique needs, addition of new requirements governing example, in FY 1980 homemaker interests, and capabilities, through the the development of individualized outcomes as a percentage of all use of flexible strategies that meet the plans for employment and the transition employment outcomes reported needs of both the individual and the of students and youth from school to nationally to the Department by VR employer. post-school activities, and new agencies through the VR program Case limitations on the payment of Service Report for the years FY 1980 Employment Outcome subminimum wages—that individuals through FY 2013 approximated 15 Statute: Section 7(11) of the Act, as with disabilities, particularly those with percent. This percentage dropped to 5.2 amended by WIOA, revises the significant disabilities, are able to percent in FY 1999, and to 3.4 percent definition of ‘‘employment outcome’’ to achieve the same high-quality jobs in in FY 2004. By FY 2013, the most recent include customized employment within the competitive integrated labor market year for which data is available, this its scope. as persons without disabilities if they percentage had declined to 1.9 percent. Current Regulations: Current are provided appropriate services and There has been a similar decline in § 361.5(b)(16) defines ‘‘employment supports. The amendments made by reported unpaid family workers. outcome,’’ but does not include WIOA are consistent with and further According to data reported by VR customized employment since this is a other changes made over the past four agencies through the VR program Case new statutory requirement. decades, with each reauthorization, that Service Report, in FY 2000, 642 Proposed Regulations: We propose to have placed increasing emphasis on the individuals were reported in the amend the definition of ‘‘employment achievement of competitive category of unpaid family worker. By FY outcome’’ in § 361.5(c)(15), as employment in an integrated setting 2013, the most recent year for which we redesignated by other changes made in through the VR program. See the have data, only 135 individuals were this part, to specifically identify discussion regarding ‘‘competitive reported to have obtained an unpaid customized employment as an integrated employment’’ earlier in this family worker outcome. National data employment outcome under the VR preamble. indicates that approximately 0.2 percent program. We also propose to amend the It is in this context that we propose or less of all the outcomes reported definition to require that all to amend the definition of ‘‘employment annually by DSUs are unpaid family employment outcomes achieved outcome,’’ for purposes of the VR worker outcomes. through the VR program be in program, to include only those While we recognize that some VR competitive integrated employment or outcomes that meet the requirements of agencies have a greater percentage of supported employment, thereby competitive integrated employment homemaker and unpaid family worker eliminating uncompensated outcomes (including customized employment, outcomes than others, particularly those from the scope of the definition for self-employment, telecommuting or agencies serving individuals who are purposes of the VR program. business ownership), or supported blind and visually impaired, it is also Furthermore, we propose to amend employment, thereby eliminating from evident that the majority of DSUs have current § 361.37(b) to expand the scope the scope of the definition, under the been placing increased importance and of those circumstances when the DSU VR program, uncompensated outcomes, emphasis on competitive employment must provide referrals to other programs such as homemakers and unpaid family outcomes, in their policies and and service providers for individuals workers. We believe this proposed procedures, as the optimal employment who choose not to pursue an change is consistent with the statutory outcome and deemphasizing employment outcome under the VR definition of ‘‘employment outcome’’ in uncompensated outcomes. This shift in program. Similarly, we propose to section 7(11) of the Act, as well as the practice has been the product of the amend current § 361.43(d) to expand the pervasive emphasis in the Act on the DSUs responding to the intent of the Act requirement for the referral of achievement of competitive integrated and translating that intent into their individuals found ineligible for VR employment by individuals with administration of the VR program. services or determined ineligible disabilities, including those with the Nevertheless, we recognize that this subsequent to the receipt of services to most significant disabilities. Given this proposed change could represent a also include appropriate State, Federal, emphasis, we believe the proposed significant shift in practice for a few VR and local programs, and community change, not to include, within the scope agencies, particularly those with high service providers better suited to meet of employment outcomes, percentages of individuals achieving their needs. uncompensated outcomes, such as employment outcomes as homemakers Reasons: The proposed changes are homemakers and unpaid family or unpaid family workers. These necessary, in part, to implement workers, is consistent with the agencies may be providing services to statutory changes to the definition of provisions of the Act. assist individuals to obtain homemaker ‘‘employment outcome’’ that include We believe the proposed changes to and unpaid family worker outcomes at reference to ‘‘customized employment.’’ the definition, while essential to the time the final regulations become See the discussion of ‘‘customized fulfilling the expectation in the Act that effective. To allow these agencies to employment’’ earlier in this preamble individuals with disabilities, complete the VR process for these for further information regarding this particularly individuals with significant individuals, we are considering a type of employment outcome. disabilities, are capable of pursuing transition period of six months The proposed change that would limit competitive integrated employment, following the effective date of the final the scope of employment outcomes should not cause significant difficulty regulations for the implementation of under the VR program to competitive for most State VR units in their this proposed change. We are interested integrated employment or supported administration of the VR program. in receiving comments about providing employment is necessary to implement Nationally, only a relatively small such a transition period. the heightened emphasis of the Act on number of individuals currently exit the Since FY 2004, through monitoring of the achievement of competitive VR program as homemakers or unpaid the VR program, we have reviewed the

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attainment of homemaker outcomes and VR funds authorized under title I, on the Reasons: These changes are necessary have found that VR agencies sometimes provision of extended services to youth to implement the revised statutory assist individuals to exit the program as with the most significant disabilities for definition in section 7(19) of the Act. homemakers to provide an alternate a period not to exceed four years. These changes also are necessary to resource for the provision of Current Regulation: Current ensure consistency with changes independent living services that are § 361.5(b)(20) defines ‘‘extended proposed to part 371, implementing the otherwise available from the State services,’’ but does not mention that American Indian Vocational Independent Living Services, Centers these services may be provided to youth Rehabilitation Services program, for Independent Living, and with the most significant disabilities contained in a separate, but related, Independent Living Services for Older since this is a new statutory NPRM published elsewhere in this issue Individuals Who Are Blind programs. requirement. of the Federal Register. To ensure that individuals who choose Proposed Regulations: We propose to to pursue homemaker and unpaid amend the definition in § 361.5(c)(19), Local Workforce Development Board family worker outcomes, or who are as redesignated by other changes made and Other Workforce Development determined ineligible for VR services in this part, to make clear that extended Terms either at the time of application or services may be provided to youth with Statute: Sections 7(25), 7(35), and following the provision of services, are the most significant disabilities for a 7(36) of the Act, as amended by WIOA, able to access independent living and period not to exceed four years. The define the terms ‘‘Local workforce other rehabilitation services, we propose changes proposed herein are consistent development board,’’ ‘‘State workforce to expand the scope of §§ 361.37(b) and with those proposed for the Supported development board,’’ and ‘‘Statewide 361.43(d) so that these circumstances Employment program in part 363. workforce development system,’’ would be among those when DSUs must Reasons: The revisions are necessary respectively. refer these individuals to public and to implement statutory changes to the Current Regulations: Current private agencies better suited to meet Supported Employment program made §§ 361.5(b)(34), (b)(49), and (b)(50) their needs. These current regulatory by WIOA that also relate to the VR define ‘‘Local workforce investment provisions are limited to those program since VR funds may be used to board,’’ ‘‘State workforce investment individuals who choose to pursue pay for allowable supported board,’’ and ‘‘Statewide workforce extended employment, which does not employment services. These proposed investment system,’’ respectively. constitute an employment outcome changes are consistent with those Proposed Regulations: We propose to under the VR program. As proposed, proposed in part 363 and discussed in amend part 361 throughout, including §§ 361.37(b) and 361.43(d) would be more detail later in this NPRM. the definitions for ‘‘Local workforce more broad, thus encompassing those Indian; American Indian; Indian development board’’ in § 361.5(c)(33), individuals who choose to pursue American and Indian Tribe ‘‘State workforce development board’’ in uncompensated employment, such as § 361.5(c)(49), and ‘‘Statewide homemakers and unpaid family Statute: Section 7(19) of the Act, as workforce development system’’ in workers, as well as those who choose to amended by WIOA, revises the § 361.5(c)(50), to substitute the word pursue extended employment. definition of ‘‘Indian,’’ ‘‘American ‘‘development’’ for ‘‘investment’’ The resources available through the Indian,’’ ‘‘Indian American,’’ and wherever those terms appear. independent living programs have ‘‘Indian tribe’’ to further clarify those Reasons: These changes are necessary expanded exponentially since FY 1992. terms. to implement revised terms used Specifically, the number of Part C- Current Regulations: Current throughout WIOA. The amendments are funded centers for independent living § 361.5(b)(3) defines ‘‘American Indian’’ technical in nature and do not represent has tripled since FY 1993, from 120 to to mean an individual who is a member a substantive change to the definitions 356 presently, including 20 new centers of an Indian tribe. Current § 361.5(b)(26) themselves. for independent living established in FY defines ‘‘Indian tribe’’ to mean any Supported Employment 2010 through funding under the Federal or State Indian tribe, band, American Recovery and Reinvestment rancheria, pueblo, colony, or Statute: Section 7(38) of the Act, as Act of 2009. In addition, funding for the community, including any Alaskan amended by WIOA, revises the Independent Living Services for Older native village or regional village definition of supported employment to, Individuals Who Are Blind program has corporation (as defined in or established among other things, reference increased since FY 1992, from pursuant to the Alaska Native Claims competitive integrated employment and $6,500,000 to approximately Settlement Act). customized employment, and requires $33,000,000 in FY 2014. While we Proposed Regulations: We propose to that an individual who is employed in recognize that this proposed change combine the definitions of ‘‘American an integrated setting, but not in would place the responsibility for Indian’’ and ‘‘Indian tribe’’ currently in competitive integrated employment, making these referrals on DSUs, we § 361.5(b)(3) and (b)(26), respectively, to must be working toward such an believe that any burden associated with be consistent with the definition in outcome on a short-term basis for such these requirements is outweighed by the section 7(19) of the Act, as amended by work to qualify as supported benefit that individuals with disabilities WIOA. To that end, the proposed employment. would gain by having access to definition in § 361.5(c)(25) would make Current Regulation: Current programs and services that can more clear that the term ‘‘American Indian’’ § 361.5(b)(53) defines ‘‘supported appropriately meet their individualized includes a Native and a descendant of employment’’ as the term was defined needs. a Native, as defined in the Alaska Native prior to the enactment of WIOA. There Claims Settlement Act (43 U.S.C. 1602), is no reference to ‘‘competitive Extended Services and expands the term ‘‘Indian tribe’’ to integrated employment’’ or ‘‘customized Statute: Section 604(b) of the Act, as include a tribal organization, as defined employment’’ since these are new amended by WIOA, permits the in the Indian Self-Determination and statutory requirements. expenditure of supported employment Education Assistance Act (25 U.S.C. Proposed Regulation: We propose to funds authorized under title VI, and the 450(b)(1)). amend the definition in § 361.5(c)(53),

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as redesignated by other changes made Reasons: The revisions are necessary current paragraph (f) and current in this part, to require that supported to implement the new definition of paragraph (g). We propose to employment means competitive ‘‘supported employment services’’ in redesignate current paragraph (h) as integrated employment, including section 7(39) of the Act, as amended by paragraph (f) and rename it ‘‘Due customized employment, or WIOA. Most importantly, the proposed Process.’’ employment in an integrated setting in definition extends the allowable Finally, we propose to make other which the individual is working on a timeframe for the provision of conforming changes throughout short-term basis toward competitive supported employment services from 18 § 361.10. integrated employment. We also to 24 months. The proposed changes Reasons: The proposed revisions to propose, in this context, that an also ensure consistency with revisions § 361.10 are necessary to: (1) Implement individual be considered to be working proposed in part 363, implementing the the VR-specific amendments to sections on a ‘‘short-term basis’’ toward Supported Employment program, 101(a)(1) and (b) of the Act made by competitive integrated employment if discussed later in this NPRM. WIOA; and (2) align VR-specific the individual reasonably expects requirements with those contained in Submission, Approval, and Disapproval the joint regulations, developed by the achieving a competitive integrated of the State Plan (§ 361.10) employment outcome within six months Departments of Education and Labor, of achieving an employment outcome of Statute: Section 101(a)(1) of the Act, regarding the submission, approval, and supported employment. These proposed as amended by WIOA, requires that, a modification of Unified or Combined changes are consistent with those ‘‘vocational rehabilitation services State Plans. Taken together, these proposed in part 363 for the Supported portion’’ be included in a State’s statutory amendments and proposed Employment program, discussed later in Unified State Plan in accordance with regulatory changes recognize that the this NPRM. section 102, or a Combined State Plan VR services portion of the Unified or in accordance with section 103, of Reasons: The revisions are necessary Combined State Plan is to be an integral WIOA. The ‘‘vocational rehabilitation to implement the new statutory part of the Unified or Combined State services portion’’ must contain all State definition in section 7(38) of the Act, as Plan, and provide the foundation for the plan requirements under section 101(a) seamless, effective, and efficient amended by WIOA, which reflects the of the Act. delivery of services through the heightened emphasis on the Section 101(b) of the Act, as amended collaboration and combined funding, to achievement of competitive integrated by WIOA, makes conforming changes the extent allowable under relevant employment. with regard to the submission, approval, program requirements, of the workforce We also propose to include a and modification process for the VR development system that will enable definition of ‘‘short-term basis,’’ in the services portion of the Unified or individuals with disabilities to obtain context of supported employment, to Combined State Plan. the skills necessary to participate in the give meaning to the phrase and ensure Current Regulations: Current § 361.10 high-demand jobs of today’s economy. congressional intent. By limiting the includes requirements for the To further the integrated nature of the timeframe, we ensure that individuals submission and approval process for the VR services portion of the Unified or do not remain in subminimum wage VR State plan. Although current Combined State Plan, we request that employment for the purpose of § 361.10(c) permits States to submit the comments to proposed revisions to achieving supported employment VR State plan as part of the Unified § 361.10 be limited to VR-specific outcomes. The proposed changes also State Plan, there is no requirement to do requirements and that more general ensure consistency with the so. comments about the Unified or amendments proposed in part 363, Proposed Regulations: First, we Combined State Plan be submitted in implementing the Supported propose to amend current § 361.10(a) to response to the proposed joint Employment program, discussed later in require the State to submit a VR services regulations published elsewhere in this this NPRM. portion of a Unified or Combined State issue of this Federal Register. Supported Employment Services Plan in accordance with sections 102 or 103, respectively, of WIOA to be eligible Requirements for a State Rehabilitation Statute: Section 7(39) of the Act, as to receive its VR allotment. Council (§ 361.17) amended by WIOA, revises the Second, we propose to clarify that the Statute: Section 105(b)(1) of the Act, definition of ‘‘supported employment VR services portion of the Unified or as amended by WIOA, makes a services’’ to extend the allowable Combined State Plan includes all technical amendment to the timeframe for the provision of these information required under section composition requirement of the State services from 18 months to 24 months. 101(a) of the Act. Rehabilitation Council (SRC) related to The statute also makes other technical Third, we propose to amend section 121 projects. WIOA also amends changes to the definition. § 361.10(d) by providing a cross- section 105(b)(6) by requiring the SRC to Current Regulation: Current reference to subpart D of part 361, include programs authorized under the § 361.5(b)(54) defines ‘‘supported which is reserved for the joint Assistive Technology Act of 1998 employment services’’ to include a regulations implementing requirements among those agencies and organizations timeframe of 18 months. for the Unified and Combined State Plan with which it must coordinate. Proposed Regulations: We propose to proposed jointly by the Departments of Current Regulations: Current revise the definition in § 361.5(c)(54), as Education and Labor. The proposed § 361.17(b)(1)(ix) requires that, in a State redesignated due to other changes made joint regulations that would implement with projects carried out under section in this part, to extend the allowable jointly-administered activities under 121 of the Act, a representative of the timeframe for the delivery of these title I of WIOA are published elsewhere directors of these projects must serve on services from 18 months to 24 months. in this issue of the Federal Register. We the SRC, but it does not use the new We also propose to make changes that also propose to remove current statutory term ‘‘funded’’ in place of clarify the individualized and paragraph (e) and redesignate current ‘‘carried out.’’ Current § 361.17(h)(6) customized nature of supported paragraph (f)(3) as paragraph (e), and we requires the SRC to collaborate with employment services. propose to remove the remainder of various other entities, but does not

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include programs authorized under the term ‘‘State plan’’ with the ‘‘vocational to assist individuals with disabilities to Assistive Technology Act of 1998 since rehabilitation services portion of the achieve competitive integrated this is a new statutory requirement. Unified or Combined State Plan,’’ we employment in today’s demanding labor Current § 361.17(h)(3) also requires the believe that members of the SRC would market. The proposed regulations would SRC to partner with the VR agency in be responsible only for participating in describe education and experience, as establishing State goals and priorities the development of the goals and applicable, requirements at the and to assist in the preparation of the strategies contained in, and providing bachelor’s, master’s, and doctoral level, State plan. input on, the VR services portion of the in fields related to rehabilitation that Proposed Regulations: We propose to Unified or Combined State Plan in prepare the individual to work with amend current § 361.17(b)(1)(ix) to accordance with the mandated activities individuals with disabilities and substitute ‘‘funded’’ for ‘‘carried out’’ in of the SRC as set forth in proposed employers. For individuals hired at the the State to mirror the statute. § 361.17(h). bachelor’s level, there also would be a Additionally, we propose to amend requirement for at least one year of paid Comprehensive System of Personnel current § 361.17(h)(6) to include or unpaid experience. These proposed Development (§ 361.18) programs established under the CSPD requirements would further the Assistive Technology Act of 1998 in the Statute: Section 101(a)(7) of the Act, heightened emphasis throughout the list of entities with which the SRC must as amended by WIOA, makes several Act on employer engagement and coordinate its activities. Finally, we changes to the comprehensive system of affording individuals with disabilities propose to clarify in § 361.17(h)(3) that personnel development (CSPD) that every opportunity to achieve the SRC is only required to assist in the each DSU must establish to ensure its competitive integrated employment. preparation of the VR services portion of personnel are adequately trained. In In order to further clarify what types the Unified or Combined State Plan, not particular, the amendments add specific of skills we intend for personnel to the entire Unified or Combined State educational and experiential criteria demonstrate, we propose some Plan. that must be met by VR personnel. The illustrative examples in Reasons: The proposed changes are statute also makes other technical § 361.18(c)(2)(ii), which are by no means necessary to implement statutory changes throughout this section. all-inclusive but which are typically amendments to section 105 of the Act Current Regulations: Current § 361.18 required of rehabilitation professionals made by WIOA. We believe the requires a DSU to establish a CSPD that hired by the DSU. Finally, in proposing proposed change in § 361.17(b)(1)(ix) is is based on either a national or State to amend current § 361.18(d)(1)(i) to more technical than substantive in the licensing or certification standard. require that the CSPD include training context of the American Indian Current regulations do not specify implemented in coordination with Vocational Rehabilitation Services specific educational or experiential entities carrying out State programs program. Unlike most programs in criteria since these are new statutory under section 4 of the Assistive which funds are awarded to a State or requirements. Technology Act of 1998, we are an entity in a State, the Department Proposed Regulations: We propose to reflecting a new statutory requirement awards section 121 grant funds to tribes, revise § 361.18(c)(1)(ii) to mirror the that is consistent with the emphasis on whose reservations may cross State statute with regard to education and coordination throughout the Act. lines. In that context, the distinctions experience requirements for VR between ‘‘funded,’’ as used in WIOA, personnel. Accordingly, we would Public Participation Requirements and ‘‘carried out,’’ as had been used ensure that personnel have a 21st- (§ 361.20) previously, provides no substantive century understanding of the evolving Statute: Section 101(a)(16)(A) of the differences in practical meaning. For labor force and needs of individuals Act requires that the State plan provide that reason, we believe this proposed with disabilities. In addition, we that the designated State agency, prior change is primarily technical in nature. propose to add a new § 361.18(c)(2)(ii) to the adoption or amendment of any The proposed inclusion in in which we would describe what we policies or procedures governing the § 361.17(h)(6) of the programs mean by personnel having a 21st- provision of VR services under the State authorized under the Assistive century understanding of the evolving plan, must conduct public meetings Technology Act of 1998 among the labor force and needs of individuals throughout the State to provide the entities with which the SRC must with disabilities. We would provide public, including individuals with coordinate its activities would examples of the skills that would disabilities, an opportunity to comment underscore the integral role that demonstrate that personnel hired are on the policies or procedures, and assistive technology plays in the ability appropriately qualified. actively consult with agencies and of individuals with disabilities to obtain Further, we propose to amend organizations involved in the vocational and maintain employment. Through the § 361.18(d)(1)(i) to require that the CSPD rehabilitation of individuals with coordination of SRC and assistive include training implemented in disabilities. This requirement remains technology program activities, SRC coordination with entities carrying out unchanged by WIOA. members would be better informed of State programs under section 4 of the Current Regulations: Current § 361.20 the resources and services available in Assistive Technology Act of 1998. implements section 101(a)(16)(A) of the the State for the provision of assistive Finally, we propose to delete those Act. technology devices and training, provisions that are no longer applicable Proposed Regulations: We propose to enabling the members to more given statutory changes, such as those clarify that the public participation effectively advise the DSU in the State. related to steps the State will take when requirements under current § 361.20 Finally, as discussed in proposed personnel do not meet the highest pertain to the VR services portion of the § 361.10, title I of WIOA requires the VR standard in a State. Unified or Combined State Plan. We program in each State to participate in Reasons: The proposed changes are also propose to add paragraphs (a)(1) a Unified or Combined State Plan with necessary to implement statutory and (a)(2) to clarify through descriptive the other core programs or partner changes made by WIOA. The changes examples the distinction between programs within the workforce we propose in § 361.18(c)(1)(ii) would substantive changes that would require development system. By replacing the ensure that DSU staff are well-qualified the designated State agency to conduct

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a public hearing, and administrative Reasons: The changes are necessary to Third-Party Cooperative Arrangement changes for which a public hearing need implement amendments to title I of Requirements (§ 361.28) not be conducted. All other WIOA and ensure consistency with joint Statute: None. requirements for public participation as regulations proposed by the Current Regulations: Current § 361.28 described in current § 361.20(b) through Departments of Education and Labor, includes requirements related to third- (e), to the extent they are consistent which are published elsewhere in this party cooperative arrangements, a with public participation requirements issue of the Federal Register. We ask mechanism by which a DSU may work proposed in the joint regulations, that you submit any comments with another public agency to provide remain unchanged in the proposed regarding the VR program’s role in the VR services. regulations, except for technical one-stop delivery system in conjunction Proposed Regulations: We propose to modifications to the language required with related provisions contained in the amend § 361.28(a) by removing the by WIOA. Public participation joint proposed regulations, rather than words ‘‘administering’’ and requirements related to Unified or in connection with this particular ‘‘furnishing’’ and providing more Combined State Plans generally are section of the proposed VR program- accurate descriptions of the cooperating addressed through the NPRM jointly specific regulations. agency’s responsibilities. Proposed published by the Departments of Labor § 361.28(a) also would clarify that the Cooperation and Coordination With and Education elsewhere in this issue of non-Federal share provided by the the Federal Register. Other Entities (§ 361.24) cooperating agency must be consistent Reasons: These proposed changes to Statute: WIOA amends section with the requirements in proposed current § 361.20 are necessary to reflect 101(a)(11) of the Act by expanding the § 361.28(c). Proposed § 361.28(a)(4) and statutory changes that require what scope of entities with which the DSU 361.28(b) change references to previously was a stand-alone VR State ‘‘cooperative programs’’ and plan to be submitted as a VR services must collaborate and coordinate its activities under the VR program. The ‘‘cooperative agreements’’ to portion of the Unified or Combined ‘‘cooperative arrangements’’ to make the State Plan under WIOA. Additionally, new entities include, among others, employers, non-educational agencies language consistent throughout this by clarifying what is meant by a section. We propose to insert a new substantive change—that is, a change serving out-of-school youth, programs authorized under the Assistive paragraph (c) to clarify the manner in that would have a direct impact on the which other public agencies may Technology Act of 1998, the State nature and scope of the VR services contribute toward the non-Federal share agency administering the State provided to individuals with disabilities under a third-party cooperative Medicaid plan, the agency responsible or the manner in which these arrangement. for serving individuals with intellectual individuals interact with the State VR Reasons: With the exception of and/or developmental disabilities, program, as opposed to a change that is § 361.28(c), the changes to this section purely administrative or technical in agencies responsible for providing are editorial and the minor clarifications nature—State VR agencies would better mental health services, and other would ensure consistent language and understand when they must conduct a agencies serving as employment interpretation. Proposed § 361.28(c) public hearing, specific to the VR networks under the Ticket to Work and would list the manner in which a State program. The ability to provide Self-Sufficiency program. agency or a local public agency could comments and input at public hearings Current Regulations: Current § 361.24 provide part or all of the non-Federal is an important mechanism for requires that the State plan include share under a third-party cooperative strengthening the voice of community assurances and descriptions, as arrangement. Under the proposed stakeholders and ensuring that any applicable, of the DSU’s interagency § 361.28(c) the DSU could utilize cash changes to the implementation of the cooperation with various entities, but transfers or certified personnel VR services portion of the Unified or does not include the new entities expenditures for the time cooperating Combined State Plan reflect concerns required by the WIOA amendments agency staff spent providing direct VR and interests of those whom the since these are new statutory services pursuant to a third-party program serves. requirements. cooperative arrangement to meet part or Requirements Related to the Statewide Proposed Regulations: We propose to all of the non-Federal share. Given the Workforce Development System amend § 361.24 to include the prohibition in § 361.60(b)(2) against (§ 361.23) additional agencies and entities with using third-party in-kind contributions for match purposes under the VR Statute: Section 121(b)(1)(B)(iv) of which the DSU must coordinate its activities under the VR program, as program, we have not included certified WIOA includes the VR program as a expenditures for equipment and core partner of the workforce required by section 101(a)(11) of the Act, as amended by WIOA. supplies as an allowable source of development system. match under the VR program. In so Current Regulations: Current § 361.23 Reasons: The proposed changes are doing, we avoid potential third-party in- outlines a VR program’s roles and necessary to implement new statutory kind contributions that could arise with responsibilities in the workforce requirements regarding the DSU’s such certified expenditures. investment system, as required under coordination with other entities. The WIA. changes are designed to ensure DSU Statewide Assessment; Estimates; State Proposed Regulations: We propose to collaboration and coordination with Goals and Priorities; Strategies; and amend current § 361.23(a) by cross- employers and State and Federal Progress Reports (§ 361.29) referencing to subpart F of part 361. We agencies to increase access by Statute: Section 101(a)(15) of the Act, also propose to remove the remainder of individuals with disabilities, especially as amended by WIOA, makes several this section because the substance of youth and individuals with the most technical and conforming changes, as these requirements is contained in joint significant disabilities, to services and well as expands the scope of estimates regulations developed by the supports to assist them in achieving that the DSUs must report and the areas Departments of Education and Labor. competitive integrated employment. of focus the States must consider in

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conducting their triennial needs exercises the statutory flexibility to Innovation and Expansion Activities assessment. establish reporting requirements (§ 361.35) Section 101(a)(23) requires DSUs to consistent with those for the VR services Statute: Section 101(a)(18) of the Act assure that the State will submit to the portion of the Unified or Combined sets forth requirements regarding Secretary reports required by section State Plan under section 101(a)(1) of the innovation and expansion activities for 101(a)(15) at such time and in such Act, as amended by WIOA, and section DSUs. This statutory provision remains manner as the Secretary may determine 102(c) of WIOA, and avoid any unchanged by WIOA. to be appropriate. This statutory additional burden that would be Current Regulations: Current § 361.35 requirement remains unchanged by imposed on DSUs through the requires the State plan to assure that the WIOA. submission of separate reports. Current Regulations: Current § 361.29 State will reserve and use a portion of implements the requirements of section Provision of Training and Services for its VR funds to support, among other 101(a)(15) of the Act, but does not Employers (§ 361.32) things, the resource plans for the State include the new statutory requirements. Statute: Section 109 of the Act, as Rehabilitation Council and the The current regulations also require that amended by WIOA, expands the types Statewide Independent Living Council. the State submit reports regarding goals, of training, technical assistance, and Proposed Regulations: Proposed strategies, and estimates annually. other services DSUs may provide under § 361.35 would clarify that the State Proposed Regulations: We propose to the VR program, to employers, who must reserve a portion of its VR program amend current § 361.29 by requiring have hired or are interested in hiring funds to support the resource plan for that reports and updates related to individuals with disabilities. In the Statewide Independent Living assessment, estimates, goals and addition, WIOA repealed the Projects Council, but it may choose not to use priorities, and reports of progress, be with Industry program, previously these funds if the Statewide submitted to the Secretary, in such time authorized at title VI, part A of the Act. Independent Living Council and the and such manner as determined by the Current Regulations: Current § 361.32 State decide to use other available Secretary, rather than annually. We also implements requirements regarding resources to fund the resource plan for propose to amend the regulations to coordination between the VR program the Statewide Independent Living require DSUs to report estimates of the and the Projects with Industry program. Council. number of individuals not receiving There are no current regulations that Reasons: This proposed change is services because of the implementation implement section 109 of the Act. consistent with the Department’s of an order of selection. We also propose Proposed Regulations: We propose to longstanding interpretation of section to make several technical and amend § 361.32 in its entirety by 101(a)(18) of the Act and current conforming changes throughout. See eliminating all requirements related to § 361.35. In the case of the State related discussion of this section in the the Projects with Industry program since Rehabilitation Council, there is no other context of transition services later in those requirements are no longer funding source available under the Act this NPRM, for proposed changes applicable. In its place, we propose to to support its resource plan. The funds related to students and youth in implement requirements regarding the for the State Rehabilitation Council transition. types of activities DSUs may engage in must come from this section. On the Reasons: The proposed changes are with employers, pursuant to section 109 other hand, the Statewide Independent necessary, in part, to implement the of the Act. Living Council has multiple funding statutory amendments to section Reasons: The changes are necessary to sources that may be used to support the 101(a)(15) of the Act made by WIOA. implement new statutory requirements resource plan, including independent The proposed changes also would in section 109 of the Act, as amended living funds under title VII, part B, of ensure consistency in the reporting by WIOA, as well as remove the Act; State-appropriated independent requirements imposed throughout requirements that are no longer living funds; and other public and section 101(a) of the Act, as well as in applicable to the VR program due to the private sources, to the extent allowable title I of WIOA since the VR State plan repeal of the Projects with Industry by those sources. Therefore, our will be incorporated into the State’s program. Section 109 of the Act, as interpretation of the requirement has Unified or Combined State Plan as a amended by WIOA, authorizes the DSU been that the State and the Statewide portion of that plan. to expend VR funds for training and Independent Living Council may decide To date, we have collected the services for employers who are in the resource plan of the Statewide required information through the annual interested in hiring individuals with Independent Living Council to use submission of the VR State plan (now disabilities, thereby assisting those funds under this section, but do not known as the VR services portion of the individuals in achieving competitive have to use these funds. They can use Unified or Combined State Plan), rather integrated employment. This training other sources of available funding to than through the submission of separate could assist employers in providing fund the Statewide Independent Living reports. Because the VR services portion opportunities for work-based learning Council resource plan. This will be submitted with all other experiences; training employees who interpretation would have minimal components of the Unified or Combined are individuals with disabilities; and impact on States since not all States use State Plan every four years with promoting awareness of disability- innovation and expansion funds to modifications submitted every two related obstacles to continued support the resource plan of the years, there would be no vehicle for the employment. Statewide Independent Living Council. submission of these annual reports The amendments made throughout Ability To Serve All Eligible Individuals; without imposing additional reporting WIOA place heightened emphasis on Order of Selection for Services (§ 361.36) requirements on the State separate from the collaboration between DSUs and the State plan. employers to improve and maximize Statute: Section 101(a)(5) of the Act, By permitting the submission of the opportunities for individuals with as amended by WIOA, permits DSUs to required information at a time and in a disabilities, including those with the serve eligible individuals who require manner determined by the Secretary, most significant disabilities, to achieve specific services or equipment to rather than annually, the Secretary competitive integrated employment. maintain employment, regardless of

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whether they are currently receiving VR potential need for publicly-funded transition services; and individuals services. The DSUs may serve these services or benefits. referred to the State VR program by one- individuals regardless of any order of We want to make four points clear. stop operators and those referred to selection the State has established. First, proposed § 361.36(a)(3)(v) is these one-stop operators by the State VR Current Regulations: Although current discretionary. DSUs would have the program. § 361.36(a)(3) sets forth criteria a State ability to serve these individuals outside In proposed paragraph (b), we provide must follow in establishing an order of of the established order and should a cross-reference to subpart E of this selection, there is no mention of this consider doing so if financial and staff part, which will include the joint particular discretionary exemption resources are sufficient. Second, if a regulations implementing common because this is a new statutory DSU elects to do so, it must, in performance measures. In so doing, we requirement. accordance with proposed also propose to remove current Proposed Regulations: We propose to § 361.36(a)(3)(v), its plans in the VR §§ 361.80 through 361.89, as the current amend current § 361.36(a)(3) by adding services portion of the Unified or standards and indicators are no longer a new paragraph (v) that would require Combined State Plan before applicable to the VR program. DSUs implementing an order of implementing this authority. Third, the Reasons: The proposed changes to selection to indicate in the VR services services and equipment provided under current § 361.40 are necessary to portion of the Unified or Combined this authority must be consistent with implement amendments to the Act State Plan if they have elected to serve an individual’s individualized plan for made by WIOA. Specifically, we eligible individuals in need of specific employment, in the same manner as any include VR-specific data regarding, services or equipment for the purpose of other service or equipment provided among others, individuals with open maintaining employment, regardless of under the VR program. Finally, service records and the types of services their assignment to a priority category in proposed § 361.36(a)(3)(v) would apply they are receiving, as well as students the State’s order of selection. to those specific services or equipment with disabilities who are receiving pre- that the individual needs to maintain Reasons: This change is necessary to employment transition services, to employment, not to other services the implement the amendments to the Act. ensure that the Secretary has the individual may need for other purposes. Prior to the enactment of WIOA, DSUs information needed to assess the who were on an order of selection were Reports; Evaluation Standards and performance of the VR program. not permitted to serve eligible Performance Indicators (§ 361.40) It is significant to note that the VR individuals who did not meet the program will no longer be subject to its Statute: Section 101(a)(10)(C) of the own set of performance standards and criteria of that order, which was Act, as amended by WIOA, expands the indicators established by the designed to ensure that individuals with data that DSUs must report to include Department. Section 106 of the Act the most significant disabilities received data about: Students with disabilities requires that the VR program comply a priority for services when resources who are receiving pre-employment with the common performance were limited. Section 101(a)(5) of the transition services; individuals with accountability measures established Act, as amended by WIOA, allows open service records and the types of under section 116 of WIOA, which greater flexibility by permitting DSUs to services they are receiving; individuals apply to all core programs of the serve eligible individuals, regardless of referred to the VR program by one-stop workforce development system. To that any order of selection that has been operators; and individuals referred to end, the Departments of Labor and established by the State, if those these one-stop operators by DSUs. In individuals require specific services or addition, section 106 of the Act, as Education have developed proposed equipment to maintain employment amended by WIOA, requires the VR joint regulations to implement these (e.g., because the individual’s disability program to be subject to the common requirements. The proposed joint has progressed or the individual’s job performance accountability measures, regulations regarding the performance duties have changed). established in section 116 of WIOA, accountability system, which will be This statutory change, as well as the applicable to core programs of the incorporated in subpart E of this part, proposed regulatory change, is workforce development system. will be presented in a separate NPRM significant because, in effect, it creates Current Regulations: Current § 361.40 published elsewhere in this issue of the an exemption from order of selection for addresses the data that a DSU must Federal Register. Given this significant eligible individuals who need a specific report, but does not include the new statutory change in section 106 of the service or equipment in order to data elements since these are new Act, we have determined that most of maintain employment. Prior to the statutory requirements. Current the provisions we had in current passage of WIOA, these individuals §§ 361.81 through 361.89 implement §§ 361.80 through 361.89 are no longer would have been placed in the order, current evaluation standards and applicable and, therefore, we propose to depending on the severity of their performance indicators applicable to the remove them. We ask that you provide disability, which could have resulted in VR program. These standards and only comments specific to the VR a placement on a waiting list. With the indicators do not incorporate the program with respect to this section. proposed regulatory change, DSUs may, common performance measures since Any comments regarding the common at their discretion, elect to serve these these are new statutory requirements. performance measures or data individuals outside of the order of Proposed Regulations: We propose to requirement, applicable to all core selection criteria that are otherwise in reorganize current § 361.40 into two programs, should be provided in place in order to serve these individuals paragraphs. Proposed paragraph (a) connection with the relevant provisions who could be at risk of losing would retain all existing provisions in of the joint proposed regulations. employment if such services or current § 361.40, as well as incorporate Assessment for Determining Eligibility equipment is not received. In this way, requirements regarding new VR-specific and Priority for Services (§ 361.42) DSUs could assist these individuals, data related to individuals with open including those with significant service records and the types of services Eligibility Criteria disabilities, to maintain economic self- they are receiving; students with Statute: Section 102(a)(1) of the Act, sufficiency, thereby reducing their disabilities receiving pre-employment as amended by WIOA, makes clear that

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an individual with a disability, whose an assurance that the State will not term ‘‘extended evaluation’’ was not physical or mental impairment impose a residence requirement that referenced in the Act, this is the term constitutes a substantial impediment to excludes from services provided under used in current regulation to describe employment, may be determined the plan any individual who is present the process by which the DSUs assess eligible for VR services if he or she in the State. This provision remains an individual’s ability to benefit from requires services to advance in unchanged by WIOA. VR services due to the severity of employment. Current Regulations: Current disability, when the individual, under Current Regulations: Current § 361.42(c)(1) requires that the State limited circumstances, is unable to § 361.42(a)(1)(iii) specifies that the plan must assure that the State unit will participate in trial work experiences. applicant may be determined eligible if not impose, as part of determining an Current Regulations: Current he or she meets all other eligibility applicant’s eligibility for VR services, a § 361.42(f) permits, in limited criteria and requires VR services to duration of residence requirement that circumstances, the provision of prepare for, secure, retain, or regain excludes from services any applicant extended evaluations to individuals employment. Current regulations do not who is present in the State. with disabilities who cannot take reference advancing in employment Proposed Regulations: We propose to advantage of trial work experiences, or since this is a new statutory amend current § 361.42(c)(1) to clarify for whom trial work experiences have requirement. that a DSU must not require the been exhausted. Proposed Regulations: We propose to applicant to demonstrate a presence in Current § 361.41(b)(1)(ii) permits the amend current § 361.42(a)(1)(iii) to the State by the production of exploration of an individual’s abilities, clarify that an applicant, who meets all documentation that would, under State capabilities, and capacity to perform in other eligibility criteria, may be or local law, or practical circumstances, work situations in accordance with determined eligible if he or she requires result in a duration of residency. § 361.42(e) or, if appropriate, an VR services to advance in employment. Reasons: The proposed clarification extended evaluation in accordance with We also propose to clarify in current in § 361.42(c)(1) is consistent with our § 361.42(f). § 361.42(c)(2) that a DSU must not long-standing interpretation of this Proposed Regulations: We propose to consider an applicant’s employment statutory requirement, as expressed in remove paragraph (f) from current history, current employment status, monitoring reports and other guidance. § 361.42 and redesignate (g) as (f). level of education or educational Many State VR agencies require Proposed § 361.41(b)(1)(ii) would credentials when determining eligibility individuals applying for VR services to remove reference to extended evaluation for services. provide documents that substantiate and only permit an exploration of the Reasons: The proposed changes are that the individual is present in the individual’s abilities, capabilities, and necessary, in part, to implement State and, hence, available to participate capacity to perform in work situations statutory amendments to section in the eligibility determination process carried out in accordance with current 102(a)(1) of the Act made by WIOA. The and to receive VR services. Some forms § 361.42(e). proposed changes also would ensure of documentation, however, such as a Reasons: These changes are necessary that individuals with disabilities are driver’s license or voter registration to implement the amendments to able to obtain through the VR program card, may require a significant amount section 102(a)(2)(B) of the Act made by the skills necessary to engage in the of time to obtain. Moreover, States or WIOA. The proposed changes also high demand jobs available in today’s local jurisdictions may impose would ensure that before a DSU make durational requirements prior to the economy. It has been the Department’s an ineligibility determination, it must issuance of some forms of long-standing policy that the VR conduct a full assessment of the documentation or identification. By program is not intended solely to place capacity of the applicant to perform in proposing these changes, we would individuals with disabilities in entry- realistic work settings, without the clarify that the requirement of such level jobs, but rather to assist them to exception of extended evaluations. obtain employment that is appropriate forms of documentation to demonstrate given their unique strengths, resources, presence in the State constitutes a de Development of the Individualized Plan priorities, concerns, abilities, facto duration requirement, which is for Employment (§ 361.45) prohibited by the Act. Although capabilities, and informed choice. The Timeframe for Completing the documents that take time to obtain may extent to which DSUs should assist Individualized Plan for Employment eligible individuals to advance in their be accepted as proof of an applicant’s careers through the provision of VR presence in the State if available at the Statute: Section 102(b)(3)(F) of the services depends upon whether the time of application, the DSU must Act, as amended by WIOA, mandates individual has achieved employment permit the use of other documentation that the individualized plan for that is consistent with this standard. that includes sufficient information to employment be developed as soon as Furthermore, the proposed additional demonstrate presence in the State, such possible but no later than 90 days after factors that a DSU must not consider as documentation that includes a the date of determination of eligibility, when determining an applicant’s residential address in the State. unless the DSU and the eligible eligibility for VR services in proposed individual agree to an extension of that Extended Evaluation § 361.42(c)(2) would be consistent with timeframe. longstanding policy. By specifically Statute: WIOA amends section Current Regulations: Current proposing the additional factors related 102(a)(2)(B) of the Act by removing the § 361.45(e) requires the DSU to establish to employment and education history in limited exception to trial work and implement standards for the prompt the regulation, we reinforce the experiences, whereby VR agencies made development of individualized plans for requirement in section 102(a)(1)(iii) of extended evaluations available to employment for eligible individuals; the Act and proposed § 361.42(a)(1)(iii). applicants, prior to determining that an however, the 90-day timeframe is not individual is unable to benefit from VR included because this is a new statutory Residency services due to the severity of the requirement. Statute: Section 101(a)(12) of the Act individual’s disability and, thus, is Proposed Regulations: We propose to requires that the State plan will include ineligible for VR services. Although the amend current § 361.45(e) to require

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that the DSU develop the individualized but does not reference disability Content of the Individualized Plan for plan for employment for each eligible advocacy organizations since this is a Employment (§ 361.46) individual as soon as possible, but no new statutory requirement. Current Statute: WIOA amends section later than 90 days following § 361.45(c)(2) requires the DSU to 102(b)(4) of the Act to require that the determination of eligibility, unless the provide additional information to description of the specific employment DSU and the individual agree to a eligible individuals relevant to the goal chosen by the eligible individual, specific extension of that timeframe. development of the individualized plan required as a mandatory component of Reasons: This change is necessary to for employment, but does not mention the individualized plan for implement the statutory requirement benefits planning or other information employment, be consistent with the made by WIOA that VR agencies specific to Social Security beneficiaries general goal of competitive integrated develop the individualized plan for with disabilities since this is a new employment. employment within 90 days following statutory requirement. Current Regulations: Current determination of eligibility. The intent § 361.46(a)(1) establishes the content is to move all eligible individuals Proposed Regulations: We propose to amend current § 361.45(c)(1) by requirements for the individualized through the VR process with minimal plan for employment and requires that delay in order to efficiently and requiring a DSU to provide eligible individuals information about the the plan include a specific employment effectively serve these individuals, goal based upon the unique strengths, resulting in the achievement of option of requesting assistance from a disability advocacy organization when resources, priorities, concerns, abilities, employment outcomes in competitive capabilities, interests, and informed integrated employment. While the developing the individualized plan for employment. We also propose to amend choice of the eligible individual. The majority of DSUs have already adopted regulation does not contain the new current § 361.45(c)(2) by adding a new the 90-day timeframe, some DSUs have statutory requirement. adopted extended timeframes that paragraph (v) that would require a DSU Proposed Regulations: We propose to impede the efficient and effective to provide eligible individuals entitled amend current § 361.46(a)(1) to require movement of individuals through the to Social Security benefits under titles II that the vocational goal selected by the VR process, therefore, resulting in the or XVI of the Social Security Act individual in accordance with this delay of services, and ultimately information on assistance and supports section be consistent with the general delaying the achievement of available to individuals desiring to enter goal of competitive integrated employment outcomes. Additionally, the workforce, including benefits employment. some DSUs have established interim planning. Reasons: The proposed revision to steps or plans prior to the development Reasons: The proposed changes are current § 361.46(a)(1) is necessary to of the individualized plan for necessary to implement the implement the statutory requirements employment or have adopted longer amendments to section 102(b) of the Act under WIOA, and is consistent with the timeframes for transition-age youth or made by WIOA. The inclusion of purpose of the VR program, which is to other specific populations. The disability advocacy groups as a specific assist individuals with disabilities, establishment of a 90-day timeframe by source of assistance, as appropriate, for including those with significant WIOA ensures consistency across the eligible individuals in the development disabilities, to prepare for and engage in VR program nationally and sets the of the individualized plan for competitive integrated employment. expectation that all eligible individuals employment supports, and receive timely services through an Transition of Students and Youth With acknowledges the important role that Disabilities effective and efficient VR program with these groups may play in mentoring an an outcome of improved VR agency eligible individual through the VR The Act, as amended by WIOA, places performance and resulting in process and in designing the plan of heightened emphasis on the provision employment outcomes for individuals services that will successfully lead to an of services to students and youth with with disabilities. employment outcome. In coordination disabilities to ensure that they have meaningful opportunities to receive the Options for Developing the with the expertise of the qualified training and other services they need to Individualized Plan for Employment rehabilitation counselor, the experience of advocacy groups may lend a achieve employment outcomes in Statute: WIOA amends section competitive integrated employment. To 102(b)(1)(A) of the Act by clarifying that perspective and understanding of the disability-related needs, responsibilities, that end, the Act expands not only the the DSU must provide eligible population of students with disabilities individuals with information regarding and services that are required to achieve the individual’s employment goal. The who may receive services but also the the availability of assistance in kinds of services that the VR agencies inclusion of advocacy groups as a developing all or part of the may provide to youth and students with resource also recognizes and individualized plan for employment disabilities who are transitioning from emphasizes the importance of self- from disability advocacy organizations. secondary school to postsecondary determination, empowerment, and self- In addition, WIOA amends section education and employment. 102(b) to require a DSU to provide to advocacy as cornerstones in Most notably, section 110(d) of the eligible individuals entitled to Social rehabilitation. Act, as amended by WIOA, requires Security benefits under titles II or XVI By requiring that a DSU provide States to reserve 15 percent of their VR of the Social Security Act, general eligible individuals entitled to Social allotment to provide pre-employment information on additional supports, Security benefits under titles II or XVI transition services to students with such as assistance with benefits of the Social Security Act with disabilities who are eligible or planning. information on benefits planning, we potentially eligible for VR services. Current Regulations: Current intend that the individuals understand Section 113 of the Act, as added by § 361.45(c)(1) requires that the DSU the implications of employment for WIOA, outlines the services that must provide eligible individuals information continued receipt of their benefits so be provided with these reserved funds. regarding the options for developing the that they can make a fully informed These services are designed to be an individualized plan for employment, choice of an employment goal. early start at job exploration.

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With the addition of these pre- Proposed Regulations: We propose to purposes of section 504 of the Act (29 employment transition services, and add new definitions to current U.S.C. 794). However, it is important to expansion of services to youth, the VR § 361.5(c), as redesignated elsewhere in note that we have interpreted a student program can be characterized as this NPRM, for ‘‘pre-employment with a disability, given the plain providing a continuum of VR services, transition services’’ in proposed meaning of the statutory definition, as especially for students and youth with § 361.5(c)(42); ‘‘student with a not including an individual with a disabilities. Specifically, it can provide disability’’ in proposed § 361.5(c)(51); disability in postsecondary education. A pre-employment transition services to and ‘‘youth with a disability’’ in youth with a disability, on the other any student with a disability who needs proposed § 361.5(c)(59). We also hand, is anyone who has a disability as these services, regardless of whether the propose to retain the current definition defined in section 7(20) of the Act and student has applied for or been for ‘‘transition services’’ in is aged 14 to 24, regardless of whether determined eligible for VR services. In § 361.5(c)(55), despite its removal from they are in school. The terms ‘‘student addition, section 103(b) of the Act the statute as a defined term, since it is with a disability’’ and ‘‘youth with a permits the VR agency to provide still used throughout the Act and the disability’’ do not affect coverage under transition services to groups of youth regulations in part 361. In retaining this section 504. All individuals with with disabilities, regardless of whether definition, we propose to clarify that disabilities regardless of whether they they have applied for or been this particular service is available to meet the definition of ‘‘student with a determined eligible for services. If either both students and youth with disability’’ and ‘‘youth with a a student or youth with a disability disabilities. disability’’ continue to be covered under requires more intensive services, he or Reasons: These changes are necessary she would apply for VR services. Once to implement the amendments to the section 504. determined eligible, an individualized Act. Given the heightened emphasis Therefore, all students with plan for employment would be throughout the Act on students and disabilities would meet the definition of developed, which would outline the youth with disabilities, especially with a youth with a disability, but not all specific services that he or she may regard to the provision of pre- youth with disabilities would satisfy the need in order to achieve an employment employment transition services and definition of a student with a disability. outcome. In sum, the VR program other transition-related services, it is For example, an 18-year-old individual provides a range of services, from most essential that stakeholders understand with a disability who is in secondary basic to the most individualized and the definitions for these terms and how school and receiving services under intensive service, thereby meeting the they can be distinguished from other IDEA meets both the definition of a evolving needs of a student or a youth terms commonly used. student with a disability as well as the with a disability who is transitioning For example, pre-employment definition of a youth with a disability. from school to post-school life. transition services are those specific However, an 18-year-old with a This portion of the NPRM will services specified in section 113 of the disability who is not in school would describe the key regulatory changes we Act and implemented in proposed meet only the definition of a youth with propose to implement statutory § 361.48(a). These services, paid for a disability. amendments related to transition with a percentage of funds reserved services. The major substantive changes from the State’s VR allotment, are The distinctions between these two relate to certain key definitions and the available only to those individuals who terms are critical for purposes of the provision of pre-employment transition meet the definition of a student with a various authorities for providing services and transition services to disability. On the other hand, other transition-related services. For example, groups of youth with disabilities. transition-related services, including pre-employment transition services Throughout this section of the NPRM, those that could be similar to pre- provided under proposed § 361.48(a) are we will provide additional guidance for employment transition services, may be only available to students with those areas that we expect will generate provided to students or youth with disabilities; whereas transition services significant comments. The proposed disabilities and do not require a specific provided for the benefit of a group of changes are presented by relevant reservation of funds (e.g., either as an individuals may be provided to both section of the regulations. individualized VR service pursuant to students and youth with disabilities section 103(a) or as a service to groups under proposed § 361.49(a). Transition-Related Definitions pursuant to section 103(b) of the Act). (§ 361.5(c)) Despite the removal of the definition It also is important to distinguish of ‘‘transition services’’ from the Act, we Statute: Section 7 of the Act includes between the terms ‘‘student with a believe it is important to retain this disability’’ and ‘‘youth with a several new definitions related to definition in part 361 given that the transition services. In particular, section disability’’ because, as just described, term continues to be used throughout 7 adds new definitions for the terms: different services are available for the Act and these regulations. Therefore, ‘‘pre-employment transition services’’ in different populations. A student with a we propose to retain the definition of section 7(30); ‘‘student with a disability is an individual with a ‘‘transition services.’’ However, we disability’’ in section 7(37); and ‘‘youth disability in school who is (1) 16 years propose to clarify that this service is with a disability’’ in section 7(42). old, or younger, if determined available to both students and youth WIOA also deleted the term, ‘‘transition appropriate under the Individuals with with disabilities in order to be services,’’ which had been defined Disabilities Education Act (IDEA), consistent with proposed regulations in previously in section 7(37). unless the State elects to provide pre- Current Regulations: Current employment transition services at a §§ 361.48(b) and 361.49(a) governing the § 361.5(b) contains definitions for terms younger age, and no older than 21, provision of transition services. relevant to the VR program, but does not unless the State provides transition Specific guidance about these terms define ‘‘pre-employment transition services under IDEA at an older age; and and how they relate to various services,’’ student with a disability, or (2) receiving transition services transition-related services will be youth with a disability since these are pursuant to IDEA, or is a student who provided in this NPRM in conjunction new statutory terms. is an individual with a disability for the with the relevant proposed regulation.

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Coordination With Education Officials and (6) to incorporate, by reference, proposed part 397, into an existing (§ 361.22) certain requirements from section 511 formal interagency agreement will Statute: Section 101(a)(11)(D) of the into the formal interagency agreement reduce burden on the States so new Act, as amended by WIOA, clarifies two between the DSU and the State mechanisms for requirements are points: (1) Interagency coordination educational agency. unnecessary. Finally, we propose to add a new Third, we want to provide additional between the DSUs and educational paragraph (c) under § 361.22 to clarification regarding proposed agencies must include coordination incorporate the construction clause in § 361.22(c) given questions that have regarding the provision of pre- section 101(c) of the Act. arisen over the years as to which entity, employment transition services; and (2) We also propose other technical or the local educational agency or DSU, is DSUs may provide consultation and conforming changes throughout this responsible for providing transition technical assistance to education section. services to students with disabilities officials through alternative means, such Reasons: The proposed changes to (who are also VR consumers) when such as conference calls and video current § 361.22 are necessary to services fall under the purview of both conferences. This section also includes implement the amendments to the Act entities. The following examples other technical changes. made by WIOA. While most of the illustrate the types of scenarios that In addition, WIOA adds a new section proposed changes are self-explanatory, have been at the heart of questions 101(c) to the Act that makes clear that we believe additional guidance is posed by DSUs in the past: nothing in the Act is to be construed as necessary to clarify a few of the 1. A VR-eligible student who is blind reducing the responsibility of the local proposed provisions. is participating in a work-experience educational agencies or any other First, section 511 of the Act, as added placement after school hours as part of agencies under IDEA to provide or pay by WIOA, imposes certain requirements her individualized education program. for any transition services that are also on DSUs and State and local Because that activity takes place in a considered to be special education or educational agencies with regard to location outside of school, the student related services necessary for providing youth with disabilities seeking needs travel training in order to travel a free appropriate public education to subminimum wage employment. independently from school to work and students with disabilities. Specifically, DSUs and local then home. Finally, section 511 of the Act, as educational agencies must provide these 2. A VR-eligible student is enrolled in amended by WIOA, imposes several youth with disabilities documentation an apprenticeship program in requirements, particularly related to demonstrating that the youth completed construction trades as part of his documentation of services for DSUs and certain activities, such as receipt of individualized education program State and local educational agencies transition services under IDEA and pre- under IDEA. The program requires the with regard to youth with disabilities employment transition services under student to have special gloves, clothing, seeking subminimum wage the VR program, as applicable. Section equipment, and footwear to attend the employment. Unlike the rest of the Act, 511 also requires the DSU, in program. which took effect upon enactment, consultation with the State educational 3. A VR-eligible student is section 511 does not take effect until agency, to develop a process, or utilize participating in a work experience July 22, 2016. an existing process, to document activity during school hours as part of Current Regulations: Current § 361.22 completion by youth with disabilities of her individualized education program. requires VR agencies to develop policies the required activities, as applicable, The school has arranged for several and procedures for coordinating with under section 511. We believe the IDEA-eligible students to participate in education officials to facilitate the formal interagency agreement that is this same work activity and is providing transition of students with disabilities required by section 101(a)(11)(D) of the a school bus to transport the IDEA- from education services to the provision Act, and current § 361.22(b) is the eligible students to and from the of VR services. However, current appropriate mechanism for ensuring the worksite. The VR-eligible student needs regulations do not reference pre- consultation necessary to develop and transportation to the worksite and a employment transition services or the implement the documentation process uniform. option of providing consultation required by section 511 and 34 CFR While neither the Act nor IDEA is services through alternative means since 397.10. explicit as to which entity, the VR these are new statutory requirements. Second, section 511(b)(2) of the Act agency or the local education agency, is Current regulations also do not prohibits a State or local educational financially responsible for providing reference the statutory construction agency from entering into a contract or transition services, which are not clause or the statutory requirements other arrangement with an entity for considered solely special education or contained in section 511, as these are purposes of operating a program in related services under IDEA, both new statutory requirements. which youth with disabilities are proposed § 361.22(c) and current 34 Proposed Regulations: We propose to employed at subminimum wage. Again, CFR 300.324(c)(2)) make clear that amend current § 361.22(a) to incorporate we believe the formal interagency neither the local educational agency nor reference to pre-employment transition agreement, required by section the VR agency may shift the burden for services as an area that must be 101(a)(11)(D) of the Act, and current providing a service, for which it included during inter-agency § 361.22(b), between the State otherwise would be responsible, to the coordination of transition services. educational agency and the DSU, is the other entity. We want to make clear that We propose to amend current appropriate mechanism whereby State the Act and IDEA, along with their § 361.22(b)(1) to clarify that VR agencies and local educational agencies will implementing regulations in proposed may use alternative means, such as assure that they will comply with the § 361.22(c) and 34 CFR 300.324(c)(2), video conferences and conference calls, prohibition imposed by section are to be read in concert. for providing consultation and technical 511(b)(2) of the Act and proposed 34 Therefore, we believe decisions assistance to education officials. We CFR 397.31. We believe that related to which entity will be also propose to amend current incorporating both of these responsible for providing transition or § 361.22(b) by adding new clauses (5) requirements from section 511, and pre-employment transition services that

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can be considered both a special example, if the school ordinarily school youth as another entity with education and a VR service must be provides job exploration counseling to which the VR agency must coordinate. made at the State and local level as part its eligible students with disabilities, the We also propose to amend current of the collaboration between the VR mere fact that such a service is now § 361.24(c) and (d), which govern agencies, State educational agencies, authorized under the Rehabilitation Act coordination between the DSUs and and local educational agencies. This as a pre-employment transition service employers and section 121 projects, coordination and collaboration is does not mean the school should cease respectively, to include transition crucial to successful transition planning providing that service and refer those services among the matters that must be and service delivery. Both the IDEA and students to the VR program. included in coordination efforts. the Rehabilitation Act require State 3. Eligibility—Is the student with a Reasons: These changes are necessary educational agencies and VR agencies to disability eligible for transition services to implement the amendments to the plan and coordinate transition services under IDEA? As stated earlier, the Act made by WIOA, all of which are for students with disabilities. This definition of a ‘‘student with a designed to improve relationships and occurs through an interagency disability,’’ for purposes of the VR coordination between the VR agencies, agreement or other mechanism for program, is broader than that under employers, and all other agencies (e.g., interagency coordination, such as IDEA because the definition in the workforce development, child welfare described in section 612(a)(12) of IDEA Rehabilitation Act includes those and juvenile justice agencies) serving (20 U.S.C. 1412(a)(12))). Coordination, students who are individuals with a individuals with disabilities, especially including clearly articulated roles and disability under section 504 of the youth with disabilities, to ensure they responsibilities for the provision of Rehabilitation Act. It is possible that have meaningful opportunities to transition services and for activities these students do not have an achieve employment outcomes in under section 511 of the Act, as well as individualized education program competitive integrated employment. mechanisms to resolve disputes under IDEA and, therefore, would not While DSUs have been required to between the State educational agencies be eligible for or receiving special coordinate with American Indian and the VR agencies ensures a seamless education and related services under Vocational Rehabilitation Services delivery of transition services that IDEA. As a result, VR agencies are projects in the State, if any, the enable eligible students with disabilities authorized to provide transition services coordination now must also include under the VR program to a broader to make a smooth transition from school pre-employment transition services. to post-school education and population than local educational employment. Moreover, under IDEA, agencies are authorized to provide Statewide Assessment; Estimates; State this interagency coordination may be under IDEA. Goals and Priorities; Strategies; and necessary to ensure the provision of We believe that criteria such as these Progress Reports (§ 361.29) could be beneficial as DSUs and local transition services that are necessary for Statute: Section 101(a)(15) of the Act, educational agencies and State the provision of a free appropriate as amended by WIOA, requires the educational agencies collaborate and public education to students with comprehensive needs assessments to coordinate the provision of transition disabilities (see section 612(a)(12) of include: a review of the needs of youth services, including pre-employment IDEA and 34 CFR 300.154). States have and students, especially with regard to transition services to students with the flexibility to include local pre-employment transition services and educational agencies as parties to the disabilities, and resolve disputes related the coordination of services with State-level agreement. to the provision of these services. educational agencies; and the methods Since the ultimate decisions related to Cooperation and Coordination With financial responsibility for the provision used to improve the provision of VR Other Entities (§ 361.24) of transition services must be services, especially transition services. established at the State and local level Statute: Section 101(a)(11) of the Act Current Regulations: Current § 361.29 during the collaboration and makes several changes that highlight the requires that the State plan include the coordination of transition and pre- importance of transition and other results of a statewide assessment, but employment transition services, a matters affecting students and youth does not contain new statutory State’s formal interagency agreement or with disabilities with regard to the requirements related to transition and other mechanism for interagency coordination of services between the VR pre-employment transition services. coordination can provide a foundation program and other non-educational Proposed Regulations: Proposed for addressing these issues by including programs. § 361.29(a)(1)(i)(D) reflects the addition criteria to be used by the VR agencies Current Regulations: Current of the new statutory requirement for the and local educational agencies when regulations in § 361.24 address only the statewide needs assessment to identify considering and assigning the financial cooperation and coordination between the vocational rehabilitation needs of responsibility of each agency for the the State VR agency and Federal, State youth and students with disabilities, provision of transition services to and local agencies that are not carrying including their need for pre- students with disabilities on an out activities through the workforce employment transition services as individualized basis. For example, the development system. Current defined under proposed § 361.5(c)(42) criteria could include: regulations do not address the or other transition services. Proposed 1. The purpose of the service—Is it coordination that must occur with the § 361.29(a)(1)(i)(D)(2) would require that related more to an employment outcome section 121 projects in a State, if the State plan include an assessment of or education (i.e., is it considered a applicable, with regard to the provision the needs for transition services and special education or related service (e.g., of pre-employment transition services or pre-employment transition services and rehabilitation counseling that is non-educational agencies serving out-of- the extent to which VR services are necessary for the provision of a free school youth because these are new coordinated with services provided appropriate public education))? statutory requirements. under IDEA in order to meet the needs 2. Customary Services—Is the service Proposed Regulations: Proposed of individuals with disabilities. The one that the school customarily § 361.24(a) would incorporate non- proposed § 361.29(d)(4) would require provides under IDEA part B? For educational agencies serving out-of- that the State plan include strategies to

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provide pre-employment transition § 361.48 include the specific transition be moved to a new paragraph (b) in services. services and supports needed for an § 361.48. Reasons: These proposed changes are eligible student with a disability or Proposed § 361.48(a)(1) would permit necessary to implement the youth with disability to achieve an pre-employment transition services to amendments to the Act made by WIOA. employment outcome or projected post- be provided to all students with These proposed changes reflect the school employment outcome. disabilities regardless of whether they Act’s emphasis on transition-related Reasons: These changes are necessary have applied for VR services and would issues affecting students and youth with to implement the amendments made to clarify that similar transition services disabilities. the Act by WIOA. By permitting the are available to youth with disabilities individualized plan for employment for under proposed § 361.48(b) when Development of the Individualized Plan specified in an individualized plan for for Employment (§ 361.45) a student or youth with a disability to include a projected, or generally employment. Proposed § 361.48(a)(2) would specify Statute: None. described, rather than a specific Current Regulations: Current the required pre-employment transition employment goal, we recognize that § 361.45(d)(9) requires that an services that are provided directly to some students and youth with individualized plan for employment be students with disabilities. disabilities, particularly those of a developed in consideration of a student Proposed § 361.48(a)(3) would younger age, may not have formulated a with a disability’s individualized describe the authorized activities that specific employment goal when they education program under IDEA. There is the State may provide, if sufficient begin the VR process. As a result, VR no reference to 504 services in this funds are available, to improve the agencies may find it necessary to amend context. transition of students with disabilities Proposed Regulations: We propose to the individualized plan for employment from school to postsecondary education amend current § 361.45(d)(9)(i) to to reflect career exploration consistent or an employment outcome. incorporate consideration of a student’s with vocational growth and Proposed § 361.48(a)(4) would section 504 services. development and the resulting describe the responsibilities for pre- Reasons: This proposed change is evolution in the student’s or youth’s employment transition coordination to necessary to implement the employment goal. However, VR be carried out by VR agencies. amendments to the Act made by WIOA agencies should continue to work with Finally, proposed § 361.48(a)(5) with regard to the addition of a students and youth who have identified would support DSUs in providing pre- definition of ‘‘student with a disability.’’ a specific employment goal, especially employment transition services, Because a student with a disability those who are older, to develop consulting with other Federal agencies, could be an individual who is receiving individualized plans for employment and identifying best practices of the services under section 504 rather than that contain a specific goal. For students States for the provision of transition under an individualized education and youth who have yet to identify a services to students with a variety of program pursuant to IDEA, we believe specific employment goal, this change disabilities. this proposed change is essential to would remove the need for these Reasons: The proposed regulations in ensure consistent implementation of all frequent amendments. However, the § 361.48(a) would implement the requirements affecting students with inclusion of a projected employment requirements of section 113 of the Act, disabilities. goal in the individualized plan for which were added by WIOA. This new employment would not eliminate the section presents an innovative approach Content of the Individualized Plan for responsibility of the VR counselor and to providing pre-employment transition Employment (§ 361.46) student to amend the individualized services to students with disabilities. Statute: As amended by WIOA, plan for employment and the VR The services required by this section section 102(b)(4)(A) of the Act permits services needed to achieve that goal as are those that would be most beneficial an individualized plan for employment the employment goal changes. to an individual in the early stages of employment exploration. These services to contain a specific post-school Scope of Vocational Rehabilitation are designed to provide job exploration employment outcome or a more general, Services for Individuals With and other services, such as counseling projected outcome. Section 102(b)(4)(B) Disabilities (§ 361.48) requires the individualized plan for and self-advocacy training, in the early employment for a student with a Pre-Employment Transition Services stages of the transition process. To that disability to include the specific end, we believe Congress intended these Statute: WIOA amends the Act by services be provided to the broadest transition services needed by the including a new section 113 that student for the achievement of the population of students with disabilities requires VR agencies to coordinate with to ensure that as many students with employment goal. local educational agencies in providing, Current Regulations: Current § 361.46 disabilities as possible are given the or arranging for the provision of, pre- outlines the components of an opportunity to receive the services employment transition services to individualized plan for employment, necessary in order to achieve an students with disabilities who are but does not contain specific employment outcome. Therefore, the eligible or potentially eligible for VR requirements related to transition since proposed regulation clarifies that pre- services and in need of such services. these are new statutory requirements. employment transition services would Section 110(d) requires States to reserve Proposed Regulations: We propose to be available to all students with 15 percent of their VR allotment to revise current § 361.46(a)(1) to permit, disabilities. However, it is important to provide these services. in lieu of a specific employment goal, a note that a student with a disability in description of an eligible student’s or Current Regulations: None. this instance does not mean an youth’s projected post-school Proposed Regulations: We propose to individual with a disability in employment outcome. add regulations implementing the postsecondary education. We believe Proposed § 361.46(a)(2)(ii) would provision of pre-employment transition this interpretation is consistent with the require that the description of the services in a new paragraph in proposed statutory language ‘‘all students with specific VR services under proposed § 361.48(a). The current regulations will disabilities who are eligible or

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potentially eligible’’ for VR services and results and discussion of local labor Services for Individuals Who Have intent, as well as the definition of a market information that applies to those Applied for or Been Determined Eligible ‘‘student with a disability.’’ As an interests. for VR Services (§ 361.48(b)) individual with a disability, every The manner in which pre- Statute: Section 103(a)(15) of the Act, student with a disability satisfies at least employment transition services are as amended by WIOA, adds pre- one of the eligibility criteria for VR delivered (e.g., either in a group setting employment transition services among services in current § 361.42(a)(1). the scope of VR services that may be In so doing, we would ensure that the or on an individual basis) will most broadest possible group of students with likely depend on the amount of provided in accordance with an disabilities is able to receive the services information the DSU has available individual’s individualized plan for they need to better identify and prepare regarding the student with a disability at employment. for post-school activities, including the time services are provided. As a Current Regulations: Current § 361.48 postsecondary education and student progresses through the VR includes transition services among the competitive integrated employment. We process by applying, and being list of authorized activities. Pre- do not believe that a student with a determined eligible, for VR services, the employment transition services are not specifically mentioned because this is a disability would have to apply for, or be DSU would obtain the information result of statutory changes. determined eligible for, VR services necessary to provide individually prior to receiving pre-employment Proposed Regulations: As discussed tailored services that address the earlier, we propose to reorganize current transition services under proposed student’s particular disability-related § 361.48(a). However, if the student does § 361.48 so that all current provisions and vocational needs. This aspect of are retained in proposed § 361.48(b). We apply for VR services, he or she would pre-employment transition services, the be subject to all relevant requirements also propose to incorporate along with fact that they can be either generalized those transition services already for eligibility and order of selection, as or individualized, further highlights the applicable, for purposes of receiving provided for, pre-employment transition continuum of services available under other VR services. services among the authorized list of It is important to point out, in this the VR program. individualized services a VR agency context, that the definition in proposed We want to make clear that if a may provide under proposed § 361.5(c)(51) of a ‘‘student with a student with a disability requires § 361.48(b)(18). disability,’’ for purposes of the VR services that are beyond the limited Reasons: This change is necessary to program, is broader than the definition scope of pre-employment transition implement the amendments to the Act used under IDEA. For that reason, the services, the student would have to made by WIOA. Under the VR program, VR agency may provide pre- apply for and be determined eligible for any allowable service may be provided employment transition services under VR services and develop an as a transition service to an individual transitioning from secondary school to this section to a broader group of individualized plan for employment for postsecondary education or students than could receive such the receipt of those services as would be services under IDEA since VR agencies employment, who has been determined true for any other applicant. To that eligible and for whom an individualized may provide these services to students end, we encourage DSUs to work with eligible for or receiving section 504 plan for employment has been the local educational agencies and State services, not all of whom may be developed and approved. Services most educational agencies to develop a eligible for or receiving special commonly provided as transition education or related services under process whereby individuals expressing services to students with disabilities IDEA. interest in VR services are able to access under an individualized plan for We are particularly interested in the program and apply for services in a employment include, but are not limited receiving comments and alternative timely manner. VR agencies are to, assessments, counseling and suggestions about the interpretation of encouraged to develop a referral process guidance, assistive technology, job ‘‘potentially eligible’’ as used in section that is simple and engaging, especially coaching, orientation and mobility 113(a) of the Act to mean all students for students with disabilities and their training, vocational counseling and with disabilities as defined under families who could become discouraged guidance, and vocational and other proposed § 361.5(c)(51). or disinterested in VR services by training services, such as personal and In providing pre-employment needlessly complex and prolonged vocational adjustment training. transition services, a DSU may consider procedures. An individual may initiate It is important to note that many of providing these services to students the application process by requesting the services described as pre- with disabilities in group settings or on individualized pre-employment employment transition services in an individual basis. When provided in transition services and other VR proposed § 361.48(a) were previously group settings, these services are general services. Current § 361.41(b)(2) permits provided as transition services, as in nature and are not typically a student or the student’s representative, defined in proposed § 361.5(c)(55), or customized to an individual student’s as appropriate, to apply for VR services other individualized services, including disability-related or vocational needs. through a variety of means, including a community-based work experiences and For example, job exploration counseling other career exploration services, even simple request for VR services, such as provided in group settings may include though no specific category of pre- submitting a form consenting to the the presentation of general local labor employment transition services was provision of VR services or even a market composition and information, mentioned in the Act or current administration of vocational interest telephone call, so long as the request § 361.48. inventories, and instruction regarding contains the limited demographic and self-advocacy and self-determination. other information necessary to begin an Scope of Vocational Rehabilitation On the other hand, job exploration assessment for the determination of Services for Groups of Individuals With counseling provided on an individual eligibility and the student is available to Disabilities (§ 361.49) basis might include discussion of the participate in the assessment. Statute: Section 103(b)(7) of the Act student’s vocational interest inventory expands the scope of allowable services

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for the benefit of groups of individuals Services for Individuals Who Have with disabilities for high demand with disabilities to include transition Applied for and Been Determined careers in today’s economy. services for youth and students with Eligible for Vocational Rehabilitation Prior to enactment of WIOA, disabilities. Other technical changes Services (§ 361.48(b)) customized employment was an available service under the VR program were made in section 103(b)(6). Scope of Vocational Rehabilitation when necessary to assist the eligible Current Regulations: Current Services for Individuals With individual to achieve an employment § 361.49(a) includes allowable services Disabilities outcome. See the discussion of for the benefit of groups of individuals Statute: WIOA amends section 103(a) customized employment in the with disabilities, but does not include of the Act by adding customized Applicable Definitions section for transition services since this is a new employment to the list of VR services further information. statutory requirement. that may be provided to eligible Proposed Regulations: We propose to individuals under an individualized Scope of Vocational Rehabilitation amend current § 361.49(a)(6) to clarify plan for employment. The amendments Services for Groups of Individuals With that educational agencies referenced in also encourage qualified individuals Disabilities (§ 361.49(a)) current regulations mean State or local who are eligible for VR services to Statute: Section 103(b) of the Act educational agencies. pursue advanced training in specified makes several changes with regard to We also propose to add a new fields. the services to groups that VR agencies Current Regulations: Current § 361.48 § 361.49(a)(7) to incorporate transition may provide, including those related to provides a non-exhaustive list of VR services to students and youth with technical assistance to businesses, services available to assist an individual disabilities as a permissible service for assistive technology, and advanced with a disability in preparing for, the benefit of groups of individuals with training in specific fields of study. securing, retaining, or regaining an Current Regulations: Current disabilities. This service would be employment outcome. Neither § 361.49(a) describes the services that provided in coordination with other customized employment nor advanced VR agencies may provide for the benefit relevant agencies and providers. training is specified in this list because of groups, but they do not specifically Reasons: These changes are necessary these are new statutory requirements. address services related to assistive to implement the amendments to the Proposed Regulations: We propose to technology or advanced training, or Act made by WIOA. Under this new reorganize current § 361.48. Proposed other changes made by WIOA. provision, VR agencies would be able to § 361.48(a) incorporates new regulations Proposed Regulations: We propose to engage in transition activities with some governing pre-employment transition amend current § 361.49(a)(1), regarding entities that have not typically been services to students with disabilities, the establishment, development, or involved in transition planning. As a which are required by section 113 of the improvement of a community service to groups, these transition Act. Proposed § 361.48(b) contains all of rehabilitation program, to clarify that services would be provided in group the services that are listed in current services provided under this authority settings in a manner that benefits a § 361.48 and that are available to an must be used to promote competitive group of students or youth with eligible individual under an integrated employment, including disabilities, rather than being individualized plan for employment. customized and supported employment. customized for any one individual. Proposed § 361.48(b)(6) would specify We propose to amend current Individualized transition services are that advanced training in a field of § 361.49(a)(4) to incorporate statutory provided under proposed § 361.48(b). science, technology, engineering, or changes that expand a VR agency’s Examples of group transition services mathematics (including computer authority to provide technical assistance may include, but are not limited to, science), medicine, law, or business to all businesses who are considering class tours of universities and may be provided to an eligible hiring individuals with disabilities. We propose to add new § 361.49(a)(8) vocational training programs, employer individual receiving vocational and and (9) regarding services related to or business site visits to learn about other training services under an assistive technology and advanced career opportunities, career fairs individualized plan for employment. Finally, we propose to include training, respectively, to reflect new coordinated with workforce customized employment as an available statutory authorities for these services. development systems and employers VR service in proposed § 361.48(b)(20). We also propose to make other where students and youth participate in We also propose to make other conforming changes throughout this resume writing classes and mock conforming changes throughout this section. interviews. Additionally, these services section. Reasons: These changes are necessary are not limited to those individuals who Reasons: These changes are necessary to implement statutory changes, which are still in school since section 103(b)(7) to implement amendments to section both expand the types of services that a of the Act includes youth with 103(a) of the Act made by WIOA. It has VR agency may provide for the benefit disabilities between the ages of 14–24 been our long-standing policy that VR of groups of individuals with who may or may not be enrolled in services are available to individuals disabilities and provide clarification as secondary education. with disabilities to enable them to needed. DSUs will need to be mindful of the advance in employment and that The proposed changes in authority they are using when providing financial support for the graduate-level § 361.49(a)(1) regarding the these services since requirements differ degrees specified in proposed establishment, development, or for those transition services provided § 361.48(b)(6), may be provided to improvement of a community under services to groups (see proposed eligible individuals when necessary to rehabilitation program are primarily for § 361.49) or pursuant to an achieve employment. The specific clarification purposes. Services individualized plan for employment mention of this service in section 103(a) provided under this authority have (see proposed § 361.48(b)) or as a pre- of the Act and the proposed regulation always been for the purpose of employment transition service under underscores the importance of advanced promoting integration into the proposed § 361.48(a). training when preparing individuals community with respect to

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employment. However, the proposed provided under proposed § 361.49(a)(8) We want to make clear that DSUs changes highlight the statute’s are for the benefit of a group of should continue to provide any heightened emphasis on competitive individuals and are not tied to the individualized advanced training integrated employment, supported individualized plan for employment of support that an eligible individual employment, and customized any one individual. For example, a DSU requires in order to achieve an employment. may, in coordination with the State’s employment outcome in competitive Proposed changes to current assistive technology grant program, use integrated employment, and that is § 361.49(a)(4) would permit VR agencies VR funds to support an assistive consistent with the individual’s plan for to provide technical assistance to all technology lending library in proportion employment, under proposed businesses who are considering hiring to the benefit received by applicants and § 361.48(b), not under the services to individuals with disabilities. This eligible individuals. Once an eligible groups authority discussed here. For technical assistance could assist individual needs a specific assistive that reason, we believe there would only businesses with recruitment, hiring, technology device to participate in VR be limited circumstances in which it employment, and retention, including services or the employment outcome, would be appropriate for a DSU to resources and tools to help with the DSU could provide the device as an provide support for advanced training accessing and use of assistive individualized service under an under proposed § 361.49(a)(9). Given technology, workplace accessibility, and individualized plan for employment that this service may be provided as accommodations for individuals with pursuant to proposed § 361.48(b). either an individualized service under disabilities. VR agencies can work with Proposed § 361.49(a)(9) would proposed §§ 361.48(b) or 361.49(a)(9), businesses to develop systems for the implement a new authority for VR DSUs would have to keep in mind the matching and training of qualified agencies to provide support for distinctions between the two different workers with job requirements. advanced training in a manner that authorities to ensure proper Previously, a VR agency could provide benefits groups of eligible individuals. implementation and record-keeping for such services only to those businesses Before WIOA was enacted, a DSU could reporting purposes. that are not subject to title I of the provide this service only on an Americans with Disabilities Act of 1990. Comparable Services and Benefits individualized basis, pursuant to an (§ 361.53) This proposed change is also consistent individual’s individualized plan for with the heightened emphasis Statute: Section 101(a)(8) of the Act employment, in accordance with clarifies that accommodations and throughout WIOA on employer proposed § 361.48(b), which remains engagement, especially with regard to auxiliary aids and services are included unchanged in this context. This new assisting individuals with disabilities to in the requirement to determine authority is in addition to that provided enter competitive integrated whether comparable services and under proposed § 361.48(b) and is not employment. benefits are available prior to the DSU Proposed new § 361.49(a)(8) would intended to replace such services as providing most VR services. In addition, incorporate a new statutory authority for being provided on an individualized section 101(a)(8)(B) is amended to VR agencies to provide assistive basis. clarify that interagency agreements for technology-related services for the Under this new authority, VR coordination of services between the benefit of groups of individuals with agencies may provide support services DSU and other public entities in the disabilities. VR agencies may now to eligible individuals who meet State, including institutions of higher establish, develop, or improve assistive specific criteria and are pursuing education, should specifically address technology programs. This new advanced training in specific fields, as accommodations and auxiliary aids and authority would expand access to a service for the benefit of a group of services among the services to be assistive technology for individuals individuals with disabilities. Examples coordinated. with disabilities and employers in of when a DSU may consider providing Current Regulations: Current § 361.53 recognition of the critical role it plays in such support services, not directly sets forth the requirements related to the vocational rehabilitation and related to an individualized plan for comparable services and benefits, as employment of individuals with employment, could include the well as requirements related to disabilities. However, we believe that enrollment of multiple students interagency agreements, without this authority should be implemented in determined eligible for VR services in specifically identifying accommodations a manner that is consistent with the the same training, or the development and auxiliary aids and services. authority to establish, develop, or and implementation of specific Proposed Regulations: We propose to improve a community rehabilitation programming for eligible individuals add language to §§ 361.53(a) and program in proposed § 361.49(a)(1) in with an institution of higher education 361.53(d)(1) and (3) that would include that the services provided under this or community provider. Furthermore, accommodations and auxiliary aids and authority should be limited to VR agencies could consider establishing services among the VR services that applicants and eligible individuals a scholarship fund for advanced training would require the determination of the receiving VR services. In so doing, this in science, technology, engineering or availability of comparable services and authority would be used in coordination mathematics (STEM) or other fields as benefits prior to the provision of such with, rather than to supplant, the described in section 103(b)(9) of the Act. services to an eligible individual. The activities otherwise provided under the These funds may support the costs of proposed changes also would address Assistive Technology Act. graduate level training not covered by interagency coordination of the We also want to make clear that the any other source for those services, provision of these services. assistive technology services provided including support provided by the VR Reasons: The proposed changes under this authority would be program under proposed § 361.48(b). If reflect the clarifications in section distinguished from those provided a DSU establishes such scholarships, it 101(a)(8) of the Act made by WIOA. under proposed § 361.48(b), which are should consider establishing criteria WIOA reinforces the Department’s individualized and provided pursuant governing the receipt of such support, longstanding position that to an individual’s plan for employment. including merit and other competitive accommodations and auxiliary aids and The assistive technology services criteria. services are considered to be part of the

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determination of the availability of particularly the accommodations and the VR program, obtain subminimum comparable services and benefits and auxiliary aids and services that each wage employment or extended the services to be coordinated through agency will be responsible to provide. employment. the required interagency agreements The lack of specificity in these Current Regulations: Current § 361.55 with public entities should include agreements, in turn, does not provide requires the DSU to conduct an annual accommodations and auxiliary aids and adequate guidance to higher education review and re-evaluation annually for services. The changes to section or VR personnel responsible for carrying the first two years after an individual 101(a)(8) of the Act and proposed out their responsibilities to provide obtains subminimum wage employment § 361.53 make this interpretation such aids and devices to assist or extended employment. explicit. individual students with disabilities. Proposed Regulations: We propose to The need for the DSU to coordinate Such guidance is crucial when a amend § 361.55 to incorporate the new statutory requirement that these reviews the provision of accommodations and particular service could be provided by be conducted semi-annually for the first auxiliary aids and services often occurs either the DSU or institution of higher two years of the individual’s when serving eligible individuals education in accordance with their employment and annually thereafter. attending institutions of higher mutual obligations under the Americans We also propose to make other technical education for postsecondary training with Disabilities Act and section 504 of and conforming changes throughout. and education. Both DSUs and public the Act to ensure the ability of individuals with disabilities to Reasons: The proposed changes are institutions of higher education must necessary to implement new statutory adhere to the requirements of title II of participate in educational programs and activities, and the timely delivery of VR requirements and ensure individuals the Americans with Disabilities Act and with disabilities do not languish in section 504 of the Rehabilitation Act to services. We believe that the terms of the subminimum wage employment or ensure access to their services for interagency agreement should take into extended employment. Prior to the individuals with disabilities. account State laws and the resources of passage of WIOA, DSUs conducted Additionally, private institutions of each party. For example, an interagency these reviews annually for two years. higher education must adhere to agreement could include a term that With the amendments made by WIOA, requirements of section 504 of the Act could require institutions of higher DSUs must conduct these reviews twice to ensure access to their services for education to provide auxiliary aids and a year for two years and then annually individuals with disabilities. services (e.g., interpreters) to VR eligible thereafter for as long as the individual Accordingly, the responsibilities of each individuals in the classroom and the remains employed at the subminimum entity for the provision of DSUs could provide these aids and wage level or in extended employment. accommodations and auxiliary aids and services during educational activities These changes are consistent with the services to individuals served by each outside the classroom. In States where heightened emphasis throughout WIOA must be determined at the State level. students who are deaf or blind and that individuals with disabilities, Therefore, the interagency agreement attend a State university tuition-free, the including those with the most under proposed § 361.53(d) would interagency agreement could specify significant disabilities, be given every ensure interagency coordination and that the DSU provide auxiliary aids and opportunity to achieve competitive describe the responsibilities of the DSU services, such as reader and interpreter integrated employment. and the institutions of higher education services, both in and out of the for the provision of VR services, classroom, since the school is Matching Requirements (§ 361.60) including accommodations and responsible for the full cost of tuition. Statute: Section 101(a)(3) of the Act auxiliary aids and services, and would Greater specificity in the terms of the requires the State to pay a non-Federal provide a vehicle for resolving interagency agreements at the State level share in carrying out the VR program. interagency disputes. To that end, will promote consistency across the Section 7(14) of the Act defines Governors could assist the DSUs and State in the coordination of services and ‘‘Federal share’’ as 78.7 percent. These institutions of higher education, in in the provision of accommodations and statutory provisions remain unchanged accordance with section 101(a)(8)(B) of auxiliary aids and services to eligible by WIOA. the Act, to develop these agreements to individuals attending institutions of Current Regulations: Current ensure they are sufficient for ensuring higher education. regulations in § 361.60(b) outline the individuals with disabilities receive the Finally, we want to make clear that requirements for satisfying the non- services they need, including accommodations and auxiliary aids and Federal share requirement under the VR accommodations and auxiliary aids and services, for purposes of implementing program. services, to enable them to achieve the requirements of section 101(a)(8) Proposed Regulations: We propose to competitive integrated employment. and these proposed regulations, do not amend current (b)(3) to clarify that non- The Rehabilitation Act requires DSUs to include personally prescribed devices, Federal expenditures, for match enter into interagency agreements for such as eye glasses, hearing aids, purposes under the VR program, from coordination of services (including each wheelchairs, or other such individually- private contributions must be made agency’s financial responsibilities) with prescribed devices and services. from cash contributions that have been institutions of higher education, as well deposited in the VR agency’s account as other public entities. DSUs have Semi-Annual Review of Individuals in prior to their use for this purpose. We experienced difficulty engaging with Extended Employment and Other also propose to make conforming institutions of higher education, and Employment Under Special Certificate changes throughout current § 361.60 to other public agencies, for the purpose of Provisions of the Fair Labor Standards refer to 2 CFR part 200, as applicable developing the required interagency Act (§ 361.55) and to new terms, such as the agreements. In addition, DSUs and Statute: Section 101(a)(14) of the Act, ‘‘vocational rehabilitation services institutions of higher education have as amended by WIOA, increases the portion of the Unified or Combined often executed interagency agreements frequency of reviews that the DSUs State Plan’’ and ‘‘subaward.’’ that do not clearly describe the manner must conduct when individuals with Reasons: Proposed § 361.60(b)(3) in which services will be coordinated, disabilities, who have been served by makes no substantive changes but

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would clarify existing regulatory deficit through an audit disallowance Program Income (§ 361.63) requirements pertaining to expenditures process. Statute: None. made from private contributions and We propose to amend the current Current Regulations: Current § 361.63 used for match purposes under the VR § 361.62(d)(3) to clarify that a request for defines program income and lists program. Specifically, we would clarify a waiver or modification of the MOE potential sources of program income that contributions by private entities requirement must be submitted as soon and uses for purposes of the VR must be in cash and that the funds must as the State has determined that it has program. be deposited into the State agency’s failed to satisfy the requirement due to Proposed Regulations: We propose to account before they are used for match an exceptional or uncontrollable amend current § 361.63(a) to make the purposes under the VR program. In so circumstance. Finally, we propose to definition of program income consistent doing, we make two points clear: (1) make conforming changes throughout with 2 CFR 200.80. Certified expenditures made by private current § 361.62 to reflect the We propose to amend current entities or individuals may not be used restructuring of paragraph (a). § 361.63(b) by providing additional by the VR agency for match purposes Reasons: The proposed changes to examples of common sources of under the VR program; and (2) a current § 361.62(a) are necessary to program income generated by the VR contract, budgeted projection, or any implement the amendments to the Act program. other promise by a private entity or made by WIOA. Previously, the We propose to amend current individual to make a contribution may Secretary could reduce the State’s VR § 361.63(c)(1) to clarify that program not be used, on its face, by the VR award to satisfy a MOE deficit only in income must be disbursed during the agency for satisfying its match the fiscal year immediately following period of performance of the award to requirement. The VR agency must the fiscal year in which the MOE deficit be consistent with 2 CFR 200.77, which actually receive the cash contribution occurred. In the event the MOE deficit defines the period of performance of the before it may be used for match was discovered after the next fiscal award as the time during which the purposes under the VR program. We year’s grant was awarded, the Secretary non-Federal entity may incur new believe these clarifications are necessary was required to seek recovery for the obligations to carry out the work to ensure VR agencies have a better MOE deficit pursuant to a disallowance authorized under the Federal award. understanding of, and comply with process, whereby, the State was We propose to amend current these existing requirements. Finally, required to make payment for that § 361.63(c)(2) to reflect statutory other revisions proposed throughout recovery action with non-Federal funds. restructuring of title VI of the Act. this section are necessary to conform to Under the proposed regulations the Finally, we propose to amend current other changes proposed throughout part Secretary would no longer be limited to § 361.63(c)(3) to be consistent with 2 361. reducing only the next fiscal year’s CFR 200.307(e)(1) and (2). Maintenance of Effort Requirements grant, but rather could reduce any Reasons: The proposed changes to (§ 361.62) subsequent fiscal year’s grant to satisfy current § 361.63 are necessary for the MOE deficit. Therefore, in the event clarification purposes and to ensure Statute: Section 111(a)(2)(B) of the that a MOE shortfall is revealed after the consistency with other relevant Act, as amended by WIOA, requires the next fiscal year’s grant has been requirements, especially those Secretary to reduce a grant in a fiscal awarded, the Secretary would reduce contained in 2 CFR part 200. year for any prior fiscal year’s the Federal grant in another subsequent Maintenance of Effort (MOE) shortfall. fiscal year. Consequently, it is no longer Allotment and Payment of Federal Current Regulations: Current necessary for the Secretary to seek Funds for Vocational Rehabilitation § 361.62(a) requires the Secretary to recovery through a disallowance process Services (§ 361.65) reduce the grant in the fiscal year and for a State to use non-Federal funds Statute: Section 110(d) of the Act, as immediately following the fiscal year to satisfy the deficit. The proposed amended by WIOA, requires VR with the MOE deficit. In the event that change to current § 361.62(b) is agencies to reserve not less than 15 the MOE deficit is discovered after the necessary to ensure consistency with percent of the State’s VR allotment for next fiscal year’s grant was awarded, the paragraph (a) for purposes of satisfying the provision of pre-employment Secretary is required to seek a remedy a MOE deficit. transition services, in accordance with for the MOE violation pursuant to the The change in proposed § 361.62(d)(3) section 113 of the Act. Section 110(d)(2) disallowance process. is necessary for clarification purposes. of the Act prohibits a State from using Proposed Regulations: We propose to The proposed change would not these reserved funds to pay for amend current § 361.62(a) in four ways: substantively revise the requirements administrative costs or any other VR (1) By amending current § 361.62(a)(1) related to submitting a request for a service. to require the Secretary to reduce a grant MOE waiver or modification, but rather Current Regulations: Current § 361.65 in any fiscal year by the amount of any would add clarifying language to specifies the process the Secretary uses prior fiscal year’s MOE shortfall; (2) by existing requirements. Some States have to allot and reallot Federal funds, but removing the example in current interpreted the existing regulation as does not address the reservation by § 361.62(a)(1) as it is no longer meaning that the request should be States of funds for the provision of pre- applicable, given statutory amendments; submitted as soon as they anticipate that employment transition services since (3) by removing current § 361.62(a)(2) they would be unable to satisfy the MOE this is a new statutory requirement. since it is no longer necessary given requirement, even if that was years in Proposed Regulations: We propose to new statutory requirements t; and (4) by advance. We have always interpreted amend current § 361.65(a) by adding a redesignating current § 361.62(a) to paragraph (d)(3) as meaning that the new paragraph (3) to implement the reflect the removal of current request should be submitted as soon as new statutory requirement for a State to § 361.62(a)(2). the State has determined it has not reserve not less than 15 percent of its We propose to amend current satisfied the MOE requirement. The VR allotment for the provision of pre- § 361.62(b) by removing the requirement proposed change provides further employment transition services. The for the Secretary to recover the MOE clarification. proposed provision would make clear

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that such reserved funds must be used definition of ‘‘supported employment’’ of the criteria for competitive integrated only for services authorized in proposed to mean, in pertinent part, employment employment initially. In those § 361.48(a), and must not be used to pay with supports in competitive integrated circumstances, an individual with a for administrative costs associated with employment or, if not in competitive most significant disability would be the provision of such services or for any integrated employment, employment in considered to have achieved an other VR service. an integrated setting in which the employment outcome of supported We propose to amend current individual is working toward employment if he or she is working in § 361.65(b)(2) by revising the language competitive integrated employment on a an integrated setting, on a short-term to clarify that reallotment would occur short-term basis, not to exceed six basis, toward competitive integrated in the fiscal year the funds were months. Other key relevant statutory employment. In the proposed definition, appropriated; however, the funds may provisions include section 7(5), which we would interpret ‘‘short-term basis’’ be obligated or expended during the defines competitive integrated in this context to mean within six period of performance, provided employment; section 602, which makes months of the individual entering matching requirements are met. We clear the purpose of the Supported supported employment. propose to add a new paragraph (b)(3) Employment program is to enable We also propose to amend current to current § 361.65 that would give the individuals with the most significant § 363.50(b)(3) and (b)(4) to state that the Secretary the authority to determine the disabilities, including youth with the collaborative agreements developed criteria to be used to reallot funds when most significant disabilities, to achieve with other relevant entities for the amount requested exceeds the supported employment in competitive providing supported employment amount of funds relinquished. integrated employment; and section services and extended services may Finally, we propose other technical 604, which authorizes the services to be include efforts to increase opportunities and conforming changes throughout this provided under the Supported for competitive integrated employment section. Employment program to enable for individuals with the most significant Reasons: The proposed changes to individuals to achieve supported disabilities, including youth with the current § 361.65(a) are necessary to employment in competitive integrated most significant disabilities. implement new statutory requirements employment. Title VI contains Finally, we propose to amend the related to the reservation of Federal references to this requirement balance of current § 363.50 to reflect in funds for the provision of pre- throughout. the States’ required collaborative employment transition services. We Current Regulations: Current § 363.1 agreements the new scope and purpose make clear that the funds to be reserved sets out the purpose of the Supported of supported employment, as well as the are those awarded to the State pursuant Employment program, which is to assist new time limits for providing services to section 110 of the Act and do not States in developing and implementing that are discussed in detail under the refer to an allotment of State funds collaborative programs with entities to sections ‘‘Services to Youth with the awarded by the State. provide supported employment services Most Significant Disabilities’’ and None of the funds reserved for the for individuals with the most severe ‘‘Extension of Time for the Provision of provision of pre-employment transition disabilities who require such services to Supported Employment Services.’’ Reasons: The proposed revisions are services in accordance with section enter or retain competitive employment. necessary to implement in part 363 the 110(d) may be used to pay for Current regulations do not reference statutory changes made by WIOA. We administrative costs or any other VR competitive integrated employment or believe these proposed changes are service. These funds must be used working towards competitive integrated consistent with the purpose of the solely for the provision of services employment since these are new Supported Employment program, as described in § 361.48(a) of this part. We statutory requirements. Proposed Regulations: We propose to expressed throughout title VI of the Act. want to make clear that States must use amend current § 363.1 to reflect the The proposed changes are also the entire amount reserved solely for the revised statutory definition of consistent with proposed changes to provision of pre-employment transition ‘‘supported employment,’’ namely that part 361, which governs the vocational services in accordance with section 113 the employment be in competitive rehabilitation (VR) program, since the of the Act and § 361.48(a) of this part. integrated employment or, if it is not, supported employment program is The proposed change to current that the employment be in an integrated supplemental to that program. In § 361.65(b)(2) is necessary to ensure setting in which the individual with a particular, we propose to establish a consistency with 2 CFR 200.77. most significant disability is working specific time frame—e.g., six months— The change in proposed § 361.65(b) is toward competitive integrated for ‘‘short term basis’’ in the context of necessary to inform grantees about the employment on a short-term basis. ‘‘supported employment,’’ because we reallotment process in the event there As proposed, the regulations would believe it is necessary to limit the time are more requests for reallotment funds make clear that the purpose of the allowed for individuals to work in non- than are available to satisfy those Supported Employment program is to competitive employment in order to be requests. enable individuals with the most consistent with the clear intention of the Part 363—The State Supported significant disabilities, with on-going Act, as amended by WIOA, which Employment Services Program supports, to achieve competitive places heightened emphasis on integrated employment (i.e., competitive integrated employment Proposed substantive changes to part employment in an integrated setting that throughout. 363 are presented in a format that is compensated at or above the highlights topical areas in the order that minimum wage). Services to Youth With the Most the relevant sections appear in this part. The proposed definition of Significant Disabilities (§§ 363.6 and ‘‘supported employment’’ would take 363.54) Competitive Integrated Employment into account that under some Statute: Section 603(d) of the Act, as (§ 363.1) circumstances an individual’s amended by WIOA, requires each State Statute: Section 7(38) of the Act, as employment, which must always be in to reserve and use 50 percent of its amended by WIOA, revises the an integrated setting, may not meet all allotment under the Supported

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Employment program to provide employment services with its VR Extension of Time for the Provision of supported employment services, services provided under part 361 in Supported Employment Services including extended services, to youth order to avoid duplication. (§§ 363.6 and 363.54) with the most significant disabilities. We propose to amend current § 363.11 Statute: Section 7(39) of the Act, as Other relevant statutory provisions are to incorporate supported employment amended by WIOA, revises the found in section 602, which highlights services, including extended services, definition of ‘‘supported employment services to youth with the most for youth with the most significant services’’ to mean those on-going significant disabilities in the purpose disabilities into the existing supports provided for a period of time section of title VI; section 604, which requirements for the VR services portion not to exceed 24 months. authorizes services specifically for of the Unified or Combined State Plan youth with the most significant supplement. Current Regulations: Current § 363.6 disabilities; section 605, which We propose a new § 363.22, which defines ‘‘supported employment identifies youth with the most would implement the new statutory services’’ as ongoing services provided significant disabilities as eligible for requirement that a State must reserve by the DSU for a limited period of time supported employment services; and and use half of its allotment under the to achieve job stabilization and assist an section 606, which establishes certain supported employment program for the individual with the most severe State plan requirements specific for provision of supported employment disability before the transition to services to youth with the most services, including extended services, to extended services. The current significant disabilities. youth with the most significant regulations do not reference the 24- Current Regulations: None. disabilities. month time limit for the provision of Proposed Regulations: We propose to services since this is a new statutory We propose changes throughout part amend multiple sections in part 363 to requirement. 363 to conform to new statutory incorporate these new requirements for nomenclature, such as referring to ‘‘the Proposed Regulations: We propose to providing supported employment vocational rehabilitation services amend the definition of ‘‘supported services, including extended services, to portion of the Unified or Combined employment services’’ in part 361, youth with the most significant State Plans’’ in §§ 363.10 and 363.11, which will be incorporated by reference disabilities. instead of just ‘‘the State plan,’’ and throughout part 363. The proposed We propose to amend current § 363.1 definition would extend the time to state that a purpose of the Supported ‘‘the most significant disabilities’’ instead of ‘‘severe disabilities.’’ allowed for the provision of supported Employment program is to provide employment services from 18 months to individualized supported employment Reasons: The proposed revisions are necessary to implement in part 363 24 months. services, including extended services in We also propose to update and an integrated setting, to youth with the statutory changes made by WIOA. The streamline current § 363.6 by removing most significant disabilities in order to proposed changes are also consistent the current set of definitions and assist them in achieving supported with proposed changes to part 361, inserting, instead, cross-references to employment in competitive integrated which governs the VR program, since relevant definitions from other parts of employment. the Supported Employment program is We propose to amend current § 363.3 supplemental to that program. the Department’s regulations. to clarify that youth with the most Specifically, the proposed changes are We propose to amend current § 363.53 significant disabilities are eligible to consistent with the heightened to require that an individual must receive supported employment services. emphasis throughout the Act, as transition to extended services within It is important to note that youth have amended by WIOA on the provision of 24 months of starting to receive always been eligible to receive services to youth with disabilities, supported employment services unless a supported employment services; especially those with the most longer time period is agreed to in the however, amendments made by WIOA significant disabilities, to ensure they individualized plan for employment. emphasize this population in the receive the services and supports The proposed regulation would specify context of the Supported Employment necessary to achieve competitive conditions that must be met before a program. integrated employment. Accordingly, DSU assists an individual in In proposed § 363.4(a) and (b), we the proposed changes would implement transitioning to extended services, such would implement new statutory the statutory requirement that States as ensuring the individual is engaged in provisions permitting the expenditure of must reserve half of their supported supported employment that is in supported employment program funds, employment allotment for the provision competitive integrated employment, or reserved for the provision of supported of supported employment services, in an integrated work setting in which employment services to youth with the including extended services, to youth the individual is working on a short- most significant disabilities on extended with the most significant disabilities. term basis toward competitive services to youth with the most This new statutory requirement reflects integrated employment, and the significant disabilities for up to four the fact that this particular population employment is customized for the years following the transition from may need more intensive services for a individual consistent with his or her support from the designated State unit longer period of time in order to achieve strengths, abilities, interests, and (DSU). We propose to amend current competitive integrated employment. It is informed choice. Administratively, the § 363.4(c) to clarify that nothing in this important to note that, prior to the State unit would also have to identify part is to be construed as prohibiting the passage of WIOA, States were not the source of extended services and VR program from providing extended permitted to use supported employment meet all requirements for case closure. services to youth with the most and/or VR program funds to provide Reasons: The proposed revisions are significant disabilities with funds extended services under any necessary to implement in part 363 allotted under part 361. circumstance. States still are prohibited statutory changes made by WIOA. The In proposed § 363.4(d), we would set from providing extended services to proposed changes are also consistent out the statutory requirement that a individuals who are not youth with the with proposed changes to part 361, State must coordinate its supported most significant disabilities. which governs the VR program, since

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the Supported Employment program is with the fact that States may use VR Carryover (§ 363.25) supplemental to that program. funds to supplement the provision of Statute: Section 19 of the Act permits Match Requirements for Funds Reserved supported employment services, we States to carry funds over to a for Serving Youth With the Most believe it is important to ensure the succeeding fiscal year to the extent the Significant Disabilities (§ 363.23) match requirements under the State has satisfied any applicable match Supported Employment program are requirements. Statute: Section 606(b)(7)(I) of the consistent with those under the VR Current Regulations: None. Act, as amended by WIOA, requires that program. To that end, we propose that Proposed Regulations: We propose to a State provide non-Federal third-party in-kind contributions would add a new § 363.25 that mirrors the contributions in an amount not less than not be a permissible source of match carryover requirements under part 361, 10 percent of the costs of providing under the Supported Employment which governs the VR program. supported employment services, program, since it is not permitted under Although section 19 of the Act has including extended services, to youth the VR program. In so doing, we reduce always applied to the Supported with the most significant disabilities. the administrative burden on States Employment program, the amendments States are also authorized to leverage from having to distinguish whether a made by WIOA change the effect of this public and private funds. match source is applicable to the requirement since States, for the first Current Regulations: None. time, have a match requirement under Proposed Regulations: We propose to supported employment funds verses the this program. Therefore, a State would add a new § 363.23 to implement these VR funds. be permitted to carry over the 50 new statutory requirements. In the event Program Income (§ 363.24) percent of the allotment reserved for that a designated State agency uses more serving youth with the most significant than 50 percent of its allotment to Statute: Section 19 of the Act governs disabilities only if it has met the 10 provide supported employment services the carryover of funds, including percent match for those funds in the to youth with the most significant program income, received by the fiscal year in which the funds were disabilities as required by § 363.22, Supported Employment program. In awarded. A State would be able to there is no requirement that a addition, section 108 of the Act permits continue to carry over the other half of designated State agency provide non- the VR program to transfer payments the allotment, to serve all other Federal expenditures to match the received by the Social Security individuals, without having to satisfy a excess Federal funds spent for this Administration under part 361 to the match requirement since the statute purpose. In this proposed new section, Supported Employment program. These does not impose a match requirement we would clarify, to ensure consistency statutory provisions remained on that portion of the supported with part 361, that third-party in-kind substantively unchanged by WIOA. employment allotment. contributions are not permitted, but Current Regulations: None. Reasons: The proposed revisions are contributions by private entities are necessary to implement in part 363 Proposed Regulations: We propose to permitted, for match purposes under the statutory changes made by WIOA. The create a new § 363.24 that would define Supported Employment program. proposed changes are also consistent program income, identify its uses, and We propose to amend § 363.4(a)(3) to with proposed changes to part 361, clarify that program income may be implement the new statutory provision which governs the VR program, since authorizing States to use funds reserved treated as either an addition or the Supported Employment program is for youth with the most significant deduction to the award. supplemental to that program. disabilities to leverage other public and In addition, we propose including private funds to increase resources for requirements related to the carry-over of Limitations on Administrative Costs extended services and expand program income in proposed § 363.25. (§ 363.51) supported employment opportunities This provision would clarify that Statute: Section 603(c) of the Act, as for youth with the most significant program income may be carried over amended by WIOA, reduces the limit disabilities. into the succeeding fiscal year. allowed for administrative costs from 5 We also propose to amend percent of the allotment to 2.5 percent. Reasons: These regulations are § 363.11(g)(9) to incorporate both the In addition, section 606(b)(7)(H) necessary to govern the use and new match requirement and the requires the State to assure in its State description of the activities surrounding treatment of program income, consistent plan supplement for the Supported how the State will leverage funds with sections 19 and 108 of the Act. Employment program within the VR reserved for youth with the most Although statutory requirements section of the Unified or Combined significant disabilities into the governing program income have always State Plan, that it will not expend more assurances that a State must submit as applied to the Supported Employment than 2.5 percent of the allotment for part of its supported employment State program, we have found, through administrative costs. plan supplement. monitoring, that confusion exists among Current Regulations: Current Reasons: The proposed revisions are States as to how and when program § 363.51(b) contains a 5 percent limit. necessary to implement in part 363 income should be reported under the The current regulations do not reference statutory changes made by WIOA. The Supported Employment program as the 2.5 percent limit since this is a new proposed changes are also consistent opposed to under the VR program. We statutory requirement. with proposed changes to part 361 believe this proposed change would Proposed Regulations: We propose to governing the VR program since the minimize such confusion and result in amend § 363.51(b) to implement the Supported Employment program is more accurate reporting of program reduced administrative cost limit of 2.5 supplemental to that program. Given the income. Furthermore, these proposed percent. We also propose to amend the new statutory requirement that States changes are consistent with those State plan requirements in § 363.11 provide a 10 percent match on the funds proposed in part 361, which governs the accordingly. reserved for providing supported VR program, since the Supported Reasons: The proposed revisions are employment services to youth with the Employment program is supplemental necessary to implement in part 363 most significant disabilities, coupled to that program. statutory changes made by WIOA.

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Miscellaneous Changes for Clarity forth requirements the DSUs and State including youth with disabilities, Statute: Section 603 of the Act, as and local educational agencies must receive documentation demonstrating redesignated by WIOA, sets forth the satisfy to ensure that individuals with completion of the various activities procedures for allotting and reallocating disabilities, especially youth with required by section 511 of the Act, such as, to name a few, the receipt of funds under the Supported Employment disabilities, have a meaningful opportunity to prepare for, obtain, transition services by eligible children program. This statutory provision maintain, advance in, or regain with disabilities under the Individuals remained substantively unchanged by competitive integrated employment, with Disabilities Education Act and pre- WIOA. including supported or customized employment transition services under Current Regulations: Current employment. section 113 of the Act, as appropriate. §§ 363.20 and 363.21 merely cross- This proposed section also states that Proposed §§ 397.20 and 397.30 would reference to statutory provisions these regulations should be read in establish the documentation that the regarding procedures for allocating and concert with: Part 300, which DSUs and local educational agencies, as reallocating funds that are obsolete implements requirements under part B appropriate, must provide to given revisions made to title VI of the of the Individuals with Disabilities demonstrate completion of the various Act by WIOA. Education Act; part 361, which activities, required by section 511(a)(2) Proposed Regulations: We propose to implements requirements for the VR of the Act, by a youth with a disability. amend §§ 363.20 and 363.21 to mirror program; and part 363, which These would include completing pre- the statutory text regarding procedures implements the State Supported employment transition services under for allocating and reallocating supported Employment Services program. We proposed § 361.48(a) and the employment funds. believe this clarification is necessary to determination of eligibility or Reasons: The proposed changes are ensure all stakeholders understand that ineligibility for VR services under necessary to conform to statutory nothing in this part is to be construed proposed § 361.42 and § 361.43. amendments made by WIOA that as altering any requirement under parts Proposed § 397.40 would establish the restructure title VI. The proposed 300, 361, or 363. documentation that the DSUs must changes would also outline the Other relevant proposed regulations provide to individuals with disabilities procedures for allocating and in this part include: § 397.2, regarding of any age who are employed at a reallocating funds, rather than merely the Department’s jurisdiction; § 397.3, subminimum wage upon the completion cross-referencing the Act, thereby regarding rules of construction; § 397.4, of certain information and career making the proposed sections more regarding other applicable regulations; counseling-related services, as required user-friendly. and § 397.5, regarding applicable by section 511(c) of the Act. Limitation on Use of Subminimum definitions. Reasons: These proposed regulations Wages (Proposed 34 Part 397) Reasons: These proposed regulations are necessary to implement new are necessary to ensure stakeholders statutory requirements. In so doing, Our discussion of part 397 is understand the purpose of section 511 these proposed regulations would presented by subject in the order in of the Act, as added by WIOA, and the inform DSUs, State, and local which relevant sections appear in this Department’s authority and jurisdiction educational agencies of their specific part. under this section, as well as the inter- responsibilities related to Purpose and the Department’s relationship of these requirements with documentation required under section Jurisdiction those under the Individuals with 511 of the Act and would ensure that Disabilities Education Act and the VR individuals with disabilities have Statute: Section 511 of the Act, as program and Supported Employment sufficient information available to make added by WIOA, imposes limitations on program. informed choices. employers who hold special wage certificates under the Fair Labor Coordinated Documentation Process Contracting Prohibition Standards Act (FLSA) that must be Statute: Section 511(d) of the Act, as Statute: Section 511(b)(2) of the Act, satisfied before the employers may hire added by WIOA, requires the DSU and as added by WIOA, prohibits a local or youth with disabilities at subminimum the State educational agency to develop State educational agency (as defined in wage or continue to employ individuals a coordinated process, or use an existing section 9101 of the Elementary and with disabilities of any age at process, for providing youth with Secondary Education Act of 1965 (20 subminimum wage. Section 511 of the disabilities documentation U.S.C. 7801)) from entering into a Act also establishes the roles and demonstrating completion of the various contract or other arrangement with an responsibilities of the designated State actions required by section 511 of the entity, which holds a special wage units (DSU) for the vocational Act. Other relevant statutory provisions certificate under 14(c) of the FLSA for rehabilitation (VR) program and State include section 511(a) of the Act, the purpose of operating a program for and local educational agencies, in regarding the actions that a youth must a youth under which work is assisting individuals with disabilities, complete prior to beginning compensated at a subminimum wage. including youth with disabilities, who subminimum wage employment, and Current Regulations: None. are considering employment, or who are section 511(c) of the Act, regarding the Proposed Regulations: Proposed already employed, at a subminimum actions that individuals with disabilities § 397.31 would prohibit a local wage, to maximize opportunities to of any age must complete in order to educational agency or a State achieve competitive integrated continue employment at subminimum educational agency from entering into a employment through services provided wage. contract with an entity that employs by VR and the local educational Current Regulations: None. individuals at subminimum wage for agencies. Proposed Regulations: Proposed the purpose of operating a program Current Regulations: None. § 397.10 would require the DSU, in under which a youth with a disability Proposed Regulations: Proposed consultation with the State educational is engaged in subminimum wage § 397.1 establishes the purpose of the agency, to develop a process that employment. Although section 511(b)(2) regulations in this part, which is to set ensures individuals with disabilities, of the Act refers to youth in general, the

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proposed regulation is limited to youth Proposed Regulations: Proposed obtaining regulatory objectives and with disabilities in order to be § 397.50 would authorize a DSU to taking into account—among other things consistent with all other provisions of review individual documentation, and to the extent practicable—the costs section 511 of the Act. required by this part, for all individuals of cumulative regulations; Reasons: This proposed section is with disabilities who are employed at (3) In choosing among alternative necessary to implement new statutory the subminimum wage level, that is regulatory approaches, select those requirements. In so doing, this proposed maintained by employers, who hold approaches that maximize net benefits regulation is consistent with the special wage certificates under the (including potential economic, heightened emphasis in the Act, as FSLA. environmental, public health and safety, amended by WIOA, on ensuring that Reasons: This proposed provision is and other advantages; distributive individuals with disabilities, especially necessary to implement new statutory impacts; and equity); youth with disabilities, are given the requirements. In this context, the DSU’s (4) To the extent feasible, specify opportunity to train for and obtain work role is one of review not enforcement. performance objectives, rather than the in competitive integrated employment. The Department of Labor retains behavior or manner of compliance a While some State and local educational enforcement authority with respect to regulated entity must adopt; and agencies contract with employers who these employers under the FLSA. (5) Identify and assess available alternatives to direct regulation, hold special wage certificates under Executive Orders 12866 and 13563 FLSA, others contract with employers including economic incentives—such as who pay minimum wage, to create job Regulatory Impact Analysis user fees or marketable permits—to training and other work experiences for Under Executive Order 12866, the encourage the desired behavior, or students with disabilities. Through Secretary must determine whether this provide information that enables the these training and work experience regulatory action is ‘‘significant’’ and, public to make choices. Executive Order 13563 also requires programs, students with disabilities gain therefore, subject to the requirements of an agency ‘‘to use the best available knowledge and skills that transfer into the Executive order and subject to techniques to quantify anticipated eventual jobs similar to those in which review by the OMB. Section 3(f) of present and future benefits and costs as they receive their training, not only with Executive Order 12866 defines a accurately as possible.’’ The Office of regard to the type of duties performed, ‘‘significant regulatory action’’ as an Information and Regulatory Affairs of but also the wages earned. In the context action likely to result in a rule that OMB has emphasized that these of this proposed regulation, State and may— techniques may include ‘‘identifying local educational agencies are not (1) Have an annual effect on the changing future compliance costs that employers, but rather partners that economy of $100 million or more, or might result from technological facilitate entry of students with adversely affect a sector of the economy, innovation or anticipated behavioral disabilities into training programs that productivity, competition, jobs, the environment, public health or safety, or changes.’’ are implemented by employers holding We also have determined that this special wage certificates under the State, local, or tribal governments or communities in a material way (also regulatory action would not unduly FLSA. We believe this statutory interfere with State, local, and tribal prohibition, which is contained in the referred to as an ‘‘economically significant’’ rule); governments in the exercise of their proposed regulations, will result in governmental functions. fewer students with disabilities, (2) Create serious inconsistency or otherwise interfere with an action taken We have assessed the potential costs participating in training programs at the and benefits of this regulatory action. subminimum wage level. As a result, we or planned by another agency; (3) Materially alter the budgetary The potential costs associated with the believe more students with disabilities, impacts of entitlement grants, user fees, proposed regulations are those resulting especially those with the most or loan programs or the rights and from statutory requirements and those significant disabilities, will have the obligations of recipients thereof; or we have determined as necessary for opportunity to gain work experiences in (4) Raise novel legal or policy issues administering these programs effectively competitive integrated employment arising out of legal mandates, the and efficiently. Elsewhere in this settings which, in turn, will lead to President’s priorities, or the principles section under Paperwork Reduction Act eventual employment outcomes in those stated in the Executive order. of 1995, we identify and explain settings rather than at the subminimum This proposed regulatory action is a burdens specifically associated with wage level. With regard to this proposed significant regulatory action subject to information collection requirements. provision, the Secretary specifically review by OMB under section 3(f) of In assessing the potential costs and seeks comments regarding the Executive Order 12866. benefits—both quantitative and Department’s role and jurisdiction with We have also reviewed these qualitative—of these proposed respect to these provisions. regulations under Executive Order regulations, we have determined that Review of Documentation Process 13563, which supplements and the benefits would justify the costs. explicitly reaffirms the principles, Need for Regulatory Action Statute: Section 511(e)(2)(B) of the structures, and definitions governing Act, as added by WIOA, permits DSUs, regulatory review established in Executive Order 12866 emphasizes along with the Department of Labor, to Executive Order 12866. To the extent that ‘‘Federal agencies should review individual documentation held permitted by law, Executive Order promulgate only such regulations as are by entities holding special wage 13563 requires that an agency— required by law, are necessary to certificates under the FLSA to ensure (1) Propose or adopt regulations only interpret the law, or are made necessary the required documentation for upon a reasoned determination that by compelling public need, such as individuals with disabilities, including their benefits justify their costs material failures of private markets to youth with disabilities, who are (recognizing that some benefits and protect or improve the health and safety employed at the subminimum wage costs are difficult to quantify); of the public, the environment, or the level, is maintained. (2) Tailor its regulations to impose the well-being of the American people.’’ Current Regulations: None. least burden on society, consistent with The Department’s goal in regulating is to

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incorporate the provisions of the Act, as to another that do not affect total To date, the Department has exercised amended by WIOA, into the resources available to the VR program the Secretary’s statutory discretion to Department’s regulations governing the and Supported Employment program. permit types of employment not VR program and Supported However, in a number of service records specified in the Act as ‘‘employment Employment program at parts 361 and the Department is unable to quantify outcomes’’ under the VR program. In so 363, respectively, as well as to clarify, these transfers due to limitations of the doing, the Department has permitted update and improve these regulations. data it currently collects. In estimating uncompensated employment, such as This regulatory action is also necessary costs, we used wage rates from the work as homemakers and unpaid family to establish a new part 397 to Bureau of Labor Statistics’ Mean Hourly workers, to constitute as an employment implement specific the provisions of Wage Rate for State employees. outcome under the VR program. section 511 of the Act, as added by However, given the heightened A. Vocational Rehabilitation Program WIOA, which places limitations on the emphasis on competitive integrated Competitive Integrated Employment use of subminimum wages for employment in the Act, as amended by and Employment Outcomes individuals with disabilities. WIOA—from the purpose of the Act to Summary of Potential Costs and The Act, as amended by WIOA, places the addition of section 511, the Benefits heightened emphasis on the Secretary proposes to amend the current achievement of competitive integrated regulatory definition of ‘‘employment The Secretary believes that the employment by individuals with outcome’’ to include only compensated proposed changes would substantially disabilities, including those with the employment within its scope for improve the programs covered in this most significant disabilities. In so doing, purposes of the VR program. Thus, the NPRM, and would yield substantial Congress added a new term and Secretary intends to ensure that VR benefits in terms of program accompanying definition to the Act— funds are no longer diverted for the management, efficiency, and ‘‘competitive integrated employment.’’ provision of services that can be effectiveness. The Secretary believes While this is a new statutory term, it appropriately provided, in many cases, that the proposed regulations represent represents, in general, a consolidation of by independent living and other the least burdensome way to implement two existing regulatory definitions— programs. the amendments to the Act made by ‘‘competitive employment’’ and WIOA. Due to the number of proposed It is difficult to quantify the extent to ‘‘integrated setting.’’ As a result of the regulatory changes, our analysis focuses which the proposed change to the statutory amendments, we propose to solely on new requirements imposed by definition of ‘‘employment outcome,’’ replace the existing regulatory WIOA, organized in the following which has the effect of eliminating definition of ‘‘competitive manner. First, we discuss the potential homemakers and unpaid family workers employment,’’ with the new term costs and benefits related to the VR from its scope, will affect VR program ‘‘competitive integrated employment,’’ program under section A that costs nationally due to a number of specifically address: competitive by mirroring the statute and highly variable factors. For example, it integrated employment and incorporating critical criteria from the is not known whether individuals who employment outcomes, pre-employment existing regulatory definition of previously achieved homemaker transition services and transition ‘‘integrated setting.’’ Because this outcomes will choose to pursue services, and additional VR program proposed change is more technical than competitive integrated employment provisions. Second, we discuss the substantive, and given that the through the VR program in the future, potential costs and benefits related to substance of the proposed definition or seek out other resources, such as the Supported Employment program already exists in two separate those available from independent living under section B. Finally, we discuss the definitions, we believe this particular programs. Based on data reported by VR costs and benefits pertaining to the change will have no significant impact agencies through the VR Case Service establishment of proposed part 397 on the VR program. Report (RSA–911) for the period under section C. In addition to proposing to implement beginning in FY 1980 and ending in FY Where possible The Department the new definition of ‘‘competitive 2013, the percentage of individuals derived estimates by comparing the integrated employment,’’ we also exiting the VR program as homemakers existing program regulations against the believe it is necessary to propose nationally declined significantly from benefits and costs associated with changes to the current regulatory 15 percent of all individuals achieving implementation of provisions contained definition of ‘‘employment outcome.’’ an employment outcome in fiscal year in this WIOA-required NPRM. The While the Act, as amended by WIOA, (FY) 1980 to 1.9 percent in FY 2013 Department also made an effort, when made only technical changes to the (representing 3,467 of the 182,696 total feasible, to quantify and monetize the statutory definition of ‘‘employment employment outcomes that year). While benefits and costs of the NPRM. When outcome,’’ we believe a regulatory the national percentage of homemaker we were unable to quantify them—for change is necessary in light of the outcomes compared to all employment example, due to data limitations—we heightened emphasis throughout the outcomes is small, some designated describe the benefits and costs Act on the achievement of competitive State units (DSU) have a greater qualitatively. In accordance with the integrated employment under the VR percentage of homemaker outcomes regulatory analysis guidance contained program and Supported Employment than others, particularly those serving in OMB Circular A–4 and consistent program. To that end, we propose to only individuals who are blind and with the Department’s practices in define ‘‘employment outcome’’ as an visually impaired. In FY 2013, the 24 previous rulemakings, this regulatory outcome in competitive integrated DSUs that only provided services to analysis focuses on the likely employment or supported employment, individuals who are blind and visually consequences (benefits and costs that thereby eliminating uncompensated impaired reported that 10.5 percent of accrue to individuals with disabilities) employment (e.g., homemakers and the 6,121 employment outcomes in that of the WIOA-required NPRM. In this unpaid family workers) from the scope year were homemaker outcomes (or 645 analysis, the Department also considers of employment outcomes for purposes outcomes). DSUs that serve individuals the transfer of benefits from one group of the VR program. with disabilities other than those with

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blindness and visual impairments estimate the additional cost to DSUs to changes are relevant to this regulatory reported 656 homemaker outcomes in provide VR services to those individuals impact analysis discussion. that year, or 0.8 percent of the 84,238 who previously would have exited the Foremost among these proposed employment outcomes. In addition, the program with a homemaker outcomes changes is the requirement that DSUs 32 DSUs that serve individuals with all would not exceed $3,313 per outcome, reserve at least 15 percent of the State’s disabilities reported 2,166 homemaker or about $2,872,370 per year. VR allotment for the provision of pre- outcomes in FY 2013, representing 2.3 Alternatively, assuming that about 75 employment transition services to percent of their total 92,337 percent of the number of individuals students with disabilities who are employment outcomes. who would have otherwise attained a eligible or potentially eligible for VR The average cost per employment homemaker outcome no longer seek services. Additionally, States may not outcome, including the average cost per services from DSUs (2,600) at an average include administrative costs associated homemaker outcome, can be calculated cost of $6,626, there would be a net with the provision of pre-employment based on data reported by DSUs in the savings of $17,227,600 to the VR transition services in the calculation of RSA–911 on the cost of purchased program. Based on these assumptions, that 15 percent. services for individuals exiting the VR we estimate an overall savings to the VR The proposed regulation would program with an employment outcome. program of approximately $14,355,230. require DSUs to dedicate resources to: In FY 2013, the average cost per We recognize that the proposed (1) Ensure that the 15 percent is homemaker outcome for the VR program change in the definition of employment reserved from the State’s VR allotment; was $6,626, while the comparable outcome could potentially increase the (2) track the provision of pre- average cost per employment outcome demand for services from independent employment transition services to for all individuals exiting the VR living and other programs that can ensure funds were spent solely on program with an employment outcome provide services similar to those that authorized services and not on that year was $5,672. It is possible that such individuals would have previously administrative costs; and (3) provide for this higher average cost is because sought from the VR program and that administrative costs related to pre- individuals obtaining a homemaker some of these savings for the VR employment transition services with outcome generally require more program could result in a cost transfer non-reserved VR funds. intensive services or costly equipment to other Federal, State, and local Second, section 113 of the Act, as because the nature or severity of their programs. The Department plans to added by WIOA, requires VR agencies to disabilities have prevented them from provide guidance and technical provide pre-employment transition pursuing competitive integrated assistance to: (1) Facilitate the transition services to students with disabilities employment. However, there may be to the new definition of employment who are eligible or potentially eligible other factors that drive up the average outcome; and (2) minimize the potential for VR services. We propose to interpret cost of these outcomes. For example, it disruption of services to current VR the term ‘‘potentially eligible’’ to mean may be that some of these individuals program consumers who do not all students with disabilities, as defined originally had a goal of competitive currently have a competitive integrated in proposed § 361.5(c)(51). Prior to the employment, but after receiving services employment or supported employment enactment of WIOA, VR agencies were for an intensive or long period of time goal reflected in their individualized only permitted to provide pre- without obtaining such an outcome, plan for employment. The Department employment transition services or any they may have chosen to change their also plans to provide guidance and other transition services to individuals goal. Further analysis is needed to technical assistance to assist both VR who had been determined eligible for identify the factors that contribute to the agencies and potential service providers the VR program and who had an average higher cost of homemaker in the referral and acquisition of approved individualized plan for closures. services for individuals with disabilities employment. In developing the Given current information reported to seeking services for outcomes other than proposed regulation, the Department the Department by DSUs, we are not those covered under the proposed considered limiting the provision of pre- able to predict how many individuals revised definition of employment employment transition services to those who would have possibly had a outcome. students with disabilities who have homemaker outcome might now choose Finally the Department plans to work applied for VR services. However, this to seek competitive employment. with other Federal agencies, such as the alternative interpretation is not However, for the purpose of providing Administration for Community Living at proposed because we believe that a gross estimate of these costs, we the Department of Health and Human Congress intended these services to assume that approximately one-fourth Services, in identifying any impact of reach a broader group of individuals (867) of the number of individuals who the proposed change on independent than those who are eligible under exited the VR program with a living and other related programs and current VR program regulations. The homemaker outcome will choose a goal developing strategies to address Department’s proposed interpretation, of competitive integrated employment potential problems. which is the broadest possible given the and continue to seek services through plain meaning of the statute, is the VR program. We also assume that Pre-Employment Transition Services consistent with Congressional intent obtaining competitive integrated and Transition Services and the stated desires of some VR employment for these individuals may The Act, as amended by WIOA, places agencies and other stakeholders. be more expensive than the current cost heightened emphasis on the provision Although pre-employment transition for obtaining a homemaker outcome, but of pre-employment transition services services are a new category of services also assume it is unlikely that the and other transition services to students identified in the Act, many of these average costs for providing services to and youth with disabilities, as services historically were provided these individuals would exceed more applicable. As a result, the Secretary under a more general category of than 150 percent of their current costs proposes to make numerous transition services. Therefore, the (or approximately 175 percent of the amendments to the VR program provision of these services is not new to average cost per employment outcome regulations to implement new statutory VR agencies. However, until the for all agencies in FY 2013). As such, we requirements. A few of those proposed enactment of WIOA, all such services

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were provided only to those students Based on data reported through the provision due to the variability in the with disabilities who had been RSA–911 for FY 2013, the service number of individuals that may seek out determined eligible for the VR program. records for 206,050 transition-age youth these services nationally, the degree to Consequently, providing pre- (individuals ages 14 to 24 at the time of which individuals would require these employment transition services to all application) were closed, of which services within each State, and the students with disabilities could increase 123,119 received services. A portion of services that would be provided in each staff time and resources spent on the those served may qualify as students State. provision of these services. with a disability that would be able to receive pre-employment transition Additional Vocational Rehabilitation We are unable to estimate the Program Provisions potential increase in DSU services. In FY 2013, of the 123,119 administrative costs that may arise from transition-age individuals who received VR Services Portion of the Unified or implementation of new section 113 of services, 98,212 were aged 16 through Combined State Plan the Act or the required 15 percent 21, and most closely represent the WIOA requires the VR State plan, reservation of funds at this time. population of ‘‘students with a which has been a stand-alone State However, we have attempted to estimate disability’’ as defined under proposed plan, to be submitted as a VR services the impact that this 15 percent regulations. DSUs expended a total of portion of a State’s Unified or Combined reservation could have on the VR $503,208,438 on the purchase of VR State Plan for all six core programs of program as a whole. services for these individuals, for an the workforce development system. Assuming that States are able to average cost of $5,124 per individual. Requirements related to the submission match all of the funds provided for the Recognizing that the 98,212 students of Unified or Combined State Plans do include only those who have applied for VR program in the FY 2015 VR not take effect until July 2016. appropriation, $3,052,453,598, the total VR services and that under proposed In preparing for the transition to the aggregate amount of VR funds that regulations DSUs would provide pre- submission of Unified or Combined employment transition services to would be required to be reserved for State Plans every four years, with students with disabilities prior to their pre-employment transition services modifications submitted every two application for VR services, we from all 80 State VR agencies would be years, we propose to amend regulations anticipate that DSUs will be providing $457,868,040. Because each State VR governing the annual submissions of these services to a potentially larger agency must reserve a portion of its certain reports and updates. In so doing, number of students with disabilities allotment, it will now have fewer funds we would no longer require the available to use for all other authorized with the reserved funds. We emphasize that this is an estimate submission of these particular reports activities, thereby reducing the available based on assumptions and that we and updates annually, but rather, they resources for services other than pre- cannot more definitively project the would be included in the VR services employment transition services. The transfer of benefits across the VR portion of the Unified or Combined extent of the impact of the reservation program related to the provision of pre- State Plan and would be submitted at on a particular State will depend largely employment transition services due to such time and in such manner as on the extent to which it has been both the unknown number of students determined by the Secretary. This providing transition services to students in each State and nationally who may flexibility would allow for VR program- with disabilities that are now specified receive these services and the specific specific reporting to be done in a under section 113 as pre-employment services that will be provided. manner consistent with those for the transition services. States that currently Third, section 103(b)(7) of the Act, as Unified or Combined State Plan under provide extensive transition services to added by WIOA, permits VR agencies to sections 102 or 103 of WIOA, thus students with disabilities, including provide transition services to groups of avoiding additional burden or costs to services that would meet the definition youth and students with disabilities. To DSUs through the submission of of pre-employment transition services, that end, we propose to add separate reports annually or whenever are likely to see less transfer of benefits § 361.49(a)(7) to implement this updates are made. among eligible individuals served by requirement. In so doing, DSUs would Section 101(a) of the Act, as amended their agency. For States that have not be permitted to provide transition by WIOA, requires DSUs to include provided such services or have only services to groups of students and youth additional descriptive information in provided such services to this with disabilities, who may not have the VR services portion of the Unified population to a small extent, there may applied, or been determined eligible, for or Combined State Plan. Therefore, we be more extensive transfers of services VR services. propose to amend part 361 by requiring and benefits of the VR program among The proposed regulation benefits VR that DSUs describe in the VR services individuals (i.e., to students with agencies in two significant ways: (1) It portion of the Unified or Combined disabilities and away from other would give them the ability to serve State Plan the results of the individuals who otherwise would have groups of youth and students with comprehensive statewide needs been served). disabilities simultaneously, who may assessment with respect to the needs of Ultimately, the total value of the need only basic generalized services, students and youth with disabilities for benefits transfer is equivalent to the thereby reducing the amount of cost pre-employment transition services and difference between the amount reserved expended per individual; and (2) it other transition services, as appropriate; by States under this provision (we would reduce administrative burden on to identify goals and priorities to assume here $457,868,040) and the cost the VR agencies, as well as the burden address these needs; and to describe of providing pre-employment transition on students or youth with disabilities strategies for the achievement of these services to students with disabilities and their families, by not having to goals. We also propose that the VR who have such services outlined in their engage in processes for determining services portion of the Unified or individualized plan for employment eligibility, conducting assessments, and Combined State Plan include a (i.e., those who would receive such developing individualized plans for description of how the DSU will work services in the absence of the mandated employment. However, we have not with employers to identify competitive reservation). attempted to quantify the impact of this integrated employment opportunities

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and career exploration opportunities, in important to note that DSUs DSUs that indicate they have order to facilitate the provision of VR implementing an order of selection are established an order of selection as part services, and transition services for not required to use this authority; of their State Plan actually implement youth with disabilities and students rather, they may choose to do so based that order or report that they had with disabilities, such as pre- upon agency policy, or the availability individuals on a waiting list during the employment transition services. We also of financial and staff resources. DSUs year. In addition, we are unable to propose that the VR services portion of implementing an order of selection predict which DSUs on an order of the Unified or Combined State Plan would be required to state in the VR selection would choose this option. The contain a description of collaboration services portion of the Unified or degree to which individuals will be with the State agency responsible for Combined State Plan whether they have referred for this service will also vary administering the State Medicaid plan elected to exercise this discretion, widely, as will the level of services or under title XIX of the Social Security thereby signaling a decision to serve equipment that an individual could Act, the State agency responsible for eligible individuals who otherwise need to maintain employment. providing services for individuals with might have been placed on a waiting list Reports, Standards, and Indicators developmental disabilities, and the under the State’s order of selection, and State agency responsible for providing who are at risk of losing their As a result of amendments to the Act mental health services, to develop employment. This proposed change made by WIOA, we propose to revise opportunities for community-based would increase flexibility for a State § 361.40 to reflect changes to reporting employment in integrated settings, to managing its resources. If a State were requirements in section 116(b) in title I the greatest extent practicable. As a to implement this flexibility, it could of WIOA and amendments to section result, DSUs would be required to prevent an individual from losing 101(a)(10) of the Act. Section 361.40, as expend additional effort in the employment by avoiding a delay in proposed, does not list the actual data development of these descriptions services. On the other hand, DSUs that to be reported, but rather requires the beyond the 25 hours currently estimated elect to implement this option would collection and reporting of the for the development and submission of potentially need to reallocate resources information specified in sections 13, 14, the entire State plan, now the VR to cover expenditures for services or and 101(a)(10) of the Act. New services portion of the Unified or equipment for individuals who meet the requirements under section 101(a)(10) Combined State Plan. We estimate that qualifications of this provision, and fall include the reporting of data on the DSUs will require an additional five outside the open priority category of a number of: Individuals with open hours for the development of these DSU’s order of selection. service records and the types of services descriptions, for a total of 30 hours per For FY 2015, the State Plans of 34 of these individuals are receiving agency. At an average hourly rate of the 80 DSUs documented that the (including supported employment); $39.78 (based on data obtained from the agency had established an order of students with disabilities receiving pre- Bureau of Labor Statistics for State selection, one agency more than in FY employment transition services; and government management occupations), 2014. This total includes 8 percent of individuals referred to State VR a rate more consistent with State rates the 24 DSUs serving only individuals programs by one-stop operators and of pay than the $22.00 per hour used to who are blind and visually impaired individuals referred to such one-stop calculate current costs, each DSU would and 57 percent of the 56 other DSUs. operators by State VR programs. The expend $1,193 in the development of Based on data reported through the RSA–911 would be revised as described and submission of the VR services RSA–911 in FY 2013, 17 percent of the in the information collection published portion of the Unified or Combined individuals whose service records were for comment elsewhere in this issue of State Plan, resulting in a total of $95,472 closed and who received services were the Federal Register, consistent with the for all 80 DSUs. Although these costs employed at application, with an requirements in proposed § 361.40. are significantly higher than the current average cost of purchased services Proposed 361.40 also would require estimate of $2,000 incurred by all 80 $4,744. In addition, according to data States to report the data necessary to DSUs in the development and reported through the VR program assess VR agency performance on the submission of the State plan, we believe Cumulative Caseload (RSA–113) report, standards and indicators subject to the that the additional burden is more 33,856 individuals were on a waiting performance accountability provisions accurate and outweighed by the benefit list for VR services at the close of FY described in section 116 of WIOA. The to the public through a more 2013 due to the implementation of an common performance accountability comprehensive understanding of the order of selection. Assuming that 17 measures apply to all core programs of activities DSUs engage in to assist percent of the 33,856 individuals on the the workforce development system and individuals with disabilities to obtain waiting list could potentially benefit will be implemented in joint regulations the skills necessary to achieve from the provision of services and set forth in subpart E of part 361. The competitive integrated employment in equipment to maintain employment, a impact analysis of these regulations are job-driven careers. possible 5,756 individuals could benefit addressed in the joint regulations. from the proposed regulatory change for We estimate that each DSU will need Order of Selection a total cost of $27,306,464. This figure an additional 15 minutes per VR Section 101(a)(5) of the Act, as represents the potential reallocation of counselor to collect the new VR-specific amended by WIOA, permits DSUs, at resources to cover the cost of services data required by Section 101(a)(10) of their discretion, to serve eligible for individuals who, prior to enactment the Act. Estimating an average of 125 individuals who require specific of WIOA, may have not received them, counselors per DSU, the number of services or equipment to maintain and away from eligible individuals who hours per DSU would increase by 31.25 employment, regardless of whether they would have received services based on for a total increase of 2,500 hours for all are receiving VR services under an order a VR agency’s order of selection policy. 80 DSUs. The estimated cost per DSU, of selection or their assignment to a However, the implementation of an using an hourly wage of $22.27 (based priority category. Therefore, we propose order of selection by individual DSUs on data from the Bureau of Labor to amend part 361 to implement this may differ from year to year, as well as Statistics for State-employed VR new statutory requirement. It is within a given fiscal year. In fact, not all counselors), would result in an increase

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of $695.94 per DSU and a total increase maintenance and system updates to the variations in opportunities for of $55,675 for all 80 DSUs. 20 DSUs with internal case management individuals to participate in trial work In addition, we estimate the burden systems would need 500 hours per DSU experiences, and the extent to which hours for submission of the entire RSA– to accomplish the reprogramming of DSUs historically utilized extended 911 data file per DSU would increase these systems, for a total of 10,000 evaluation. We believe that the benefits from 50 hours per agency to 100 hours hours, as a result of the proposed of streamlining the eligibility per agency, representing an increase of changes to the RSA–911 data file. Using determination process for applicants 50 hours due to the need to report all an average hourly wage rate of $39.21 × whose ability to benefit from VR open case data on a quarterly basis 100 hours for private sector computer services is in question and ensuring that (rather than only data for closed service programmers, and a wage rate $67.32 × ineligibility determinations are based on records on an annual basis). The total 400 hours for private sector computer a full assessment of the capacity of an number of hours needed for the and information system managers applicant to perform in realistic work submission of the data file for 80 (based on Bureau Labor Statistics data settings outweighs the costs of removing agencies would increase from 4,000 to for 2013), we estimate these 20 DSUs the limited exception to trial work 8,000 hours. Using an average hourly will incur expenses of $30,849.00 per experiences. wage rate of $33.63 (based on data from DSU, or a total cost of $616,980.00. the Bureau of Labor Statistics State- We believe that these costs are Timeframe for Completing the employed database administrators), the outweighed by the benefits to the VR Individualized Plan for Employment estimated cost per DSU would be program because the new information to Section 102(b) of the Act, as amended $3,363, and the estimated cost for all 80 be reported and having access to more by WIOA, requires DSUs to develop DSUs would be $269,040. The total timely information on individuals individualized plans for employment burden hours for both collection and currently participating in the VR within 90 days of date of eligibility submission would be 131.25 hours per program will better enable the determination. Consequently, we DSU or a total of 10,500 hours for all 80 Department and its partners to assess propose to amend § 361.45 to DSUs. The estimated total burden cost the performance of the program and implement this 90-day requirement. Due for both collection and submission per monitor the implementation of WIOA, to variations in current DSU timelines DSU would be $4,059, with a total particularly as it relates to key policy for the development of the burden cost of $324,715 for all 80 DSUs. changes, such as pre-employment individualized plan for employment, Finally, DSUs will incur expenses transition services and its integration in the establishment of a 90-day timeframe related to programming and the workforce development system. by WIOA would ensure consistency modifications of data retrieval systems across the VR program nationally and as a result of the revisions to the RSA– Extended Evaluation the timely delivery of services, thereby 911 and its instructions due to the new In implementing amendments to the improving DSU performance and VR-specific data required under section Act made by WIOA, we propose to successful employment outcomes for 101(a)(10) of the Act. The costs are one- amend current §§ 361.41 and 361.42 by individuals with disabilities. time, first-year costs. The burden on the removing requirements related to We are unable to quantify potential DSUs related to the programming of extended evaluation. Instead, a DSU additional costs to DSUs nationwide their case management systems as a would be required to use trial work due to the variance in timelines result of the redesigned RSA–911 will experiences when conducting an currently in place. It is likely that States vary widely because agencies exploration of an individual with a with prolonged timelines beyond 90 themselves range in size and the significant disability’s abilities, days could experience an increase in sophistication of their information capabilities, and capacity to perform in outlays. For example, an increase in technology systems. Roughly half of the work situations. These proposed outlays could occur as a result of larger 80 DSUs use case management and revisions would streamline the numbers of individuals, with approved reporting systems purchased from eligibility or ineligibility determination individualized plans for employment, software providers who are responsible process for all applicants whose ability beginning to receive VR services at an for maintaining and updating software. to benefit from VR services is in earlier time than had historically been We estimate those DSUs would question. the case. However, while the overall experience no or minimal increases in VR program data collected by the cost per individual served are not likely cost burden. The remaining DSUs have Department do not distinguish between to be affected by this proposed developed their own case management individuals who had a trial work provision, the average time before some systems for which changes will be made experience and those that had an DSUs incur expenses related to the by their information technology staff or extended evaluation. However, data development of, and provision of outside contractors. Approximately, half show that 5,205 individuals exited from services under, individualized plans for of these DSUs would make the changes the VR program during or after trial employment may be shortened, internally and half would contract for work experiences or extended resulting in a shift of VR program the changes to be made. evaluations in FY 2013. DSUs expended outlays for services sooner than has We estimate those 20 DSUs that own, a total of $4,385,963 on the provision of been experienced. Therefore, in any maintain, and update internal case services to these individuals for an given fiscal year outlays for these DSUs management and reporting systems will average cost of $843 per individual. could be higher. While costs over the expend an average of 240 hours at Because we are unable to estimate how life of the service record should not be $44.72 (based on data from the Bureau many of the 5,205 individuals were in affected, some VR agencies could find it of Labor Statistics for State-employed extended evaluation, we cannot necessary to implement an order of computer and information systems quantify either the current or the selection due to the shifting of cost that managers), for a total of $10,732.80 per potential change in costs for this would have been incurred in a DSU. The estimated total burden hours specific group of individuals. Based on subsequent fiscal year to a prior fiscal for all 20 DSUs would be 4,800 hours the monitoring of VR agencies, it should year as the result of a larger number of and at a cost of $214,656. We estimate be noted that the use of these services individuals with individualized plans that contractors who provide varies among DSUs, mainly due to for employment developed within 90

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days. As always, DSUs are encouraged Because the Secretary is now able to Match Requirements for Funds Reserved to conduct planning that incorporates reduce any subsequent year’s VR grant for Serving Youth With the Most programmatic and fiscal elements to for any prior year’s MOE deficit, DSUs Significant Disabilities in Supported make projections and assessments of VR benefit as they are no longer required to Employment program resources and the number of repay MOE shortfalls with non-Federal individuals served, utilizing funds, thereby increasing the Section 606(b) of the Act, as amended management tools including order of availability of non-Federal funds, in by WIOA, requires States to provide a ten percent match for the 50 percent of selection, as appropriate. those instances, for obligation as match the supported employment allotment under the VR program. Since FY 2010, Services to Groups of Individuals With reserved for providing supported two States were required to pay a total Disabilities employment services, including of $791,342 in non-Federal funds Section 103(b)(8) of the Act, as added extended services, to youth with the related to MOE penalties because their by WIOA, permits a DSU to establish, most significant disabilities. We propose MOE shortfall was not known at the develop, or improve assistive to implement this requirement in part technology demonstration, loan, time the reduction in Federal funds 363. To date, the supported program has reutilization, or financing programs would have been authorized. As a not had a match requirement. designed to promote access to assistive result, these funds were unavailable to As stated above, $27,272,520 is technology. To that end, we propose to be used as matching funds for the VR available for formula grants to States amend § 361.49 to implement this new program in the year they were paid. On under the Supported Employment authority. In so doing, we propose to the other hand, the new authority could program for FY 2015. The 10 percent limit the population to be served to have resulted in the deduction of the individuals with disabilities who have $791,342 MOE penalties from a future match requirement would generate applied, or been determined eligible, for Federal award. $1,515,140 in non-Federal funds for VR services, thereby maintaining supported employment services that consistency with the authority to B. The Supported Employment Program will benefit youth with the most establish, develop, or improve a Services To Youth With the Most significant disabilities. In addition, if community rehabilitation program. We Significant Disabilities in Supported the appropriation increases in future anticipate that this provision will Employment years, the match requirement would benefit individuals with disabilities and result in additional supported Section 603(d) of the Act, as amended employers through expanded access to employment resources for youth with by WIOA, requires DSUs to reserve 50 assistive technology, reflecting the the most significant disabilities. percent of their supported employment integral role assistive technology plays However, States will have to identify in the vocational rehabilitation and State grant allotment to provide additional non-Federal resources in employment of individuals with supported employment services, order to match the Federal funds disabilities. However, by limiting the including extended services, to youth reserved for this purpose. with the most significant disabilities. use of this authority to services and Extended Services activities that benefit applicants and This new statutory requirement is eligible individuals, we ensure that this consistent with the heightened Title VI of the Act, as amended by authority is used in coordination with, emphasis throughout the Act on the WIOA, permits DSUs to provide rather than to supplant, services and provision of services to youth with extended services to youth with the activities provided under the Assistive disabilities, especially those with the most significant disabilities, using the Technology Act. We have not attempted most significant disabilities. To that funds reserved for the provision of to quantify additional costs associated end, we propose to amend part 363 to supported employment services to this with this provision due to the variable implement this new requirement. The population. These services may be nature of the specific assistive proposed changes are consistent with provided for a period up to four years. technology needs of VR program proposed changes to the VR program To that end, we propose to amend part participants, and the availability of regulations, since the Supported 363 to implement this requirement. assistive technology demonstration, Employment program is supplemental Prior to the enactment of WIOA, DSUs loan, reutilization, or financing to that program. were not permitted to provide extended programs within each State. After setting aside funds to assist in services to individuals of any age. Maintenance of Effort Requirements carrying out section 21 of the Act, the Under the Act, as amended by WIOA, DSUs still may not provide extended Section 111(a) of the Act, as amended FY 2015 Federal appropriation provides by WIOA, requires the Secretary to $27,272,520 for distribution to DSUs services to individuals with the most reduce any subsequent fiscal year VR under the Supported Employment State significant disabilities who are not award to satisfy a maintenance of effort Grants. Assuming that States are able to youth with the most significant (MOE) deficit in a prior year. As a provide the required 10 percent non- disabilities. Since extended services result, we propose to amend § 361.62 to Federal match for the available have not previously been an authorized implement this new requirement. Prior Supported Employment formula grant activity with the use of VR or supported to the enactment of WIOA, the Secretary funds in FY 2015, the 50 percent employment funds, this proposed could only reduce the subsequent year’s reservation would result in the change could have significant impacts grant to satisfy an MOE deficit from the dedication of $13,636,260 for supported on States. preceding fiscal year. If a MOE deficit employment services to youth with the Nonetheless, we want to make clear was discovered after it was too late to most significant disabilities. Conversely, that DSUs are not required to provide reduce the succeeding years grant, the the reserved funds would not be extended services to youth with the Secretary was required to seek recovery available for the provision of supported most significant disabilities, but rather through an audit disallowance, whereby employment services to individuals are permitted to do so, thereby creating the State repaid the deficit amount with who are not youth with the most a funding source for the services that non-Federal funds. significant disabilities. previously was not available.

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Extension of Time for the Provision of Limitations on Supported Employment DSUs and local educational agencies, as Supported Employment Services Administrative Costs appropriate, must provide to demonstrate an individual’s completion We propose to amend the definition We propose to amend part 363 to implement a new requirement in the of the various activities required by of supported employment services in section 511(a)(2) of the Act. These § 361.5(c)(54) to implement the statutory Act, as amended by WIOA, that reduces the maximum amount of a State’s grant include completing pre-employment change made by WIOA that extends the transition services under proposed provision of supported employment allotment under the Supported Employment program that can be used § 361.48(a) and the determination under services from 18 to 24 months. The an application for VR services under for administrative costs from 5 percent definition of supported employment proposed §§ 361.42 and 361.43. of the State’s grant allotment to 2.5 services applies to both the VR program Proposed § 397.40 would establish the percent. As a result, a larger portion of and Supported Employment program. In documentation that the DSUs must Federal supported employment funds addition, under both current and provide to individuals with disabilities must be spent on the provision of proposed regulations, DSUs have the upon the completion of certain supported employment services, authority to exceed this time period information and career counseling- including extended services to youth under special circumstances if jointly related services, as required by section with the most significant disabilities, agreed to by the individual and the 511(c) of the Act. We have not rather than administrative costs. rehabilitation counselor. attempted to quantify the costs to the However, any administrative costs The statutory change implemented in DSUs related to the provision of this incurred beyond the 2.5 percent limit on required documentation because the these proposed regulations would the use of Supported Employment funds benefit individuals with the most number of youth and other individuals may be paid for with VR program funds. who potentially could receive services significant disabilities who require Based upon the $27,272,520 available under proposed part 397 will vary ongoing support services for a longer for formula grants to States under the widely from State to State. In addition, period of time to achieve stability in the Supported Employment program in FY there exists no reliable national data on employment setting, prior to full 2015, the total allowable amount of which to base a calculation of costs. transition to extended services. This these Federal funds that can be used to However, DSUs generate documentation provision could result in DSUs using support administrative costs would be throughout the vocational rehabilitation more resources under both the VR reduced by half, from $1,363,626 to process that may meet the requirements program and Supported Employment $681,813. Thus, for those DSUs that of §§ 397.20 and 397.30, including program to provide ongoing services. have typically used more than 2.5 written notification of a consumer’s DSUs typically have not provided percent of their allotment to cover eligibility or ineligibility, copies of ongoing support services for a full 18 program administrative costs, the new individualized plans for employment months. In FY 2013, 15,458 individuals requirement would provide a small and subsequent amendments, and achieved supported employment increase in the amount of funds written notification when the outcomes within 21 months following available for the provision of services to consumer’s case record is closed. As a the development of the individualized individuals with the most significant result, the utilization of this plans for employment, which period we disabilities pursuing a supported documentation to meet section 511 assume could include the provision of employment outcome. DSUs will be requirements should not result in supported employment services for a able to shift these excess costs to the VR significant additional burden to DSUs. full 18 months and a minimum period State grants program since it does not of 90 days prior to case closure. Of these have a cap on the amount of Clarity of the Regulations individuals, 10,608, or approximately administrative funds that can be spent Executive Order 12866 and the 69 percent, achieve supported under that program. Presidential memorandum ‘‘Plain employment outcomes within 12 Language in Government Writing’’ months. While we anticipate that most C. Limitations on the Use of Subminimum Wage require each agency to write regulations individuals may not need supported that are easy to understand. The employment services for the full period The Act, as amended by WIOA, Secretary invites comments on how to of 24 months, in FY 2013, 1,759 imposes limitations on the payment of make these proposed regulations easier individuals achieved supported subminimum wages by employers who to understand, including answers to employment outcomes within a period hold special wage certificates under the questions such as the following: ranging from 21 months to 27 months of Fair Labor Standards Act. The • Are the requirements in the the development of the individualized requirements imposed by section 511 proposed regulations clearly stated? plan for employment. DSUs expended and thus proposed in part 397, do not • Do the proposed regulations contain $13,257, 816 on purchased services for take effect until July 22, 2016. technical terms or other wording that these individuals, or an average of Pursuant to statutory requirements interferes with their clarity? $7,537 per individual. Assuming this contained in section 511 of the Act, as • Does the format of the proposed period includes the provision of added by WIOA, we propose to create regulations (grouping and order of supported employment services for a a new § 397.10 that would require the sections, use of headings, paragraphing, full 24 months and a minimum period DSU, in consultation with the State etc.) aid or reduce their clarity? of 90 days prior to case closure we educational agency, to develop a • Would the proposed regulations be estimate that an approximate number of process, or utilize an existing process, easier to understand if we divided them individuals would benefit from the that ensures individuals with into more (but shorter) sections? (A provision of supported employment disabilities, including youth with ‘‘section’’ is preceded by the symbol services for an additional six months disabilities, receive documentation ‘‘§ ’’ and a numbered heading: For and that DSUs would incur similar costs demonstrating completion of the various example, § 361.1 Purpose.) for the provision of these services as a activities required by section 511. • Could the description of the result of the proposed regulatory Proposed §§ 397.20 and 397.30 would proposed regulations in the change. establish the documentation that the SUPPLEMENTARY INFORMATION section of

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this preamble be more helpful in the Department has submitted a copy of current OMB-approved annual aggregate making the proposed regulations easier these sections to OMB for its review. burden of 1,002,000 hours at $22.00 per to understand? If so, how? A Federal agency may not conduct or hour and estimated total annual costs of • What else could we do to make the sponsor a collection of information $22,044,000.00 for all 80 respondents. proposed regulations easier to unless OMB approves the collection The currently OMB-approved understand? under the PRA and the corresponding estimated annual burden of 1,002,000 To send any comments that concern information collection instrument hours for all 80 VR agencies includes a how the Department could make these displays a currently valid OMB control total of 2,000 hours (25 hours per proposed regulations easier to number. Notwithstanding any other agency) for the preparation and understand, see the instructions in the provision of law, no person is required submission of the VR State Plan and a ADDRESSES section. to comply with, or is subject to penalty total of 1,000,000 hours (12,500 hours for failure to comply with, a collection per agency) for record keeping Regulatory Flexibility Act Certification of information if the collection associated with the case management of The Secretary certifies that these instrument does not display a currently the individuals who apply for and proposed regulations would not have a valid OMB control number. In the final receive services from the VR program, significant economic impact on a regulations, we will display the OMB and Supported Employment program. substantial number of small entities. control numbers assigned by OMB to However, we have determined that the The 80 entities that administer the VR any information collection requirement time associated with this record keeping program and Supported Employment proposed in this NPRM and adopted in (1,000,000 hours annually for all 80 program are State agencies, including the final regulations, including: 1820– respondents) is part of the customary those in the 50 States, the District of 0013 (Cumulative Case Report), 1820– and usual business practices carried out Columbia, the Commonwealth of Puerto 0017 (Annual Vocational Rehabilitation by VR agencies, and thus, should not be Rico, the United States Virgin Islands, Program/Cost Report), 1820–0500 (VR included in the estimated annual Guam, American Samoa, and the State Plan), 1820–0508 (VR Case Service burden for this form. Commonwealth of the Northern Mariana Report), 1820–0563 (Annual Report of As previously stated there are a Islands. States and State agencies are Appeals), 1820–0693 (Program number of proposed regulations in parts not defined as ‘‘small entities’’ in the Improvement Plan), and 1820–0694 (VR 361 and 363 that necessitate substantive Regulatory Flexibility Act. Program Corrective Action Plan). changes to the State plan. The most significant of these changes is in Paperwork Reduction Act of 1995 VR Services Portion of the Unified or proposed § 361.10 and would require As part of its continuing effort to Combined State Plan and Supplement VR agencies to submit the VR services reduce paperwork and respondent for Supported Employment Services portion of the Unified or Combined burden, the Department provides the (1820–0500) State Plan to be eligible to receive general public and Federal agencies Section 101(a) of the Act, as amended Federal VR program funds. Proposed with an opportunity to comment on by WIOA, adds new content § 361.18 would require the VR services proposed and continuing collections of requirements to the State plan, which is portion of the Unified or Combined information in accordance with the now to be submitted as the vocational State Plan to describe the procedures Paperwork Reduction Act of 1995 (PRA) rehabilitation services portion of the and activities the State agency will take (44 U.S.C. 3506(c)(2)(A)). This helps Unified or Combined State Plan under to ensure it employs qualified ensure that: The public understands the section 102 or 103 of title I of WIOA. As rehabilitation personnel, including the Department’s collection instructions, a result, proposed §§ 361.10, 361.18, minimum academic and experience respondents can provide the requested 361.24, 361.29, and 361.36, along with requirements as amended by WIOA. data in the desired format, reporting proposed §§ 363.10 and 363.11, would Proposed § 361.24 would require VR burden (time and financial resources) is cause substantive changes to the active agencies to describe their coordination minimized, collection instruments are and OMB-approved data collection with employers to increase awareness clearly understood, and the Department under 1820–0500 (VR State Plan). In and employment opportunities for can properly assess the impact of addition, the VR State Plan form individuals with disabilities, as well as collection requirements on respondents. includes previously approved coordination with non-educational The following sections contain information collection requirements agencies serving out-of-school youth, information collection requirements: related to a number of current and the lead agency and implementing • Sections 361.10, 361.12, 361.13, regulations that remain unchanged as a entity for the coordination of activities 361.15, 361.16, 361.17, 361.18, 361.19, result of the amendments to the Act. available under section 4 of the 361.20, 361.21, 361.22, 361.23, 361.24, There are also several proposed Assistive Technology Act of 1998. 361.25, 361.26, 361.27, 361.29, 361.30, regulations related to this data Proposed § 361.24 also would require 361.31, 361.32, 361.34, 361.35, 361.36, collection that necessitate primarily VR agencies to describe in the plan their 361.37, 361.40, 361.46, 361.51, 361.52, conforming or technical changes to the collaboration, to develop opportunities 361.53, and 361.55, as well as §§ 363.10 form. for community-based employment in and 363.11, pertaining to the VR These current and proposed sections integrated settings, to the greatest extent services portion of the Unified or that contain already approved practicable, with the State agency Combined State Plan and Supplement information collection requirements or responsible for administering the State for Supported Employment Services; that do not cause substantive changes to Medicaid plan under title XIX of the and the form include: §§ 361.12, 361.13, Social Security Act, agencies providing • Sections 361.40 and 363.52, related 361.15, 361.16, 361.17, 361.19, 361.20, services and supports for individuals to the VR program Case Service Report. 361.21, 361.22, 361.23, 361.25, 361.26, with developmental disabilities, and the As a result of the amendments to the 361.27, 361.30, 361.31, 361.34, 361.35, State agency responsible for providing Act made by WIOA, we propose 361.37, 361.40, 361.46, 361.51, 361.52, mental health services. Proposed changes to some of these sections and 361.53, and 361.55. The proposed § 361.29 would require VR agencies to their corresponding information regulations and other adjustments include in the VR services portion of the collection requirements. Under the PRA described here would change the Unified or Combined State Plan the

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results of the comprehensive statewide In summary, our new information program participants (open service assessment regarding the needs of collection estimate for the VR State plan records), as well as individuals who students and youth with disabilities for reflects the removal of the burden have exited the program (closed records) pre-employment transition services and associated with the maintenance of case on a quarterly basis. Specifically, other transition services. In addition, management records for individuals proposed § 361.40 would require a State proposed § 361.29 would require the served through the VR program and to ensure in the VR services portion of plan to include an estimate of the Supported Employment program, the Unified or Combined State Plan that number of eligible individuals who are adjustment of the average hourly wage it will submit reports, including reports not receiving VR services due to the rate for State VR personnel responsible required under sections 13, 14, and implementation of an order of selection. for preparing the VR State plan form, 101(a)(10) of the Act. New reporting This proposed section also would and the increase in the estimated requirements under section require the plan to contain strategies to number of hours needed to prepare and 101(a)(10)(C) of the Act include data on improve VR services for students and submit this data collection due to the number of: Individuals currently youth with disabilities, to address their proposed regulatory changes. As a result receiving services (open records) and needs as identified through the of these changes, we estimate a total the types of services they are receiving, statewide needs assessment, and to annual burden of 2,400 hours (30 hours students with disabilities receiving pre- provide pre-employment transition for each of the 80 respondents), at employment transition services, and services. Proposed § 361.36 would $39.78 per hour, for a total annual cost individuals referred to the State VR require VR agencies implementing an of $95,472.00. program by one-stop operators and those referred to such one-stop order of selection to indicate in the plan VR Case Service Report 1820–0508 if they elect to provide services or operators by the State VR program. In equipment to individuals with The VR Case Service Report is used to addition, proposed § 363.52 would disabilities to enable them to maintain collect annual individual level data on require States to report separately data employment, regardless of whether the individuals that have exited the VR regarding eligible youth receiving these individuals are receiving services program, including individuals supported employment services under under the order. receiving services with funds provided parts 361 and 363. under the Supported Employment There are also proposed regulations in Proposed § 361.40 also would require program. Sections 101(a)(10) and 606 of part 363 governing the State Supported States to report the data necessary to the Act contain data reporting Employment Services program that assess VR agency performance on the requirements under the VR program and necessitate changes to the VR State Plan standards and indicators subject to the Supported Employment program, form. Proposed § 363.10 would require performance accountability provisions respectively. WIOA amends these described in section 116 of WIOA. The the State to submit with the VR services sections to require States to report common performance accountability portion of the Unified or Combined additional data describing the measures established under section 116 State Plan a supplement that meets the individuals served and the services of WIOA apply to all core programs of requirements of § 363.11 to receive a provided through these programs. In the workforce development system and grant under the State Supported addition, WIOA amends section 106 of will be implemented in joint regulations Employment Services program. the Act by eliminating the current VR set forth in subpart E of part 361. Proposed § 363.11 would require the VR evaluation standards and indicators and Because these new requirements services portion of the Unified or requiring that the standards and would necessitate the reporting of data Combined State Plan to describe the indicators used to assess the for both current program participants quality, scope, and extent of supported performance of the VR program be (open service records) as well as employment services to eligible consistent with the performance individuals who have exited the individuals (including youth with the accountability measures for the core program (closed service records) on a most significant disabilities), the State’s programs of the workforce development quarterly basis, estimated data goals and priorities with respect to the system established under section 116 of collection and reporting burden will distribution of funds received under this WIOA. Consequently, we propose increase. However, we propose to section, the provision of extended changes to §§ 361.40 and 363.52 that reduce the burden to respondents by services for a period not to exceed four would cause substantive changes to the eliminating redundant elements and years, and an assurance to expend no active and OMB-approved data reorganizing some existing elements of more than 2.5 percent of the award collection under 1820–0508—the VR the form. The regulations proposed under this part for administrative costs. Case Service Report (RSA–911). under this section will increase the total The regulations proposed under these Specifically the proposed regulations annual burden for the 80 respondents by sections of parts 361 and 363 would described here would change the 4,000 hours. We estimate the total increase the time needed by each VR current OMB-approved annual aggregate annual reporting burden to be 8,000 agency to prepare and submit the VR burden of 4,000 hours at $40.00 per hours at $33.63 per hour (a rate more services portion of the Unified or hour and estimated total annual costs of consistent with the rate reported Combined State Plan and its supported $160,000.00 for all 80 respondents. through the Bureau of Labor Statistics employment supplement from 25 to 30 The most significant proposed change for State-employed database hours annually. to this data collection affects the time at administrators), for a total annual cost of In addition, the total cost of this data which data is collected as well as the $269,040.00. collection may increase due to the frequency with which data is collected. proposed adjustment to the average Under the current approved form, VR Related OMB-Approved Data hourly wage rate of State personnel used agencies annually report data on each Collections That Remain Unchanged to estimate the annual burden for this individual whose case file is closed after The regulations proposed through this data collection from $22.00 to $39.78, so exiting the VR program in that fiscal NPRM do not cause substantive changes that wage rates are consistent with data year. However, new statutory to the OMB-approved annual burden, reported by the Bureau of Labor requirements would necessitate the respondents, or costs for the following Statistics. reporting of data for both current OMB-approved data collections:

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1820–0013 Cumulative Caseload annual burden of 975 annual burden ADDRESSES: Comments submitted in Report hours at $30.00 per hour with 15 response to this notice should be In the Cumulative Caseload Report respondents reporting quarterly for a submitted electronically through the State VR agencies report cumulative total of 60 responses, and annual costs Federal eRulemaking Portal at aggregate data on individuals served in of $29,250.00. www.regulations.gov by selecting the various stages of the VR process and Note that in accordance with the Docket ID ED–2015–OSERS–0001 or via services provided. Proposed regulations Uniform Administrative Requirements, postal mail commercial delivery, or related to this data collection would not Cost Principles, and Audit hand delivery. Please specify the Docket cause substantive changes to the current Requirements for Federal Awards ID number and indicate ‘‘Information OMB-approved annual burden of 320 published at 2 CFR 200, we require an Collection Comments’’ on the top of annual burden hours at $30.00 per hour authorized certifying official for each your comments if your comment relates with 80 respondents reporting quarterly data collection to certify that the data is to the information collection for this for a total of 320 responses, and total true, accurate and complete to the best rule. Written requests for information or annual costs of $9,600.00. of his or her knowledge or belief. This comments submitted by postal mail or requirement does not cause any change delivery should be addressed to the 1820–0017 Annual Vocational to the estimated annual burden related Director of the Information Collection Rehabilitation Program/Cost Report to the preparation and submission of the Clearance Division, U.S. Department of Proposed regulations related to this data collections described in this Education, 400 Maryland Avenue SW., data collection would not cause section of the NPRM. Mailstop L–OM–2–2E319LBJ, Room substantive changes to the current OMB- We have prepared an Information 2E115, Washington, DC 20202–4537. approved annual burden of 320 annual Collection Request (ICR) for these Comments submitted by fax or email burden hours at $30.00 per hour with 80 collections. If you want to review and and those submitted after the comment respondents and annual costs of comment on the ICR please follow the period will not be accepted. FOR $9,600.00. instructions listed under the ADDRESSES FURTHER INFORMATION CONTACT: section of this notice. Please note the Electronically mail ICDocketMgr@ 1820–0563 Annual Report of Appeals Office of Information and Regulatory ed.gov. Please do not send comments In this report, State VR agencies Affairs (OMB) and the Department here. submit data on the number of review all comments on an ICR that are individuals who have requested appeals posted at www.regulations.gov. In Intergovernmental Review for decisions made by the DSU preparing your comments you may want These programs are subject to pertaining to the provision of services, to review the ICR in Executive Order 12372 and the the types of dispute resolutions used to www.regulations.gov or in regulations in 34 CFR part 79. One of resolve these appeals, and the outcomes www.reginfo.gov. The comment period the objectives of the Executive order is of these appeals. Proposed regulations will run concurrently with the comment to foster an intergovernmental related to this data collection would not period of the NPRM. When commenting partnership and a strengthened cause substantive changes to the current on the information collection federalism. The Executive order relies OMB-approved annual burden of 160 requirements, we consider your on processes developed by State and annual burden hours at $30.00 per hour comments on these collections of local governments for coordination and with 80 respondents and annual costs of information in— review of proposed Federal financial $4,800.00. • Deciding whether the collections assistance. are necessary for the proper This document provides early 1820–0693 Performance Improvement performance of our functions, including notification of our specific plans and Plan (PIP) whether the information will have actions for these programs. A Performance Improvement Plan is practical use; developed when a VR agency has failed • Evaluating the accuracy of our Assessment of Educational Impact to achieve the required performance estimate of the burden of the In accordance with section 411 of the level for the evaluation standards and collections, including the validity of our General Education Provisions Act, 20 indicators established under section 106 methodology and assumptions; U.S.C. 1221e–4, the Secretary of the Act. Proposed regulations related • Enhancing the quality, usefulness, particularly requests comments on to this data collection would not cause and clarity of the information we whether these proposed regulations substantive changes to the current OMB- collect; and would require transmission of approved annual burden of 125 annual • Minimizing the burden on those information that any other agency or burden hours at $30.00 per hour with 5 who must respond. authority of the United States gathers or respondents reporting quarterly for a This includes exploring the use of makes available. total of 20 responses, and annual costs appropriate automated, electronic, Federalism of $3,750.00. mechanical, or other technological collection techniques. Executive Order 13132 requires us to 1820–0694 VR Program Corrective OMB is required to make a decision ensure meaningful and timely input by Action Plan concerning the collections of State and local elected officials in the A Corrective Action Plan is required information contained in these development of regulatory policies that when a DSU is found to be out of regulations between 30 and 60 days have federalism implications. compliance with the Federal after publication of this document in the ‘‘Federalism implications’’ means requirements governing the Federal Register. Therefore, to ensure substantial direct effects on the States, administration of the VR program that OMB gives your comments full on the relationship between the through monitoring activities engaged in consideration, it is important that OMB National Government and the States, or pursuant to section 107 of the Act. receives your comments by May 18, on the distribution of power and Proposed regulations related to this data 2015. This does not affect the deadline responsibilities among the various collection would not cause substantive for your comments to us on the levels of government. The proposed changes to the current OMB-approved proposed regulations. regulations in §§ 361, 363, and 397 may

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have federalism implications. We PART 361—STATE VOCATIONAL Provision and Scope of Services encourage State and local elected REHABILITATION SERVICES 361.41 Processing referrals and officials to review and provide PROGRAM applications. comments on these proposed 361.42 Assessment for determining regulations. Subpart A—General eligibility and priority for services. Accessible Format: Individuals with Sec. 361.43 Procedures for ineligibility disabilities can obtain this document in 361.1 Purpose. determination. an accessible format (e.g., braille, large 361.2 Eligibility for a grant. 361.44 Closure without eligibility 361.3 Authorized activities. determination. print, audiotape, or compact disc) on 361.45 Development of the individualized request to the person listed under FOR 361.4 Applicable regulations. 361.5 Applicable definitions. plan for employment. FURTHER INFORMATION CONTACT. 361.46 Content of the individualized plan Electronic Access to This Document: Subpart B—State Plan and Other for employment. The official version of this document is Requirements for Vocational Rehabilitation 361.47 Record of services. the document published in the Federal Services 361.48 Scope of vocational rehabilitation Register. Free Internet access to the 361.10 Submission, approval, and services for individuals with disabilities. official edition of the Federal Register disapproval of the State plan. 361.49 Scope of vocational rehabilitation and the Code of Federal Regulations is 361.11 Withholding of funds. services for groups of individuals with available via the Federal Digital System disabilities. Administration 361.50 Written policies governing the at: www.gpo.gov/fdsys. At this site you 361.12 Methods of administration. provision of services for individuals with can view this document, as well as all 361.13 State agency for administration. disabilities. other documents of this Department 361.14 Substitute State agency. 361.51 Standards for facilities and published in the Federal Register, in 361.15 Local administration. providers of services. text or Adobe Portable Document 361.16 Establishment of an independent 361.52 Informed choice. Format (PDF). To use PDF you must commission or a State Rehabilitation 361.53 Comparable services and benefits. have Adobe Acrobat Reader, which is Council. 361.54 Participation of individuals in cost available free at the site. 361.17 Requirements for a State of services based on financial need. You may also access documents of the Rehabilitation Council. 361.55 Annual review of individuals in Department published in the Federal 361.18 Comprehensive system of personnel extended employment and other development. employment under special certificate Register by using the article search provisions of the Fair Labor Standards feature at: www.federalregister.gov. 361.19 Affirmative action for individuals with disabilities. Act. Specifically, through the advanced 361.20 Public participation requirements. 361.56 Requirements for closing the record search feature at this site, you can limit 361.21 Consultations regarding the of services of an individual who has your search to documents published by administration of the vocational achieved an employment outcome. the Department. (Catalog of Federal rehabilitation services portion of the 361.57 Review of determinations made by Domestic Assistance Numbers: 84.126A Unified or Combined State Plan. designated State unit personnel. State Vocational Rehabilitation Services 361.22 Coordination with education Subpart C—Financing of State Vocational program; and 84.187 State Supported officials. Rehabilitation Programs 361.23 Requirements related to the Employment Services program) 361.60 Matching requirements. statewide workforce development 361.61 Limitation on use of funds for List of Subjects system. construction expenditures. 361.24 Cooperation and coordination with 34 CFR Part 361 361.62 Maintenance of effort requirements. other entities. 361.63 Program income. Administrative practice and 361.25 Statewideness. 361.64 Obligation of Federal funds. 361.26 Waiver of statewideness. procedure, Grant programs-education, 361.65 Allotment and payment of Federal Grant programs-social programs, 361.27 Shared funding and administration funds for vocational rehabilitation Reporting and recordkeeping of joint programs. services. requirements, Vocational rehabilitation. 361.28 Third-party cooperative arrangements involving funds from other Subpart D—[Reserved] 34 CFR Part 363 public agencies. Subpart E—[Reserved] Grant programs-education, Grant 361.29 Statewide assessment; annual estimates; annual State goals and Subpart F—[Reserved] programs-social programs, Manpower priorities; strategies; and progress training programs, Reporting and reports. Authority: Section 12(c) of the recordkeeping requirements, and 361.30 Services to American Indians. Rehabilitation Act of 1973, as amended; 29 Vocational rehabilitation. 361.31 Cooperative agreements with U.S.C. 709(c), unless otherwise noted. private nonprofit organizations. 34 CFR Part 397 361.32 Provision of training and services Subpart A—General Individuals with disabilities, for employers. Reporting and recordkeeping 361.33 [Reserved] § 361.1 Purpose. requirements, Students, Vocational 361.34 Supported employment State plan Under the State Vocational rehabilitation, Youth. supplement. Rehabilitation Services Program, the 361.35 Innovation and expansion Secretary provides grants to assist States Dated: March 6, 2015. activities. in operating statewide comprehensive, Arne Duncan, 361.36 Ability to serve all eligible coordinated, effective, efficient, and Secretary of Education. individuals; order of selection for accountable vocational rehabilitation services. For the reasons discussed in the programs, each of which is— preamble, the Secretary of Education 361.37 Information and referral programs. 361.38 Protection, use, and release of (a) An integral part of a statewide proposes to amend title 34 of the Code personal information. workforce development system; and of Federal Regulations as follows: 361.39 State-imposed requirements. (b) Designed to assess, plan, develop, ■ 1. Part 361 is revised to read as 361.40 Reports; Evaluation standards and and provide vocational rehabilitation follows: performance indicators. services for individuals with

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disabilities, consistent with their unique § 361.5 Applicable definitions. (Authority: Sections 7(1) and 12(c) of the strengths, resources, priorities, The following definitions apply to Rehabilitation Act of 1973, as amended; 29 concerns, abilities, capabilities, this part: U.S.C. 705(1) and 709(c)) interests, and informed choice so that (a) Definitions in EDGAR 77.1. (3) Applicant means an individual they may prepare for and engage in (b) Definitions in 2 CFR part 200 who submits an application for competitive integrated employment and subpart A. vocational rehabilitation services in achieve economic self-sufficiency. (c) The following definitions: accordance with § 361.41(b)(2). (1) Act means the Rehabilitation Act (Authority: Section 100(a) of the of 1973, as amended (29 U.S.C. 701 et (Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 29 Rehabilitation Act of 1973, as amended; 29 U.S.C. 720(a)) seq.). U.S.C. 709(c)) (2) Administrative costs under the § 361.2 Eligibility for a grant. vocational rehabilitation services (4) Appropriate modes of Any State that submits to the portion of the Unified or Combined communication means specialized aids Secretary a vocational rehabilitation State Plan means expenditures incurred and supports that enable an individual services portion of the Unified or in the performance of administrative with a disability to comprehend and Combined State Plan that meets the functions under the vocational respond to information that is being requirements of section 101(a) of the Act rehabilitation program carried out under communicated. Appropriate modes of and this part is eligible for a grant under this part, including expenses related to communication include, but are not this program. program planning, development, limited to, the use of interpreters, open and closed captioned videos, (Authority: Section 101(a) of the monitoring, and evaluation, including, Rehabilitation Act of 1973, as amended; 29 but not limited to, expenses for— specialized telecommunications U.S.C. 721(a)) (i) Quality assurance; services and audio recordings, Brailled (ii) Budgeting, accounting, financial and large print materials, materials in § 361.3 Authorized activities. management, information systems, and electronic formats, augmentative The Secretary makes payments to a related data processing; communication devices, graphic State to assist in— (iii) Providing information about the presentations, and simple language (a) The costs of providing vocational program to the public; materials. rehabilitation services under the (iv) Technical assistance and support services to other State agencies, private (Authority: Section 12(c) of the vocational rehabilitation services Rehabilitation Act of 1973, as amended; 29 portion of the Unified or Combined nonprofit organizations, and businesses U.S.C. 709(c)) State Plan; and and industries, except for technical (b) Administrative costs under the assistance and support services (5) Assessment for determining vocational rehabilitation services described in § 361.49(a)(4); eligibility and vocational rehabilitation portion of the Unified or Combined (v) The State Rehabilitation Council needs means, as appropriate in each State Plan. and other advisory committees; case— (vi) Professional organization (i)(A) A review of existing data— (Authority: Section 111(a)(1) of the membership dues for designated State (1) To determine if an individual is Rehabilitation Act of 1973, as amended; 29 eligible for vocational rehabilitation U.S.C. 731(a)(1)) unit employees; (vii) The removal of architectural services; and § 361.4 Applicable regulations. barriers in State vocational (2) To assign priority for an order of The following regulations apply to rehabilitation agency offices and State- selection described in § 361.36 in the this program: operated rehabilitation facilities; States that use an order of selection; and (a) The Education Department General (viii) Operating and maintaining (B) To the extent necessary, the Administrative Regulations (EDGAR) as designated State unit facilities, provision of appropriate assessment follows: equipment, and grounds, but not activities to obtain necessary additional (1) 34 CFR part 76 (State- including capital expenditures as data to make the eligibility Administered Programs). defined in 2 CFR 200.13; determination and assignment; (2) 34 CFR part 77 (Definitions that (ix) Supplies; (ii) To the extent additional data are Apply to Department Regulations). (x) Administration of the necessary to make a determination of (3) 34 CFR part 79 (Intergovernmental comprehensive system of personnel the employment outcomes and the Review of Department of Education development described in § 361.18, nature and scope of vocational Programs and Activities). including personnel administration, rehabilitation services to be included in (4) 34 CFR part 81 (General Education administration of affirmative action the individualized plan for employment Provisions Act—Enforcement). plans, and training and staff of an eligible individual, a (5) 34 CFR part 82 (New Restrictions development; comprehensive assessment to determine on Lobbying). (xi) Administrative salaries, including the unique strengths, resources, (b) The regulations in this part 361. clerical and other support staff salaries, priorities, concerns, abilities, (c) 2 CFR part 190 (OMB Guidelines in support of these administrative capabilities, interests, and informed to Agencies on Governmentwide functions; choice, including the need for Debarment and Suspension (xii) Travel costs related to carrying supported employment, of the eligible (Nonprocurement)) as adopted in 2 CFR out the program, other than travel costs individual. This comprehensive part 3485. related to the provision of services; assessment— (d) 2 CFR part 200 (Uniform (xiii) Costs incurred in conducting (A) Is limited to information that is Administrative Requirements, Cost reviews of determinations made by necessary to identify the rehabilitation Principles, and Audit Requirements for personnel of the designated State unit, needs of the individual and to develop Federal Awards) as adopted in 2 CFR including costs associated with the individualized plan of employment part 3474. mediation and impartial due process of the eligible individual; (Authority: Section 12(c) of the hearings under § 361.57; and (B) Uses as a primary source of Rehabilitation Act of 1973, as amended; 29 (xiv) Legal expenses required in the information, to the maximum extent U.S.C. 709(c)) administration of the program. possible and appropriate and in

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accordance with confidentiality 1998, except that the reference in such (ii) For the purposes of this definition, requirements— section to the term individuals with program means an agency, organization, (1) Existing information obtained for disabilities will be deemed to mean or institution, or unit of an agency, the purposes of determining the more than one individual with a organization, or institution, that eligibility of the individual and disability as defined in paragraph provides directly or facilitates the assigning priority for an order of (20)(A) of the Act. provision of vocational rehabilitation selection described in § 361.36 for the (iii) Assistive technology service has services as one of its major functions. individual; and the meaning given such term in section (Authority: Section 7(4) of the Rehabilitation (2) Information that can be provided 3 of the Assistive Technology Act of Act of 1973, as amended; 29 U.S.C. 705(4)) by the individual and, if appropriate, by 1998, except that the reference in such the family of the individual; section to the term— (8) Comparable services and benefits. (C) May include, to the degree needed (A) Individual with a disability will be (i) Comparable services and benefits to make such a determination, an deemed to mean an individual with a means services and benefits, including assessment of the personality, interests, disability, as defined in paragraph accommodations and auxiliary aids and interpersonal skills, intelligence and (20)(A) of the Act; and services, that are— (A) Provided or paid for, in whole or related functional capacities, (B) Individuals with disabilities will in part, by other Federal, State, or local educational achievements, work be deemed to mean more than one such public agencies, by health insurance, or experience, vocational aptitudes, individual. by employee benefits; personal and social adjustments, and (Authority: Sections 7(3) and 12(c) of the (B) Available to the individual at the employment opportunities of the Rehabilitation Act of 1973, as amended; 29 time needed to ensure the progress of individual and the medical, psychiatric, U.S.C. 705(3) and 709(c)) the individual toward achieving the psychological, and other pertinent (7) Community rehabilitation program employment outcome in the vocational, educational, cultural, social, (i) Community rehabilitation program individual’s individualized plan for recreational, and environmental factors means a program that provides directly employment in accordance with that affect the employment and or facilitates the provision of one or § 361.53; and rehabilitation needs of the individual; more of the following vocational (C) Commensurate to the services that (D) May include, to the degree rehabilitation services to individuals the individual would otherwise receive needed, an appraisal of the patterns of with disabilities to enable those from the designated State vocational work behavior of the individual and individuals to maximize their rehabilitation agency. services needed for the individual to opportunities for employment, (ii) For the purposes of this definition, acquire occupational skills and to including career advancement: comparable services and benefits do not develop work attitudes, work habits, (A) Medical, psychiatric, include awards and scholarships based work tolerance, and social and behavior psychological, social, and vocational on merit. patterns necessary for successful job services that are provided under one performance, including the use of work (Authority: Sections 12(c) and 101(a)(8) of management. the Rehabilitation Act of 1973, as amended; in real job situations to assess and (B) Testing, fitting, or training in the 29 U.S.C. 709(c) and 721(a)(8)) develop the capacities of the individual use of prosthetic and orthotic devices. (9) Competitive integrated to perform adequately in a work (C) Recreational therapy. environment; and (D) Physical and occupational employment means work that— (i) Is performed on a full-time or part- (E) To the maximum extent possible, therapy. relies on information obtained from (E) Speech, language, and hearing time basis (including self-employment) experiences in integrated employment therapy. and for which an individual is settings in the community and in other (F) Psychiatric, psychological, and compensated at a rate that— integrated community settings; social services, including positive (A) Is not less than the higher of the (iii) Referral, for the provision of behavior management. rate specified in section 6(a)(1) of the rehabilitation technology services to the (G) Assessment for determining Fair Labor Standards Act of 1938 (29 individual, to assess and develop the eligibility and vocational rehabilitation U.S.C. 206(a)(1)) or the rate required capacities of the individual to perform needs. under in the applicable State or local in a work environment; and (H) Rehabilitation technology. minimum wage law; (iv) An exploration of the individual’s (I) Job development, placement, and (B) Is not less than the customary rate abilities, capabilities, and capacity to retention services. paid by the employer for the same or perform in work situations, which must (J) Evaluation or control of specific similar work performed by other be assessed periodically during trial disabilities. employees who are not individuals with work experiences, including (K) Orientation and mobility services disabilities and who are similarly experiences in which the individual is for individuals who are blind. situated in similar occupations by the provided appropriate supports and (L) Extended employment. same employer and who have similar training. (M) Psychosocial rehabilitation training, experience, and skills; and services. (C) In the case of an individual who (Authority: Sections 7(2) and 12(c) of the (N) Supported employment services is self-employed, yields an income that Rehabilitation Act of 1973, as amended; 29 and extended services. is comparable to the income received by U.S.C. 705(2) and 709(c)) (O) Customized employment. other individuals who are not (6) Assistive technology terms. (P) Services to family members if individuals with disabilities and who (i) Assistive technology has the necessary to enable the applicant or are self-employed in similar meaning given such term in section 3 of eligible individual to achieve an occupations or on similar tasks and who the Assistive Technology Act of 1998 employment outcome. have similar training, experience, and (29 U.S.C. 3002). (Q) Personal assistance services. skills; and (ii) Assistive technology device has (R) Services similar to the services (D) Is eligible for the level of benefits the meaning given such term in section described in paragraphs (A) through (Q) provided to other employees; and 3 of the Assistive Technology Act of of this definition. (ii) Is at a location—

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(A) Typically found in the needs, and interests of the individual (14) Eligible individual means an community; and with a significant disability; applicant for vocational rehabilitation (B) Where the employee with a (ii) Designed to meet the specific services who meets the eligibility disability interacts for the purpose of abilities of the individual with a requirements of § 361.42(a). performing the duties of the position significant disability and the business (Authority: Sections 7(20)(A) and 102(a)(1) of with other employees within the needs of the employer; and the Rehabilitation Act of 1973, as amended; particular work unit and the entire work (iii) Carried out through flexible 29 U.S.C. 705(20)(A) and 722(a)(1)) site, and, as appropriate to the work strategies, such as— (15) Employment outcome means, performed, other persons (e.g., (A) Job exploration by the individual; with respect to an individual, entering, customers and vendors), who are not and advancing in, or retaining full-time or, individuals with disabilities (not (B) Working with an employer to if appropriate, part-time competitive including supervisory personnel or facilitate placement, including— integrated employment, as defined in individuals who are providing services (1) Customizing a job description § 361.5(c)(9) (including customized to such employee) to the same extent based on current employer needs or on employment, self-employment, that employees who are not individuals previously unidentified and unmet telecommuting, or business ownership), with disabilities and who are in employer needs; or supported employment, that is comparable positions interact with these (2) Developing a set of job duties, a consistent with an individual’s unique persons; and work schedule and job arrangement, and strengths, resources, priorities, (iii) Presents, as appropriate, specifics of supervision (including concerns, abilities, capabilities, opportunities for advancement that are performance evaluation and review), interests, and informed choice. similar to those for other employees and determining a job location; (3) Using a professional representative who are not individuals with (Authority: Sections 7(11), 12(c), 100(a), and chosen by the individual, or if elected disabilities and who have similar 102(b)(3)(A) of the Rehabilitation Act of self-representation, to work with an positions. 1973, as amended; 29 U.S.C. 705(11), 709(c), employer to facilitate placement; and 720(a), and 722(b)(4)(A)) (Authority: Sections 7(5) and 12(c) of the (4) Providing services and supports at (16) Establishment, development, or Rehabilitation Act of 1973, as amended; 29 the job location. U.S.C. 705(5) and 709(c)) improvement of a public or nonprofit (Authority: Section 7(7) and 12(c) of the community rehabilitation program (10) Construction of a facility for a Rehabilitation Act of 1973, as amended; 29 means— public or nonprofit community U.S.C. 705(7) and 709(c)) (i) The establishment of a facility for rehabilitation program means— (12) Designated State agency or State a public or nonprofit community (i) The acquisition of land in agency means the sole State agency, rehabilitation program, as defined in connection with the construction of a designated, in accordance with paragraph (c)(17) of this section, to new building for a community § 361.13(a), to administer, or supervise provide vocational rehabilitation rehabilitation program; the local administration of, the services to applicants or eligible (ii) The construction of new vocational rehabilitation services individuals; buildings; portion of the Unified or Combined (ii) Staffing, if necessary to establish, (iii) The acquisition of existing State Plan. The term includes the State develop, or improve a public or buildings; agency for individuals who are blind, if nonprofit community rehabilitation (iv) The expansion, remodeling, designated as the sole State agency with program for the purpose of providing alteration, or renovation of existing respect to that part of the Unified or vocational rehabilitation services to buildings; Combined State Plan relating to the applicants or eligible individuals, for a (v) Architect’s fees, site surveys, and vocational rehabilitation of individuals maximum period of four years, with soil investigation, if necessary, in who are blind. Federal financial participation available connection with the acquisition of land at the applicable matching rate for the or existing buildings, or the and (Authority: Sections 7(8)(A) and 101(a)(2)(A) of the Rehabilitation Act of 1973, as following levels of staffing costs: construction, expansion, remodeling, or amended; 29 U.S.C. 705(8)(A) and (A) 100 percent of staffing costs for alteration of community rehabilitation 721(a)(2)(A)) the first year; facilities; (13) Designated State unit or State (B) 75 percent of staffing costs for the (vi) The acquisition of initial fixed or second year; movable equipment of any new, newly unit means either— (i) The State vocational rehabilitation (C) 60 percent of staffing costs for the acquired, newly expanded, newly third year; and remodeled, newly altered, or newly bureau, division, or other organizational unit that is primarily concerned with (D) 45 percent of staffing costs for the renovated buildings that are to be used fourth year; and for community rehabilitation program vocational rehabilitation or vocational and other rehabilitation of individuals (iii) Other expenditures and activities purposes; and related to the establishment, (vii) Other direct expenditures with disabilities and that is responsible for the administration of the vocational development, or improvement of a appropriate to the construction project, public or nonprofit community except costs of off-site improvements. rehabilitation program of the State agency, as required under § 361.13(b); or rehabilitation program that are (Authority: Sections 7(6) and 12(c) of the (ii) The State agency that is primarily necessary to make the program Rehabilitation Act of 1973, as amended; 29 concerned with vocational functional or increase its effectiveness U.S.C. 705(6) and 709(c)) rehabilitation or vocational and other in providing vocational rehabilitation (11) Customized employment means rehabilitation of individuals with services to applicants or eligible competitive integrated employment, for disabilities. individuals, but are not ongoing an individual with a significant (Authority: Sections 7(8)(B) and 101(a)(2)(B) operating expenses of the program. disability, that is— of the Rehabilitation Act of 1973, as (Authority: Sections 7(12) and 12(c) of the (i) Based on an individualized amended; 29 U.S.C. 705(8)(B) and Rehabilitation Act of 1973, as amended; 29 determination of the unique strengths, 721(a)(2)(B)) U.S.C. 705(12) and 709(c))

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(17) Establishment of a facility for a (iii) Based on the needs of an eligible (23) Governor means a chief executive public or nonprofit community individual, as specified in an officer of a State. rehabilitation program means— individualized plan for employment; (Authority: Section 7(15) of the (i) The acquisition of an existing (iv) Provided by a State agency, a Rehabilitation Act of 1973, as amended; 29 building and, if necessary, the land in private nonprofit organization, U.S.C. 705(15)) connection with the acquisition, if the employer, or any other appropriate (24) Impartial hearing officer. (i) building has been completed in all resource, after an individual has made Impartial hearing officer means an respects for at least one year prior to the the transition from support from the individual who— date of acquisition and the Federal share designated State unit; and (A) Is not an employee of a public of the cost of acquisition is not more (v) Provided to youth with the most agency (other than an administrative than $300,000; significant disabilities by the designated law judge, hearing examiner, or (ii) The remodeling or alteration of an State unit in accordance with employee of an institution of higher existing building, provided the requirements set forth in this part and education); estimated cost of remodeling or part 363 for a period not to exceed 4 (B) Is not a member of the State alteration does not exceed the appraised years. The designated State unit may not Rehabilitation Council for the value of the existing building; provide extended services to designated State unit; (iii) The expansion of an existing individuals with the most significant (C) Has not been involved previously building, provided that— disabilities who are not youth with the in the vocational rehabilitation of the (A) The existing building is complete most significant disabilities. applicant or eligible individual; in all respects; (Authority: Sections 7(13), 12(c), and 604(b) (D) Has knowledge of the delivery of (B) The total size in square footage of of the Rehabilitation Act of 1973, as vocational rehabilitation services, the the expanded building, notwithstanding amended; 29 U.S.C. 705(13), 709(c) and 795i) vocational rehabilitation services portion of the Unified or Combined the number of expansions, is not greater (20) Extreme medical risk means a State Plan, and the Federal and State than twice the size of the existing probability of substantially increasing regulations governing the provision of building; functional impairment or death if services; (C) The expansion is joined medical services, including mental structurally to the existing building and (E) Has received training with respect health services, are not provided to the performance of official duties; does not constitute a separate building; expeditiously. and and (D) The costs of the expansion do not (Authority: Sections 12(c) and (F) Has no personal, professional, or 101(a)(8)(A)(i)(III) of the Rehabilitation Act of financial interest that could affect the exceed the appraised value of the 1973, as amended; 29 U.S.C. 709(c) and existing building; objectivity of the individual. 721(a)(8)(A)(i)(III)) (ii) An individual is not considered to (iv) Architect’s fees, site survey, and be an employee of a public agency for soil investigation, if necessary in (21) Fair hearing board means a the purposes of this definition solely connection with the acquisition, committee, body, or group of persons because the individual is paid by the remodeling, alteration, or expansion of established by a State prior to January agency to serve as a hearing officer. an existing building; and 1, 1985, that— (v) The acquisition of fixed or (i) Is authorized under State law to (Authority: Section 7(16) of the movable equipment, including the costs review determinations made by Rehabilitation Act of 1973, as amended; 29 of installation of the equipment, if personnel of the designated State unit U.S.C. 705(16)) necessary to establish, develop, or that affect the provision of vocational (25) Indian; American Indian; Indian improve a community rehabilitation rehabilitation services; and American; Indian Tribe. program. (ii) Carries out the responsibilities of (i) In general. The terms ‘‘Indian’’, the impartial hearing officer in ‘‘American Indian’’, and ‘‘Indian (Authority: Sections 7(12) and 12(c) of the accordance with the requirements in American’’ mean an individual who is Rehabilitation Act of 1973, as amended; 29 § 361.57(j). U.S.C. 705(12) and 709(c)) a member of an Indian tribe and include (Authority: Sections 12(c) and 102(c)(6) of a Native and a descendant of a Native, (18) Extended employment means the Rehabilitation Act of 1973, as amended; as such terms are defined in subsections work in a non-integrated or sheltered 29 U.S.C. 709(c) and 722(c)(6)) (b) and (c) of section 3 of the Alaska setting for a public or private nonprofit (22) Family member, for purposes of Native Claims Settlement Act (43 U.S.C. agency or organization that provides receiving vocational rehabilitation 1602). compensation in accordance with the services in accordance with (ii) Indian tribe. The term ‘‘Indian Fair Labor Standards Act. § 361.48(b)(9), means an individual— tribe’’ means any Federal or State Indian (Authority: Section 12(c) of the (i) Who either— tribe, band, rancheria, pueblo, colony, Rehabilitation Act of 1973, as amended; 29 (A) Is a relative or guardian of an or community, including any Alaskan U.S.C. 709(c)) applicant or eligible individual; or native village or regional village (19) Extended services means ongoing (B) Lives in the same household as an corporation (as defined in or established support services and other appropriate applicant or eligible individual; pursuant to the Alaska Native Claims services that are— (ii) Who has a substantial interest in Settlement Act) and a tribal organization (i) Needed to support and maintain an the well-being of that individual; and (as defined in section 4(1) of the Indian individual with a most significant (iii) Whose receipt of vocational Self-Determination and Education disability including a youth with a most rehabilitation services is necessary to Assistance Act (25 U.S.C. 450(b)(1)). significant disability, in supported enable the applicant or eligible (Authority: Section 7(19) of the employment; individual to achieve an employment Rehabilitation Act of 1973, as amended; 29 (ii) Organized or made available, outcome. U.S.C. 705(19)) singly or in combination, in such a way (Authority: Sections 12(c) and 103(a)(19) of (26) Individual who is blind means a as to assist an eligible individual in the Rehabilitation Act of 1973, as amended; person who is blind within the meaning maintaining supported employment; 29 U.S.C. 709(c) and 723(a)(19)) of applicable State law.

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(Authority: Section 12(c) of the respiratory or pulmonary dysfunction, (Authority: Section 7(25) of the Rehabilitation Act of 1973, as amended; 29 mental illness, multiple sclerosis, Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c)) muscular dystrophy, musculo-skeletal U.S.C. 705(25)) (27) Individual with a disability, disorders, neurological disorders (34) Maintenance means monetary except as provided in paragraph (including stroke and epilepsy), spinal support provided to an individual for (c)(28)of this section, means an cord conditions (including paraplegia expenses, such as food, shelter, and individual— and quadriplegia), sickle cell anemia, clothing, that are in excess of the normal (i) Who has a physical or mental intellectual disability, specific learning expenses of the individual and that are impairment; disability, end-stage renal disease, or necessitated by the individual’s (ii) Whose impairment constitutes or another disability or combination of participation in an assessment for results in a substantial impediment to disabilities determined on the basis of determining eligibility and vocational employment; and an assessment for determining eligibility rehabilitation needs or the individual’s (iii) Who can benefit in terms of an and vocational rehabilitation needs to receipt of vocational rehabilitation employment outcome from the cause comparable substantial functional services under an individualized plan provision of vocational rehabilitation limitation. for employment. services. (Authority: Section 7(21)(A) of the (Authority: Sections 12(c) and 103(a)(7) of (Authority: Section 7(20)(A) of the Rehabilitation Act of 1973, as amended; 29 the Rehabilitation Act of 1973, as amended; Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(21)(A)) 29 U.S.C. 709(c) and 723(a)(7)) U.S.C. 705(20)(A)) (31) Individual’s representative means (i)Examples: The following are (28) Individual with a disability, for any representative chosen by an examples of expenses that would meet purposes of §§ 361.5(c)(13), 361.13(a), applicant or eligible individual, as the definition of maintenance. The 361.13(b)(1), 361.17(a), (b), (c), and (j), appropriate, including a parent, examples are illustrative, do not address 361.18(b), 361.19, 361.20, 361.23(b)(2), guardian, other family member, or all possible circumstances, and are not 361.29(a) and (d)(8), and 361.51(b), advocate, unless a representative has intended to substitute for individual means an individual— been appointed by a court to represent counselor judgment. (i) Who has a physical or mental the individual, in which case the court- impairment that substantially limits one appointed representative is the Example 1: The cost of a uniform or or more major life activities; individual’s representative. other suitable clothing that is required (ii) Who has a record of such an for an individual’s job placement or job- (Authority: Sections 7(22) and 12(c) of the seeking activities. impairment; or Rehabilitation Act of 1973, as amended; 29 (iii) Who is regarded as having such U.S.C. 705(22) and 709(c)) Example 2: The cost of short-term an impairment. shelter that is required in order for an (32) Integrated setting means— individual to participate in assessment (Authority: Section 7(20)(B) of the (i) With respect to the provision of activities or vocational training at a site Rehabilitation Act of 1973, as amended; 29 services, a setting typically found in the U.S.C. 705(20)(B)) that is not within commuting distance community in which applicants or of an individual’s home. (29) Individual with a most significant eligible individuals interact with non- Example 3: The initial one-time costs, disability means an individual with a disabled individuals other than non- such as a security deposit or charges for significant disability who meets the disabled individuals who are providing the initiation of utilities, that are designated State unit’s criteria for an services to those applicants or eligible required in order for an individual to individual with a most significant individuals; and relocate for a job placement. disability. These criteria must be (ii) With respect to an employment consistent with the requirements in outcome, means a setting— (ii) [Reserved] § 361.36(d)(1) and (2). (A) Typically found in the (35) Mediation means the act or community; and process of using an independent third (Authority: Sections 7(21)(E) and 101(a)(5)(C) party to act as a mediator, intermediary, of the Rehabilitation Act of 1973, as (B) Where the employee with a amended; 29 U.S.C. 705(21)(E) and disability interacts, for the purpose of or conciliator to assist persons or parties 721(a)(5)(C)) performing the duties of the position, in settling differences or disputes prior with other employees within the to pursuing formal administrative or (30) Individual with a significant particular work unit and the entire work other legal remedies. Mediation under disability means an individual with a site, and, as appropriate to the work the program must be conducted in disability— performed, other persons (e.g., accordance with the requirements in (i) Who has a severe physical or customers and vendors) who are not § 361.57(d) by a qualified and impartial mental impairment that seriously limits individuals with disabilities (not mediator as defined in § 361.5(c)(43). one or more functional capacities (such including supervisory personnel or as mobility, communication, self-care, (Authority: Sections 12(c) and 102(c)(4) of individuals who are providing services self-direction, interpersonal skills, work the Rehabilitation Act of 1973, as amended; to such employee) to the same extent 29 U.S.C. 709(c) and 722(c)(4)) tolerance, or work skills) in terms of an that employees who are not individuals employment outcome; (36) Nonprofit, with respect to a with disabilities and who are in (ii) Whose vocational rehabilitation community rehabilitation program, comparable positions interact with these can be expected to require multiple means a community rehabilitation persons. vocational rehabilitation services over program carried out by a corporation or an extended period of time; and (Authority: Section 12(c) of the association, no part of the net earnings (iii) Who has one or more physical or Rehabilitation Act of 1973, as amended; 29 of which inures, or may lawfully inure, mental disabilities resulting from U.S.C. 709(c)) to the benefit of any private shareholder amputation, arthritis, autism, blindness, (33) Local workforce development or individual and the income of which burn injury, cancer, cerebral palsy, board means a local board, as defined in is exempt from taxation under section cystic fibrosis, deafness, head injury, section 3 of the Workforce Innovation 501(c)(3) of the Internal Revenue Code heart disease, hemiplegia, hemophilia, and Opportunity Act. of 1986.

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(Authority: Section 7(26) of the (H) Any other service identified in the (ix) Podiatry; Rehabilitation Act of 1973, as amended; 29 scope of vocational rehabilitation (x) Physical therapy; U.S.C. 705(26)) services for individuals, described in (xi) Occupational therapy; (37) Ongoing support services, as used § 361.48; or (xii) Speech or hearing therapy; in the definition of supported (I) Any service similar to the foregoing (xiii) Mental health services; employment, means services that— services. (xiv) Treatment of either acute or (i) Are needed to support and (Authority: Sections 7(27) and 12(c) of the chronic medical complications and maintain an individual with a most Rehabilitation Act of 1973, as amended; 29 emergencies that are associated with or significant disability, including a youth U.S.C. 705(27) and 709(c)) arise out of the provision of physical with a most significant disability, in and mental restoration services, or that (38) Personal assistance services are inherent in the condition under supported employment; means a range of services, including, (ii) Are identified based on a treatment; among other things, training in (xv) Special services for the treatment determination by the designated State managing, supervising, and directing unit of the individual’s need as of individuals with end-stage renal personal assistance services, provided disease, including transplantation, specified in an individualized plan for by one or more persons, that are— employment; dialysis, artificial kidneys, and supplies; (i) Designed to assist an individual and (iii) Are furnished by the designated with a disability to perform daily living State unit from the time of job (xvi) Other medical or medically activities on or off the job that the related rehabilitation services. placement until transition to extended individual would typically perform services, unless post-employment without assistance if the individual did (Authority: Sections 12(c) and 103(a)(6) of services are provided following not have a disability; the Rehabilitation Act of 1973, as amended; transition, and thereafter by one or more (ii) Designed to increase the 29 U.S.C. 709(c) and 723(a)(6)) extended services providers throughout individual’s control in life and ability to (40) Physical or mental impairment the individual’s term of employment in perform everyday activities on or off the means— a particular job placement or multiple job; (i) Any physiological disorder or placements if those placements are (iii) Necessary to the achievement of condition, cosmetic disfigurement, or being provided under a program of an employment outcome; and anatomical loss affecting one or more of transitional employment; (iv) Provided only while the the following body systems: (iv) Include an assessment of individual is receiving other vocational Neurological, musculo-skeletal, special employment stability and provision of rehabilitation services. The services may sense organs, respiratory (including specific services or the coordination of include training in managing, speech organs), cardiovascular, services at or away from the worksite supervising, and directing personal reproductive, digestive, genitourinary, that are needed to maintain stability assistance services. hemic and lymphatic, skin, and based on— (Authority: Sections 7(28), 12(c), endocrine; or (A) At a minimum, twice-monthly 102(b)(4)(B)(i)(I)(bb), and 103(a)(9) of the (ii) Any mental or psychological monitoring at the worksite of each Rehabilitation Act of 1973, as amended; 29 disorder such as intellectual disability, individual in supported employment; or U.S.C. 705(28), 709(c), 722(b)(4)(B)(i)(I)(bb), organic brain syndrome, emotional or (B) If under specific circumstances, and 723(a)(9)) mental illness, and specific learning especially at the request of the (39) Physical and mental restoration disabilities. individual, the individualized plan for services means— (Authority: Sections 7(20)(A) and 12(c) of the employment provides for off-site (i) Corrective surgery or therapeutic Rehabilitation Act of 1973, as amended; 29 monitoring, twice monthly meetings treatment that is likely, within a U.S.C. 705(20)(A) and 709(c)) with the individual; reasonable period of time, to correct or (41) Post-employment services means (v) Consist of— modify substantially a stable or slowly one or more of the services identified in (A) Any particularized assessment progressive physical or mental § 361.48 that are provided subsequent to supplementary to the comprehensive impairment that constitutes a the achievement of an employment assessment of rehabilitation needs substantial impediment to employment; outcome and that are necessary for an described in paragraph (c)(5)(ii) of this (ii) Diagnosis of and treatment for individual to maintain, regain, or section; mental or emotional disorders by advance in employment, consistent with (B) The provision of skilled job qualified personnel in accordance with the individual’s unique strengths, trainers who accompany the individual State licensure laws; resources, priorities, concerns, abilities, for intensive job skill training at the (iii) Dentistry; capabilities, interests, and informed work site; (iv) Nursing services; choice. (C) Job development and training; (v) Necessary hospitalization (either (D) Social skills training; inpatient or outpatient care) in (Authority: Sections 12(c) and 103(a)(20) of (E) Regular observation or supervision connection with surgery or treatment the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(20)) of the individual; and clinic services; (F) Follow-up services including (vi) Drugs and supplies; Note to paragraph(c)(41): Post- regular contact with the employers, the (vii) Prosthetic and orthotic devices; employment services are intended to individuals, the parents, family (viii) Eyeglasses and visual services, ensure that the employment outcome members, guardians, advocates or including visual training, and the remains consistent with the individual’s authorized representatives of the examination and services necessary for unique strengths, resources, priorities, individuals, and other suitable the prescription and provision of concerns, abilities, capabilities, professional and informed advisors, in eyeglasses, contact lenses, microscopic interests, and informed choice. These order to reinforce and stabilize the job lenses, telescopic lenses, and other services are available to meet placement; special visual aids prescribed by rehabilitation needs that do not require (G) Facilitation of natural supports at personnel who are qualified in a complex and comprehensive provision the worksite; accordance with State licensure laws; of services and, thus, should be limited

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in scope and duration. If more (ii) An individual is not considered to rehabilitation services portion of the comprehensive services are required, be an employee of the designated State Unified or Combined State Plan. then a new rehabilitation effort should agency or designated State unit for the (Authority: Section 7(24) of the be considered. Post-employment purposes of this definition solely Rehabilitation Act of 1973, as amended; 29 services are to be provided under an because the individual is paid by the U.S.C. 705(24)) designated State agency or designated amended individualized plan for (48) State means any of the 50 States, State unit to serve as a mediator. employment; thus, a re-determination of the District of Columbia, the eligibility is not required. The provision (Authority: Sections 12(c) and 102(c)(4) of Commonwealth of Puerto Rico, the of post-employment services is subject the Rehabilitation Act of 1973, as amended; United States Virgin Islands, Guam, to the same requirements in this part as 29 U.S.C. 709(c) and 722(c)(4)) American Samoa, and the the provision of any other vocational (44) Rehabilitation engineering means Commonwealth of the Northern Mariana rehabilitation service. Post-employment the systematic application of Islands. services are available to assist an engineering sciences to design, develop, (Authority: Section 7(34) of the individual to maintain employment, adapt, test, evaluate, apply, and e.g., the individual’s employment is Rehabilitation Act of 1973, as amended; 29 distribute technological solutions to U.S.C. 705(34)) jeopardized because of conflicts with problems confronted by individuals supervisors or co-workers, and the with disabilities in functional areas, (49) State workforce development individual needs mental health services such as mobility, communications, board means a State workforce and counseling to maintain the hearing, vision, and cognition, and in development board, as defined in employment, or the individual requires activities associated with employment, section 3 of the Workforce Innovation assistive technology to maintain the independent living, education, and and Opportunity Act (29 U.S.C. 3102). employment; to regain employment, integration into the community. (Authority: Section 7(35) of the e.g., the individual’s job is eliminated Rehabilitation Act of 1973, as amended; 29 (Authority: Sections 7(32) and (12(c) of the U.S.C. 705(35)) through reorganization and new Rehabilitation Act of 1973, as amended; 29 placement services are needed; and to U.S.C. 705(32) and 709(c)) (50) Statewide workforce development advance in employment, e.g., the system means a workforce development employment is no longer consistent (45) Rehabilitation technology means the systematic application of system, as defined in section 3 of the with the individual’s unique strengths, technologies, engineering Workforce Innovation and Opportunity resources, priorities, concerns, abilities, methodologies, or scientific principles Act (29 U.S.C. 3102). capabilities, interests, and informed to meet the needs of, and address the choice. (Authority: Section 7(36) of the barriers confronted by, individuals with Rehabilitation Act of 1973, as amended; 29 (42) Pre-employment transition disabilities in areas that include U.S.C. 705(36)) services means the required activities education, rehabilitation, employment, and authorized activities specified in (51) Student with a disability. (i) transportation, independent living, and § 361.48(a). Student with a disability means, in recreation. The term includes general, an individual with a disability (Authority: Sections 7(30) and 113 of the rehabilitation engineering, assistive who— Rehabilitation Act of 1973, as amended; 29 technology devices, and assistive (A)(1) Is not younger than the earliest U.S.C. 7(30) and 733) technology services. age for the provision of transition (43) Qualified and impartial (Authority: Section 7(32) of the services under section mediator. (i) Qualified and impartial Rehabilitation Act of 1973, as amended; 29 614(d)(1)(A)(i)(VIII) of the Individuals mediator means an individual who— U.S.C. 705(32)) with Disabilities Education Act (20 (A) Is not an employee of a public (46) Reservation means a Federal or U.S.C. 1414(d)(1)(A)(i)(VIII)); or agency (other than an administrative State Indian reservation, a public (2) If the State involved elects to use law judge, hearing examiner, employee domain Indian allotment, a former a lower minimum age for receipt of pre- of a State office of mediators, or Indian reservation in Oklahoma, and employment transition services under employee of an institution of higher land held by incorporated Native this Act, is not younger than that education); groups, regional corporations, and minimum age; and (B) Is not a member of the State village corporations under the (B)(1) Is not older than 21 years of age; Rehabilitation Council for the provisions of the Alaska Native Claims or designated State unit; (2) If the State law for the State Settlement Act (43 U.S.C. 1601 et seq.); (C) Has not been involved previously provides for a higher maximum age for or a defined area of land recognized by in the vocational rehabilitation of the receipt of services under the Individuals a State or the Federal Government applicant or eligible individual; with Disabilities Education Act (20 where there is a concentration of tribal (D) Is knowledgeable of the vocational U.S.C. 1400 et seq.), is not older than members and on which the tribal rehabilitation program and the that maximum age; and applicable Federal and State laws, government is providing structured (C)(1) Is eligible for, and receiving, regulations, and policies governing the activities and services. special education or related services provision of vocational rehabilitation (Authority: Section 121(e) of the under Part B of the Individuals with services; Rehabilitation Act of 1973, as amended; 29 Disabilities Education Act (20 U.S.C. (E) Has been trained in effective U.S.C. 741(e)) 1411 et seq.); or mediation techniques consistent with (47) Sole local agency means a unit or (2) Is a student who is an individual any State-approved or -recognized combination of units of general local with a disability, for purposes of section certification, licensing, registration, or government or one or more Indian tribes 504. other requirements; and that has the sole responsibility under an (ii) Students with disabilities means (F) Has no personal, professional, or agreement with, and the supervision of, more than one student with a disability. financial interest that could affect the the State agency to conduct a local or (Authority: Section 7(37) of the individual’s objectivity during the tribal vocational rehabilitation program, Rehabilitation Act of 1973, as amended; 29 mediation proceedings. in accordance with the vocational U.S.C. 705(37))

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(52) Substantial impediment to (54) Supported employment services (56) Transitional employment, as used employment means that a physical or means ongoing support services, in the definition of supported mental impairment (in light of attendant including customized employment, and employment, means a series of medical, psychological, vocational, other appropriate services needed to temporary job placements in educational, communication, and other support and maintain an individual competitive integrated employment related factors) hinders an individual with a most significant disability, with ongoing support services for from preparing for, entering into, including a youth with a most individuals with the most significant engaging in, advancing in, or retaining significant disability, in supported disabilities due to mental illness. In employment consistent with the employment that are— transitional employment, the provision individual’s abilities and capabilities. (i) Organized and made available, of ongoing support services must singly or in combination, in such a way (Authority: Sections 7(20)(A) and 12(c) of the include continuing sequential job Rehabilitation Act of 1973, as amended; 29 as to assist an eligible individual to placements until job permanency is U.S.C. 705(20)(A) and 709(c)) achieve competitive integrated achieved. employment; (53) Supported employment. (i) (ii) Based on a determination of the (Authority: Sections 7(38)(B) and 12(c) of the Supported employment means— Rehabilitation Act of 1973, as amended; 29 needs of an eligible individual, as U.S.C. 705(38)(B) and 709(c)) (A) Competitive integrated specified in an individualized plan for employment, including customized employment; (57) Transportation means travel and employment, or employment in an (iii) Provided by the designated State related expenses that are necessary to integrated work setting in which an unit for a period of time not to exceed enable an applicant or eligible individual with a most significant 24 months, unless under special individual to participate in a vocational disability, including a youth with a circumstances the eligible individual rehabilitation service, including most significant disability, is working and the rehabilitation counselor or expenses for training in the use of on a short-term basis toward coordinator jointly agree to extend the public transportation vehicles and competitive integrated employment that time to achieve the employment systems. is individualized, consistent with the outcome identified in the (Authority: Sections 12(c) and 103(a)(8) of unique strengths, abilities, interests, and individualized plan for employment; the Rehabilitation Act of 1973, as amended; informed choice of the individual, and 29 U.S.C. 709(c) and 723(a)(8)) including with ongoing support services (iv) Following transition, as post- (i) Examples. The following are for individuals with the most significant employment services that are examples of expenses that would meet disabilities— unavailable from an extended services the definition of transportation. The (1) For whom competitive integrated provider and that are necessary to examples are purely illustrative, do not employment has not historically maintain or regain the job placement or occurred, or for whom competitive advance in employment. address all possible circumstances, and are not intended as substitutes for integrated employment has been (Authority: Sections 7(39), 12(c), and interrupted or intermittent as a result of individual counselor judgment. 103(a)(16) of the Rehabilitation Act of 1973, Example 1: Travel and related a significant disability; and as amended; 29 U.S.C. 705(39), 709(c), and (2) Who, because of the nature and 723(a)(16)) expenses for a personal care attendant or aide if the services of that person are severity of their disability, need (55) Transition services means a intensive supported employment necessary to enable the applicant or coordinated set of activities for a eligible individual to travel to services and extended services after the student or youth with a disability— transition from support provided by the participate in any vocational (i) Designed within an outcome- rehabilitation service. designated State unit, in order to oriented process that promotes perform this work; or Example 2: The purchase and repair movement from school to post-school of vehicles, including vans, but not the (B) Transitional employment, as activities, including postsecondary defined in paragraph (c)(56) of this modification of these vehicles, as education, vocational training, modification would be considered a section, for individuals with the most integrated employment (including significant disabilities due to mental rehabilitation technology service. supported employment), continuing and Example 3: Relocation expenses illness, including youth with the most adult education, adult services, significant disabilities, constitutes incurred by an eligible individual in independent living, or community connection with a job placement that is supported employment. participation; (ii) For purposes of this part, an a significant distance from the eligible (ii) Based upon the individual individual’s current residence. individual with the most significant student’s needs, taking into account the disabilities, whose supported (ii) [Reserved] student’s preferences and interests; (58) Vocational rehabilitation employment in an integrated setting (iii) That includes instruction, does not satisfy the criteria of services— community experiences, the (i) If provided to an individual, means competitive integrated employment, as development of employment and other defined in paragraph (c)(9) of this those services listed in § 361.48; and post-school adult living objectives, and, (ii) If provided for the benefit of section, is considered to be working on if appropriate, acquisition of daily living a short-term basis toward competitive groups of individuals, means those skills and functional vocational services listed in § 361.49. integrated employment so long as the evaluation; and individual can reasonably anticipate (iv) That promotes or facilitates the (Authority: Sections 7(40) and 103 of the achieving competitive integrated achievement of the employment Rehabilitation Act of 1973, as amended; 29 employment within six months of outcome identified in the student’s U.S.C. 705(40) and 723) achieving an employment outcome of individualized plan for employment. (59) Youth with a disability. (i) Youth supported employment. (Authority: Sections 12(c) and 103(a)(15) and with a disability means an individual (Authority: Sections 7(38), 12(c), and 602 of (b)(7) of the Rehabilitation Act of 1973, as with a disability who is not— the Rehabilitation Act of 1973, as amended; amended; 29 U.S.C. 709(c) and 723(a)(15) (A) Younger than 14 years of age; and 29 U.S.C. 705(38), 709(c), and 795g) and (b)(7)) (B) Older than 24 years of age.

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(ii) Youth with disabilities means or descriptions submitted under this supported employment supplement, has more than one youth with a disability. part that are in effect on July 22, 2014. been so changed that it no longer (Authority: Section 7(42) of the (f) Due process. If the Secretary conforms with the requirements of this Rehabilitation Act of 1973, as amended; 29 disapproves the vocational part or part 363; or U.S.C. 705(42)) rehabilitation services portion of the (2) In the administration of the Unified or Combined State Plan, the vocational rehabilitation services Subpart B—State Plan and Other Secretary will follow these procedures: portion of the Unified or Combined Requirements for Vocational (1) Informal resolution. Prior to State Plan there is a failure to comply Rehabilitation Services disapproving the vocational substantially with any provision of such rehabilitation services portion of the plan or with an evaluation standard or § 361.10 Submission, approval, and Unified or Combined State Plan, the performance indicator established under disapproval of the State plan. Secretary attempts to resolve disputes section 106 of the Act. (a) Purpose. (1) To be eligible to informally with State officials. (b) Informal resolution. Prior to receive funds under this part for a fiscal (2) Notice. If, after reasonable effort withholding or limiting payments in year, a State must submit, and have has been made to resolve the dispute, no accordance with this section, the approved, a vocational rehabilitation resolution has been reached, the Secretary attempts to resolve disputed services portion of a Unified or Secretary provides notice to the State issues informally with State officials. Combined State Plan in accordance with agency of the intention to disapprove (c) Notice. If, after reasonable effort sections 102 or 103 of the Workforce the vocational rehabilitation services has been made to resolve the dispute, no Innovation and Opportunity Act. portion of the Unified or Combined resolution has been reached, the (2) The vocational rehabilitation State Plan and of the opportunity for a Secretary provides notice to the State services portion of the Unified or hearing. agency of the intention to withhold or Combined State Plan must satisfy all (3) State plan hearing. If the State limit payments and of the opportunity requirements set forth in this part. agency requests a hearing, the Secretary for a hearing. (b) Separate part relating to the designates one or more individuals, (d) Withholding hearing. If the State vocational rehabilitation of individuals either from the Department or agency requests a hearing, the Secretary who are blind. If a separate State agency elsewhere, not responsible for or designates one or more individuals, administers or supervises the connected with the administration of either from the Department or administration of a separate part of the this program, to conduct a hearing in elsewhere, not responsible for or vocational rehabilitation services accordance with the provisions of 34 connected with the administration of portion of the Unified or Combined CFR part 81, subpart A. this program, to conduct a hearing in State Plan relating to the vocational (4) Initial decision. The hearing officer accordance with the provisions of 34 rehabilitation of individuals who are issues an initial decision in accordance CFR part 81, subpart A. blind, that part of the vocational with 34 CFR 81.41. (e) Initial decision. The hearing officer rehabilitation services portion of the (5) Petition for review of an initial issues an initial decision in accordance Unified or Combined State Plan must decision. The State agency may seek the with 34 CFR 81.41. separately conform to all applicable Secretary’s review of the initial decision (f) Petition for review of an initial requirements under this part. in accordance with 34 CFR part 81. decision. The State agency may seek the (c) Public participation. Prior to the (6) Review by the Secretary. The Secretary’s review of the initial decision adoption of any substantive policies or Secretary reviews the initial decision in in accordance with 34 CFR 81.42. (g) Review by the Secretary. The procedures specific to the provision of accordance with 34 CFR 81.43. Secretary reviews the initial decision in vocational rehabilitation services under (7) Final decision of the Department. accordance with 34 CFR 81.43. the vocational rehabilitation services The final decision of the Department is (h) Final decision of the Department. portion of the Unified or Combined made in accordance with 34 CFR 81.44. The final decision of the Department is State Plan, including making any (8) Judicial review. A State may appeal the Secretary’s decision to made in accordance with 34 CFR 81.44. substantive amendment to those (i) Judicial review. A State may appeal policies and procedures, the designated disapprove the vocational rehabilitation services portion of the Unified or the Secretary’s decision to withhold or State agency must conduct public limit payments by filing a petition for meetings throughout the State, in Combined State Plan by filing a petition for review with the United States Court review with the United States Court of accordance with the requirements of Appeals for the circuit in which the § 361.20. of Appeals for the circuit in which the State is located, in accordance with State is located, in accordance with (d) Submission, approval, section 107(d) of the Act. disapproval, and duration. All section 107(d) of the Act. (Authority: Sections 12(c), 101(b), 107(c) and requirements regarding the submission, (Authority: Sections 101(a) and (b) and (d) of the Rehabilitation Act of 1973, as approval, disapproval, and duration of 107(d) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(b), 727(c) and amended; 20 U.S.C. 1231g(a); and 29 U.S.C. the vocational rehabilitation services (d)) portion of the Unified or Combined 721(a) and (b) and 727(d)) State Plan are governed by joint Administration regulations set forth in subpart D of this § 361.11 Withholding of funds. part. (a) Basis for withholding. The § 361.12 Methods of administration. (e) Submission of policies and Secretary may withhold or limit The vocational rehabilitation services procedures. The State is not required to payments under section 111 or 603(a) of portion of the Unified or Combined submit policies, procedures, or the Act, as provided by section 107(c) of State Plan must assure that the State descriptions required under this part the Act, if the Secretary determines agency, and the designated State unit if that have been previously submitted to that— applicable, employs methods of the Secretary and that demonstrate that (1) The vocational rehabilitation administration found necessary by the the State meets the requirements of this services portion of the Unified or Secretary for the proper and efficient part, including any policies, procedures, Combined State Plan, including the administration of the plan and for

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carrying out all functions for which the (a)(1)(i) of this section or if the services, and the provision of these State is responsible under the plan and designated State agency specified in services. this part. These methods must include paragraph (a)(3) of this section is not (ii) The determination to close the procedures to ensure accurate data primarily concerned with vocational record of services of an individual who collection and financial accountability. rehabilitation or vocational and other has achieved an employment outcome (Authority: Sections 12(c) and 101(a)(6) and rehabilitation of individuals with in accordance with § 361.56. (a)(10)(A) of the Rehabilitation Act of 1973, disabilities, the vocational rehabilitation (iii) Policy formulation and as amended; 29 U.S.C. 709(c) and 721(a)(6) services portion of the Unified or implementation. and (a)(10)(A)) Combined State Plan must assure that (iv) The allocation and expenditure of the agency (or each agency if two vocational rehabilitation funds. § 361.13 State agency for administration. agencies are designated) includes a (v) Participation as a partner in the (a) Designation of State agency. The vocational rehabilitation bureau, one-stop service delivery system vocational rehabilitation services division, or unit that— established under title I of the portion of the Unified or Combined (i) Is primarily concerned with Workforce Investment Act of 1998, in State Plan must designate a State agency vocational rehabilitation or vocational accordance with 20 CFR part 662. as the sole State agency to administer and other rehabilitation of individuals (2) Non-delegable responsibility. The the vocational rehabilitation services with disabilities and is responsible for responsibility for the functions portion of the Unified or Combined the administration of the State agency’s described in paragraph (c)(1) of this State Plan, or to supervise its vocational rehabilitation program under section may not be delegated to any administration in a political subdivision the vocational rehabilitation services other agency or individual. of the State by a sole local agency, in portion of the Unified or Combined (Authority: Section 101(a)(2) of the accordance with the following State Plan; Rehabilitation Act of 1973, as amended; 29 requirements: (ii) Has a full-time director who is U.S.C. 721(a)(2)) (1) General. Except as provided in responsible for the day-to-day paragraphs (a)(2) and (a)(3) of this operations of the vocational § 361.14 Substitute State agency. section, the vocational rehabilitation rehabilitation program; (a) General provisions. (1) If the services portion of the Unified or (iii) Has a staff, at least 90 percent of Secretary has withheld all funding from Combined State Plan must provide that whom are employed full time on the a State under § 361.11, the State may the designated State agency is one of the rehabilitation work of the organizational designate another agency to substitute following types of agencies: unit; for the designated State agency in (i) A State agency that is primarily (iv) Is located at an organizational carrying out the State’s program of concerned with vocational level and has an organizational status vocational rehabilitation services. rehabilitation or vocational and other within the State agency comparable to (2) Any public or nonprofit private rehabilitation of individuals with that of other major organizational units organization or agency within the State disabilities; or of the agency; and or any political subdivision of the State (ii) A State agency that includes a (v) Has the sole authority and is eligible to be a substitute agency. vocational rehabilitation unit as responsibility described within the (3) The substitute agency must submit provided in paragraph (b) of this designated State agency in paragraph (a) a vocational rehabilitation services section. of this section to expend funds made portion of the Unified or Combined (2) American Samoa. In the case of available under the Act in a manner that State Plan that meets the requirements American Samoa, the vocational is consistent with the purpose of the of this part. rehabilitation services portion of the Act. (4) The Secretary makes no grant to a Unified or Combined State Plan must (2) In the case of a State that has not substitute agency until the Secretary designate the Governor. designated a separate State agency for approves its plan. (3) Designated State agency for individuals who are blind, as provided (b) Substitute agency matching share. individuals who are blind. If a State for in paragraph (a)(3) of this section, The Secretary does not make any commission or other agency that the State may assign responsibility for payment to a substitute agency unless it provides assistance or services to the part of the vocational rehabilitation has provided assurances that it will individuals who are blind is authorized services portion of the Unified or contribute the same matching share as under State law to provide vocational Combined State Plan under which the State would have been required to rehabilitation services to individuals vocational rehabilitation services are contribute if the State agency were who are blind, and this commission or provided to individuals who are blind carrying out the vocational agency is primarily concerned with to one organizational unit of the rehabilitation program. vocational rehabilitation or includes a designated State agency and may assign (Authority: Section 107(c)(3) of the vocational rehabilitation unit as responsibility for the rest of the plan to Rehabilitation Act of 1973, as amended; 29 provided in paragraph (b) of this another organizational unit of the U.S.C. 727(c)(3)) section, the vocational rehabilitation designated State agency, with the services portion of the Unified or provisions of paragraph (b)(1) of this § 361.15 Local administration. Combined State Plan may designate that section applying separately to each of (a) If the vocational rehabilitation agency as the sole State agency to these units. services portion of the Unified or administer the part of the plan under (c) Responsibility for administration. Combined State Plan provides for the which vocational rehabilitation services (1) Required activities. At a minimum, administration of the plan by a local are provided for individuals who are the following activities are the agency, the designated State agency blind or to supervise its administration responsibility of the designated State must— in a political subdivision of the State by unit or the sole local agency under the (1) Ensure that each local agency is a sole local agency. supervision of the State unit: under the supervision of the designated (b) Designation of State unit. (1) (i) All decisions affecting eligibility State unit and is the sole local agency General. If the designated State agency for vocational rehabilitation services, as defined in § 361.5(c)(47) that is is not of the type specified in paragraph the nature and scope of available responsible for the administration of the

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program within the political subdivision policies and procedures of general houses of the State legislature or an that it serves; and applicability pertaining to the provision independent board), the chief officer of (2) Develop methods that each local of vocational rehabilitation services; that entity. agency will use to administer the (iv) The designated State unit (2) The appointing authority must vocational rehabilitation program, in transmits to the Council— select members of the Council after accordance with the vocational (A) All plans, reports, and other soliciting recommendations from rehabilitation services portion of the information required under this part to representatives of organizations Unified or Combined State Plan. be submitted to the Secretary; representing a broad range of (b) A separate local agency serving (B) All policies and information on all individuals with disabilities and individuals who are blind may practices and procedures of general organizations interested in individuals administer that part of the plan relating applicability provided to or used by with disabilities. In selecting members, to vocational rehabilitation of rehabilitation personnel providing the appointing authority must consider, individuals who are blind, under the vocational rehabilitation services under to the greatest extent practicable, the supervision of the designated State unit this part; and extent to which minority populations for individuals who are blind. (C) Copies of due process hearing are represented on the Council. decisions issued under this part and (b) Composition. (1) General. Except (Authority: Sections 7(24) and 101(a)(2)(A) of transmitted in a manner to ensure that the Rehabilitation Act of 1973, as amended; as provided in paragraph (b)(3) of this 29 U.S.C. 705(24) and 721(a)(2)(A)) the identity of the participants in the section, the Council must be composed hearings is kept confidential; and of at least 15 members, including— § 361.16 Establishment of an independent (v) The vocational rehabilitation (i) At least one representative of the commission or a State Rehabilitation services portion of the Unified or Statewide Independent Living Council, Council. Combined State Plan, and any revision who must be the chairperson or other (a) General requirement. Except as to the vocational rehabilitation services designee of the Statewide Independent provided in paragraph (b) of this portion of the Unified or Combined Living Council; section, the vocational rehabilitation State Plan, includes a summary of input (ii) At least one representative of a services portion of the Unified or provided by the Council, including parent training and information center Combined State Plan must contain one recommendations from the annual established pursuant to section 682(a) of of the following two assurances: report of the Council, the review and the Individuals with Disabilities (1) An assurance that the designated analysis of consumer satisfaction Education Act; State agency is an independent State described in § 361.17(h)(4), and other (iii) At least one representative of the commission that— reports prepared by the Council, and the Client Assistance Program established (i) Is responsible under State law for designated State unit’s response to the under part 370 of this chapter, who operating, or overseeing the operation input and recommendations, including must be the director of or other of, the vocational rehabilitation program its reasons for rejecting any input or individual recommended by the Client in the State and is primarily concerned recommendation of the Council. Assistance Program; with vocational rehabilitation or (b) Exception for separate State (iv) At least one qualified vocational vocational and other rehabilitation agency for individuals who are blind. In rehabilitation counselor with knowledge services, in accordance with the case of a State that designates a of and experience with vocational § 361.13(a)(1)(i); separate State agency under rehabilitation programs who serves as (ii) Is consumer-controlled by persons § 361.13(a)(3) to administer the part of an ex officio, nonvoting member of the who— the vocational rehabilitation services Council if employed by the designated (A) Are individuals with physical or portion of the Unified or Combined State agency; mental impairments that substantially State Plan under which vocational (v) At least one representative of limit major life activities; and rehabilitation services are provided to community rehabilitation program (B) Represent individuals with a individuals who are blind, the State service providers; broad range of disabilities, unless the must either establish a separate State (vi) Four representatives of business, designated State unit under the Rehabilitation Council for each agency industry, and labor; direction of the commission is the State that does not meet the requirements in (vii) Representatives of disability agency for individuals who are blind; paragraph (a)(1) of this section or groups that include a cross section of— (iii) Includes family members, establish one State Rehabilitation (A) Individuals with physical, advocates, or other representatives of Council for both agencies if neither cognitive, sensory, and mental individuals with mental impairments; agency meets the requirements of disabilities; and and paragraph (a)(1) of this section. (B) Representatives of individuals (iv) Conducts the functions identified with disabilities who have difficulty (Authority: Sections 101(a)(21) of the in § 361.17(h)(4). Rehabilitation Act of 1973, as amended; 29 representing themselves or are unable (2) An assurance that— U.S.C. 721(a)(21)) due to their disabilities to represent (i) The State has established a State themselves; Rehabilitation Council (Council) that § 361.17 Requirements for a State (viii) Current or former applicants for, meets the requirements of § 361.17; Rehabilitation Council. or recipients of, vocational (ii) The designated State unit, in If the State has established a Council rehabilitation services; accordance with § 361.29, jointly under § 361.16(a)(2) or (b), the Council (ix) In a State in which one or more develops, agrees to, and reviews must meet the following requirements: projects are funded under section 121 of annually State goals and priorities and (a) Appointment. (1) The members of the Act (American Indian Vocational jointly submits to the Secretary annual the Council must be appointed by the Rehabilitation Services), at least one reports of progress with the Council; Governor or, in the case of a State that, representative of the directors of the (iii) The designated State unit under State law, vests authority for the projects in such State; regularly consults with the Council administration of the activities carried (x) At least one representative of the regarding the development, out under this part in an entity other State educational agency responsible for implementation, and revision of State than the Governor (such as one or more the public education of students with

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disabilities who are eligible to receive (2) In States in which the Governor (i) Develop, agree to, and review State services under this part and part B of does not have veto power pursuant to goals and priorities in accordance with the Individuals with Disabilities State law, the appointing authority § 361.29(c); and Education Act; described in paragraph (a)(1) of this (ii) Evaluate the effectiveness of the (xi) At least one representative of the section must designate a member of the vocational rehabilitation program and State workforce development board; and Council to serve as the chairperson of submit reports of progress to the (xii) The director of the designated the Council or must require the Council Secretary in accordance with State unit as an ex officio, nonvoting to designate a member to serve as § 361.29(e); member of the Council. chairperson. (3) Advise the designated State agency (2) Employees of the designated State (e) Terms of appointment. (1) Each and the designated State unit regarding agency. Employees of the designated member of the Council must be activities carried out under this part and State agency may serve only as appointed for a term of no more than assist in the preparation of the nonvoting members of the Council. This three years, and each member of the vocational rehabilitation services provision does not apply to the Council, other than a representative portion of the Unified or Combined representative appointed pursuant to identified in paragraph (b)(1)(iii) or (ix) State Plan and amendments to the plan, paragraph (b)(1)(iii) of this section. of this section, may serve for no more applications, reports, needs (3) Composition of a separate Council than two consecutive full terms. assessments, and evaluations required for a separate State agency for (2) A member appointed to fill a by this part; (4) To the extent feasible, conduct a individuals who are blind. Except as vacancy occurring prior to the end of review and analysis of the effectiveness provided in paragraph (b)(4) of this the term for which the predecessor was section, if the State establishes a of, and consumer satisfaction with— appointed must be appointed for the (i) The functions performed by the separate Council for a separate State remainder of the predecessor’s term. designated State agency; agency for individuals who are blind, (3) The terms of service of the (ii) The vocational rehabilitation that Council must— members initially appointed must be, as services provided by State agencies and (i) Conform with all of the specified by the appointing authority as other public and private entities composition requirements for a Council described in paragraph (a)(1) of this responsible for providing vocational under paragraph (b)(1) of this section, section, for varied numbers of years to rehabilitation services to individuals except the requirements in paragraph ensure that terms expire on a staggered with disabilities under the Act; and (b)(1)(vii), unless the exception in basis. (iii) The employment outcomes paragraph (b)(4) of this section applies; (f) Vacancies. (1) A vacancy in the achieved by eligible individuals and membership of the Council must be receiving services under this part, (ii) Include— filled in the same manner as the original including the availability of health and (A) At least one representative of a appointment, except the appointing other employment benefits in disability advocacy group representing authority as described in paragraph connection with those employment individuals who are blind; and (a)(1) of this section may delegate the outcomes; (B) At least one representative of an authority to fill that vacancy to the (5) Prepare and submit to the individual who is blind, has multiple remaining members of the Council after Governor and to the Secretary no later disabilities, and has difficulty making the original appointment. than 90 days after the end of the Federal representing himself or herself or is (2) No vacancy affects the power of fiscal year an annual report on the status unable due to disabilities to represent the remaining members to execute the of vocational rehabilitation programs himself or herself. duties of the Council. operated within the State and make the (4) Exception. If State law in effect on (g) Conflict of interest. No member of report available to the public through October 29, 1992 requires a separate the Council may cast a vote on any appropriate modes of communication; Council under paragraph (b)(3) of this matter that would provide direct (6) To avoid duplication of efforts and section to have fewer than 15 members, financial benefit to the member or the enhance the number of individuals the separate Council is in compliance member’s organization or otherwise give served, coordinate activities with the with the composition requirements in the appearance of a conflict of interest activities of other councils within the paragraphs (b)(1)(vi) and (b)(1)(viii) of under State law. State, including the Statewide this section if it includes at least one (h) Functions. The Council must, after Independent Living Council established representative who meets the consulting with the State workforce under chapter 1, title VII of the Act, the requirements for each of those development board— advisory panel established under paragraphs. section 612(a)(21) of the Individuals (1) Review, analyze, and advise the (c) Majority. (1) A majority of the with Disabilities Education Act, the designated State unit regarding the Council members must be individuals State Developmental Disabilities performance of the State unit’s with disabilities who meet the Planning Council described in section responsibilities under this part, requirements of § 361.5(c)(28) and are 124 of the Developmental Disabilities particularly responsibilities related to— not employed by the designated State Assistance and Bill of Rights Act, the unit. (i) Eligibility, including order of State mental health planning council (2) In the case of a separate Council selection; established under section 1914(a) of the established under § 361.16(b), a majority (ii) The extent, scope, and Public Health Service Act, and the State of the Council members must be effectiveness of services provided; and workforce development board, and with individuals who are blind and are not (iii) Functions performed by State the activities of entities carrying out employed by the designated State unit. agencies that affect or potentially affect programs under the Assistive (d) Chairperson. (1) The chairperson the ability of individuals with Technology Act of 1998; must be selected by the members of the disabilities in achieving employment (7) Provide for coordination and the Council from among the voting outcomes under this part; establishment of working relationships members of the Council, subject to the (2) In partnership with the designated between the designated State agency veto power of the Governor; or State unit— and the Statewide Independent Living

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Council and centers for independent development designed to ensure an (b) Plan for recruitment, preparation, living within the State; and adequate supply of qualified and retention of qualified personnel. (8) Perform other comparable rehabilitation personnel, including The vocational rehabilitation services functions, consistent with the purpose professionals and paraprofessionals, for portion of the Unified or Combined of this part, as the Council determines the designated State unit. If the State State Plan must describe the to be appropriate, that are comparable to agency has a State Rehabilitation development, updating, and the other functions performed by the Council, this description must, at a implementation of a plan to address the Council. minimum, specify that the Council has current and projected needs for (i) Resources. (1) The Council, in an opportunity to review and comment personnel who are qualified in conjunction with the designated State on the development of plans, policies, accordance with paragraph (c) of this unit, must prepare a plan for the and procedures necessary to meet the section. The plan must identify the provision of resources, including staff requirements of paragraphs (b) through personnel needs based on the data and other personnel, that may be (d) of this section. This description must collection and analysis system necessary and sufficient for the Council also conform with the following described in paragraph (a) of this to carry out its functions under this part. requirements: section and must provide for the (2) The resource plan must, to the (a) Personnel and personnel coordination and facilitation of efforts maximum extent possible, rely on the development data system. The between the designated State unit and use of resources in existence during the vocational rehabilitation services institutions of higher education and period of implementation of the plan. portion of the Unified or Combined professional associations to recruit, (3) Any disagreements between the State Plan must describe the prepare, and retain personnel who are designated State unit and the Council development and maintenance of a qualified in accordance with paragraph regarding the amount of resources system by the State agency for collecting (c) of this section, including personnel necessary to carry out the functions of and analyzing on an annual basis data from minority backgrounds and the Council must be resolved by the on qualified personnel needs and personnel who are individuals with Governor, consistent with paragraphs personnel development, in accordance disabilities. (i)(1) and (2) of this section. with the following requirements: (c) Personnel standards. (1) The (4) The Council must, consistent with (1) Data on qualified personnel needs vocational rehabilitation services State law, supervise and evaluate the must include— portion of the Unified or Combined staff and personnel that are necessary to (i) The number of personnel who are State Plan must include the State carry out its functions. employed by the State agency in the agency’s policies and describe— (5) Those staff and personnel that are (i) Standards that are consistent with provision of vocational rehabilitation assisting the Council in carrying out its any national or State-approved or services in relation to the number of functions may not be assigned duties by recognized certification, licensing, or individuals served, broken down by the designated State unit or any other registration requirements, or, in the personnel category; agency or office of the State that would absence of these requirements, other (ii) The number of personnel create a conflict of interest. comparable requirements (including (j) Meetings. The Council must— currently needed by the State agency to State personnel requirements) that (1) Convene at least four meetings a provide vocational rehabilitation apply to the profession or discipline in year in locations determined by the services, broken down by personnel which that category of personnel is Council to be necessary to conduct category; and providing vocational rehabilitation Council business. The meetings must be (iii) Projections of the number of services; and publicly announced, open, and personnel, broken down by personnel (ii) The establishment and accessible to the general public, category, who will be needed by the maintenance of education and including individuals with disabilities, State agency to provide vocational experience requirements, to ensure that unless there is a valid reason for an rehabilitation services in the State in the personnel have a 21st-century executive session; and five years based on projections of the understanding of the evolving labor (2) Conduct forums or hearings, as number of individuals to be served, force and the needs of individuals with appropriate, that are publicly including individuals with significant disabilities, including requirements announced, open, and accessible to the disabilities, the number of personnel for— public, including individuals with expected to retire or leave the field, and (A)(1) Attainment of a baccalaureate disabilities. other relevant factors. degree in a field of study reasonably (k) Compensation. Funds (2) Data on personnel development related to vocational rehabilitation, to appropriated under title I of the Act, must include— indicate a level of competency and skill except funds to carry out sections 112 (i) A list of the institutions of higher demonstrating basic preparation in a and 121 of the Act, may be used to education in the State that are preparing field of study such as vocational compensate and reimburse the expenses vocational rehabilitation professionals, rehabilitation counseling, social work, of Council members in accordance with by type of program; psychology, disability studies, business section 105(g) of the Act. (ii) The number of students enrolled administration, human resources, at each of those institutions, broken (Authority: Section 105 of the Rehabilitation special education, supported Act of 1973, as amended; 29 U.S.C. 725) down by type of program; and employment, customized employment, (iii) The number of students who economics, or another field that § 361.18 Comprehensive system of graduated during the prior year from reasonably prepares individuals to work personnel development. each of those institutions with with consumers and employers; and The vocational rehabilitation services certification or licensure, or with the (2) Demonstrated paid or unpaid portion of the Unified or Combined credentials for certification or licensure, experience, for not less than one year, State Plan must describe the procedures broken down by the personnel category consisting of— and activities the State agency will for which they have received, or have (i) Direct work with individuals with undertake to establish and maintain a the credentials to receive, certification disabilities in a setting such as an comprehensive system of personnel or licensure. independent living center;

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(ii) Direct service or advocacy State Plan must include the State (2) Individuals able to communicate activities that provide such individual agency’s policies and describe the with applicants and eligible individuals with experience and skills in working procedures and activities the State in appropriate modes of with individuals with disabilities; or agency will undertake to ensure that all communication. (iii) Direct experience in competitive personnel employed by the State unit (f) Coordination with personnel integrated employment environments as receive appropriate and adequate development under the Individuals with an employer, as a small business owner training, including a description of— Disabilities Education Act. The or operator, or in self-employment, or (i) A system of staff development for vocational rehabilitation services other experience in human resources or rehabilitation professionals and portion of the Unified or Combined recruitment, or experience in paraprofessionals within the State unit, State Plan must describe the procedures supervising employees, training, or particularly with respect to assessment, and activities the State agency will other activities; or vocational counseling, job placement, undertake to coordinate its (B) Attainment of a master’s or and rehabilitation technology, including comprehensive system of personnel doctoral degree in a field of study such training implemented in coordination development under the Act with as vocational rehabilitation counseling, with entities carrying out State personnel development under the law, social work, psychology, disability programs under section 4 of the Individuals with Disabilities Education studies, business administration, human Assistive Technology Act of 1998 (29 Act. resources, special education, U.S.C. 3003); (Authority: Sections 12(c) and 101(a)(7) of management, public administration, or (ii) Procedures for acquiring and the Rehabilitation Act of 1973, as amended; another field that reasonably provides disseminating to rehabilitation 29 U.S.C. 709(c) and 721(a)(7)) competence in the employment sector, professionals and paraprofessionals in a disability field, or in both business- within the designated State unit § 361.19 Affirmative action for individuals related and rehabilitation-related fields; significant knowledge from research and with disabilities. and other sources; and The vocational rehabilitation services (2) As used in this section— (iii) Policies and procedures relating portion of the Unified or Combined (i) Profession or discipline means a to the establishment and maintenance of State Plan must assure that the State specific occupational category, standards to ensure that personnel, agency takes affirmative action to including any paraprofessional including rehabilitation professionals employ and advance in employment occupational category, that— and paraprofessionals, needed within qualified individuals with disabilities (A) Provides rehabilitation services to the designated State unit to carry out covered under and on the same terms individuals with disabilities; this part are appropriately and and conditions as stated in section 503 (B) Has been established or designated adequately prepared and trained. of the Act. by the State unit; and (2) The specific training areas for staff (Authority: Section 101(a)(6)(B) of the (C) Has a specified scope of development should be based on the Rehabilitation Act of 1973, as amended; 29 responsibility. needs of each State unit and may U.S.C. 721(a)(6)(B)) (ii) Ensuring that personnel have a include, but are not limited to— 21st-century understanding of the (i) Training regarding the Workforce § 361.20 Public participation requirements. evolving labor force and the needs of Innovation and Opportunity Act and the (a) Conduct of public meetings. (1) individuals with disabilities means that amendments it made to the The vocational rehabilitation services personnel have specialized training and Rehabilitation Act of 1973; portion of the Unified or Combined experience that enables them to work (ii) Training with respect to the State Plan must assure that prior to the effectively with individuals with requirements of the Americans with adoption of any substantive policies or disabilities to assist them to achieve Disabilities Act, the Individuals with procedures governing the provision of competitive integrated employment and Disabilities Education Act, and Social vocational rehabilitation services under with employers who hire such Security work incentive programs, the Unified or Combined State Plan, the individuals. Relevant personnel skills including programs under the Ticket to designated State agency conducts public include, but are not limited to— Work and Work Incentives meetings throughout the State to (A) Understanding the medical and Improvement Act of 1999, training to provide the public, including psychosocial aspects of various facilitate informed choice under this individuals with disabilities, an disabilities; program, and training to improve the opportunity to comment on the policies (B) Assessing an individual’s skills provision of services to culturally or procedures. and abilities to obtain and retain diverse populations; and (2) For purposes of this section, competitive integrated employment and (iii) Activities related to— substantive changes to the policies or establishing a plan to meet the (A) Recruitment and retention of procedures governing the provision of individual’s career goals; qualified rehabilitation personnel; vocational rehabilitation services that (C) Counseling, case management, and (B) Succession planning; and would require the conduct of public advocacy to modify environmental and (C) Leadership development and meetings are those that directly impact attitudinal barriers; capacity building. the nature and scope of the services (D) Understanding the effective (e) Personnel to address individual provided to individuals with utilization of rehabilitation technology; communication needs. The vocational disabilities, or the manner in which (E) Developing effective relationships rehabilitation services portion of the individuals interact with the designated with employers in the public and Unified or Combined State Plan must State agency or in matters related to the private sectors and describe how the designated State unit delivery of vocational rehabilitation (F) Delivering job development and includes among its personnel, or obtains services. Examples of substantive job placement services that respond to the services of— changes include, but are not limited today’s labor market. (1) Individuals able to communicate to— (d) Staff development. (1) The in the native languages of applicants (i) Any changes to policies or vocational rehabilitation services and eligible individuals who have procedures that fundamentally alter the portion of the Unified or Combined limited English proficiency; and rights and responsibilities of individuals

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with disabilities in the vocational portion of the plan, in accordance with § 361.22 Coordination with education rehabilitation process; § 361.16(a)(2)(v). officials. (ii) Organizational changes to the (d) Special consultation requirements. (a) Plans, policies, and procedures. (1) designated State agency or unit that The vocational rehabilitation services The vocational rehabilitation services would likely affect the manner in which portion of the Unified or Combined portion of the Unified or Combined services are delivered; State Plan must assure that the State State Plan must contain plans, policies, (iii) Any changes that affect the nature agency actively consults with the and procedures for coordination between the designated State agency and scope of vocational rehabilitation director of the Client Assistance and education officials responsible for services provided by the designated Program, the State Rehabilitation the public education of students with State agency or unit; Council, if the State agency has a disabilities that are designed to facilitate (iv) Changes in formal or informal Council, and, as appropriate, Indian the transition of students with dispute procedures; tribes, tribal organizations, and native disabilities from the receipt of (v) The adoption or amendment of Hawaiian organizations on its policies educational services, including pre- policies instituting an order of selection; and procedures governing the provision employment transition services, in and of vocational rehabilitation services school to the receipt of vocational (vi) Changes to policies and under the vocational rehabilitation rehabilitation services under the procedures regarding the financial services portion of the Unified or responsibility of the designated State participation of eligible individuals. Combined State Plan. (3) Non-substantive, e.g., agency. (e) Appropriate modes of administrative changes that would not (2) These plans, policies, and communication. The State unit must require the need for public hearings procedures in paragraph (a)(1) of this provide to the public, through section must provide for the include: appropriate modes of communication, development and approval of an (i) Internal procedures that do not notices of the public meetings, any individualized plan for employment in directly affect individuals receiving materials furnished prior to or during accordance with § 361.45 as early as vocational rehabilitation services, such the public meetings, and the policies possible during the transition planning as payment processing or personnel and procedures governing the provision process and not later than the time a procedures; of vocational rehabilitation services student determined to be eligible for (ii) Changes to the case management under the vocational rehabilitation vocational rehabilitation services leaves system that only affect vocational services portion of the Unified or the school setting or, if the designated rehabilitation personnel; Combined State Plan. State unit is operating under an order of (iii) Changes in indirect cost selection, before each eligible student allocations, internal fiscal review (Authority: Sections 12(c), 101(a)(16)(A) and able to be served under the order leaves procedures, or routine reporting 105(c)(3) of the Rehabilitation Act of 1973, as the school setting. requirements; amended; 29 U.S.C. 709(c), 721(a)(16)(A) and 725(c)(3)) (b) Formal interagency agreement. (iv) Minor revisions to vocational The vocational rehabilitation services rehabilitation procedures or policies to § 361.21 Consultations regarding the portion of the Unified or Combined correct production errors, such as administration of the vocational State Plan must include information on typographical and grammatical rehabilitation services portion of the Unified or Combined State plan. a formal interagency agreement with the mistakes; and State educational agency that, at a (v) Changes to contract procedures The vocational rehabilitation services minimum, provides for— that do not affect the delivery of portion of the Unified or Combined (1) Consultation and technical vocational rehabilitation services. State Plan must assure that, in assistance, which may be provided (b) Notice requirements. The connection with matters of general using alternative means for meeting vocational rehabilitation services policy arising in the administration of participation (such as video conferences portion of the Unified or Combined the vocational rehabilitation services and conference calls), to assist State Plan must assure that the portion of the Unified or Combined educational agencies in planning for the designated State agency, prior to State Plan, the designated State agency transition of students with disabilities conducting the public meetings, takes into account the views of— from school to post-school activities, provides appropriate and sufficient including vocational rehabilitation notice throughout the State of the (a) Individuals and groups of individuals who are recipients of services; meetings in accordance with— (2) Transition planning by personnel vocational rehabilitation services or, as (1) State law governing public of the designated State agency and appropriate, the individuals’ meetings; or educational agency personnel for representatives; (2) In the absence of State law students with disabilities that facilitates governing public meetings, procedures (b) Personnel working in programs the development and implementation of developed by the designated State that provide vocational rehabilitation their individualized education programs agency in consultation with the State services to individuals with disabilities; (IEPs) under section 614(d) of the Rehabilitation Council. (c) Providers of vocational Individuals with Disabilities Education (c) Summary of input of the State rehabilitation services to individuals Act; Rehabilitation Council. The vocational with disabilities; (3) The roles and responsibilities, rehabilitation services portion of the including financial responsibilities, of (d) The director of the Client Unified or Combined State Plan must each agency, including provisions for Assistance Program; and provide a summary of the input of the determining State lead agencies and State Rehabilitation Council, if the State (e) The State Rehabilitation Council, if qualified personnel responsible for agency has a Council, into the the State has a Council. transition services; vocational rehabilitation services (Authority: Sections 101(a)(16)(B) of the (4) Procedures for outreach to and portion of the Unified or Combined Rehabilitation Act of 1973, as amended; 29 identification of students with State Plan and any amendment to that U.S.C. 721(a)(16)(B)) disabilities who are in need of transition

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services. Outreach to these students Technology Act of 1998 (29 U.S.C. near a reservation or tribal service area should occur as early as possible during 3003), programs carried out by the are provided vocational rehabilitation the transition planning process and Under Secretary for Rural Development services; must include, at a minimum, a of the Department of Agriculture, (iii) Strategies for the provision of description of the purpose of the noneducational agencies serving out-of- transition planning by personnel of the vocational rehabilitation program, school youth, and State use contracting designated State unit, the State eligibility requirements, application programs, to the extent that such educational agency, and the recipient of procedures, and scope of services that Federal, State, and local agencies and funds under part C of the Act, that will may be provided to eligible individuals; programs are not carrying out activities facilitate the development and approval (5) Coordination necessary to satisfy through the statewide workforce of the individualized plan for documentation requirements set forth at development system. employment under § 361.45; and 34 CFR part 397 with regard to students (b) Coordination with the Statewide (iv) Provisions for sharing resources and youth with disabilities who are Independent Living Council and in cooperative studies and assessments, seeking subminimum wage independent living centers. The joint training activities, and other employment; and vocational rehabilitation services collaborative activities designed to (6) Assurance that, in accordance with portion of the Unified or Combined improve the provision of services to 34 CFR 397.31, neither the State State Plan must assure that the American Indians who are individuals educational agency nor the local designated State unit, the Statewide with disabilities. educational agency will enter into a Independent Living Council established (e) Reciprocal referral services contract or other arrangement with an under title VII, chapter 1, part B of the between two designated State units in entity, as defined in 34 CFR 397.5(d), for Act, and the independent living centers the same State. If there is a separate the purpose of operating a program established under title VII, Chapter 1, designated State unit for individuals under which a youth with a disability Part C of the Act have developed who are blind, the two designated State is engaged in subminimum wage working relationships and coordinate units must establish reciprocal referral employment. their activities. services, use each other’s services and (c) Construction. Nothing in this part (c) Coordination with Employers. The facilities to the extent feasible, jointly will be construed to reduce the vocational rehabilitation services plan activities to improve services in the obligation under the Individuals with portion of the Unified or Combined State for individuals with multiple Disabilities Education Act (20 U.S.C. State Plan must describe how the impairments, including visual 1400 et seq.) of a local educational designated State unit will work with impairments, and otherwise cooperate to provide more effective services, agency or any other agency to provide employers to identify competitive including, if appropriate, entering into a or pay for any transition services that integrated employment opportunities written cooperative agreement. are also considered special education or and career exploration opportunities, in order to facilitate the provision of— (f) Cooperative agreement regarding related services and that are necessary individuals eligible for home and for ensuring a free appropriate public (1) Vocational rehabilitation services; and community-based waiver programs. The education to children with disabilities vocational rehabilitation services within the State involved. (2) Transition services for youth with disabilities and students with portion of the Unified or Combined (Authority: Sections 101(a)(11)(D), 101(c), disabilities, such as pre-employment State Plan must include an assurance and 511 of the Rehabilitation Act of 1973, as transition services. that the designated State unit has amended; 29 U.S.C. 721 (a)(11)(D), 721(c), (d) Cooperative agreement with entered into a formal cooperative and 794g) recipients of grants for services to agreement with the State agency § 361.23 Requirements related to the American Indians. (1) General. In responsible for administering the State statewide workforce development system. applicable cases, the vocational Medicaid plan under title XIX of the As a required partner in the one-stop rehabilitation services portion of the Social Security Act (42 U.S.C. 1396 et service delivery system (which is part of Unified or Combined State Plan must seq.) and the State agency with primary the statewide workforce development assure that the designated State agency responsibility for providing services and system under title I of the Workforce has entered into a formal cooperative supports for individuals with Innovation and Opportunity Act), the agreement with each grant recipient in intellectual disabilities and individuals designated State unit must satisfy all the State that receives funds under part with developmental disabilities, with requirements set forth in joint C of the Act (American Indian respect to the delivery of vocational regulations in subpart F of this part. Vocational Rehabilitation Services). rehabilitation services, including (2) Contents of formal cooperative extended services, for individuals with (Authority: Section 101(a)(11)(A) of the agreement. The agreement required the most significant disabilities who Rehabilitation Act of 1973, as amended; 29 have been determined to be eligible for U.S.C. 721(a)(11)(A); Section 121 (b)(1)(B)(iv) under paragraph (d)(1) of this section of the Workforce Innovation and Opportunity must describe strategies for home and community-based services Act; 29 U.S.C. 3151) collaboration and coordination in under a Medicaid waiver, Medicaid providing vocational rehabilitation State plan amendment, or other § 361.24 Cooperation and coordination services to American Indians who are authority related to a State Medicaid with other entities. individuals with disabilities, program. (a) Interagency cooperation. The including— (g) Interagency cooperation. The vocational rehabilitation services (i) Strategies for interagency referral vocational rehabilitation services portion of the Unified or Combined and information sharing that will assist portion of the Unified or Combined State Plan must describe the designated in eligibility determinations and the State Plan shall describe how the State agency’s cooperation with and use development of individualized plans for designated State agency will collaborate of the services and facilities of Federal, employment; with the State agency responsible for State, and local agencies and programs, (ii) Procedures for ensuring that administering the State Medicaid plan including the State programs carried out American Indians who are individuals under title XIX of the Social Security under section 4 of the Assistive with disabilities and are living on or Act (42 U.S.C. 1396 et seq.), the State

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agency responsible for providing public agency by a private agency, (c) If a proposed joint program does services with developmental organization, or individual; not comply with the statewideness disabilities, and the State agency (2) The services are likely to promote requirement in § 361.25, the State unit responsible for providing mental health the vocational rehabilitation of must obtain a waiver of statewideness, services, to develop opportunities for substantially larger numbers of in accordance with § 361.26. community-based employment in individuals with disabilities or of (Authority: Section 101(a)(2)(A) of the integrated settings, to the greatest extent individuals with disabilities with Rehabilitation Act of 1973, as amended; 29 practicable. particular types of impairments; and U.S.C. 721(a)(2)(A)) (h) Coordination with assistive (3) For purposes other than those technology programs. The vocational specified in § 361.60(b)(3)(i) and § 361.28 Third-party cooperative rehabilitation services portion of the consistent with the requirements in arrangements involving funds from other Unified or Combined State Plan must § 361.60(b)(3)(ii), the State includes in public agencies. include an assurance that the designated its vocational rehabilitation services (a) The designated State unit may State unit, and the lead agency and portion of the Unified or Combined enter into a third-party cooperative implementing entity (if any) designated State Plan, and the Secretary approves, arrangement for providing or by the Governor of the State under a waiver of the statewideness contracting for the provision of section 4 of the Assistive Technology requirement, in accordance with the vocational rehabilitation services with Act of 1998 (29 U.S.C. 3003), have requirements of paragraph (b) of this another State agency or a local public developed working relationships and section. agency that is providing part or all of will enter into agreements for the (b) Request for waiver. The request for the non-Federal share in accordance coordination of their activities, a waiver of statewideness must— with paragraph (c) of this section, if the including the referral of individuals (1) Identify the types of services to be designated State unit ensures that— with disabilities to programs and provided; (1) The services provided by the activities described in that section. (2) Contain a written assurance from cooperating agency are not the (i) Coordination with ticket to work the local public agency that it will make customary or typical services provided and self-sufficiency program. The available to the State unit the non- by that agency but are new services that vocational rehabilitation services Federal share of funds; have a vocational rehabilitation focus or portion of the Unified or Combined (3) Contain a written assurance that existing services that have been State Plan must include an assurance State unit approval will be obtained for modified, adapted, expanded, or that the designated State unit will each proposed service before it is put reconfigured to have a vocational coordinate activities with any other into effect; and rehabilitation focus; State agency that is functioning as an (4) Contain a written assurance that (2) The services provided by the employment network under the Ticket all other requirements of the vocational cooperating agency are only available to to Work and Self-Sufficiency Program rehabilitation services portion of the applicants for, or recipients of, services established under section 1148 of the Unified or Combined State Plan, from the designated State unit; Social Security Act (42 U.S.C. 1320b– including a State’s order of selection (3) Program expenditures and staff 19). requirements, will apply to all services providing services under the approved under the waiver. cooperative arrangement are under the (Authority: Sections 12(c) and 101(a)(11) of administrative supervision of the the Rehabilitation Act of 1973, as amended; (Authority: Section 101(a)(4) of the 29 U.S.C. 709(c) and 721(a)(11)) Rehabilitation Act of 1973, as amended; 29 designated State unit; and U.S.C. 721(a)(4)) (4) All requirements of the vocational § 361.25 Statewideness. rehabilitation services portion of the The vocational rehabilitation services § 361.27 Shared funding and Unified or Combined State Plan, portion of the Unified or Combined administration of joint programs. including a State’s order of selection, State Plan must assure that services (a) If the vocational rehabilitation will apply to all services provided provided under the vocational services portion of the Unified or under the cooperative arrangement. rehabilitation services portion of the Combined State Plan provides for the (b) If a third party cooperative Unified or Combined State Plan will be designated State agency to share arrangement does not comply with the available in all political subdivisions of funding and administrative statewideness requirement in § 361.25, the State, unless a waiver of responsibility with another State agency the State unit must obtain a waiver of statewideness is requested and or local public agency to carry out a statewideness, in accordance with approved in accordance with § 361.26. joint program to provide services to § 361.26. (c) The cooperating agency’s (Authority: Section 101(a)(4) of the individuals with disabilities, the State Rehabilitation Act of 1973, as amended; 29 must submit to the Secretary for contribution toward the non-Federal U.S.C. 721(a)(4)) approval a plan that describes its shared share required under the arrangement, funding and administrative as set forth in paragraph (a) of this § 361.26 Waiver of statewideness. arrangement. section, may be made through: (a) Availability. The State unit may (b) The plan under paragraph (a) of (1) Cash transfers to the designated provide services in one or more political this section must include— State unit; and subdivisions of the State that increase (1) A description of the nature and (2) Certified personnel expenditures services or expand the scope of services scope of the joint program; for the time cooperating agency staff that are available statewide under the (2) The services to be provided under spent providing direct vocational vocational rehabilitation services the joint program; rehabilitation services pursuant to a portion of the Unified or Combined (3) The respective roles of each third-party cooperative arrangement that State Plan if— participating agency in the meets the requirements of this section. (1) The non-Federal share of the cost administration and provision of Certified personnel expenditures may of these services is met from funds services; and include the allocable portion of staff provided by a local public agency, (4) The share of the costs to be salary and fringe benefits based upon including funds contributed to a local assumed by each agency. the amount of time cooperating agency

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staff spent providing services under the Combined State Plan must assure that this section, including any updates to arrangement. the State will submit to the Secretary a the assessment; (Authority: Section 12(c) of the report containing information regarding (ii) The performance of the State on Rehabilitation Act of 1973, as amended; 29 updates to the assessments under the standards and indicators established U.S.C. 709(c)) paragraph (a) of this section for any year under section 106 of the Act; and in which the State updates the (iii) Other available information on § 361.29 Statewide assessment; annual assessments at such time and in such the operation and the effectiveness of estimates; annual State goals and priorities; manner as the Secretary determines strategies; and progress reports. the vocational rehabilitation program appropriate. carried out in the State, including any (a) Comprehensive statewide (b) Annual estimates. The vocational reports received from the State assessment. (1) The vocational rehabilitation services portion of the Rehabilitation Council under rehabilitation services portion of the Unified or Combined State Plan must § 361.17(h) and the findings and Unified or Combined State Plan must include, and must assure that the State recommendations from monitoring include— will submit a report to the Secretary (at activities conducted under section 107 (i) The results of a comprehensive, such time and in such manner of the Act. statewide assessment, jointly conducted determined appropriate by the (5) Service and outcome goals for by the designated State unit and the Secretary) that includes, State estimates categories in order of selection. If the State Rehabilitation Council (if the State of— designated State agency uses an order of unit has a Council) every three years. (1) The number of individuals in the selection in accordance with § 361.36, Results of the assessment are to be State who are eligible for services under the vocational rehabilitation services included in the vocational rehabilitation this part; portion of the Unified or Combined portion of the Unified or Combined (2) The number of eligible individuals State Plan must identify the State’s State Plan, submitted in accordance who will receive services provided with service and outcome goals and the time with the requirements of § 361.10(a) and funds provided under this part and within which these goals may be the joint regulations of this part. The under part § 363, including, if the achieved for individuals in each priority comprehensive needs assessment must designated State agency uses an order of category within the order. describe the rehabilitation needs of selection in accordance with § 361.36, (d) Strategies. The vocational individuals with disabilities residing estimates of the number of individuals rehabilitation services portion of the within the State, particularly the to be served under each priority Unified or Combined State Plan must vocational rehabilitation services needs category within the order; describe the strategies the State will use of— (3) The number of individuals who to address the needs identified in the (A) Individuals with the most are eligible for services under paragraph significant disabilities, including their assessment conducted under paragraph (b)(1) of this section, but are not (a) of this section and achieve the goals need for supported employment receiving such services due to an order services; and priorities identified in paragraph (c) of selection; and of this section, including— (B) Individuals with disabilities who (4) The costs of the services described (1) The methods to be used to expand are minorities and individuals with in paragraph (b)(2) of this section, and improve services to individuals disabilities who have been unserved or including, if the designated State agency with disabilities, including how a broad underserved by the vocational uses an order of selection, the service range of assistive technology services rehabilitation program carried out under costs for each priority category within and assistive technology devices will be this part; the order. (C) Individuals with disabilities (c) Goals and priorities. (1) In general. provided to those individuals at each served through other components of the The vocational rehabilitation services stage of the rehabilitation process and statewide workforce development portion of the Unified or Combined how those services and devices will be system as identified by those State Plan must identify the goals and provided to individuals with disabilities individuals and personnel assisting priorities of the State in carrying out the on a statewide basis; those individuals through the program. (2) The methods to be used to components of the system; and (2) Council. The goals and priorities improve and expand vocational (D) Youth with disabilities, and must be jointly developed, agreed to, rehabilitation services for students with students with disabilities, including reviewed annually, and, as necessary, disabilities, including the coordination (1) Their need for pre-employment revised by the designated State unit and of services designed to facilitate the transition services or other transition the State Rehabilitation Council, if the transition of such students from the services; and State unit has a Council. receipt of educational services in school (2) An assessment of the needs of (3) Submission. The vocational to postsecondary life, including the individuals with disabilities for rehabilitation services portion of the receipt of vocational rehabilitation transition services and pre-employment Unified or Combined State Plan must services under the Act, postsecondary transition services, and the extent to assure that the State will submit to the education, employment, and pre- which such services provided under Secretary a report containing employment transition services; this part are coordinated with transition information regarding revisions in the (3) Strategies developed and services provided under the Individuals goals and priorities for any year in implemented by the State to address the with Disabilities Education Act (20 which the State revises the goals and needs of students and youth with U.S.C. 1400 et seq.) in order to meet the priorities at such time and in such disabilities identified in the assessments needs of individuals with disabilities. manner as determined appropriate by described in paragraph (a) of this (ii) An assessment of the need to the Secretary. section and strategies to achieve the establish, develop, or improve (4) Basis for goals and priorities. The goals and priorities identified by the community rehabilitation programs State goals and priorities must be based State to improve and expand vocational within the State. on an analysis of— rehabilitation services for students and (2) The vocational rehabilitation (i) The comprehensive statewide youth with disabilities on a statewide services portion of the Unified or assessment described in paragraph (a) of basis;

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(4) Strategies to provide pre- § 361.30 Services to American Indians. hire, and retain qualified individuals employment transition services. The vocational rehabilitation services with disabilities who are recipients of (5) Outreach procedures to identify portion of the Unified or Combined vocational rehabilitation services under and serve individuals with disabilities State Plan must assure that the this part, or who are applicants for such who are minorities and individuals with designated State agency provides services; and disabilities who have been unserved or vocational rehabilitation services to (d) Assisting employers with utilizing underserved by the vocational American Indians who are individuals available financial support for hiring or rehabilitation program; with disabilities residing in the State to accommodating individuals with (6) As applicable, the plan of the State the same extent as the designated State disabilities. for establishing, developing, or agency provides vocational (Authority: Section 109 of the Rehabilitation improving community rehabilitation rehabilitation services to other Act of 1973, as amended; 29 U.S.C. 728A) programs; significant populations of individuals § 361.33 [Reserved] (7) Strategies to improve the with disabilities residing in the State. performance of the State with respect to (Authority: Sections 101(a)(13) and 121(b)(3) § 361.34 Supported employment State plan the evaluation standards and of the Rehabilitation Act of 1973, as supplement. performance indicators established amended; 29 U.S.C. 721(a)(13) and 741(b)(3)) (a) The vocational rehabilitation pursuant to section 106 of the Act and § 361.31 Cooperative agreements with services portion of the Unified or section 116 of Workforce Innovation private nonprofit organizations. Combined State Plan must assure that and Opportunity Act; and The vocational rehabilitation services the State has an acceptable plan under (8) Strategies for assisting other portion of the Unified or Combined part 363 of this chapter that provides for components of the statewide workforce State Plan must describe the manner in the use of funds under that part to development system in assisting which cooperative agreements with supplement funds under this part for individuals with disabilities. private nonprofit vocational the cost of services leading to supported (e) Evaluation and reports of progress. rehabilitation service providers will be employment. (1) The vocational rehabilitation established. (b) The supported employment plan, services portion of the Unified or including any needed revisions, must be Combined State Plan must include— (Authority: Section 101(a)(24)(B) of the submitted as a supplement to the Rehabilitation Act of 1973, as amended; 29 vocational rehabilitation services (i) The results of an evaluation of the U.S.C. 721(a)(24)(B)) effectiveness of the vocational portion of the Unified or Combined rehabilitation program; and § 361.32 Provision of training and services State Plan submitted under this part. (ii) A joint report by the designated for employers. (Authority: Sections 101(a)(22) and 606 of the State unit and the State Rehabilitation The designated State unit may expend Rehabilitation Act of 1973, as amended; 29 Council, if the State unit has a Council, payments received under this part to U.S.C. 721(a)(22) and 795k) to the Secretary on the progress made in educate and provide services to employers who have hired or are § 361.35 Innovation and expansion improving the effectiveness of the activities. program from the previous year. This interested in hiring individuals with evaluation and joint report must disabilities under the vocational (a) The vocational rehabilitation include— rehabilitation program, including— services portion of the Unified or Combined State Plan must assure that (A) An evaluation of the extent to (a) Providing training and technical the State will reserve and use a portion which the goals and priorities identified assistance to employers regarding the of the funds allotted to the State under in paragraph (c) of this section were employment of individuals with section 110 of the Act— achieved; disabilities, including disability awareness, and the requirements of the (1) For the development and (B) A description of the strategies that implementation of innovative contributed to the achievement of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and other approaches to expand and improve the goals and priorities; provision of vocational rehabilitation (C) To the extent to which the goals employment-related laws; (b) Working with employers to— services to individuals with disabilities, and priorities were not achieved, a (1) Provide opportunities for work- particularly individuals with the most description of the factors that impeded based learning experiences (including significant disabilities, including that achievement; and internships, short-term employment, transition services for students and (D) An assessment of the performance apprenticeships, and fellowships); youth with disabilities and pre- of the State on the standards and (2) Provide opportunities for pre- employment transition services for indicators established pursuant to employment transition services; students with disabilities, consistent section 106 of the Act. (3) Recruit qualified applicants who with the findings of the comprehensive (2) The vocational rehabilitation are individuals with disabilities; statewide assessment of the services portion of the Unified or (4) Train employees who are rehabilitation needs of individuals with Combined State Plan must assure that individuals with disabilities; and disabilities under § 361.29(a) and the the designated State unit and the State (5) Promote awareness of disability- State’s goals and priorities under Rehabilitation Council, if the State unit related obstacles to continued § 361.29(c); has a Council, will jointly submit to the employment. (2) To support the funding of the State Secretary a report that contains the (c) Providing consultation, technical Rehabilitation Council, if the State has information described in paragraph assistance, and support to employers on a Council, consistent with the resource (e)(1) of this section at such time and in workplace accommodations, assistive plan identified in § 361.17(i); and such manner the Secretary determines technology, and facilities and workplace (3) To support the Statewide appropriate. access through collaboration with Independent Living Council, consistent (Authority: Section 101(a)(15) and (25) of the community partners and employers, with the Statewide Independent Living Rehabilitation Act of 1973, as amended; 29 across States and nationally, to enable Council resource plan prepared under U.S.C. 721(a)(15) and (25)) the employers to recruit, job match, title VII, chapter 1 of the Act. The State

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and the Statewide Independent Living goals may be achieved for individuals in (i) A demonstration that Council may determine in the Statewide each priority category within the order, circumstances have changed that will Independent Living Council resource as required under § 361.29(c)(5); allow the designated State unit to meet plan that other sources of available (iv) Assure that— the requirements of paragraph (a)(2) of funding may be used instead of funding (A) In accordance with criteria this section in the next fiscal year, under this section. established by the State for the order of including— (b) The vocational rehabilitation selection, individuals with the most (A) An estimate of the number of and services portion of the Unified or significant disabilities will be selected projected costs of serving, in the next Combined State Plan must— first for the provision of vocational fiscal year, individuals with existing (1) Describe how the reserved funds rehabilitation services; and individualized plans for employment; will be used; and (B) Individuals who do not meet the (B) The projected number of (2) Include a report describing how order of selection criteria will have individuals with disabilities who will the reserved funds were used. access to services provided through the apply for services and will be (Authority: Sections 12(c) and 101(a)(18) of information and referral system determined eligible in the next fiscal the Rehabilitation Act of 1973, as amended; established under § 361.37; and year and the projected costs of serving 29 U.S.C. 709(c) and 721(a)(18)) (v) State whether the designated State those individuals; unit will elect to serve, in its discretion, (C) The projected costs of § 361.36 Ability to serve all eligible administering the program in the next individuals; order of selection for services. eligible individuals (whether or not the fiscal year, including, but not limited to, (a) General provisions. (1) The individuals are receiving vocational rehabilitation services under the order costs of staff salaries and benefits, designated State unit either must be able outreach activities, and required to provide the full range of services of selection) who require specific services or equipment to maintain statewide studies; and listed in section 103(a) of the Act and (D) The projected revenues and employment, notwithstanding the § 361.48, as appropriate, to all eligible projected number of qualified personnel assurance provided pursuant to individuals or, in the event that for the program in the next fiscal year. vocational rehabilitation services cannot paragraph (3)(iv)(A) of this section. (ii) Comparable data, as relevant, for be provided to all eligible individuals in (b) Basis for assurance that services the current or preceding fiscal year, or the State who apply for the services, can be provided to all eligible for both years, of the costs listed in include in the vocational rehabilitation individuals. (1) For a designated State paragraphs (b)(2)(i)(A) through (C) of services portion of the Unified or unit that determined, for the current this section and the resources identified Combined State Plan the order to be fiscal year and the preceding fiscal year, in paragraph (b)(2)(i)(D) of this section followed in selecting eligible that it is able to provide the full range and an explanation of any projected individuals to be provided vocational of services, as appropriate, to all eligible increases or decreases in these costs and rehabilitation services. individuals, the State unit, during the resources; and (2) The ability of the designated State current fiscal and preceding fiscal year, (iii) A determination that the unit to provide the full range of must have in fact— projected revenues and the projected vocational rehabilitation services to all (i) Provided assessment services to all number of qualified personnel for the eligible individuals must be supported applicants and the full range of services, program in the next fiscal year are by a determination that satisfies the as appropriate, to all eligible adequate to cover the costs identified in requirements of paragraph (b) or (c) of individuals; paragraphs (b)(2)(i)(A) through (C) of this section and a determination that, on (ii) Made referral forms widely this section to ensure the provision of the basis of the designated State unit’s available throughout the State; the full range of services, as appropriate, projected fiscal and personnel resources (iii) Conducted outreach efforts to to all eligible individuals. and its assessment of the rehabilitation identify and serve individuals with (c) Determining need for establishing needs of individuals with significant disabilities who have been unserved or and implementing an order of selection. disabilities within the State, it can— underserved by the vocational (1) The designated State unit must (i) Continue to provide services to all rehabilitation system; and determine, prior to the beginning of individuals currently receiving services; (iv) Not delayed, through waiting lists each fiscal year, whether to establish (ii) Provide assessment services to all or other means, determinations of individuals expected to apply for and implement an order of selection. eligibility, the development of (2) If the designated State unit services in the next fiscal year; individualized plans for employment (iii) Provide services to all individuals determines that it does not need to for individuals determined eligible for who are expected to be determined establish an order of selection, it must vocational rehabilitation services, or the eligible in the next fiscal year; and reevaluate this determination whenever (iv) Meet all program requirements. provision of services for eligible changed circumstances during the (3) If the designated State unit is individuals for whom individualized course of a fiscal year, such as a unable to provide the full range of plans for employment have been decrease in its fiscal or personnel vocational rehabilitation services to all developed. resources or an increase in its program eligible individuals in the State who (2) For a designated State unit that costs, indicate that it may no longer be apply for the services, the vocational was unable to provide the full range of able to provide the full range of services, rehabilitation services portion of the services to all eligible individuals as appropriate, to all eligible Unified or Combined State Plan must— during the current or preceding fiscal individuals, as described in paragraph (i) Show the order to be followed in year or that has not met the (a)(2) of this section. selecting eligible individuals to be requirements in paragraph (b)(1) of this (3) If a designated State unit provided vocational rehabilitation section, the determination that the establishes an order of selection, but services; designated State unit is able to provide determines that it does not need to (ii) Provide a justification for the the full range of vocational implement that order at the beginning of order of selection; rehabilitation services to all eligible the fiscal year, it must continue to meet (iii) Identify service and outcome individuals in the next fiscal year must the requirements of paragraph (a)(2) of goals and the time within which the be based on— this section, or it must implement the

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order of selection by closing one or (3) Criteria for determining program can be provided to eligible more priority categories. individuals with the most significant individuals in an extended employment (d) Establishing an order of selection. disabilities; and setting if necessary for purposes of (1) Basis for order of selection. An order (4) Administration of the order of training or otherwise preparing for of selection must be based on a selection. employment in an integrated setting; refinement of the three criteria in the (Authority: Sections 12(d); 101(a)(5); (4) Inform the individual that, if he or definition of individual with a 101(a)(12); 101(a)(15)(A), (B) and (C); she initially chooses not to pursue an significant disability in section 7(21)(A) 101(a)(21)(A)(ii); and 504(a) of the employment outcome as defined in of the Act and § 361.5(c)(29). Rehabilitation Act of 1973, as amended; 29 § 361.5(c)(15), he or she can seek (2) Factors that cannot be used in U.S.C. 709(d), 721(a)(5), 721(a)(12), services from the designated State unit determining order of selection of eligible 721(a)(15)(A), (B) and (C); 721(a)(21)(A)(ii), at a later date if, at that time, he or she individuals. An order of selection may and 794(a)) chooses to pursue an employment not be based on any other factors, § 361.37 Information and referral outcome; and including— programs. (5) Refer the individual, as (i) Any duration of residency (a) General provisions. The vocational appropriate, to the Social Security requirement, provided the individual is rehabilitation services portion of the Administration in order to obtain present in the State; Unified or Combined State Plan must information concerning the ability of (ii) Type of disability; assure that— individuals with disabilities to work (iii) Age, sex, race, color, or national while receiving benefits from the Social origin; (1) The designated State agency will implement an information and referral Security Administration. (iv) Source of referral; (c) Criteria for appropriate referrals. (v) Type of expected employment system adequate to ensure that individuals with disabilities, including In making the referrals identified in outcome; paragraph (a)(2) of this section, the (vi) The need for specific services or eligible individuals who do not meet the agency’s order of selection criteria for designated State unit must— anticipated cost of services required by (1) Refer the individual to Federal or receiving vocational rehabilitation an individual; or State programs, including programs services if the agency is operating on an (vii) The income level of an carried out by other components of the order of selection, are provided accurate individual or an individual’s family. statewide workforce development vocational rehabilitation information (e) Administrative requirements. In system, best suited to address the and guidance (which may include administering the order of selection, the specific employment needs of an counseling and referral for job designated State unit must— individual with a disability; and placement) using appropriate modes of (1) Implement the order of selection (2) Provide the individual who is communication to assist them in on a statewide basis; being referred— (2) Notify all eligible individuals of preparing for, securing, retaining, (i) A notice of the referral by the the priority categories in a State’s order advancing in, or regaining employment; designated State agency to the agency of selection, their assignment to a and carrying out the program; particular category, and their right to (2) The designated State agency will (ii) Information identifying a specific appeal their category assignment; refer individuals with disabilities to point of contact within the agency to (3) Continue to provide all needed other appropriate Federal and State which the individual is being referred; services to any eligible individual who programs, including other components and has begun to receive services under an of the statewide workforce development (iii) Information and advice regarding individualized plan for employment system. the most suitable services to assist the prior to the effective date of the order (b) The designated State unit must individual to prepare for, secure, retain, of selection, irrespective of the severity refer to appropriate programs and or regain employment. of the individual’s disability; and service providers best suited to address (d) Order of selection. In providing (4) Ensure that its funding the specific rehabilitation, independent the information and referral services arrangements for providing services living and employment needs of an under this section to eligible individuals under the vocational rehabilitation individual with a disability who makes who are not in the priority category or services portion of the Unified or an informed choice not to pursue an categories to receive vocational Combined State Plan, including third- employment outcome under the rehabilitation services under the State’s party arrangements and awards under vocational rehabilitation program, as order of selection, the State unit must the establishment authority, are defined in § 361.5(c)(15). Before making identify, as part of its reporting under consistent with the order of selection. If the referral required by this paragraph, section 101(a)(10) of the Act and any funding arrangements are the State unit must— § 361.40, the number of eligible inconsistent with the order of selection, (1) Consistent with § 361.42(a)(4)(i), individuals who did not meet the the designated State unit must explain to the individual that the agency’s order of selection criteria for renegotiate these funding arrangements purpose of the vocational rehabilitation receiving vocational rehabilitation so that they are consistent with the program is to assist individuals to services and did receive information order of selection. achieve an employment outcome as and referral services under this section. (f) State Rehabilitation Council. The defined in § 361.5(c)(15); designated State unit must consult with (2) Consistent with § 361.52, provide (Authority: Sections 7(11), 12(c), 101(a)(5)(D), the State Rehabilitation Council, if the the individual with information 101(a)(10)(C)(ii), and 101(a)(20) of the Rehabilitation Act of 1973, as amended; 29 State unit has a Council, regarding the— concerning the availability of U.S.C. 709(c), 721(a)(5)(D), 721(a)(10)(C)(ii), (1) Need to establish an order of employment options, and of vocational and 721(a)(20)) selection, including any reevaluation of rehabilitation services, to assist the the need under paragraph (c)(2) of this individual to achieve an appropriate § 361.38 Protection, use, and release of section; employment outcome; personal information. (2) Priority categories of the particular (3) Inform the individual that services (a) General provisions. (1) The State order of selection; under the vocational rehabilitation agency and the State unit must adopt

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and implement written policies and administration of the program. In the (4) The information will be managed procedures to safeguard the administration of the program, the State in a manner to safeguard confidentiality; confidentiality of all personal unit may obtain personal information and information, including photographs and from service providers and cooperating (5) The final product will not reveal lists of names. These policies and agencies under assurances that the any personal identifying information procedures must ensure that— information may not be further without the informed written consent of (i) Specific safeguards are established divulged, except as provided under the involved individual or the to protect current and stored personal paragraphs (c), (d), and (e) of this individual’s representative. information; section. (e) Release to other programs or (ii) All applicants and eligible (c) Release to applicants and eligible authorities. (1) Upon receiving the individuals and, as appropriate, those individuals. (1) Except as provided in informed written consent of the individuals’ representatives, service paragraphs (c)(2) and (c)(3) of this individual or, if appropriate, the providers, cooperating agencies, and section, if requested in writing by an individual’s representative, the State interested persons are informed through applicant or eligible individual, the unit may release personal information to appropriate modes of communication of State unit must make all requested another agency or organization for its the confidentiality of personal information in that individual’s record program purposes only to the extent that information and the conditions for of services accessible to and must the information may be released to the accessing and releasing this release the information to the individual involved individual or the individual’s information; or the individual’s representative in a representative and only to the extent (iii) All applicants or their timely manner. that the other agency or organization representatives are informed about the (2) Medical, psychological, or other demonstrates that the information State unit’s need to collect personal information that the State unit requested is necessary for its program. information and the policies governing determines may be harmful to the (2) Medical or psychological its use, including— individual may not be released directly information that the State unit (A) Identification of the authority to the individual, but must be provided determines may be harmful to the under which information is collected; to the individual through a third party individual may be released if the other (B) Explanation of the principal chosen by the individual, which may agency or organization assures the State purposes for which the State unit include, among others, an advocate, a unit that the information will be used intends to use or release the family member, or a qualified medical only for the purpose for which it is information; or mental health professional, unless a being provided and will not be further (C) Explanation of whether providing representative has been appointed by a released to the individual. requested information to the State unit court to represent the individual, in (3) The State unit must release is mandatory or voluntary and the which case the information must be personal information if required by effects of not providing requested released to the court-appointed Federal law or regulations. information; representative. (4) The State unit must release (D) Identification of those situations (3) If personal information has been personal information in response to in which the State unit requires or does obtained from another agency or investigations in connection with law not require informed written consent of organization, it may be released only by, enforcement, fraud, or abuse, unless the individual before information may or under the conditions established by, expressly prohibited by Federal or State be released; and the other agency or organization. laws or regulations, and in response to (E) Identification of other agencies to (4) An applicant or eligible individual an order issued by a judge, magistrate, which information is routinely released; who believes that information in the or other authorized judicial officer. (iv) An explanation of State policies individual’s record of services is (5) The State unit also may release and procedures affecting personal inaccurate or misleading may request personal information in order to protect information will be provided to each that the designated State unit amend the the individual or others if the individual individual in that individual’s native information. If the information is not poses a threat to his or her safety or to language or through the appropriate amended, the request for an amendment the safety of others. mode of communication; and must be documented in the record of (v) These policies and procedures (Authority: Sections 12(c) and 101(a)(6)(A) of services, consistent with § 361.47(a)(12). the Rehabilitation Act of 1973, as amended; provide no fewer protections for (d) Release for audit, evaluation, and 29 U.S.C. 709(c) and 721(a)(6)(A)) individuals than State laws and research. Personal information may be regulations. released to an organization, agency, or § 361.39 State-imposed requirements. (2) The State unit may establish individual engaged in audit, evaluation, The designated State unit must, upon reasonable fees to cover extraordinary or research only for purposes directly request, identify those regulations and costs of duplicating records or making connected with the administration of policies relating to the administration or extensive searches and must establish the vocational rehabilitation program or operation of its vocational rehabilitation policies and procedures governing for purposes that would significantly program that are State-imposed, access to records. improve the quality of life for applicants including any regulations or policy (b) State program use. All personal and eligible individuals and only if the based on State interpretation of any information in the possession of the organization, agency, or individual Federal law, regulation, or guideline. State agency or the designated State unit assures that— (Authority: Section 17 of the Rehabilitation must be used only for the purposes (1) The information will be used only Act of 1973, as amended; 29 U.S.C. 714) directly connected with the for the purposes for which it is being administration of the vocational provided; § 361.40 Reports; Evaluation standards rehabilitation program. Information (2) The information will be released and performance indicators. containing identifiable personal only to persons officially connected (a) Reports. (1) The vocational information may not be shared with with the audit, evaluation, or research; rehabilitation services portion of the advisory or other bodies that do not (3) The information will not be Unified or Combined State Plan must have official responsibility for released to the involved individual; assure that the designated State agency

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will submit reports, including reports for vocational rehabilitation services, (i) A determination by qualified required under sections 13, 14, and including applications made through personnel that the applicant has a 101(a)(10) of the Act— common intake procedures in one-stop physical or mental impairment; (i) In the form and level of detail and centers under section 121 of the (ii) A determination by qualified at the time required by the Secretary Workforce Innovation and Opportunity personnel that the applicant’s physical regarding applicants for and eligible Act, an eligibility determination must be or mental impairment constitutes or individuals receiving services, made within 60 days, unless— results in a substantial impediment to including students receiving pre- (i) Exceptional and unforeseen employment for the applicant; and employment transition services in circumstances beyond the control of the (iii) A determination by a qualified accordance with § 361.48(a); and designated State unit preclude making vocational rehabilitation counselor (ii) In a manner that provides a an eligibility determination within 60 employed by the designated State unit complete count (other than the days and the designated State unit and that the applicant requires vocational information obtained through sampling the individual agree to a specific rehabilitation services to prepare for, consistent with section 101(a)(10)(E) of extension of time; or secure, retain, advance in, or regain the Act) of the applicants and eligible (ii) An exploration of the individual’s employment that is consistent with the individuals to— abilities, capabilities, and capacity to individual’s unique strengths, resources, (A) Permit the greatest possible cross- perform in work situations is carried out priorities, concerns, abilities, classification of data; and in accordance with § 361.42(e). capabilities, interest, and informed (B) Protect the confidentiality of the (2) An individual is considered to choice. For purposes of an assessment identity of each individual. have submitted an application when the for determining eligibility and (2) The designated State agency must individual or the individual’s vocational rehabilitation needs under comply with any requirements representative, as appropriate— this part, an individual is presumed to necessary to ensure the accuracy and (i)(A) Has completed and signed an have a goal of an employment outcome. verification of those reports. agency application form; (2) Presumption of benefit. The (b) Evaluation standards and (B) Has completed a common intake designated State unit must presume that performance indicators. application form in a one-stop center an applicant who meets the eligibility (1) Standards and indicators. The requesting vocational rehabilitation requirements in paragraphs (a)(1)(i) and evaluation standards and performance services; or (ii) of this section can benefit in terms indicators for the vocational (C) Has otherwise requested services of an employment outcome. (3) Presumption of eligibility for rehabilitation program carried out under from the designated State unit; Social Security recipients and this part are subject to the performance (ii) Has provided to the designated beneficiaries. (i) Any applicant who has accountability provisions described in State unit information necessary to been determined eligible for Social section 116(b) of the Workforce initiate an assessment to determine Security benefits under title II or title Innovation and Opportunity Act and eligibility and priority for services; and XVI of the Social Security Act is— implemented in joint regulations set (iii) Is available to complete the assessment process. (A) Presumed eligible for vocational forth in subpart E of this part. rehabilitation services under paragraphs (2) Compliance. A State’s compliance (3) The designated State unit must ensure that its application forms are (a)(1) and (2) of this section; and with common performance measures (B) Considered an individual with a and any necessary corrective actions widely available throughout the State, particularly in the one-stop centers significant disability as defined in will be determined in accordance with § 361.5(c)(29). joint regulations set forth in subpart E under section 121 of the Workforce Innovation and Opportunity Act. (ii) If an applicant for vocational of this part. rehabilitation services asserts that he or (Authority: Sections 12(c), 101(a)(6)(A) and (Authority: Sections 12(c), 101(a)(10)(A) and she is eligible for Social Security 102(a)(6) of the Rehabilitation Act of 1973, as (F), and 106 of the Rehabilitation Act of 1973, amended; 29 U.S.C. 709(c), 721(a)(6)(A) and benefits under title II or title XVI of the as amended; 29 U.S.C. 709(c), 721(a)(10)(A) 722(a)(6)) Social Security Act (and, therefore, is and (F), and 726) presumed eligible for vocational Provision and Scope of Services § 361.42 Assessment for determining rehabilitation services under paragraph eligibility and priority for services. (a)(3)(i)(A) of this section), but is unable § 361.41 Processing referrals and In order to determine whether an to provide appropriate evidence, such as applications. individual is eligible for vocational an award letter, to support that (a) Referrals. The designated State rehabilitation services and the assertion, the State unit must verify the unit must establish and implement individual’s priority under an order of applicant’s eligibility under title II or standards for the prompt and equitable selection for services (if the State is title XVI of the Social Security Act by handling of referrals of individuals for operating under an order of selection), contacting the Social Security vocational rehabilitation services, the designated State unit must conduct Administration. This verification must including referrals of individuals made an assessment for determining eligibility be made within a reasonable period of through the one-stop service delivery and priority for services. The time that enables the State unit to systems under section 121 of the assessment must be conducted in the determine the applicant’s eligibility for Workforce Innovation and Opportunity most integrated setting possible, vocational rehabilitation services within Act. The standards must include consistent with the individual’s needs 60 days of the individual submitting an timelines for making good faith efforts and informed choice, and in accordance application for services in accordance to inform these individuals of with the following provisions: with § 361.41(b)(2). application requirements and to gather (a) Eligibility requirements. (1) Basic (4) Achievement of an employment information necessary to initiate an requirements. The designated State outcome. Any eligible individual, assessment for determining eligibility unit’s determination of an applicant’s including an individual whose and priority for services. eligibility for vocational rehabilitation eligibility for vocational rehabilitation (b) Applications. (1) Once an services must be based only on the services is based on the individual being individual has submitted an application following requirements: eligible for Social Security benefits

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under title II or title XVI of the Social (2) In making a determination of individual is ineligible for vocational Security Act, must intend to achieve an eligibility under this section, the rehabilitation services, the designated employment outcome that is consistent designated State unit also must ensure State unit must conduct an exploration with the applicant’s unique strengths, that— of the individual’s abilities, capabilities, resources, priorities, concerns, abilities, (i) No applicant or group of applicants and capacity to perform in realistic capabilities, interests, and informed is excluded or found ineligible solely on work situations. choice. the basis of the type of disability; and (2)(i) The designated State unit must (i) The State unit is responsible for (ii) The eligibility requirements are develop a written plan to assess informing individuals, through its applied without regard to the— periodically the individual’s abilities, application process for vocational (A) Age, sex, race, color, or national capabilities, and capacity to perform in rehabilitation services, that individuals origin of the applicant; competitive integrated work situations who receive services under the program (B) Type of expected employment through the use of trial work must intend to achieve an employment outcome; experiences, which must be provided in outcome. (C) Source of referral for vocational competitive integrated employment (ii) The applicant’s completion of the rehabilitation services; settings to the maximum extent application process for vocational (D) Particular service needs or possible, consistent with the informed rehabilitation services is sufficient anticipated cost of services required by choice and rehabilitation needs of the evidence of the individual’s intent to an applicant or the income level of an individual. achieve an employment outcome, and applicant or applicant’s family; (ii) Trial work experiences include (E) Applicants’ employment history or no additional demonstration on the part supported employment, on-the-job current employment status; and of the applicant is required for purposes training, and other experiences using (F) Applicants’ educational status or of satisfying paragraph (a)(4) of this realistic integrated work settings. current educational credential. (iii) Trial work experiences must be of section. (d) Review and assessment of data for sufficient variety and over a sufficient (5) Interpretation. Nothing in this eligibility determination. Except as period of time for the designated State section, including paragraph (a)(3)(i), is provided in paragraph (e) of this unit to determine that there is sufficient to be construed to create an entitlement section, the designated State unit— to any vocational rehabilitation service. (1) Must base its determination of evidence to conclude that the individual (b) Interim determination of eligibility. each of the basic eligibility requirements cannot benefit from the provision of (1) The designated State unit may in paragraph (a) of this section on— vocational rehabilitation services in initiate the provision of vocational (i) A review and assessment of terms of a competitive integrated rehabilitation services for an applicant existing data, including counselor employment outcome; and on the basis of an interim determination observations, education records, (iv) The designated State unit must of eligibility prior to the 60-day period information provided by the individual provide appropriate supports, including described in § 361.41(b)(2). or the individual’s family, particularly assistive technology devices and (2) If a State chooses to make interim information used by education officials, services and personal assistance determinations of eligibility, the and determinations made by officials of services, to accommodate the designated State unit must— other agencies; and rehabilitation needs of the individual (i) Establish criteria and conditions (ii) To the extent existing data do not during the trial work experiences. for making those determinations; describe the current functioning of the (f) Data for determination of priority (ii) Develop and implement individual or are unavailable, for services under an order of selection. procedures for making the insufficient, or inappropriate to make an If the designated State unit is operating determinations; and eligibility determination, an assessment under an order of selection for services, (iii) Determine the scope of services of additional data resulting from the as provided in § 361.36, the State unit that may be provided pending the final provision of vocational rehabilitation must base its priority assignments on— determination of eligibility. services, including trial work (1) A review of the data that was (3) If a State elects to use an interim experiences, assistive technology developed under paragraphs (d) and (e) eligibility determination, the designated devices and services, personal of this section to make the eligibility State unit must make a final assistance services, and any other determination; and determination of eligibility within 60 support services that are necessary to (2) An assessment of additional data, days of the individual submitting an determine whether an individual is to the extent necessary. application for services in accordance eligible; and (Authority: Sections 7(2), 12(c), 101(a)(12), with § 361.41(b)(2). (2) Must base its presumption under 102(a), 103(a)(1), 103(a)(9), 103(a)(10) and (c) Prohibited factors. (1) The paragraph (a)(3)(i) of this section that an 103(a)(14) of the Rehabilitation Act of 1973, vocational rehabilitation services applicant who has been determined as amended; 29 U.S.C. 705(2), 709(c), portion of the Unified or Combined eligible for Social Security benefits 721(a)(12), 722(a), 723(a)(1), 723(a)(9), State Plan must assure that the State under title II or title XVI of the Social 723(a)(10) and 723(a)(14)) unit will not impose, as part of Security Act satisfies each of the basic Note to § 361.42: Clear and determining eligibility under this eligibility requirements in paragraph (a) convincing evidence means that the section, a duration of residence of this section on determinations made designated State unit has a high degree requirement that excludes from services by the Social Security Administration. of certainty before it can conclude that any applicant who is present in the (e) Trial work experiences for an individual is incapable of benefiting State. The designated State unit may not individuals with significant disabilities. from services in terms of an require the applicant to demonstrate a (1) Prior to any determination that an employment outcome. The clear and presence in the State through the individual with a disability is unable to convincing standard constitutes the production of any documentation that benefit from vocational rehabilitation highest standard used in our civil under State or local law, or practical services in terms of an employment system of law and is to be individually circumstances, results in a duration of outcome because of the severity of that applied on a case-by-case basis. The residency. individual’s disability or that the

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term clear means unequivocal. For achieving, an employment outcome as and scope of vocational rehabilitation example, the use of an intelligence test defined in § 361.5(c)(15). services to be included in the result alone would not constitute clear (e) Review within 12 months and individualized plan for employment. and convincing evidence. Clear and annually thereafter if requested by the (2) The individualized plan for convincing evidence might include a individual or, if appropriate, by the employment must be designed to description of assessments, including individual’s representative any achieve a specific employment outcome, situational assessments and supported ineligibility determination that is based as defined in § 361.5(c)(15), that is employment assessments, from service on a finding that the individual is selected by the individual consistent providers who have concluded that they incapable of achieving an employment with the individual’s unique strengths, would be unable to meet the outcome. This review need not be resources, priorities, concerns, abilities, individual’s needs due to the severity of conducted in situations in which the capabilities, interests, and informed the individual’s disability. The individual has refused it, the individual choice. demonstration of ‘‘clear and convincing is no longer present in the State, the (c) Required information. The State evidence’’ must include, if appropriate, individual’s whereabouts are unknown, unit must provide the following a functional assessment of skill or the individual’s medical condition is information to each eligible individual development activities, with any rapidly progressive or terminal. or, as appropriate, the individual’s necessary supports (including assistive (Authority: Sections 12(c) and 102(a)(5) and representative, in writing and, if technology), in real life settings. (S. Rep. (c) of the Rehabilitation Act of 1973, as appropriate, in the native language or No. 357, 102d Cong., 2d. Sess. 37–38 amended; 29 U.S.C. 709(c) and 722(a)(5) and mode of communication of the (1992)) (c)) individual or the individual’s representative: § 361.43 Procedures for ineligibility § 361.44 Closure without eligibility (1) Options for developing an determination. determination. individualized plan for employment. If the State unit determines that an The designated State unit may not Information on the available options for applicant is ineligible for vocational close an applicant’s record of services developing the individualized plan for rehabilitation services or determines prior to making an eligibility employment, including the option that that an individual receiving services determination unless the applicant an eligible individual or, as appropriate, under an individualized plan for declines to participate in, or is the individual’s representative may employment is no longer eligible for unavailable to complete, an assessment develop all or part of the individualized services, the State unit must— for determining eligibility and priority plan for employment— (a) Make the determination only after for services, and the State unit has made (i) Without assistance from the State providing an opportunity for full a reasonable number of attempts to unit or other entity; or consultation with the individual or, as contact the applicant or, if appropriate, (ii) With assistance from— appropriate, with the individual’s the applicant’s representative to (A) A qualified vocational representative; encourage the applicant’s participation. rehabilitation counselor employed by (b) Inform the individual in writing, (Authority: Section 12(c) of the the State unit; supplemented as necessary by other Rehabilitation Act of 1973, as amended; 29 (B) A qualified vocational appropriate modes of communication U.S.C. 709(c)) rehabilitation counselor who is not consistent with the informed choice of employed by the State unit; the individual, of the ineligibility § 361.45 Development of the individualized (C) A disability advocacy determination, including the reasons for plan for employment. organization; or that determination, the requirements (a) General requirements. The (D) Resources other than those in under this section, and the means by vocational rehabilitation services paragraph (c)(1)(ii)(A) through (C) of which the individual may express and portion of the Unified or Combined this section. seek remedy for any dissatisfaction, State Plan must assure that— (2) Additional information. including the procedures for review of (1) An individualized plan for Additional information to assist the State unit personnel determinations in employment meeting the requirements eligible individual or, as appropriate, accordance with § 361.57; of this section and § 361.46 is developed the individual’s representative in (c) Provide the individual with a and implemented in a timely manner for developing the individualized plan for description of services available from a each individual determined to be employment, including— client assistance program established eligible for vocational rehabilitation (i) Information describing the full under 34 CFR part 370 and information services or, if the designated State unit range of components that must be on how to contact that program; is operating under an order of selection included in an individualized plan for (d) Refer the individual— in accordance with § 361.36, for each employment; (1) To other programs that are part of eligible individual to whom the State (ii) As appropriate to each eligible the one-stop service delivery system unit is able to provide services; and individual— under the Workforce Investment Act (2) Services will be provided in (A) An explanation of agency that can address the individual’s accordance with the provisions of the guidelines and criteria for determining training or employment-related needs; individualized plan for employment. an eligible individual’s financial or (b) Purpose. (1) The designated State commitments under an individualized (2) To Federal, State, or local unit must conduct an assessment for plan for employment; programs or service providers, determining vocational rehabilitation (B) Information on the availability of including, as appropriate, independent needs, if appropriate, for each eligible assistance in completing State unit living programs and extended individual or, if the State is operating forms required as part of the employment providers, best suited to under an order of selection, for each individualized plan for employment; meet their rehabilitation needs, if the eligible individual to whom the State is and ineligibility determination is based on a able to provide services. The purpose of (C) Additional information that the finding that the individual has chosen this assessment is to determine the eligible individual requests or the State not to pursue, or is incapable of employment outcome, and the nature unit determines to be necessary to the

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development of the individualized plan rehabilitation counselor and the eligible (2) Preparation based on for employment; individual or, as appropriate, the comprehensive assessment. (iii) A description of the rights and individual’s representative to assess the (i) If additional data are necessary to remedies available to the individual, eligible individual’s progress in determine the employment outcome and including, if appropriate, recourse to the achieving the identified employment the nature and scope of services to be processes described in § 361.57; and outcome; included in the individualized plan for (iv) A description of the availability of (6) The individualized plan for employment of an eligible individual, a client assistance program established employment is amended, as necessary, the State unit must conduct a under part 370 of this chapter and by the individual or, as appropriate, the comprehensive assessment of the information on how to contact the client individual’s representative, in unique strengths, resources, priorities, assistance program. collaboration with a representative of concerns, abilities, capabilities, (3) Individuals entitled to benefits the State unit or a qualified vocational interests, and informed choice, under title II or XVI of the Social rehabilitation counselor (to the extent including the need for supported Security Act. For individuals entitled to determined to be appropriate by the employment services, of the eligible benefits under title II or XVI of the individual), if there are substantive individual, in the most integrated Social Security Act on the basis of a changes in the employment outcome, setting possible, consistent with the disability or blindness, the State unit the vocational rehabilitation services to informed choice of the individual in must provide to the individual general be provided, or the providers of the accordance with the provisions of information on additional supports and vocational rehabilitation services; § 361.5(c)(5)(ii). assistance for individuals with (7) Amendments to the individualized (ii) In preparing the comprehensive disabilities desiring to enter the plan for employment do not take effect assessment, the State unit must use, to workforce, including assistance with until agreed to and signed by the the maximum extent possible and benefits planning. eligible individual or, as appropriate, appropriate and in accordance with (d) Mandatory procedures. The the individual’s representative and by a confidentiality requirements, existing designated State unit must ensure that— qualified vocational rehabilitation information that is current as of the date (1) The individualized plan for counselor employed by the designated of the development of the employment is a written document State unit; individualized plan for employment, prepared on forms provided by the State (8) The individualized plan for including information— unit; employment is amended, as necessary, (A) Available from other programs (2) The individualized plan for to include the postemployment services and providers, particularly information employment is developed and and service providers that are necessary used by education officials and the implemented in a manner that gives for the individual to maintain, advance Social Security Administration; eligible individuals the opportunity to in or regain employment, consistent (B) Provided by the individual and exercise informed choice, consistent with the individual’s unique strengths, the individual’s family; and with § 361.52, in selecting— resources, priorities, concerns, abilities, (C) Obtained under the assessment for (i) The employment outcome, capabilities, interests, and informed determining the individual’s eligibility including the employment setting; choice; and and vocational rehabilitation needs. (ii) The specific vocational (9) An individualized plan for (Authority: Sections 7(2)(B), 101(a)(9), 102(b), rehabilitation services needed to employment for a student with a and 103(a)(1) of the Rehabilitation Act of achieve the employment outcome, disability is developed— 1973, as amended; 29 U.S.C. 705(2)(B), including the settings in which services (i) In consideration of the student’s 721(a)(9), 722(b), and 723(a)(1)) will be provided; individualized education program or (iii) The entity or entities that will 504 services, as applicable; and § 361.46 Content of the individualized plan provide the vocational rehabilitation (ii) In accordance with the plans, for employment. services; and policies, procedures, and terms of the (a) Mandatory components. (iv) The methods available for interagency agreement required under Regardless of the approach in procuring the services; § 361.22. § 361.45(c)(1) that an eligible individual (3) The individualized plan for (e) Standards for developing the selects for purposes of developing the employment is— individualized plan for employment. individualized plan for employment, (i) Agreed to and signed by the The individualized plan for each individualized plan for eligible individual or, as appropriate, employment must be developed as soon employment must— the individual’s representative; and as possible, but not later than 90 days (1) Include a description of the (ii) Approved and signed by a after the date of determination of specific employment outcome, as qualified vocational rehabilitation eligibility, unless the State unit and the defined in § 361.5(c)(15), that is chosen counselor employed by the designated eligible individual agree to the by the eligible individual and is State unit; extension of that deadline to a specific consistent with the individual’s unique (4) A copy of the individualized plan date by which the individualized plan strengths, resources, priorities, for employment and a copy of any for employment must be completed. concerns, abilities, capabilities, career amendments to the individualized plan (f) Data for preparing the interests, and informed choice for employment are provided to the individualized plan for employment. (1) consistent with the general goal of eligible individual or, as appropriate, to Preparation without comprehensive competitive integrated employment the individual’s representative, in assessment. To the extent possible, the (except that in the case of an eligible writing and, if appropriate, in the native employment outcome and the nature individual who is a student or a youth language or mode of communication of and scope of rehabilitation services to with a disability, the description may be the individual or, as appropriate, the be included in the individual’s a description of the individual’s individual’s representative; individualized plan for employment projected post-school employment (5) The individualized plan for must be determined based on the data outcome); employment is reviewed at least used for the assessment of eligibility (2) Include a description under annually by a qualified vocational and priority for services under § 361.42. § 361.48 of—

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(i) These specific rehabilitation (2) Specify the expected extended § 361.47 Record of services. services needed to achieve the services needed, which may include (a) The designated State unit must employment outcome, including, as natural supports; maintain for each applicant and eligible appropriate, the provision of assistive (3) Identify the source of extended individual a record of services that technology devices, assistive technology services or, to the extent that it is not includes, to the extent pertinent, the services, and personal assistance possible to identify the source of following documentation: services, including training in the extended services at the time the (1) If an applicant has been management of those services; and individualized plan for employment is determined to be an eligible individual, (ii) In the case of a plan for an eligible developed, include a description of the documentation supporting that individual that is a student or youth basis for concluding that there is a determination in accordance with the with a disability, the specific transition reasonable expectation that those requirements under § 361.42. services and supports needed to achieve sources will become available; (2) If an applicant or eligible the individual’s employment outcome (4) Provide for periodic monitoring to individual receiving services under an or projected post-school employment ensure that the individual is making individualized plan for employment has outcome. satisfactory progress toward meeting the been determined to be ineligible, (3) Provide for services in the most weekly work requirement established in documentation supporting that integrated setting that is appropriate for the individualized plan for employment determination in accordance with the the services involved and is consistent by the time of transition to extended requirements under § 361.43. with the informed choice of the eligible services; (3) Documentation that describes the individual; (5) Provide for the coordination of justification for closing an applicant’s or (4) Include timelines for the services provided under an eligible individual’s record of services if achievement of the employment individualized plan for employment that closure is based on reasons other than ineligibility, including, as outcome and for the initiation of with services provided under other appropriate, documentation indicating services; individualized plans established under that the State unit has satisfied the (5) Include a description of the entity other Federal or State programs; requirements in § 361.44. or entities chosen by the eligible (6) To the extent that job skills training is provided, identify that the (4) If an individual has been individual or, as appropriate, the determined to be an individual with a individual’s representative that will training will be provided on site; and (7) Include placement in an integrated significant disability or an individual provide the vocational rehabilitation setting for the maximum number of with a most significant disability, services and the methods used to hours possible based on the unique documentation supporting that procure those services; strengths, resources, priorities, determination. (6) Include a description of the concerns, abilities, capabilities, (5) If an individual with a significant criteria that will be used to evaluate interests, and informed choice of disability requires an exploration of progress toward achievement of the individuals with the most significant abilities, capabilities, and capacity to employment outcome; and disabilities. perform in realistic work situations (7) Include the terms and conditions (c) Post-employment services. The through the use of trial work of the individualized plan for individualized plan for employment for experiences or, as appropriate, an employment, including, as appropriate, each individual must contain, as extended evaluation to determine information describing— determined to be necessary, statements whether the individual is an eligible (i) The responsibilities of the concerning— individual, documentation supporting designated State unit; (1) The expected need for post- the need for, and the plan relating to, (ii) The responsibilities of the eligible employment services prior to closing that exploration or, as appropriate, individual, including— the record of services of an individual extended evaluation and documentation (A) The responsibilities the individual who has achieved an employment regarding the periodic assessments will assume in relation to achieving the outcome; carried out during the trial work employment outcome; (2) A description of the terms and experiences or, as appropriate, the (B) If applicable, the extent of the conditions for the provision of any post- extended evaluation, in accordance with individual’s participation in paying for employment services; and the requirements under § 361.42(e) and the cost of services; and (3) If appropriate, a statement of how (f). (C) The responsibility of the post-employment services will be (6) The individualized plan for individual with regard to applying for provided or arranged through other employment, and any amendments to and securing comparable services and entities as the result of arrangements the individualized plan for benefits as described in § 361.53; and made pursuant to the comparable employment, consistent with the (iii) The responsibilities of other services or benefits requirements in requirements under § 361.46. entities as the result of arrangements § 361.53. (7) Documentation describing the made pursuant to the comparable (d) Coordination of services for extent to which the applicant or eligible services or benefits requirements in students with disabilities. The individual exercised informed choice § 361.53. individualized plan for employment for regarding the provision of assessment (b) Supported employment a student with a disability must be services and the extent to which the requirements. An individualized plan coordinated with the individualized eligible individual exercised informed for employment for an individual with education program or 504 services, as choice in the development of the a most significant disability for whom applicable, for that individual in terms individualized plan for employment an employment outcome in a supported of the goals, objectives, and services with respect to the selection of the employment setting has been identified in the education program. specific employment outcome, the determined to be appropriate must— (Authority: Sections 101(a)(8), 101(a)(9), and specific vocational rehabilitation (1) Specify the supported employment 102(b)(4) of the Rehabilitation Act of 1973, as services needed to achieve the services to be provided by the amended; 29 U.S.C. 721(a)(8), 721(a)(9), and employment outcome, the entity to designated State unit; 722(b)(4)) provide the services, the employment

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setting, the settings in which the achievement of the employment (3) Authorized activities. Funds services will be provided, and the outcome. available and remaining after the methods to procure the services. (15) In the event an individual’s provision of the required activities (8) In the event that an individual’s record of service is closed under described in paragraph (a)(2) of this individualized plan for employment § 361.56, documentation verifying that section may be used to improve the provides for vocational rehabilitation the provisions of § 361.56 have been transition of students with disabilities services in a non-integrated setting, a satisfied. from school to postsecondary education justification to support the need for the (b) The State unit, in consultation or an employment outcome by— non-integrated setting. with the State Rehabilitation Council if (i) Implementing effective strategies to (9) In the event that an individual the State has a Council, must determine increase the likelihood of independent obtains competitive employment, the type of documentation that the State living and inclusion in communities verification that the individual is unit must maintain for each applicant and competitive integrated workplaces; compensated at or above the minimum and eligible individual in order to meet (ii) Developing and improving wage and that the individual’s wage and the requirements in paragraph (a) of this strategies for individuals with level of benefits are not less than that section. intellectual disabilities and individuals with significant disabilities to live customarily paid by the employer for (Authority: Sections 12(c), 101(a)(6), (9), (14), the same or similar work performed by and (20) and 102(a), (b), and (d) of the independently; participate in non-disabled individuals in accordance Rehabilitation Act of 1973, as amended; 29 postsecondary education experiences; with § 361.5(c)(9)(i). U.S.C. 709(c), 721(a)(6), (9), (14), and (20) and obtain, advance in and retain (10) In the event an individual and 722(a), (b), and (d)) competitive integrated employment; achieves an employment outcome in (iii) Providing instruction to which the individual is compensated in § 361.48 Scope of vocational rehabilitation vocational rehabilitation counselors, accordance with section 14(c) of the Fair services for individuals with disabilities. school transition personnel, and other Labor Standards Act or the designated (a) Pre-employment transition persons supporting students with State unit closes the record of services services. Each State must ensure that the disabilities; of an individual in extended designated State unit, in collaboration (iv) Disseminating information about employment on the basis that the with the local educational agencies innovative, effective, and efficient individual is unable to achieve an involved, provide, or arrange for the approaches to achieve the goals of this employment outcome consistent with provision of, pre-employment transition section; § 361.5(c)(15) or that an eligible services for all students with (v) Coordinating activities with individual through informed choice disabilities, as defined in § 361.5(c)(51), transition services provided by local chooses to remain in extended in need of such services, without regard educational agencies under the employment, documentation of the to the type of disability, from funds Individuals with Disabilities Education results of the annual reviews required reserved in accordance with § 361.65 Act (20 U.S.C. 1400 et seq.); (vi) Applying evidence-based findings under § 361.55, of the individual’s input and any funds made available from to improve policy, procedure, practice, into those reviews, and of the State, local, or private funding sources. and the preparation of personnel, in individual’s or, if appropriate, the (1) Availability of services. Pre- order to better achieve the goals of this individual’s representative’s employment transition services may be section; acknowledgment that those reviews provided to all students with (vii) Developing model transition were conducted. disabilities, regardless of whether an demonstration projects; (11) Documentation concerning any application for services has been (viii) Establishing or supporting action or decision resulting from a submitted. multistate or regional partnerships request by an individual under § 361.57 (2) Required activities. The designated involving States, local educational for a review of determinations made by State unit must provide the following agencies, designated State units, designated State unit personnel. pre-employment transition services: developmental disability agencies, (12) In the event that an applicant or (i) Job exploration counseling; private businesses, or other participants eligible individual requests under (ii) Work-based learning experiences, to achieve the goals of this section; and § 361.38(c)(4) that documentation in the which may include in-school or after (ix) Disseminating information and record of services be amended and the school opportunities, or experience strategies to improve the transition to documentation is not amended, outside the traditional school setting postsecondary activities of individuals documentation of the request. (including internships), that is provided who are members of traditionally (13) In the event an individual is in an integrated environment in the unserved and underserved populations. referred to another program through the community to the maximum extent (4) Pre-employment transition State unit’s information and referral possible; coordination. Each local office of a system under § 361.37, including other (iii) Counseling on opportunities for designated State unit must carry out components of the statewide workforce enrollment in comprehensive transition responsibilities consisting of— development system, documentation on or postsecondary educational programs (i) Attending individualized the nature and scope of services at institutions of higher education; education program meetings for provided by the designated State unit to (iv) Workplace readiness training to students with disabilities, when invited; the individual and on the referral itself, develop social skills and independent (ii) Working with the local workforce consistent with the requirements of living; and development boards, one-stop centers, § 361.37. (v) Instruction in self-advocacy and employers to develop work (14) In the event an individual’s (including instruction in person- opportunities for students with record of service is closed under centered planning), which may include disabilities, including internships, § 361.56, documentation that peer mentoring (including peer summer employment and other demonstrates the services provided mentoring from individuals with employment opportunities available under the individual’s individualized disabilities working in competitive throughout the school year, and plan for employment contributed to the integrated employment). apprenticeships;

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(iii) Working with schools, including technology, engineering, or mathematics (19) Technical assistance and other those carrying out activities under (including computer science), medicine, consultation services to conduct market section 614(d) of the IDEA, to law, or business; books, tools, and other analyses, develop business plans, and coordinate and ensure the provision of training materials, except that no otherwise provide resources, to the pre-employment transition services training or training services in an extent those resources are authorized to under this section; institution of higher education be provided through the statewide (iv) When invited, attending person- (universities, colleges, community or workforce development system, to centered planning meetings for junior colleges, vocational schools, eligible individuals who are pursuing individuals receiving services under technical institutes, or hospital schools self-employment or telecommuting or title XIX of the Social Security Act (42 of nursing or any other postsecondary establishing a small business operation U.S.C. 1396 et seq.); and education institution) may be paid for as an employment outcome. (b) Services for individuals who have with funds under this part unless (20) Customized employment in applied for or been determined eligible maximum efforts have been made by the accordance with the definition of that for vocational rehabilitation services. As State unit and the individual to secure term in § 361.5(c)(11). appropriate to the vocational grant assistance in whole or in part from (21) Other goods and services rehabilitation needs of each individual other sources to pay for that training. determined necessary for the individual and consistent with each individual’s (7) Maintenance, in accordance with with a disability to achieve an individualized plan for employment, the definition of that term in employment outcome. the designated State unit must ensure § 361.5(c)(35). (Authority: Sections 7(37), 103(a), and 113 of that the following vocational (8) Transportation in connection with the Rehabilitation Act of 1973, as amended; rehabilitation services are available to the provision of any vocational 29 U.S.C. 704(37), 723(a), and 733) assist the individual with a disability in rehabilitation service and in accordance preparing for, securing, retaining, with the definition of that term in § 361.49 Scope of vocational rehabilitation advancing in or regaining an § 361.5(c)(57). services for groups of individuals with employment outcome that is consistent (9) Vocational rehabilitation services disabilities. with the individual’s unique strengths, to family members, as defined in (a) The designated State unit may resources, priorities, concerns, abilities, § 361.5(c)(23), of an applicant or eligible provide for the following vocational capabilities, interests, and informed individual if necessary to enable the rehabilitation services for the benefit of choice: applicant or eligible individual to groups of individuals with disabilities: (1) Assessment for determining achieve an employment outcome. (1) The establishment, development, eligibility and priority for services by (10) Interpreter services, including or improvement of a public or other qualified personnel, including, if sign language and oral interpreter nonprofit community rehabilitation appropriate, an assessment by personnel services, for individuals who are deaf or program that is used to provide skilled in rehabilitation technology, in hard of hearing and tactile interpreting vocational rehabilitation services that accordance with § 361.42. services for individuals who are deaf- promote integration into the community (2) Assessment for determining blind provided by qualified personnel. and prepare individuals with vocational rehabilitation needs by (11) Reader services, rehabilitation disabilities for competitive integrated qualified personnel, including, if teaching services, and orientation and employment, including supported appropriate, an assessment by personnel mobility services for individuals who employment and customized skilled in rehabilitation technology, in are blind. employment, and under special accordance with § 361.45. (12) Job-related services, including job circumstances, the construction of a (3) Vocational rehabilitation search and placement assistance, job facility for a public or nonprofit counseling and guidance, including retention services, follow-up services, community rehabilitation program as information and support services to and follow-along services. defined in §§ 361.5(c)(10), 361.5(c)(16) assist an individual in exercising (13) Supported employment services and 361.5(c)(17). Examples of special informed choice in accordance with in accordance with the definition of that circumstances include the destruction § 361.52. term in § 361.5(c)(54). by natural disaster of the only available (4) Referral and other services (14) Personal assistance services in center serving an area or a State necessary to assist applicants and accordance with the definition of that determination that construction is eligible individuals to secure needed term in § 361.5(c)(39). necessary in a rural area because no services from other agencies, including (15) Post-employment services in other public agencies or private other components of the statewide accordance with the definition of that nonprofit organizations are currently workforce development system, in term in § 361.5(c)(42). able to provide vocational rehabilitation accordance with §§ 361.23, 361.24, and (16) Occupational licenses, tools, services to individuals. 361.37, and to advise those individuals equipment, initial stocks, and supplies. (2) Telecommunications systems that about client assistance programs (17) Rehabilitation technology in have the potential for substantially established under 34 CFR part 370. accordance with the definition of that improving vocational rehabilitation (5) In accordance with the definition term in § 361.5(c)(45), including service delivery methods and in § 361.5(c)(40), physical and mental vehicular modification, developing appropriate programming to restoration services, to the extent that telecommunications, sensory, and other meet the particular needs of individuals financial support is not readily available technological aids and devices. with disabilities, including telephone, from a source other than the designated (18) Transition services for students television, video description services, State unit (such as through health and youth with disabilities, that satellite, tactile-vibratory devices, and insurance or a comparable service or facilitate the transition from school to similar systems, as appropriate. benefit as defined in § 361.5(c)(10)). postsecondary life, such as achievement (3) Special services to provide (6) Vocational and other training of an employment outcome in nonvisual access to information for services, including personal and competitive integrated employment, or individuals who are blind, including the vocational adjustment training, pre-employment transition services for use of telecommunications, Braille, advanced training in a field of science, students. sound recordings, or other appropriate

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media; captioned television, films, or transition of students and youth with United States that confers a master’s video cassettes for individuals who are disabilities from school to degree in a field of science, technology, deaf or hard of hearing; tactile materials postsecondary life, including engineering, or mathematics (including for individuals who are deaf-blind; and employment. computer science), a juris doctor degree, other special services that provide (7) Transition services to youth with a master of business administration information through tactile, vibratory, disabilities and students with degree, or a doctor of medicine degree, auditory, and visual media. disabilities who may not have yet except that— (4) Technical assistance to businesses applied or been determined eligible for (A) No training provided at an that are seeking to employ individuals vocational rehabilitation services, for institution of higher education may be with disabilities. which a vocational rehabilitation paid for with funds under this program (5) In the case of any small business counselor works in concert with unless maximum efforts have been enterprise operated by individuals with educational agencies, providers of job made by the designated State unit to significant disabilities under the training programs, providers of services secure grant assistance, in whole or in supervision of the designated State unit, under the Medicaid program under title part, from other sources to pay for such including enterprises established under XIX of the Social Security Act (42 U.S.C. training; and the Randolph-Sheppard program, 1396 et seq.), entities designated by the (B) Nothing in this paragraph prevents management services and supervision State to provide services for individuals any designated State unit from provided by the State unit along with with developmental disabilities, centers providing similar support to individuals the acquisition by the State unit of for independent living (as defined in with disabilities within the State who vending facilities or other equipment, section 702 of the Act), housing and are eligible to receive support under this initial stocks and supplies, and initial transportation authorities, workforce title and who are not served under this operating expenses, in accordance with development systems, and businesses section. the following requirements: and employers. These specific transition (b) If the designated State unit (i) Management services and services are to benefit a group of provides for vocational rehabilitation supervision includes inspection, quality students with disabilities or youth with services for groups of individuals, it control, consultation, accounting, disabilities and are not individualized must— regulating, in-service training, and services directly related to an (1) Develop and maintain written related services provided on a individualized plan for employment policies covering the nature and scope systematic basis to support and improve goal. Services may include, but are not of each of the vocational rehabilitation small business enterprises operated by limited to, group tours of universities services it provides and the criteria individuals with significant disabilities. and vocational training programs, under which each service is provided; Management services and supervision employer or business site visits to learn and may be provided throughout the about career opportunities, career fairs (2) Maintain information to ensure the operation of the small business coordinated with workforce proper and efficient administration of enterprise. development and employers to facilitate those services in the form and detail and (ii) Initial stocks and supplies mock interviews and resume writing, at the time required by the Secretary, includes those items necessary to the and other general services applicable to including the types of services establishment of a new business groups of students with disabilities and provided, the costs of those services, enterprise during the initial youth with disabilities. and, to the extent feasible, estimates of establishment period, which may not (8) The establishment, development, the numbers of individuals benefiting exceed six months. or improvement of assistive technology from those services. (iii) Costs of establishing a small demonstration, loan, reutilization, or (Authority: Sections 12(c), 101(a)(6)(A), and business enterprise may include financing programs in coordination with 103(b) of the Rehabilitation Act of 1973, as operational costs during the initial activities authorized under the Assistive amended; 29 U.S.C. 709(c), 721(a)(6), and establishment period, which may not Technology Act of 1998 (29 U.S.C. 3001 723(b)) exceed six months. et seq.) to promote access to assistive (iv) If the designated State unit technology for individuals with § 361.50 Written policies governing the provides for these services, it must disabilities who are applicants of or provision of services for individuals with ensure that only individuals with have been determined eligible for disabilities. significant disabilities will be selected vocational rehabilitation services and (a) Policies. The State unit must to participate in this supervised employers. develop and maintain written policies program. (9) Support (including, as appropriate, covering the nature and scope of each of (v) If the designated State unit tuition) for advanced training in a field the vocational rehabilitation services provides for these services and chooses of science, technology, engineering, or specified in § 361.48 and the criteria to set aside funds from the proceeds of mathematics (including computer under which each service is provided. the operation of the small business science), medicine, law, or business, The policies must ensure that the enterprises, the State unit must provided after an individual eligible to provision of services is based on the maintain a description of the methods receive services under this title rehabilitation needs of each individual used in setting aside funds and the demonstrates— as identified in that individual’s purposes for which funds are set aside. (i) Such Eligibility; individualized plan for employment Funds may be used only for small (ii) Previous completion of a and is consistent with the individual’s business enterprises purposes, and bachelor’s degree program at an informed choice. The written policies benefits that are provided to operators institution of higher education or may not establish any arbitrary limits on from set-aside funds must be provided scheduled completion of such a degree the nature and scope of vocational on an equitable basis. program prior to matriculating in the rehabilitation services to be provided to (6) Consultation and technical program for which the individual the individual to achieve an assistance services to assist State proposes to use the support; and employment outcome. The policies educational agencies and local (iii) Acceptance by a program at an must be developed in accordance with educational agencies in planning for the institution of higher education in the the following provisions:

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(b) Out-of-State services. (1) The State requirements, as applicable, of the support services for individuals with unit may establish a preference for in- Architectural Barriers Act of 1968, the cognitive or other disabilities who State services, provided that the Americans with Disabilities Act of 1990, require assistance in exercising preference does not effectively deny an section 504 of the Act, and the informed choice throughout the individual a necessary service. If the regulations implementing these laws. vocational rehabilitation process; individual chooses an out-of-State (b) Affirmative action. The vocational (2) Assisting applicants and eligible service at a higher cost than an in-State rehabilitation services portion of the individuals in exercising informed service, if either service would meet the Unified or Combined State Plan must choice in decisions related to the individual’s rehabilitation needs, the assure that community rehabilitation provision of assessment services; designated State unit is not responsible programs that receive assistance under (3) Developing and implementing for those costs in excess of the cost of part B of title I of the Act take flexible procurement policies and the in-State service. affirmative action to employ and methods that facilitate the provision of (2) The State unit may not establish advance in employment qualified vocational rehabilitation services and policies that effectively prohibit the individuals with disabilities covered that afford eligible individuals provision of out-of-State services. under and on the same terms and meaningful choices among the methods (c) Payment for services. (1) The State conditions as in section 503 of the Act. used to procure vocational unit must establish and maintain (c) Special communication needs rehabilitation services; written policies to govern the rates of personnel. The designated State unit (4) Assisting eligible individuals or, as payment for all purchased vocational must ensure that providers of vocational appropriate, the individuals’ rehabilitation services. rehabilitation services are able to representatives, in acquiring (2) The State unit may establish a fee communicate— information that enables them to schedule designed to ensure a (1) In the native language of exercise informed choice in the reasonable cost to the program for each applicants and eligible individuals who development of their individualized service, if the schedule is— have limited English proficiency; and plans for employment with respect to (i) Not so low as to effectively deny (2) By using appropriate modes of the selection of the— an individual a necessary service; and communication used by applicants and (i) Employment outcome; (ii) Not absolute and permits eligible individuals. (ii) Specific vocational rehabilitation exceptions so that individual needs can (Authority: Sections 12(c) and 101(a)(6)(B) services needed to achieve the be addressed. and (C) of the Rehabilitation Act of 1973, as employment outcome; (3) The State unit may not place amended; 29 U.S.C. 709(c) and 721(a)(6)(B) (iii) Entity that will provide the absolute dollar limits on specific service and (C)) services; categories or on the total services § 361.52 Informed choice. (iv) Employment setting and the provided to an individual. settings in which the services will be (d) Duration of services. (1) The State (a) General provision. The vocational provided; and unit may establish reasonable time rehabilitation services portion of the (v) Methods available for procuring periods for the provision of services Unified or Combined State Plan must the services; and provided that the time periods are— assure that applicants and eligible (i) Not so short as to effectively deny individuals or, as appropriate, their (5) Ensuring that the availability and an individual a necessary service; and representatives are provided scope of informed choice is consistent (ii) Not absolute and permit information and support services to with the obligations of the designated exceptions so that individual needs can assist applicants and eligible State agency under this part. be addressed. individuals in exercising informed (c) Information and assistance in the (2) The State unit may not establish choice throughout the rehabilitation selection of vocational rehabilitation absolute time limits on the provision of process consistent with the provisions services and service providers. In specific services or on the provision of of section 102(d) of the Act and the assisting an applicant and eligible services to an individual. The duration requirements of this section. individual in exercising informed of each service needed by an individual (b) Written policies and procedures. choice during the assessment for must be determined on an individual The designated State unit, in determining eligibility and vocational basis and reflected in that individual’s consultation with its State rehabilitation needs and during individualized plan for employment. Rehabilitation Council, if it has a development of the individualized plan (e) Authorization of services. The Council, must develop and implement for employment, the designated State State unit must establish policies related written policies and procedures that unit must provide the individual or the to the timely authorization of services, enable an applicant or eligible individual’s representative, or assist the including any conditions under which individual to exercise informed choice individual or the individual’s verbal authorization can be given. throughout the vocational rehabilitation representative in acquiring, information process. These policies and procedures necessary to make an informed choice (Authority: Sections 12(c) and 101(a)(6) of about the specific vocational the Rehabilitation Act of 1973, as amended must provide for— and 29 U.S.C. 709(c) and 721(a)(6)) (1) Informing each applicant and rehabilitation services, including the eligible individual (including students providers of those services, that are § 361.51 Standards for facilities and with disabilities who are making the needed to achieve the individual’s providers of services. transition from programs under the employment outcome. This information (a) Accessibility of facilities. The responsibility of an educational agency must include, at a minimum, vocational rehabilitation services to programs under the responsibility of information relating to the— portion of the Unified or Combined the designated State unit and including (1) Cost, accessibility, and duration of State Plan must assure that any facility youth with disabilities), through potential services; used in connection with the delivery of appropriate modes of communication, (2) Consumer satisfaction with those vocational rehabilitation services under about the availability of and services to the extent that information this part meets program accessibility opportunities to exercise informed relating to consumer satisfaction is requirements consistent with the choice, including the availability of available;

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(3) Qualifications of potential service (b) Exempt services. The following administering the State Medicaid providers; vocational rehabilitation services program, a public institution of higher (4) Types of services offered by the described in § 361.48(a) are exempt from education, and a component of the potential providers; a determination of the availability of statewide workforce development (5) Degree to which services are comparable services and benefits under system, to ensure the provision of provided in integrated settings; and paragraph (a) of this section: vocational rehabilitation services, and, (6) Outcomes achieved by individuals (1) Assessment for determining if appropriate, accommodations or working with service providers, to the eligibility and vocational rehabilitation auxiliary aids and services, (other than extent that such information is needs. those services listed in paragraph (b) of available. (2) Counseling and guidance, this section) that are included in the (d) Methods or sources of information. including information and support individualized plan for employment of In providing or assisting the individual services to assist an individual in an eligible individual, including the or the individual’s representative in exercising informed choice. provision of those vocational acquiring the information required (3) Referral and other services to rehabilitation services (including, if under paragraph (c) of this section, the secure needed services from other appropriate, accommodations or State unit may use, but is not limited to, agencies, including other components of auxiliary aids and services) during the the following methods or sources of the statewide workforce development pendency of any interagency dispute in information: system, if those services are not accordance with the provisions of (1) Lists of services and service available under this part. paragraph (d)(3)(iii) of this section. providers. (4) Job-related services, including job (2) The Governor may meet the (2) Periodic consumer satisfaction search and placement assistance, job requirements of paragraph (d)(1) of this surveys and reports. retention services, follow-up services, section through— (3) Referrals to other consumers, and follow-along services. (i) A State statute or regulation; consumer groups, or disability advisory (5) Rehabilitation technology, (ii) A signed agreement between the councils qualified to discuss the including telecommunications, sensory, respective officials of the public entities services or service providers. and other technological aids and that clearly identifies the (4) Relevant accreditation, devices. responsibilities of each public entity for certification, or other information (6) Post-employment services the provision of the services; or relating to the qualifications of service consisting of the services listed under (iii) Another appropriate mechanism providers. paragraphs (b)(1) through (5) of this as determined by the designated State (5) Opportunities for individuals to section. vocational rehabilitation unit. visit or experience various work and (c) Provision of services. (1) If (3) The interagency agreement or service provider settings. comparable services or benefits exist other mechanism for interagency under any other program and are coordination must include the (Authority: Sections 12(c), 101(a)(19); available to the individual at the time 102(b)(2)(B) and 102(d) of the Rehabilitation following: Act of 1973, as amended; 29 U.S.C. 709(c), needed to ensure the progress of the (i) Agency financial responsibility. An 721(a)(19); 722(b)(2)(B) and 722(d)) individual toward achieving the identification of, or description of a employment outcome in the method for defining, the financial § 361.53 Comparable services and individual’s individualized plan for responsibility of the designated State benefits. employment, the designated State unit unit and other public entities for the (a) Determination of availability. The must use those comparable services or provision of vocational rehabilitation vocational rehabilitation services benefits to meet, in whole or part, the services, and, if appropriate, portion of the Unified or Combined costs of the vocational rehabilitation accommodations or auxiliary aids and State Plan must assure that prior to services. services other than those listed in providing an accommodation or (2) If comparable services or benefits paragraph (b) of this section and a auxiliary aid or service or any exist under any other program, but are provision stating the financial vocational rehabilitation services, not available to the individual at the responsibility of the public entity for except those services listed in paragraph time needed to ensure the progress of providing those services. (b) of this section, to an eligible the individual toward achieving the (ii) Conditions, terms, and procedures individual or to members of the employment outcome specified in the of reimbursement. Information individual’s family, the State unit must individualized plan for employment, specifying the conditions, terms, and determine whether comparable services the designated State unit must provide procedures under which the designated and benefits, as defined in § 361.5(c)(8), vocational rehabilitation services until State unit must be reimbursed by the exist under any other program and those comparable services and benefits other public entities for providing whether those services and benefits are become available. vocational rehabilitation services, and available to the individual unless such (d) Interagency coordination. (1) The accommodations or auxiliary aids and a determination would interrupt or vocational rehabilitation services services based on the terms of the delay— portion of the Unified or Combined interagency agreement or other (1) The progress of the individual State Plan must assure that the mechanism for interagency toward achieving the employment Governor, in consultation with the coordination. outcome identified in the entity in the State responsible for the (iii) Interagency disputes. Information individualized plan for employment; vocational rehabilitation program and specifying procedures for resolving (2) An immediate job placement; or other appropriate agencies, will ensure interagency disputes under the (3) The provision of vocational that an interagency agreement or other interagency agreement or other rehabilitation services to any individual mechanism for interagency coordination mechanism for interagency who is determined to be at extreme takes effect between the designated coordination, including procedures medical risk, based on medical evidence State vocational rehabilitation unit and under which the designated State unit provided by an appropriate qualified any appropriate public entity, including may initiate proceedings to secure medical professional. the State entity responsible for reimbursement from other public

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entities or otherwise implement the financial need of individuals be (F) Personal assistance services under provisions of the agreement or considered in the provision of § 361.48(b)(14). mechanism. vocational rehabilitation services. (G) Any auxiliary aid or service (e.g., (iv) Procedures for coordination of (b) State unit requirements. (1) The interpreter services under services. Information specifying policies State unit may choose to consider the § 361.48(b)(10), reader services under and procedures for public entities to financial need of eligible individuals or § 361.48(b)(11)) that an individual with determine and identify interagency individuals who are receiving services a disability requires under section 504 coordination responsibilities of each through trial work experiences under of the Act (29 U.S.C. 794) or the public entity to promote the § 361.42(e) for purposes of determining Americans with Disabilities Act (42 coordination and timely delivery of the extent of their participation in the U.S.C. 12101, et seq.), or regulations vocational rehabilitation services, and costs of vocational rehabilitation implementing those laws, in order for accommodations or auxiliary aids and services, other than those services the individual to participate in the services, other than those listed in identified in paragraph (b)(3) of this vocational rehabilitation program as paragraph (b) of this section. section. authorized under this part; or (e) Responsibilities under other law. (2) If the State unit chooses to (ii) As a condition for furnishing any (1) If a public entity (other than the consider financial need— vocational rehabilitation service if the designated State unit) is obligated under (i) It must maintain written policies— individual in need of the service has Federal law (such as the Americans (A) Explaining the method for been determined eligible for Social with Disabilities Act, section 504 of the determining the financial need of an Security benefits under titles II or XVI Act, or section 188 of the Workforce eligible individual; and of the Social Security Act. (B) Specifying the types of vocational Innovation and Opportunity Act) or (Authority: Section 12(c) of the State law, or assigned responsibility rehabilitation services for which the unit has established a financial needs Rehabilitation Act of 1973, as amended; 29 under State policy or an interagency U.S.C. 709(c)) agreement established under this test; (ii) The policies must be applied section, to provide or pay for any § 361.55 Semi-annual review of individuals uniformly to all individuals in similar services considered to be vocational in extended employment and other circumstances; rehabilitation services (e.g., interpreter employment under special certificate (iii) The policies may require different provisions of the Fair Labor Standards Act. services under § 361.48(j)), and, if levels of need for different geographic (a) The vocational rehabilitation appropriate, accommodations or regions in the State, but must be applied auxiliary aids and services other than services portion of the Unified or uniformly to all individuals within each Combined State Plan must assure that those services listed in paragraph (b) of geographic region; and this section, the public entity must the designated State unit conducts a (iv) The policies must ensure that the semi-annual review and reevaluation for fulfill that obligation or responsibility level of an individual’s participation in through— the first two years of such employment the cost of vocational rehabilitation and annually thereafter, in accordance (i) The terms of the interagency services is— agreement or other requirements of this with the requirements in paragraph (b) (A) Reasonable; of this section for an individual with a section; (B) Based on the individual’s financial disability served under this part— (ii) Providing or paying for the service need, including consideration of any (1) Who has achieved an employment directly or by contract; or disability-related expenses paid by the outcome in which the individual is (iii) Other arrangement. individual; and (2) If a public entity other than the (C) Not so high as to effectively deny compensated in accordance with section designated State unit fails to provide or the individual a necessary service. 14(c) of the Fair Labor Standards Act; or pay for vocational rehabilitation (3) The designated State unit may not (2) Whose record of services is closed services, and, if appropriate, apply a financial needs test, or require while the individual is in extended accommodations or auxiliary aids and the financial participation of the employment on the basis that the services for an eligible individual as individual— individual is unable to achieve an established under this section, the (i) As a condition for furnishing the employment outcome consistent with designated State unit must provide or following vocational rehabilitation § 361.5(c)(15) or that the individual pay for those services to the individual services: made an informed choice to remain in and may claim reimbursement for the (A) Assessment for determining extended employment. services from the public entity that eligibility and priority for services (b) For each individual with a failed to provide or pay for those under § 361.48(b)(1), except those non- disability who meets the criteria in services. The public entity must assessment services that are provided to paragraph (a) of this section, the reimburse the designated State unit an individual with a significant designated State unit must— pursuant to the terms of the interagency disability during either an exploration (1) Semi-annually review and agreement or other mechanism of the individual’s abilities, capabilities, reevaluate the status of each individual described in paragraph (d) of this and capacity to perform in work for two years after the individual’s section in accordance with the situations through the use of trial work record of services is closed (and procedures established in the agreement experiences under § 361.42(e). annually thereafter) to determine the or mechanism pursuant to paragraph (B) Assessment for determining interests, priorities, and needs of the (d)(3)(ii) of this section. vocational rehabilitation needs under individual with respect to competitive § 361.48(b)(2). integrated employment or training for (Authority: Sections 12(c) and 101(a)(8) of competitive integrated employment; the Rehabilitation Act of 1973, as amended; (C) Vocational rehabilitation 29 U.S.C. 709(c) and 721(a)(8)) counseling and guidance under (2) Enable the individual or, if § 361.48(b)(3). appropriate, the individual’s § 361.54 Participation of individuals in (D) Referral and other services under representative to provide input into the cost of services based on financial need. § 361.48(b)(4). review and reevaluation and must (a) No Federal requirement. There is (E) Job-related services under document that input in the record of no Federal requirement that the § 361.48(b)(12). services, consistent with § 361.47(a)(10),

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with the individual’s or, as appropriate, rehabilitation services may request, or, (ii) Allow an applicant or eligible the individual’s representative’s signed if appropriate, may request through the individual to be represented during acknowledgment that the review and individual’s representative, a timely mediation sessions or due process reevaluation have been conducted; and review of that determination. The hearings by counsel or other advocate (3) Make maximum efforts, including procedures must be in accordance with selected by the applicant or eligible identifying and providing vocational paragraphs (b) through (k) of this individual. rehabilitation services, reasonable section: (4) Impact on provision of services. accommodations, and other necessary (b) General requirements. (1) The State unit may not institute a support services, to assist the individual Notification. Procedures established by suspension, reduction, or termination of in engaging in competitive integrated the State unit under this section must vocational rehabilitation services being employment as defined in § 361.5(c)(9). provide an applicant or eligible provided to an applicant or eligible individual, including evaluation and (Authority: Sections 12(c) and 101(a)(14) of individual or, as appropriate, the the Rehabilitation Act of 1973, as amended; individual’s representative notice of— assessment services and individualized 29 U.S.C. 709(c) and 721(a)(14)) (i) The right to obtain review of State plan for employment development, unit determinations that affect the pending a resolution through mediation, § 361.56 Requirements for closing the provision of vocational rehabilitation pending a decision by a hearing officer record of services of an individual who has or reviewing official, or pending achieved an employment outcome. services through an impartial due process hearing under paragraph (e) of informal resolution under this section The record of services of an this section; unless— individual who has achieved an (ii) The right to pursue mediation (i) The individual or, in appropriate employment outcome may be closed under paragraph (d) of this section with cases, the individual’s representative only if all of the following requirements respect to determinations made by requests a suspension, reduction, or are met: designated State unit personnel that termination of services; or (ii) The State agency has evidence that (a) Employment outcome achieved. affect the provision of vocational the services have been obtained through The individual has achieved the rehabilitation services to an applicant or misrepresentation, fraud, collusion, or employment outcome that is described eligible individual; in the individual’s individualized plan criminal conduct on the part of the (iii) The names and addresses of for employment in accordance with individual or the individual’s individuals with whom requests for § 361.46(a)(1) and is consistent with the representative. mediation or due process hearings may individual’s unique strengths, resources, (5) Ineligibility. Applicants who are be filed; priorities, concerns, abilities, found ineligible for vocational (iv) The manner in which a mediator capabilities, interests, and informed rehabilitation services and previously or impartial hearing officer may be choice. eligible individuals who are determined selected consistent with the (b) Employment outcome maintained. to be no longer eligible for vocational requirements of paragraphs (d) and (f) of The individual has maintained the rehabilitation services pursuant to this section; and employment outcome for an appropriate § 361.43 are permitted to challenge the (v) The availability of the client period of time, but not less than 90 determinations of ineligibility under the assistance program, established under days, necessary to ensure the stability of procedures described in this section. 34 CFR part 370, to assist the applicant the employment outcome, and the (c) Informal dispute resolution. The or eligible individual during mediation individual no longer needs vocational State unit may develop an informal sessions or impartial due process rehabilitation services. process for resolving a request for (c) Satisfactory outcome. At the end of hearings. review without conducting mediation or the appropriate period under paragraph (2) Timing. Notice described in a formal hearing. A State’s informal (b) of this section, the individual and paragraph (b)(1) of this section must be process must not be used to deny the the qualified rehabilitation counselor provided in writing— right of an applicant or eligible employed by the designated State unit (i) At the time the individual applies individual to a hearing under paragraph consider the employment outcome to be for vocational rehabilitation services (e) of this section or any other right satisfactory and agree that the under this part; provided under this part, including the individual is performing well in the (ii) At the time the individual is right to pursue mediation under employment. assigned to a category in the State’s paragraph (d) of this section. If informal (d) Post-employment services. The order of selection, if the State has resolution under this paragraph or individual is informed through established an order of selection under mediation under paragraph (d) of this appropriate modes of communication of § 361.36; section is not successful in resolving the the availability of post-employment (iii) At the time the individualized dispute within the time period services. plan for employment is developed; and established under paragraph (e)(1) of (iv) Whenever vocational this section, a formal hearing must be (Authority: Sections 12(c), 101(a)(6), and rehabilitation services for an individual conducted within that same time 106(a)(2) of the Rehabilitation Act of 1973, as are reduced, suspended, or terminated. amended; 29 U.S.C. 711(c), 721(a)(6), and period, unless the parties agree to a 726(a)(2)) (3) Evidence and representation. specific extension of time. Procedures established under this (d) Mediation. (1) The State must § 361.57 Review of determinations made section must— establish and implement procedures, as by designated State unit personnel. (i) Provide an applicant or eligible required under paragraph (b)(1)(ii) of (a) Procedures. The designated State individual or, as appropriate, the this section, to allow an applicant or unit must develop and implement individual’s representative with an eligible individual and the State unit to procedures to ensure that an applicant opportunity to submit during mediation resolve disputes involving State unit or eligible individual who is dissatisfied sessions or due process hearings determinations that affect the provision with any determination made by evidence and other information that of vocational rehabilitation services personnel of the designated State unit supports the applicant’s or eligible through a mediation process that must that affects the provision of vocational individual’s position; and be made available, at a minimum,

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whenever an applicant or eligible to the representation of an applicant or (ii) By agreement between the director individual or, as appropriate, the eligible individual authorized under of the designated State unit and the individual’s representative requests an paragraph (b)(3)(ii) of this section. applicant or eligible individual or, as impartial due process hearing under this (e) Impartial due process hearings. appropriate, the individual’s section. The State unit must establish and representative. (2) Mediation procedures established implement formal review procedures, as (g) Administrative review of hearing by the State unit under paragraph (d) of required under paragraph (b)(1)(i) of this officer’s decision. The State may this section must ensure that— section, that provide that— establish procedures to enable a party (i) Participation in the mediation (1) hearing conducted by an impartial who is dissatisfied with the decision of process is voluntary on the part of the hearing officer, selected in accordance the impartial hearing officer to seek an applicant or eligible individual, as with paragraph (f) of this section, must impartial administrative review of the appropriate, and on the part of the State be held within 60 days of an applicant’s decision under paragraph (e)(3) of this unit; or eligible individual’s request for section in accordance with the (ii) Use of the mediation process is review of a determination made by following requirements: not used to deny or delay the personnel of the State unit that affects (1) A request for administrative applicant’s or eligible individual’s right the provision of vocational review under paragraph (g) of this to pursue resolution of the dispute rehabilitation services to the individual, section must be made within 20 days of through an impartial hearing held unless informal resolution or a the mailing of the impartial hearing within the time period specified in mediation agreement is achieved prior officer’s decision. paragraph (e)(1) of this section or any to the 60th day or the parties agree to (2) Administrative review of the other rights provided under this part. At a specific extension of time; hearing officer’s decision must be any point during the mediation process, (2) In addition to the rights described conducted by— either party or the mediator may elect to in paragraph (b)(3) of this section, the (i) The chief official of the designated terminate the mediation. In the event applicant or eligible individual or, if State agency if the State has established mediation is terminated, either party appropriate, the individual’s both a designated State agency and a may pursue resolution through an representative must be given the designated State unit under § 361.13(b); impartial hearing; opportunity to present witnesses during or (iii) The mediation process is the hearing and to examine all witnesses (ii) An official from the office of the conducted by a qualified and impartial and other relevant sources of Governor. mediator, as defined in § 361.5(c)(43), information and evidence; (3) The reviewing official described in who must be selected from a list of (3) The impartial hearing officer paragraph (g)(2)(i) of this section— qualified and impartial mediators must— (i) Provides both parties with an maintained by the State— (i) Make a decision based on the opportunity to submit additional (A) On a random basis; provisions of the approved vocational (B) By agreement between the director evidence and information relevant to a rehabilitation services portion of the of the designated State unit and the final decision concerning the matter Unified or Combined State Plan, the applicant or eligible individual or, as under review; Act, Federal vocational rehabilitation appropriate, the individual’s (ii) May not overturn or modify the regulations, and State regulations and representative; or hearing officer’s decision, or any part of (C) In accordance with a procedure policies that are consistent with Federal that decision, that supports the position established in the State for assigning requirements; and of the applicant or eligible individual mediators, provided this procedure (ii) Provide to the individual or, if unless the reviewing official concludes, ensures the neutrality of the mediator appropriate, the individual’s based on clear and convincing evidence, assigned; and representative and to the State unit a that the decision of the impartial (iv) Mediation sessions are scheduled full written report of the findings and hearing officer is clearly erroneous on and conducted in a timely manner and grounds for the decision within 30 days the basis of being contrary to the are held in a location and manner that of the completion of the hearing; and approved vocational rehabilitation is convenient to the parties to the (4) The hearing officer’s decision is services portion of the Unified or dispute. final, except that a party may request an Combined State Plan, the Act, Federal (3) Discussions that occur during the impartial review under paragraph (g)(1) vocational rehabilitation regulations, or mediation process must be kept of this section if the State has State regulations and policies that are confidential and may not be used as established procedures for that review, consistent with Federal requirements; evidence in any subsequent due process and a party involved in a hearing may (iii) Makes an independent, final hearings or civil proceedings, and the bring a civil action under paragraph (i) decision following a review of the entire parties to the mediation process may be of this section. hearing record and provides the required to sign a confidentiality pledge (f) Selection of impartial hearing decision in writing, including a full prior to the commencement of the officers. The impartial hearing officer report of the findings and the statutory, process. for a particular case must be selected— regulatory, or policy grounds for the (4) An agreement reached by the (1) From a list of qualified impartial decision, to the applicant or eligible parties to the dispute in the mediation hearing officers maintained by the State individual or, as appropriate, the process must be described in a written unit. Impartial hearing officers included individual’s representative and to the mediation agreement that is developed on the list must be— State unit within 30 days of the request by the parties with the assistance of the (i) Identified by the State unit if the for administrative review under qualified and impartial mediator and State unit is an independent paragraph (g)(1) of this section; and signed by both parties. Copies of the commission; or (iv) May not delegate the agreement must be sent to both parties. (ii) Jointly identified by the State unit responsibility for making the final (5) The costs of the mediation process and the State Rehabilitation Council if decision under paragraph (g) of this must be paid by the State. The State is the State has a Council; and section to any officer or employee of the not required to pay for any costs related (2)(i) On a random basis; or designated State unit.

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(4) The reviewing official’s decision (k) Data collection. (1) The director of (2) Construction projects. The Federal under paragraph (g) of this section is the designated State unit must collect share for expenditures made for the final unless either party brings a civil and submit, at a minimum, the construction of a facility for community action under paragraph (i) of this following data to the Secretary for rehabilitation program purposes may section. inclusion each year in the annual report not be more than 50 percent of the total (h) Implementation of final decisions. to Congress under section 13 of the Act: cost of the project. If a party brings a civil action under (i) A copy of the standards used by (b) Non-Federal share. (1) General. paragraph (h) of this section to State reviewing officials for reviewing Except as provided in paragraph (b)(2) challenge the final decision of a hearing decisions made by impartial hearing and (b)(3) of this section, expenditures officer under paragraph (e) of this officers under this section. made under the vocational section or to challenge the final decision (ii) The number of mediations held, rehabilitation services portion of the of a State reviewing official under including the number of mediation Unified or Combined State Plan to meet paragraph (g) of this section, the final agreements reached. the non-Federal share under this section decision of the hearing officer or State (iii) The number of hearings and must be consistent with the provisions reviewing official must be implemented reviews sought from impartial hearing of 2 CFR 200.306(b). pending review by the court. officers and State reviewing officials, (2) Third party in-kind contributions. (i) Civil action. (1) Any party who including the type of complaints and Third party in-kind contributions disagrees with the findings and decision the issues involved. specified in 2 CFR 200.306(b) may not of an impartial hearing officer under (iv) The number of hearing officer be used to meet the non-Federal share paragraph (e) of this section in a State decisions that were not reviewed by under this section. that has not established administrative administrative reviewing officials. (3) Contributions by private entities. review procedures under paragraph (g) (v) The number of hearing decisions Expenditures made from those cash of this section and any party who that were reviewed by State reviewing contributions provided by private disagrees with the findings and decision officials and, based on these reviews, organizations, agencies, or individuals under paragraph (g)(3)(iii) of this section the number of hearing decisions that and that are deposited in the State have a right to bring a civil action with were— agency’s account or, if applicable, sole (A) Sustained in favor of an applicant respect to the matter in dispute. The local agency’s account, in accordance or eligible individual; with State law prior to their expenditure action may be brought in any State court (B) Sustained in favor of the of competent jurisdiction or in a district and that are earmarked, under a designated State unit; condition imposed by the contributor, court of the United States of competent (C) Reversed in whole or in part in jurisdiction without regard to the may be used as part of the non-Federal favor of the applicant or eligible share under this section if the funds are amount in controversy. individual; and (2) In any action brought under earmarked for— (D) Reversed in whole or in part in (i) Meeting in whole or in part the paragraph (i) of this section, the court— favor of the State unit. State’s share for establishing a (i) Receives the records related to the (2) The State unit director also must community rehabilitation program or impartial due process hearing and the collect and submit to the Secretary constructing a particular facility for records related to the administrative copies of all final decisions issued by community rehabilitation program review process, if applicable; impartial hearing officers under purposes; (ii) Hears additional evidence at the paragraph (e) of this section and by (ii) Particular geographic areas within request of a party; and State review officials under paragraph the State for any purpose under the (iii) Basing its decision on the (g) of this section. vocational rehabilitation services preponderance of the evidence, grants (3) The confidentiality of records of portion of the Unified or Combined the relief that the court determines to be applicants and eligible individuals State Plan, other than those described in appropriate. maintained by the State unit may not paragraph (b)(3)(i) of this section, in (j) State fair hearing board. A fair preclude the access of the Secretary to accordance with the following criteria: hearing board as defined in those records for the purposes described (A) Before funds that are earmarked § 361.5(c)(21) is authorized to carry out in this section. for a particular geographic area may be the responsibilities of the impartial (Authority: Section 102(c) of the used as part of the non-Federal share, hearing officer under paragraph (e) of Rehabilitation Act of 1973, as amended; 29 the State must notify the Secretary that this section in accordance with the U.S.C. 722(c)) the State cannot provide the full non- following criteria: Federal share without using these funds. (1) The fair hearing board may Subpart C—Financing of State (B) Funds that are earmarked for a conduct due process hearings either Vocational Rehabilitation Programs particular geographic area may be used collectively or by assigning as part of the non-Federal share without responsibility for conducting the § 361.60 Matching requirements. requesting a waiver of statewideness hearing to one or more members of the (a) Federal share. (1) General. Except under § 361.26. fair hearing board. as provided in paragraph (a)(2) of this (C) Except as provided in paragraph (2) The final decision issued by the section, the Federal share for (b)(3)(i) of this section, all Federal funds fair hearing board following a hearing expenditures made by the State under must be used on a statewide basis under paragraph (j)(1) of this section the vocational rehabilitation services consistent with § 361.25, unless a must be made collectively by, or by a portion of the Unified or Combined waiver of statewideness is obtained majority vote of, the fair hearing board. State Plan, including expenditures for under § 361.26; and (3) The provisions of paragraphs the provision of vocational (iii) Any other purpose under the (b)(1), (2), and (3) of this section that rehabilitation services and the vocational rehabilitation services relate to due process hearings and of administration of the vocational portion of the Unified or Combined paragraphs (e), (f), (g), and (h) of this rehabilitation services portion of the State Plan, provided the expenditures section do not apply to fair hearing Unified or Combined State Plan, is 78.7 do not benefit in any way the donor, boards under this paragraph (j). percent. employee, officer, or agent, any member

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of his or her immediate family, his or two years prior to that previous fiscal (2) The Secretary may waive or her partner, an individual with whom year. modify the maintenance of effort the donor has a close personal (b) Specific requirements for requirement in paragraph (b) of this relationship, or an individual, entity, or construction of facilities. If the State section or the 10 percent allotment organization with whom the donor provides for the construction of a limitation in § 361.61 if the Secretary shares a financial or other interest. The facility for community rehabilitation determines that a waiver or Secretary does not consider a donor’s program purposes, the amount of the modification is necessary to permit the receipt from the State unit of a State’s share of expenditures for State to respond to exceptional or subaward or contract with funds vocational rehabilitation services under uncontrollable circumstances, such as a allotted under this part to be a benefit the plan, other than for the construction major natural disaster, that result in for the purposes of this paragraph if the of a facility for community significant destruction of existing subaward or contract is awarded under rehabilitation program purposes or the facilities and require the State to make the State’s regular competitive establishment of a facility for substantial expenditures for the procedures. community rehabilitation purposes, construction of a facility for community (Authority: Sections 7(14), 101(a)(3), must be at least equal to the rehabilitation program purposes or the 101(a)(4) and 104 of the Rehabilitation Act of expenditures for those services for the establishment of a facility for 1973, as amended; 29 U.S.C. 705(14), second prior fiscal year. community rehabilitation program 721(a)(3), 721(a)(4) and 724) (c) Separate State agency for purposes in order to provide vocational Example for paragraph (b)(3): vocational rehabilitation services for rehabilitation services. Contributions may be earmarked in individuals who are blind. If there is a (3) A written request for waiver or accordance with § 361.60(b)(3)(iii) for separate part of the vocational modification, including supporting providing particular services (e.g., rehabilitation services portion of the justification, must be submitted to the rehabilitation technology services); Unified or Combined State Plan Secretary for consideration as soon as serving individuals with certain types of administered by a separate State agency the State has determined that it has disabilities (e.g., individuals who are to provide vocational rehabilitation failed to satisfy its maintenance of effort blind), consistent with the State’s order services for individuals who are blind— requirement due to an exceptional or (1) Satisfaction of the maintenance of of selection, if applicable; providing uncontrollable circumstance, as effort requirements under paragraphs (a) services to special groups that State or described in paragraphs (d)(1) and (2) of and (b) of this section is determined Federal law permits to be targeted for this section. based on the total amount of a State’s services (e.g., students with disabilities non-Federal expenditures under both (Authority: Sections 101(a)(17) and 111(a)(2) who are receiving special education parts of the vocational rehabilitation of the Rehabilitation Act of 1973, as services), consistent with the State’s services portion of the Unified or amended; 29 U.S.C. 721(a)(17) and 731(a)(2)) order of selection, if applicable; or carrying out particular types of Combined State Plan; and § 361.63 Program income. (2) If a State fails to meet any administrative activities permissible maintenance of effort requirement, the (a) Definition. For purposes of this under State law. Contributions also may Secretary reduces the amount otherwise section, program income means gross be restricted to particular geographic payable to the State for any fiscal year income received by the State that is areas to increase services or expand the under each part of the plan in direct directly generated by a supported scope of services that are available proportion to the amount by which non- activity under this part. statewide under the vocational Federal expenditures under each part of (b) Sources. Sources of program rehabilitation services portion of the the plan in any previous fiscal year were income include, but are not limited to: Unified or Combined State Plan in less than they were for that part of the Payments from the Social Security accordance with the requirements in plan for the fiscal year 2 years prior to Administration for assisting Social § 361.60(b)(3)(ii). that previous fiscal year. Security beneficiaries and recipients to achieve employment outcomes; § 361.61 Limitation on use of funds for (d) Waiver or modification. (1) The construction expenditures. Secretary may waive or modify the payments received from workers’ compensation funds; payments received No more than 10 percent of a State’s maintenance of effort requirement in by the State agency from insurers, allotment for any fiscal year under paragraph (a) of this section if the consumers, or others for services to section 110 of the Act may be spent on Secretary determines that a waiver or defray part or all of the costs of services the construction of facilities for modification is necessary to permit the provided to particular individuals; and community rehabilitation program State to respond to exceptional or income generated by a State-operated purposes. uncontrollable circumstances, such as a major natural disaster or a serious community rehabilitation program for (Authority: Section 101(a)(17)(A) of the economic downturn, that— activities authorized under this part. Rehabilitation Act of 1973, as amended; 29 (c) Use of program income. (1) Except U.S.C. 721(a)(17)(A)) (i) Cause significant unanticipated expenditures or reductions in revenue as provided in paragraph (c)(2) of this § 361.62 Maintenance of effort that result in a general reduction of section, program income, whenever requirements. programs within the State; or earned, must be used for the provision (a) General requirements. The (ii) Require the State to make of vocational rehabilitation services and Secretary reduces the amount otherwise substantial expenditures in the the administration of the vocational payable to a State for any fiscal year by vocational rehabilitation program for rehabilitation services portion of the the amount by which the total long-term purposes due to the one-time Unified or Combined State Plan. expenditures from non-Federal sources costs associated with the construction of Program income— under the vocational rehabilitation a facility for community rehabilitation (i) Is considered earned in the fiscal services portion of the Unified or program purposes, the establishment of year in which it is received; and Combined State Plan for any previous a facility for community rehabilitation (ii) Must be disbursed during the fiscal year were less than the total of program purposes, or the acquisition of period of performance of the award, those expenditures for the fiscal year equipment. prior to requesting additional cash

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payments, in accordance with 2 CFR reserve at least 15 percent of the State’s 363.11 What are the vocational 200.305(b)(5). allotment, received in accordance with rehabilitation services portion of the (2) Payments provided to a State from section 110(a) of the Act for the Unified or Combined State Plan the Social Security Administration for provision of pre-employment transition supplement requirements? assisting Social Security beneficiaries services, as described at § 361.48(a) of Subpart C—How Are State Supported and recipients to achieve employment this part. Employment Services Programs Financed? outcomes may also be used to carry out (ii) The funds reserved in accordance 363.20 How does the Secretary allocate programs under part B of title I of the with paragraph (3)(i) of this section— funds? Act (client assistance), title VI of the Act (A) Must only be used for pre- 363.21 How does the Secretary reallocate (supported employment), and title VII of employment transition services funds? the Act (independent living). authorized in § 361.48(a); and: 363.22 How are funds reserved for youth (3) The State is authorized to treat (B) Must not be used to pay for with the most significant disabilities? program income using the deduction or administrative costs associated with the 363.23 What are the matching requirements? addition alternative in accordance with provision of such services or any other 363.24 What is program income and how 2 CFR 200.307(e)(1) and (2). vocational rehabilitation services. may it be used? (4) Program income cannot be used to (b) Reallotment. (1) The Secretary 363.25 What is the period of availability of meet the non-Federal share requirement determines not later than 45 days before funds? under § 361.60. the end of a fiscal year which States, if Subpart D—[Reserved] (Authority: Sections 12(c) and 108 of the any, will not use their full allotment. Rehabilitation Act of 1973, as amended; 29 (2) As soon as possible, but not later Subpart E—[Reserved] U.S.C. 709(c) and 728; 2 CFR part 200) than the end of the fiscal year, the Subpart F—What Post-Award Conditions Secretary reallots these funds to other Must Be Met by a State? § 361.64 Obligation of Federal funds. States that can use those additional (a) Except as provided in paragraph 363.50 What collaborative agreements must funds during the period of performance the State develop? (b) of this section, any Federal award of the award, provided the State can 363.51 What are the allowable funds, including reallotted funds, that meet the matching requirement by administrative costs? are appropriated for a fiscal year to carry obligating the non-Federal share of any 363.52 What are the information collection out a program under this part that are reallotted funds in the fiscal year for and reporting requirements? not obligated by the State by the which the funds were appropriated. 363.53 What requirements must a State beginning of the succeeding fiscal year (3) In the event more funds are meet before it provides for the transition remain available for obligation by the requested by agencies than are available, of an individual to extended services? State during that succeeding fiscal year. the Secretary will determine the process 363.54 When will an individual be considered to have achieved an (b) Federal funds appropriated for a for allocating funds available for fiscal year remain available for employment outcome in supported reallotment. employment? obligation in the succeeding fiscal year (4) Funds reallotted to another State 363.55 What notice requirements apply to only to the extent that the State met the are considered to be an increase in the this program? matching requirement for those Federal recipient State’s allotment for the fiscal funds by obligating, in accordance with Authority: Sections 602–608 of the year for which the funds were Rehabilitation Act of 1973, as amended; 29 34 CFR 76.707, the non-Federal share in appropriated. U.S.C. 795g–795m, unless otherwise noted. the fiscal year for which the funds were (Authority: Sections 12(c), 110 and 111 of the appropriated. Rehabilitation Act of 1973, as amended; 29 Subpart A—General (Authority: Section 19 of the Rehabilitation U.S.C. 709(c), 730, and 731) § 363.1 What is the State Supported Act of 1973, as amended; 29 U.S.C. 716) Subpart D—[Reserved] Employment Services Program? § 361.65 Allotment and payment of Federal (a) Under the State supported funds for vocational rehabilitation services. Subpart E—[Reserved] employment services program, the (a) Allotment. (1) The allotment of Secretary provides grants to assist States Federal funds for vocational Subpart F—[Reserved] in developing and implementing rehabilitation services for each State is collaborative programs with appropriate computed in accordance with the ■ 2. Part 363 is revised to read as entities to provide programs of requirements of section 110 of the Act, follows: supported employment services for and payments are made to the State on individuals with the most significant PART 363—THE STATE SUPPORTED a quarterly basis, unless some other disabilities, including youth with the EMPLOYMENT SERVICES PROGRAM period is established by the Secretary. most significant disabilities, to enable (2) If the vocational rehabilitation Subpart A—General them to achieve an employment services portion of the Unified or Sec. outcome of supported employment in Combined State Plan designates one 363.1 What is the State Supported competitive integrated employment. State agency to administer, or supervise Employment Services Program? Grants made under the State supported the administration of, the part of the 363.2 Who is eligible for an award? employment services program plan under which vocational 363.3 Who is eligible for services? supplement a State’s vocational rehabilitation services are provided for 363.4 What are the authorized activities rehabilitation program grants under 34 individuals who are blind and another under the State Supported Employment CFR part 361. State agency to administer the rest of the Services program? (b) For purposes of this part, plan, the division of the State’s 363.5 What regulations apply? ‘‘supported employment’’ means allotment is a matter for State 363.6 What definitions apply? competitive integrated employment, determination. Subpart B—How Does a State Apply for a including customized employment, or (3) Reservation for pre-employment Grant? employment in an integrated work transition services. (i) Pursuant to 363.10 What documents must a State setting in which individuals with the section 110(d) of the Act, the State must submit to receive a grant? most significant disabilities are working

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on a short-term basis toward satisfies the requirements of this § 363.5 What regulations apply? competitive integrated employment, section; and The following regulations apply to the that is individualized and customized (c) Supported employment has been State supported employment services consistent with the unique strengths, identified as the appropriate program: abilities, interests, and informed choice employment outcome for the individual (a) The Education Department General of the individuals with ongoing support on the basis of a comprehensive Administrative Regulations (EDGAR) as services for individuals with the most assessment of rehabilitation needs, as follows: significant disabilities— defined at 34 CFR 361.5(c)(5), including (1) 34 CFR part 76 (State- (1)(i) For whom competitive an evaluation of rehabilitation, career, Administered Programs). integrated employment has not and job needs. (2) 34 CFR part 77 (Definitions that historically occurred; or (Authority: Section 605 of the Rehabilitation Apply to Department Regulations). (ii) For whom competitive integrated Act of 1973, as amended; 29 U.S.C. 795j) (3) 34 CFR part 79 (Intergovernmental employment has been interrupted or Review of Department of Education intermittent as a result of a significant § 363.4 What are the authorized activities under the State Supported Employment Programs and Activities). disability; and (4) 34 CFR part 81 (General Education (2) Who, because of the nature and Services program? Provisions Act—Enforcement). severity of the disability, need intensive (a) The State may use funds allotted (5) 34 CFR part 82 (New Restrictions supported employment services, and under this part to— on Lobbying). extended services after the transition (1) Provide supported employment (b) The regulations in this part 363. from support provided by the services, as defined at 34 CFR (c) The following regulations in 34 designated State unit in order to 361.5(c)(54); CFR part 361 (The State Vocational perform the work. (2) Provide extended services, as Rehabilitation Services Program): (c) For purposes of this part, an defined at 34 CFR 361.5(c)(19), to youth §§ 361.5, 361.31, 361.32, 361.34, 361.35, individual with the most significant with the most significant disabilities, in 361.39, 361.40, 361.41, 361.42, disabilities, whose supported accordance with § 363.11(f), for a period 361.47(a), 361.48, 361.49, and 361.53. employment in an integrated setting of time not to exceed four years; and (d) 2 CFR part 200 (Uniform does not satisfy the criteria of (3) With funds reserved, in Administrative Requirements, Cost competitive integrated employment, as accordance with § 363.22 for the Principles, and Audit Requirements for defined at 34 CFR 361.5(c)(9), is provision of supported employment Federal Awards), as adopted in 2 CFR considered to be working on a short- services to youth with the most part 3474. term basis toward competitive significant disabilities, leverage other (e) 2 CFR part 180 (OMB Guidelines integrated employment so long as the public and private funds to increase to Agencies on Governmentwide individual can reasonably anticipate resources for extended services and Debarment and Suspension achieving competitive integrated expand supported employment (Nonprocurement)), as adopted in 2 CFR employment within six months of the opportunities. part 3485. individual entering supported (b) Except as provided in paragraph employment. (a)(2) of this section, a State may not use (Authority: Section 12(c) of the (Authority: Sections 7(38), 7(39), 12(c), and funds under this part to provide Rehabilitation Act of 1973, as amended; 29 602 of the Rehabilitation Act of 1973, as extended services to individuals with U.S.C. 709(c)) amended; 29 U.S.C., 705(38), 705(39), 709(c), the most significant disabilities. § 363.6 What definitions apply? and 795g) (c) Nothing in this part will be The following definitions apply to § 363.2 Who is eligible for an award? construed to prohibit a State from this part; providing— Any State that submits the (a) Definitions in 34 CFR part 361. documentation required by § 363.10, as (1) Supported employment services in (b) Definitions in 34 CFR part 77. part of the vocational rehabilitation accordance with the vocational (c) Definitions in 2 CFR part 200, services portion of the Unified or rehabilitation services portion of the subpart A. Unified or Combined State Plan Combined State Plan under 34 CFR part (Authority: Sections 7 and 12(c) of the 361, is eligible for an award under this submitted under 34 CFR part 361 by using funds made available through a Rehabilitation Act of 1973, as amended; 29 part. U.S.C. 705 and 709(c)) State allotment under that part. (Authority: Section 606(a) of the (2) Discrete postemployment services Subpart B—How Does a State Apply Rehabilitation Act of 1973, as amended; 29 in accordance with 34 CFR 361.48(b) by U.S.C. 795k(a)) for a Grant? using funds made available under 34 § 363.3 Who is eligible for services? CFR part 361 to an individual who is § 363.10 What documents must a State submit to receive a grant? A State may provide services under eligible under this part. this part to any individual, including a (d) A State must coordinate with the (a) To be eligible to receive a grant youth with a disability, if— entities described in § 363.50(a) under this part, a State must submit to (a) The individual has been regarding the services provided to the Secretary, as part of the vocational determined to be— individuals with the most significant rehabilitation services portion of the (1) Eligible for vocational disabilities, including youth with the Unified or Combined State Plan under rehabilitation services in accordance most significant disabilities, under this 34 CFR part 361, a State plan with 34 CFR 361.42; and part and under 34 CFR part 361 to supplement that meets the requirements (2) An individual with the most ensure that the services are of § 363.11. significant disabilities; complementary and not duplicative. (b) A State must submit revisions to (b) For purposes of activities carried (Authority: Sections 7(39), 12(c), 604, the vocational rehabilitation services out under § 363.4(a)(2) of this part, the 606(b)(6), and 608 of the Rehabilitation Act portion of the Unified or Combined individual is a youth with a disability, of 1973, as amended; 29 U.S.C. 705(39), State Plan supplement submitted under as defined at 34 CFR 361.5(c)(59), who 709(c), 795i, 795k(b)(6), and 795m) this part as may be necessary.

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(Authority: Section 606(a) of the (g) Assure that— (9) The designated State agency or Rehabilitation Act of 1973, as amended; 29 (1) Funds made available under this agencies will provide, directly or U.S.C. 795k(a)) part will only be used to provide indirectly through public or private § 363.11 What are the vocational authorized supported employment entities, non-Federal contributions in an rehabilitation services portion of the Unified services to individuals who are eligible amount that is not less than 10 percent or Combined State Plan supplement under this part to receive such services; of the costs of carrying out supported requirements? (2) The comprehensive assessments of employment services provided to youth Each State plan supplement, individuals with significant disabilities, with the most significant disabilities submitted in accordance with § 363.10, including youth with the most with the funds reserved for such must— significant disabilities, conducted under purpose under § 363.22; and (a) Designate a designated State unit 34 CFR part 361 will include (h) Contain any other information and or, as applicable, units, as defined in 34 consideration of supported employment be submitted in the form and in CFR 361.5(c)(13), as the State agency or as an appropriate employment outcome; accordance with the procedures that the agencies to administer the Supported (3) An individualized plan for Secretary may require. employment, as described at 34 CFR Employment program under this part; (Authority: Section 606 of the Rehabilitation (b) Summarize the results of the needs 361.45 and 361.46, will be developed Act of 1973, as amended; 29 U.S.C. 795k) assessment of individuals with most and updated, using funds received significant disabilities, including youth under 34 CFR part 361, in order to— Subpart C—How Are State Supported with the most significant disabilities, (i) Specify the supported employment Employment Services Programs conducted under 34 CFR 361.29(a), with services to be provided, including, as Financed? respect to the rehabilitation and career appropriate, transition services and pre- needs of individuals with most employment transition services to be § 363.20 How does the Secretary allocate significant disabilities and their need for provided for youth with the most funds? supported employment services. The significant disabilities; (a) States. The Secretary will allot the results of the needs assessment must (ii) Specify the expected extended sums appropriated for each fiscal year to also address needs relating to services needed, including the extended carry out the activities of this part coordination; services that may be provided under among the States on the basis of relative (c) Describe the quality, scope, and this part to youth with the most population of each State, except that— extent of supported employment significant disabilities in accordance (1) No State will receive less than services to be provided to eligible with an approved individualized plan $250,000, or 1/3 of 1 percent of the individuals with the most significant for employment for a period not to sums appropriated for the fiscal year for disabilities under this part, including exceed four years; and which the allotment is made, whichever youth with the most significant (iii) Identify, as appropriate, the amount is greater; and disabilities; source of extended services, which may (2) If the sums appropriated to carry (d) Describe the State’s goals and include natural supports, programs, or out this part for the fiscal year exceed plans with respect to the distribution of other entities, or an indication that it is the sums appropriated to carry out this funds received under § 363.20; not possible to identify the source of part (as in effect on September 30, 1992) (e) Demonstrate evidence of the extended services at the time the in fiscal year 1992 by $1,000,000 or designated State unit’s efforts to identify individualized plan for employment is more, no State will receive less than and make arrangements, including developed; $300,000, or 1/3 of 1 percent of the entering into cooperative agreements, (4) The State will use funds provided sums appropriated for the fiscal year for with— under this part only to supplement, and which the allotment is made, whichever (1) Other State agencies and other not supplant, the funds received under amount is greater. appropriate entities to assist in the 34 CFR part 361, in providing supported (b) Certain Territories. (1) For the provision of supported employment employment services specified in the purposes of this part, Guam, American services; and individualized plan for employment; Samoa, the United States Virgin Islands, (2) Other public or non-profit agencies (5) Services provided under an and the Commonwealth of the Northern or organizations within the State, individualized plan for employment Mariana Islands are not considered to be employers, natural supports, and other will be coordinated with services States. entities with respect to the provision of provided under other individualized (2) Each jurisdiction described in extended services; plans established under other Federal or paragraph (b)(1) of this section will be (f) Describe the activities to be State programs; allotted not less than 1/8 of 1 percent of conducted for youth with the most (6) To the extent job skills training is the amounts appropriated for the fiscal significant disabilities with the funds provided, the training will be provided year for which the allotment is made. reserved in accordance with § 363.22, onsite; (Authority: Section 603(a) of the including– (7) Supported employment services Rehabilitation Act of 1973, as amended; 29 (1) The provision of extended services will include placement in an integrated U.S.C. 795h(a)) to youth with the most significant setting based on the unique strengths, disabilities for a period not to exceed resources, interests, concerns, abilities, § 363.21 How does the Secretary four years, in accordance with and capabilities of individuals with the reallocate funds? § 363.4(a)(2); and most significant disabilities, including (a) Whenever the Secretary (2) How the State will use supported youth with the most significant determines that any amount of an employment funds reserved under disabilities; allotment to a State under § 363.20 for § 363.22 to leverage other public and (8) The designated State agency or any fiscal year will not be expended by private funds to increase resources for agencies, as described in paragraph (a) such State for carrying out the extended services and expand of this section, will expend no more provisions of this part, the Secretary supported employment opportunities than 2.5 percent of the State’s allotment will make such amount available for for youth with the most significant under this part for administrative costs carrying out the provisions of this part disabilities; of carrying out this program; and to one or more of the States that the

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Secretary determines will be able to use (b) Third-party in-kind contributions. § 363.25 What is the period of availability additional amounts during such year for Third-party in-kind contributions, as of funds? carrying out such provisions. described in 2 CFR 200.306(b), may not (a) Except as provided in paragraph (b) Any amount made available to a be used to meet the non-Federal share (b) of this section, any Federal award State for any fiscal year in accordance under this section. funds, including reallotted funds, that with paragraph (a) will be regarded as (c)(1) Contributions by private are appropriated for a fiscal year to carry an increase in the State’s allotment entities. Expenditures made from out a program under this part that are under this part for such year. contributions by private organizations, not obligated by the State by the (Authority: Section 603(b) of the agencies, or individuals that are beginning of the succeeding fiscal year, Rehabilitation Act of 1973, as amended; 29 deposited into the sole account of the and any program income received U.S.C. 795h(b)) State agency, in accordance with State during a fiscal year that is not obligated law may be used as part of the non- or expended by the State prior to the § 363.22 How are funds reserved for youth Federal share under this section, beginning of the succeeding fiscal year with the most significant disabilities? provided the expenditures under the in which the program income was A State that receives an allotment vocational rehabilitation services received, remain available for obligation under this part must reserve and expend portion of the Unified or Combined by the State during that succeeding 50 percent of such allotment for the State Plan supplement, as described in fiscal year. provision of supported employment § 363.11, do not benefit in any way the (b) Federal funds appropriated for a services, including extended services, to donor, an individual to whom the donor fiscal year and reserved for the youth with the most significant is related by blood or marriage or with provision of supported employment disabilities in order to assist those youth whom the donor shares a financial services to youth with the most in achieving an employment outcome in interest. significant disabilities, in accordance supported employment. (2) The Secretary does not consider a with § 363.22 of this part, remain (Authority: Sections 12(c) and 603(d) of the donor’s receipt from the State unit of a available for obligation in the Rehabilitation Act of 1973, as amended; 29 contract or subaward with funds succeeding fiscal year only to the extent U.S.C. 709(c) and 795h(d)) allotted under this part to be a benefit that the State met the matching requirement, as described at § 363.23, § 363.23 What are the matching for the purpose of this paragraph if the requirements? contract or subaward is awarded under for those Federal funds by obligating, in accordance with 34 CFR 76.707, the (a) Non-Federal Share. (1) For funds the State’s regular competitive procedures. non-Federal share in the fiscal year for allotted under § 363.20 and not reserved which the funds were appropriated. under § 363.22 for the provision of (Authority: Sections 12(c) and 606(b)(7)(I) of supported employment services to the Rehabilitation Act of 1973, as amended; (Authority: Sections 12(c) and 19 of the youth with the most significant 29 U.S.C. 709(c) and 795k(b)(7)(I)) Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 716) disabilities, there is no non-Federal § 363.24 What is program income and how share requirement. may it be used? Subpart D—[Reserved] (2)(i) For funds allotted under (a) Definition. (1) Program income § 363.20 and reserved under § 363.22 for Subpart E—[Reserved] the provision of supported employment means gross income earned by the State services to youth with the most that is directly generated by authorized activities supported under this part. Subpart F—What Post-Award significant disabilities, a designated Conditions Must Be Met by a State? State agency must provide non-Federal (2) Program income received through expenditures in an amount that is not the transfer of Social Security § 363.50 What collaborative agreements less than 10 percent of the total Administration payments from the State must the State develop? expenditures made with the reserved Vocational Rehabilitation Services (a) A designated State unit must enter funds for the provision of supported program, in accordance with 34 CFR into one or more written collaborative employment services to youth with the 361.63(c)(2), will be treated as program agreements, memoranda of most significant disabilities, including income received under this part. understanding, or other appropriate extended services. (b) Use of program income. (1) mechanisms with other public agencies, (ii) In the event that a designated State Program income must be used for the private nonprofit organizations, and agency uses more than 50 percent of its provision of services authorized under other available funding sources, allotment under this part to provide § 363.4. Program income earned or including employers and other natural supported employment services to received during the fiscal year must be supports, as appropriate, to assist with youth with the most significant disbursed during the period of the provision of supported employment disabilities as required by § 363.22, performance of the award, prior to services and extended services to there is no requirement that a requesting additional cash payments in individuals with the most significant designated State agency provide non- accordance with 2 CFR 200.305(b)(5). disabilities in the State, including youth Federal expenditures to match the (2) States are authorized to treat with the most significant disabilities, to excess Federal funds spent for this program income as— enable them to achieve an employment purpose. (i) A deduction from total allowable outcome of supported employment in (2) Except as provided under costs charged to a Federal grant, in competitive integrated employment. paragraphs (b) and (c) of this section, accordance with 2 CFR 200.307(e)(1); or (b) These agreements provide the non-Federal expenditures made under (ii) An addition to the grant funds to mechanism for collaboration at the State the vocational rehabilitation services be used for additional allowable level that is necessary to ensure the portion of the Unified or Combined program expenditures, in accordance smooth transition from supported State Plan supplement to meet the non- with 2 CFR 200.307(e)(2). employment services to extended Federal share requirement under this (Authority: Sections 12(c) and 108 of the services, the transition of which is section must be consistent with the Rehabilitation Act of 1973, as amended; 29 inherent to the definition of ‘‘supported provision of 2 CFR 200.306. U.S.C. 709(c) and 728) employment’’ in § 363.1(b). To that end,

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the agreement may contain information (Authority: Sections 13 and 607 of the individuals with the most significant regarding the— Rehabilitation Act of 1973, as amended; 29 disabilities; U.S.C. 710 and 795l) (1) Supported employment services to (b) Satisfies requirements for case be provided, for a period not to exceed § 363.53 What requirements must a State closure, as set forth in 34 CFR 361.56; 24 months, by the designated State unit meet before it provides for the transition of and with funds received under this part. an individual to extended services? (2) Extended services to be provided (c) Satisfies the requirement at A designated State unit must provide § 363.1(c) if the individual’s supported to youth with the most significant for the transition of an individual with disabilities, for a period not to exceed employment is in an integrated setting, the most significant disabilities, but is not in competitive integrated four years, by the designated State unit including youth with the most with the funds reserved under § 363.22 employment, as defined in 34 CFR significant disabilities, to extended 361.5(c)(9). of this part; services no later than 24 months after (3) Extended services to be provided the individual enters supported (Authority: Sections 7(38), 7(39), 12(c), and 602 of the Rehabilitation Act of 1973, as by other public agencies, private employment, unless a longer period is nonprofit organizations, or other amended; 29 U.S.C. 705(38), 705(39), 709(c), established in the individualized plan and 795g) sources, including employers and other for employment. Before assisting the natural supports, following the individual in transitioning from § 363.55 What notice requirements apply provision of authorized supported supported employment services to to this program? employment services, or extended extended services, the designated State Each grantee must advise applicants services as appropriate for youth with unit must ensure— the most significant disabilities, under for or recipients of services under this (a) The supported employment is— this part; and part, or as appropriate, the parents, (1) In competitive integrated (4) Collaborative efforts that will be family members, guardians, advocates, employment, including customized undertaken by all relevant entities to or authorized representatives of those employment; or increase opportunities for competitive individuals, including youth with the integrated employment in the State for (2) In an integrated work setting in most significant disabilities, of the individuals with the most significant which individuals are working on a availability and purposes of the Client disabilities, especially youth with the short-term basis, as described in Assistance Program, including most significant disabilities. § 363.1(c), toward competitive information on seeking assistance from integrated employment; that program. (Authority: Sections 7(38), 7(39), 12(c), 602, (3) Individualized and customized (Authority: Section 20 of the Rehabilitation and 606(b) of the Rehabilitation Act of 1973, consistent with the strengths, abilities, as amended; 29 U.S.C. 705(38), 705(39), Act of 1973, as amended; 29 U.S.C. 717) 709(c), 795g, and 795k(b)) interests, and informed choice of the individual; and ■ 3. Part 397 is added to read as follows: § 363.51 What are the allowable (b) The source of extended services administrative costs? PART 397—LIMITATIONS ON USE OF for the individual has been identified so SUBMINIMUM WAGE (a) A State may use funds under this there will be no interruption of services. part to pay for expenditures incurred in (Authority: Sections 7(13), 7(38), 7(39), 12(c), Subpart A—General Provisions the administration of activities carried 602, and 606(b) of the Rehabilitation Act of Sec. out under this part, consistent with the 1973, as amended; 29 U.S.C. 705(13), 397.1 Purpose. definition of administrative costs in 34 705(38), 705(39), 709(c), 795g, and 795k(b)) 397.2 What is the Department of CFR 361.5(c)(2). Education’s jurisdiction under this part? (b) A designated State agency may not § 363.54 When will an individual be 397.3 What rules of construction apply to considered to have achieved an expend more than 2.5 percent of a this part? employment outcome in supported 397.4 What regulations apply? State’s allotment under this part for employment? administrative costs for carrying out the 397.5 What definitions apply? State supported employment program. An individual with the most Subpart B—Coordinated Documentation significant disabilities, including a Procedures Related To Youth With (Authority: Sections 7(1), 12(c), and 603(c) of youth with the most significant Disabilities the Rehabilitation Act of 1973, as amended; disabilities, who is receiving services 29 U.S.C. 705(1), 709(c), and 795h(c)) 397.10 What documentation process must under this part will be determined to the designated State unit develop? § 363.52 What are the information have achieved an employment outcome collection and reporting requirements? of supported employment if the Subpart C—Designated State Unit individual— Responsibilities Prior To Youth With Each State agency designated in Disabilities Starting Subminimum Wage § 363.11(a) of this part must collect and (a) Maintains supported employment Employment report separately the information for at least 90 days after the individual has— 397.20 What are the responsibilities of a required under 34 CFR 361.40 for— designated State unit to youth with (a) Eligible individuals receiving (1) Completed all supported disabilities who are known to be supported employment services under employment services provided under considering subminimum wage this part; this part, as well as any other services employment? listed on the individualized plan for (b) Eligible individuals receiving Subpart D—Local Educational Agency supported employment services under employment and provided under 34 Responsibilities Prior To Youth With 34 CFR part 361; CFR part 361; and Disabilities Starting Subminimum Wage (c) Eligible youth receiving supported (2) Begun extended services provided Employment employment services and extended by either the designated State unit, in 397.30 What are the responsibilities of a services under this part; and the case of a youth with a most local educational agency to youth with (d) Eligible youth receiving supported significant disabilities receiving services disabilities who are known to be employment services under 34 CFR part with the funds reserved under § 363.22, considering subminimum wage 361 and extended services. or another provider for all other employment?

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397.31 Are there any contracting (d) The provisions in this part work program, especially those regarding limitations on educational agencies in concert with requirements in 34 CFR eligibility determinations § 361.42; under this part? part 300, 361, and 363, and do not alter individualized plans for employment Subpart E—Designated State Unit any requirements under those parts. § 361.45 and § 361.46; provision of Responsibilities To Individuals With (Authority: Sections 12(c) and 511 of the vocational rehabilitation services, Disabilities During Subminimum Wage Rehabilitation Act of 1973, as amended; 29 including pre-employment transition Employment U.S.C. 709(c) and 794g) services, transition services, and 397.40 What are the responsibilities of a supported employment services designated State unit for individuals § 397.2 What is the Department of § 361.48; ineligibility determinations Education’s jurisdiction under this part? with disabilities, regardless of age, who § 361.43; and case closures § 361.56. are employed at subminimum wage? (a) The Department of Education has (c) The regulations at 29 CFR part 525 jurisdiction under this part to Subpart F—Review Of Documentation governing the employment of Process implement guidelines for— individuals with disabilities at (1) Documentation requirements subminimum wage rates pursuant to a 397.50 What is the role of the designated imposed on designated State units and certificate issued by the Secretary of the State unit in the review of local educational agencies; documentation process under this part? (2) Requirements related to the Department of Labor. Authority: Section 511 of the services that designated State units must (d) The regulations in this part 387. Rehabilitation Act of 1973, as amended; 29 provide to individuals regardless of age (Authority: Sections 12(c), 102(a) and (b), U.S.C. 794g, unless otherwise noted. who are employed at the subminimum 103(a), and 113 of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 722(a) Subpart A—General Provisions wage level; and (3) Requirements under § 397.31 of and (b), 723(a), and 733; sections 601(34) and this part. 614(d)(1)(A)(i)(VIII) of the Individuals with § 397.1 Purpose. Disabilities Education Act (20 U.S.C. (b) Nothing in this part will be (a) The purpose of this part is to set 1401(34) and 1414(d)); and section 14(c) of construed to grant to the Department of forth requirements the designated State the Fair Labor Standards Act (29 U.S.C. Education, or its grantees, jurisdiction units and State and local educational 214(c)) over requirements set forth in the Fair agencies must satisfy to ensure that Labor Standards Act, including those § 397.5 What definitions apply? individuals with disabilities, especially imposed on entities holding special (a) The following terms have the youth with disabilities, have a wage certificates under section 14(c) of meanings given to them in 34 CFR meaningful opportunity to prepare for, that Act, which is administered by the § 361.5(c): obtain, maintain, advance in, or regain Department of Labor. (1) Act; competitive integrated employment, (2) Competitive integrated including supported or customized (Authority: Sections 12(c), 511(b)(3), and employment; employment. 511(c) and (d) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), (3) Customized employment; (b) This part requires— 794g(b)(3), 794g(c), and 794g(d)) (4) Designated State unit; (1) A designated State unit to provide (5) Extended services; youth with disabilities documentation § 397.3 What rules of construction apply to this part? (6) Individual with a disability; demonstrating that they have completed (7) Individual with a most significant certain requirements, as described in Nothing in this part will be construed disability; this part, prior to starting subminimum to— (8) Individual’s representative; (a) Change the purpose of the wage employment with entities holding (9) Individualized plan for Rehabilitation Act, which is to empower special wage certificates under section employment; individuals with disabilities to 14(c) of the Fair Labor Standards Act of (10) Pre-employment transition maximize opportunities for achieving 1938 (29 U.S.C. 214(c)), as defined in services; competitive integrated employment; 397.5(d); (11) Student with a disability; (2) A designated State unit to provide, (b) Promote subminimum wage employment as a vocational (12) Supported employment; at certain prescribed intervals, career (13) Vocational rehabilitation counseling and information and referral rehabilitation strategy or employment outcome, as defined in 34 CFR services; and services, designed to promote (14) Youth with a disability. opportunities for competitive integrated 361.5(c)(15); and (c) Affect the provisions of the Fair (b) The following terms have the employment, to individuals with Labor Standards Act, as amended before meanings given to them in 34 CFR part disabilities, regardless of age, who are or after July 22, 2014. 300: known to be employed at a (1) Local educational agency subminimum wage level for the (Authority: Sections 12(c) and 511(b) of the (§ 300.28); duration of such employment; and Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 794g(b)) (2) State educational agency (3) A designated State unit, in (§ 300.41); and consultation with the State educational § 397.4 What regulations apply? (3) Transition services (§ 300.43). agency, to develop a, or utilize an (a) The regulations in 34 CFR part 300 (c) The following terms have the existing, process to document governing the definition of transition meaning given to them in 29 CFR 525.3 completion of required activities under services, and the Individualized and section 6(a)(1) of the Fair Labor this part by a youth with a disability. Education Program requirements related Standards Act (29 U.S.C. 206(a)(1)): (c) The provisions in this part to the development of postsecondary (1) Federal minimum wage has the authorize a designated State unit, or a goals and the transition services needed meaning given to that term in section representative of a designated State unit, to assist the eligible child in reaching 6(a)(1) of the Fair Labor Standards Act to engage in the review of individual those goals (§§ 300.320(b), 300.321(b), (29 U.S.C. 206(a)(1)); and documentation required to be 300.324(c), and 300.43). (2) Special wage certificate means a maintained by these entities under this (b) The regulations at 34 CFR part 361 certificate issued to an employer under part. governing the vocational rehabilitation section 14(c) of the Fair Labor Standards

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Act (29 U.S.C. 214(c)) and 29 CFR part (2) Documentation required by this (ii) The career counseling and 525 that authorizes payment of part to a youth as soon as possible upon information and referral services subminimum wages, wages less than the the completion of each of the required provided in accordance with paragraph statutory minimum wage, to workers actions, but no later than 90 days after (a)(3)(i) of this section must— with disabilities for the work being completion of each of the required (A) Be provided in a manner that performed. actions in § 397.20 and § 397.30. facilitates informed choice and (d) For purposes of this part, entity (Authority: Sections 12(c) and 511(d) of the decision-making by the youth, or the means an employer, or a contractor or Rehabilitation Act of 1973, as amended; 29 youth’s representative as appropriate; subcontractor of that employer, that U.S.C. 709(c) and 794g(d)) and holds a special wage certificate (B) Not be for subminimum wage described in section 14(c) of the Fair Subpart C—Designated State Unit employment by an entity defined in Labor Standards Act (29 U.S.C. 214(c)). Responsibilities Prior To Youth With § 397.5(d), and such employment- (Authority: Sections 7, 12(c), and 511(a) and Disabilities Starting Subminimum related services are not compensated at (f) of the Rehabilitation Act of 1973, as Wage Employment a subminimum wage and do not directly amended; 29 U.S.C. 705, 709(c), and 794g(a) result in employment compensated at a § 397.20 What are the responsibilities of a and (f); sections 601 and 614(d) of the designated State unit to youth with subminimum wage provided by such an Individuals with Disabilities Education Act, disabilities who are known to be entity. 20 U.S.C. 1401 and 1414(d); section 901 of considering subminimum wage (b) The following special the Elementary and Secondary Education Act employment? requirements apply— of 1965, 20 U.S.C. 7801; and sections 6(a)(1) (1) For purposes of this part, all and 14(c) of the Fair Labor Standards Act, 29 (a) A designated State unit must U.S.C. 206(a)(1) and 29 U.S.C. 214(c)) provide youth with disabilities documentation provided by a documentation upon the completion of designated State unit must satisfy the Subpart B—Coordinated the following actions: requirements for such documentation Documentation Procedures Related to (1) Pre-employment transition under 34 CFR part 361. Youth With Disabilities services that are available to the (2) The individualized plan for individual under § 34 CFR 361.48; and employment, required in paragraph § 397.10 What documentation process (a)(3)(i) of this section, must include a must the designated State unit develop? (2) Application for vocational rehabilitation services, in accordance specific employment goal consistent (a) The designated State unit, in with 34 CFR § 361.41(b), with the result with competitive integrated consultation with the State educational that the individual was determined— employment, including supported or agency, must develop a new process, or (i) Ineligible for vocational customized employment. utilize an existing process, to document rehabilitation services, in accordance (3)(i) For purposes of paragraph the completion of the actions described with 34 CFR § 361.43; or (a)(2)(ii)(B) of this section, a in § 397.20 and § 397.30 by a youth with (ii) Eligible for vocational determination as to what constitutes a disability. ‘‘reasonable period of time’’ must be (b) The documentation process must rehabilitation services, in accordance with 34 CFR § 361.42; and consistent with the disability-related ensure that— and vocational needs of the individual, (1) A designated State unit provides a (A) The youth with a disability had an approved individualized plan for as well as the anticipated length of time youth with a disability documentation required to complete the services of completion of appropriate pre- employment, in accordance with 34 CFR 361.46; identified in the individualized plan for employment transition services, in employment. accordance with § 361.48(a) and as (B) The youth with a disability was unable to achieve the employment (ii) For an individual whose specified required by § 397.20(a)(1); employment goal is in supported (2) In the case of a student with a outcome specified in the individualized employment, such reasonable period of disability, for actions described in plan for employment, as described in 34 time is up to 24 months, unless under § 397.30— CFR 361.5(c)(15) and 361.46, despite (i) The designated State unit will working toward the employment special circumstances the individual receive from the appropriate school outcome with reasonable and the rehabilitation counselor jointly official, responsible for the provision of accommodations and appropriate agree to extend the time to achieve the transition services, documentation of supports and services, including employment outcome identified in the completion of appropriate transition supported employment services and individualized plan for employment. services under the Individuals with customized employment services, for a (Authority: Sections 7(5), 7(39), 12(c), 102(a) Disabilities Education Act, including reasonable period of time; and and (b), 103(a), 113, and 511(a) and (d) of the those provided under section (C) The youth with a disability’s case Rehabilitation Act of 1973, as amended; 29 614(d)(1)(A)(i)(VIII) (20 U.S.C. record, which meets all of the U.S.C. 705(5), 705(39), 709(c), 722(a) and (b), 723(a), 733, and 794g(a) and (d)) 1414(d)(1)(A)(i)(VIII)); requirements of 34 CFR 361.47, is closed. (ii) The designated State unit must Subpart D—Local Educational Agency (3)(i) Regardless of the determination provide documentation of completion of Responsibilities Prior To Youth With made under paragraph (a)(2) of this the transition services, as documented Disabilities Starting Subminimum section, the youth with a disability has and provided by the appropriate school Wage Employment official in accordance with paragraph received career counseling, and (b)(2) of this section, to the youth with information and referrals to Federal and § 397.30 What are the responsibilities of a a disability. State programs and other resources in local educational agency to youth with (c) The designated State unit must the individual’s geographic area that disabilities who are known to be seeking provide— offer employment-related services and subminimum wage employment? (1) Documentation required by this supports designed to enable the Of the documentation to demonstrate part in a form and manner consistent individual to explore, discover, a youth with a disability’s completion of with this part and in an accessible experience, and attain competitive the actions described in § 397.20(a) of format for the youth; and integrated employment. this part, a local educational agency, as

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defined in § 397.5(b)(1), can provide the of age, or the individual’s representative out once every six months for the first youth with documentation that the as appropriate, who are known by the year of the individual’s subminimum youth has received transition services designated State unit to be employed by wage employment and annually under the Individuals with Disabilities an entity, as defined in § 397.5(d), at a thereafter for the duration of such Education Act (20 U.S.C. 1400 et seq.), subminimum wage level. employment. such as transition services available to (2) A designated State unit may know (d) Documentation. The designated the individual under section 614(d) of the identification of individuals with State unit must provide timely that act (20 U.S.C. 1414(d)). disabilities described in this paragraph documentation to the individual upon (Authority: Sections 511(a)(2)(A) and 511(d) through the vocational rehabilitation completion of the activities required of the Rehabilitation Act of 1973, as process or by referral from the client under this section. amended; 29 U.S.C. 794g(a)(2)(A) and (d)) assistance program, another agency, or (e) Provision of services. Nothing in an entity, as defined in § 397.5(d). § 397.31 Are there any contracting (3) The career counseling and this section will be construed as limitations on educational agencies under information and referral services must requiring a designated State unit to this part? be provided in a manner that– provide the services required by this Neither a local educational agency, as (i) Is understandable to the individual section directly. A designated State unit defined in § 397.5(b)(1), nor a State with a disability; and may contract with other entities, i.e., educational agency, as defined in (ii) Facilitates independent decision- other public and private service § 397.5(b)(2), may enter into a contract making and informed choice as the providers, as appropriate, to fulfill the or other arrangement with an entity, as individual makes decisions regarding requirements of this section. defined in § 397.5(d), for the purpose of opportunities for competitive integrated (Authority: Sections 12(c) and 511(c) of the operating a program under which a employment and career advancement, Rehabilitation Act of 1973, as amended; 29 youth with a disability is engaged in particularly with respect to supported U.S.C. 709(c) and 794g(c)) subminimum wage employment. employment, including customized Subpart F–Review of Documentation (Authority: Section 511(b)(2) of the employment. Rehabilitation Act of 1973, as amended; 29 (b) Other services. (1) Upon a referral Process U.S.C. 794g(b)(2)) by an entity, as defined in 397.5(d), that § 397.50 What is the role of the designated has fewer than 15 employees, of an Subpart E—Designated State Unit State unit in the review of documentation individual with a disability who is process under this part? Responsibilities to Individuals With employed at a subminimum wage by Disabilities During Subminimum Wage The designated State unit, or a that entity, a designated State unit must Employment contractor working directly for the also inform the individual of self- designated State unit is authorized to § 397.40 What are the responsibilities of a advocacy, self-determination, and peer engage in the review of individual designated State unit for individuals with mentoring training opportunities documentation required under this part disabilities, regardless of age, who are available in the community. that is maintained by entities, as defined employed at a subminimum wage? (2) The services described in at 397.5(d), under this part. (a) Counseling and information paragraph (c)(1) of this section must be services. (1) A designated State unit provided by an entity that does not have (Authority: Section 511(e) of the must provide career counseling, and a financial interest in the individual’s Rehabilitation Act of 1973, as amended; 29 information and referral services, as employment outcome. U.S.C. 794g(e)) described in § 397.20(a)(4) to (c) Required intervals. The services [FR Doc. 2015–05538 Filed 4–2–15; 4:15 pm] individuals with disabilities, regardless required by this section must be carried BILLING CODE 4000–01–P

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