282 Part 361—State Vocational Re- Habilitation

Pt. 361 34 CFR Ch. III (7–1–18 Edition)

PART 361—STATE VOCATIONAL RE- 361.37 Information and referral programs. 361.38 Protection, use, and release of per- HABILITATION SERVICES PRO- sonal information. GRAM 361.39 State-imposed requirements. 361.40 Reports; Evaluation standards and Subpart A—General performance indicators.

Sec. PROVISION AND SCOPE OF SERVICES 361.1 Purpose. 361.41 Processing referrals and applications. 361.2 Eligibility for a grant. 361.3 Authorized activities. 361.42 Assessment for determining eligi- 361.4 Applicable regulations. bility and priority for services. 361.5 Applicable definitions. 361.43 Procedures for ineligibility determination. Subpart B—State Plan and Other Require- 361.44 Closure without eligibility deter- ments for Vocational Rehabilitation mination. 361.45 Development of the individualized Services plan for employment. 361.10 Submission, approval, and dis- 361.46 Content of the individualized plan for approval of the State plan. employment. 361.11 Withholding of funds. 361.47 Record of services. 361.48 Scope of vocational rehabilitation ADMINISTRATION services for individuals with disabilities. 361.12 Methods of administration. 361.49 Scope of vocational rehabilitation 361.13 State agency for administration. services for groups of individuals with 361.14 Substitute State agency. disabilities. 361.15 Local administration. 361.50 Written policies governing the provi- 361.16 Establishment of an independent sion of services for individuals with dis- commission or a State Rehabilitation abilities. Council. 361.51 Standards for facilities and providers 361.17 Requirements for a State Rehabilita- of services. tion Council. 361.52 Informed choice. 361.18 Comprehensive system of personnel 361.53 Comparable services and benefits. development. 361.54 Participation of individuals in cost of 361.19 Affirmative action for individuals services based on financial need. with disabilities. 361.55 Semi-annual and annual review of in- 361.20 Public participation requirements. dividuals in extended employment and 361.21 Consultations regarding the adminis- other employment under special certifi- tration of the vocational rehabilitation cate provisions of the Fair Labor Stand- services portion of the Unified or Com- ards Act. bined State Plan. 361.56 Requirements for closing the record 361.22 Coordination with education officials. of services of an individual who has 361.23 Requirements related to the state- achieved an employment outcome. wide workforce development system. 361.57 Review of determinations made by 361.24 Cooperation and coordination with designated State unit personnel. other entities. 361.25 Statewideness. Subpart C—Financing of State Vocational 361.26 Waiver of statewideness. Rehabilitation Programs 361.27 Shared funding and administration of joint programs. 361.60 Matching requirements. 361.28 Third-party cooperative arrange- 361.61 Limitation on use of funds for con- ments involving funds from other public struction expenditures. agencies. 361.62 Maintenance of effort requirements. 361.29 Statewide assessment; annual esti- 361.63 Program income. mates; annual State goals and priorities; 361.64 Obligation of Federal funds. strategies; and progress reports. 361.65 Allotment and payment of Federal 361.30 Services to American Indians. funds for vocational rehabilitation serv- 361.31 Cooperative agreements with private ices. nonprofit organizations. 361.32 Provision of training and services for Subpart D—Unified and Combined State employers. Plans Under Title I of the Workforce In- 361.33 [Reserved] novation and Opportunity Act 361.34 Supported employment State plan supplement. 361.100 What are the purposes of the Unified 361.35 Innovation and expansion activities. and Combined State Plans? 361.36 Ability to serve all eligible individ- 361.105 What are the general requirements uals; order of selection for services. for the Unified State Plan?

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361.110 What are the program-specific re- 361.195 What should States expect when a quirements in the Unified State Plan for sanction is applied to the Governor’s Re- the adult, dislocated worker, and youth serve Allotment? programs authorized under Workforce In- 361.200 What other administrative actions novation and Opportunity Act title I? will be applied to States’ performance re- 361.115 What are the program-specific requirements? quirements in the Unified State Plan for 361.205 What performance indicators apply the Adult Education and Family Lit- to local areas and what information eracy Act program authorized under must be included in local area perform- Workforce Innovation and Opportunity ance reports? Act title II? 361.210 How are local performance levels es- 361.120 What are the program-specific re- tablished? quirements in the Unified State Plan for 361.215 Under what circumstances are local the Employment Service program au- areas eligible for State Incentive Grants? thorized under the Wagner-Peyser Act, 361.220 Under what circumstances may a as amended by Workforce Innovation and corrective action or sanction be applied Opportunity Act title III? to local areas for poor performance? 361.225 Under what circumstances may local 361.125 What are the program-specific re- areas appeal a reorganization plan? quirements in the Unified State Plan for 361.230 What information is required for the the State Vocational Rehabilitation pro- eligible training provider performance gram authorized under title I of the Re- reports? habilitation Act of 1973, as amended by 361.235 What are the reporting requirements Workforce Innovation and Opportunity for individual records for core Workforce Act title IV? Innovation and Opportunity Act (WIOA) 361.130 What is the development, submis- title I programs; the Wagner-Peyser Act sion, and approval process of the Unified Employment Service program, as amend- State Plan? ed by WIOA title III; and the Vocational 361.135 What are the requirements for modi- Rehabilitation program authorized under fication of the Unified State Plan? title I of the Rehabilitation Act of 1973, 361.140 What are the general requirements as amended by WIOA title IV? for submitting a Combined State Plan? 361.240 What are the requirements for data 361.143 What is the development, submis- validation of State annual performance sion, and approval process of the Com- reports? bined State Plan? 361.145 What are the requirements for modi- Subpart F—Description of the One-Stop fications of the Combined State Plan? Delivery System Under Title I of the Workforce Innovation and Opportunity Subpart E—Performance Accountability Act Under Title I of the Workforce Innova- tion and Opportunity Act 361.300 What is the one-stop delivery system? 361.150 What definitions apply to Workforce 361.305 What is a comprehensive one-stop Innovation and Opportunity Act per- center and what must be provided there? formance accountability provisions? 361.310 What is an affiliated site and what 361.155 What are the primary indicators of must be provided there? performance under the Workforce Inno- 361.315 Can a stand-alone Wagner-Peyser vation and Opportunity Act? Act Employment Service office be des- 361.160 What information is required for ignated as an affiliated one-stop site? State performance reports? 361.320 Are there any requirements for net- 361.165 May a State establish additional in- works of eligible one-stop partners or dicators of performance? specialized centers? 361.170 How are State levels of performance 361.400 Who are the required one-stop part- for primary indicators established? ners? 361.405 Is Temporary Assistance for Needy 361.175 What responsibility do States have Families a required one-stop partner? to use quarterly wage record information 361.410 What other entities may serve as for performance accountability? one-stop partners? 361.180 When is a State subject to a finan- 361.415 What entity serves as the one-stop cial sanction under the Workforce Inno- partner for a particular program in the vation and Opportunity Act? local area? 361.185 When are sanctions applied for a 361.420 What are the roles and responsibil- State’s failure to submit an annual per- ities of the required one-stop partners? formance report? 361.425 What are the applicable career serv- 361.190 When are sanctions applied for fail- ices that must be provided through the ure to achieve adjusted levels of perform- one-stop delivery system by required ance? one-stop partners? 361.430 What are career services? 283

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361.435 What are the business services pro- 361.737 How are one-stop partner programs’ vided through the one-stop delivery sys- proportionate shares of infrastructure tem, and how are they provided? costs determined under the State one- 361.440 When may a fee be charged for the stop infrastructure funding mechanism? business services in this subpart? 361.738 How are statewide caps on the con- 361.500 What is the Memorandum of Under- tributions for one-stop infrastructure standing for the one-stop delivery system funding determined in the State one-stop and what must be included in the Memo- infrastructure funding mechanism? randum of Understanding? 361.740 What funds are used to pay for infra- 361.505 Is there a single Memorandum of Un- structure costs in the State one-stop in- derstanding for the local area, or must frastructure funding mechanism? there be different Memoranda of Under- 361.745 What factors does the State Work- standing between the Local Workforce force Development Board use to develop Development Board and each partner? the formula described in Workforce Inno- 361.510 How must the Memorandum of Un- vation and Opportunity Act, which is derstanding be negotiated? used by the Governor to determine the 361.600 Who may operate one-stop centers? appropriate one-stop infrastructure 361.605 How is the one-stop operator se- budget for each local area operating lected? under the State infrastructure funding 361.610 When is the sole-source selection of mechanism, if no reasonably one-stop operators appropriate, and how implementable locally negotiated budget is it conducted? exists? 361.615 May an entity currently serving as 361.750 When and how can a one-stop part- one-stop operator compete to be a one- ner appeal a one-stop infrastructure stop operator under the procurement re- amount designated by the State under quirements of this subpart? the State infrastructure funding mecha- 361.620 What is the one-stop operator’s role? nism? 361.625 Can a one-stop operator also be a 361.755 What are the required elements re- service provider? garding infrastructure funding that must 361.630 Can State merit staff still work in a be included in the one-stop Memorandum one-stop center where the operator is not of Understanding? a governmental entity? 361.760 How do one-stop partners jointly 361.635 What is the compliance date of the fund other shared costs under the Memo- provisions of this subpart? randum of Understanding? 361.700 What are the one-stop infrastructure 361.800 How are one-stop centers and one- costs? stop delivery systems certified for effec- 361.705 What guidance must the Governor tiveness, physical and programmatic ac- issue regarding one-stop infrastructure cessibility, and continuous improve- funding? ment? 361.710 How are infrastructure costs funded? 361.900 What is the common identifier to be 361.715 How are one-stop infrastructure used by each one-stop delivery system? costs funded in the local funding mechanism? AUTHORITY: Section 12(c) of the Rehabilita- 361.720 What funds are used to pay for infra- tion Act of 1973, as amended; 29 U.S.C. 709(c); structure costs in the local one-stop in- Pub. L. 111–256, 124 Stat. 2643; unless other- frastructure funding mechanism? wise noted. 361.725 What happens if consensus on infra- SOURCE: 81 FR 55741, Aug. 19, 2016, unless structure funding is not reached at the otherwise noted. local level between the Local Workforce Development Board, chief elected officials, and one-stop partners? Subpart A—General 361.730 What is the State one-stop infrastructure funding mechanism? § 361.1 Purpose. 361.731 What are the steps to determine the amount to be paid under the State one- Under the State Vocational Rehabili- stop infrastructure funding mechanism? tation Services Program, the Secretary 361.735 How are infrastructure cost budgets provides grants to assist States in op- for the one-stop centers in a local area erating statewide comprehensive, co- determined in the State one-stop infra- ordinated, effective, efficient, and ac- structure funding mechanism? countable vocational rehabilitation 361.736 How does the Governor establish a programs, each of which is— cost allocation methodology used to determine the one-stop partner programs’ (a) An integral part of a statewide proportionate shares of infrastructure workforce development system; and costs under the State one-stop infra- (b) Designed to assess, plan, develop, structure funding mechanism? and provide vocational rehabilitation

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services for individuals with disabil- (c) 2 CFR part 190 (OMB Guidelines to ities, consistent with their unique Agencies on Governmentwide Debar- strengths, resources, priorities, con- ment and Suspension (Nonprocure- cerns, abilities, capabilities, interests, ment)) as adopted in 2 CFR part 3485. and informed choice so that they may (d) 2 CFR part 200 (Uniform Adminis- prepare for and engage in competitive trative Requirements, Cost Principles, integrated employment and achieve and Audit Requirements for Federal economic self-sufficiency. Awards) as adopted in 2 CFR part 3474, (Authority: Sections 12(c) and 100(a) of the except the requirements to accept Rehabilitation Act of 1973, as amended; 29 third-party in-kind contributions to U.S.C. 709(c) and 720(a)) meet cost-sharing or matching requirements, as otherwise authorized under 2 § 361.2 Eligibility for a grant. CFR 200.306(b). Any State that submits to the Sec- (Authority: Section 12(c) of the Rehabilita- retary a vocational rehabilitation serv- tion Act of 1973, as amended; 29 U.S.C. 709(c)) ices portion of the Unified or Combined State Plan that meets the require- § 361.5 Applicable definitions. ments of section 101(a) of the Act and The following definitions apply to this part is eligible for a grant under this part: this program. (a) Definitions in EDGAR 77.1. (Authority: Section 101(a) of the Rehabilita- (b) Definitions in 2 CFR part 200, sub- tion Act of 1973, as amended; 29 U.S.C. 721(a)) part A. (c) The following definitions: § 361.3 Authorized activities. (1) Act means the Rehabilitation Act The Secretary makes payments to a of 1973, as amended (29 U.S.C. 701 et State to assist in— seq.). (a) The costs of providing vocational (2) Administrative costs under the voca- rehabilitation services under the vocational rehabilitation services portion of tional rehabilitation services portion the Unified or Combined State Plan of the Unified or Combined State Plan; means expenditures incurred in the and performance of administrative func- (b) Administrative costs under the tions under the vocational rehabilita- vocational rehabilitation services portion program carried out under this tion of the Unified or Combined State part, including expenses related to pro- Plan, including one-stop infrastructure gram planning, development, moni- costs. toring, and evaluation, including, but (Authority: Sections 12(c) and 111(a)(1) of the not limited to, expenses for— Rehabilitation Act of 1973, as amended; 29 (i) Quality assurance; U.S.C. 709(c) and 731(a)(1)) (ii) Budgeting, accounting, financial management, information systems, and § 361.4 Applicable regulations. related data processing; The following regulations apply to (iii) Providing information about the this program: program to the public; (a) The Education Department Gen- (iv) Technical assistance and support eral Administrative Regulations services to other State agencies, pri- (EDGAR) as follows: vate nonprofit organizations, and busi- (1) 34 CFR part 76 (State-Adminis- nesses and industries, except for tech- tered Programs). nical assistance and support services (2) 34 CFR part 77 (Definitions that described in § 361.49(a)(4); Apply to Department Regulations). (v) The State Rehabilitation Council (3) 34 CFR part 79 (Intergovernmental and other advisory committees; Review of Department of Education (vi) Professional organization mem- Programs and Activities). bership dues for designated State unit (4) 34 CFR part 81 (General Education employees; Provisions Act—Enforcement). (vii) The removal of architectural (5) 34 CFR part 82 (New Restrictions barriers in State vocational rehabilita- on Lobbying). tion agency offices and State-operated (b) The regulations in this part 361. rehabilitation facilities;

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(viii) Operating and maintaining des- (1) To determine if an individual is ignated State unit facilities, equip- eligible for vocational rehabilitation ment, and grounds, as well as the infra- services; and structure of the one-stop system; (2) To assign priority for an order of (ix) Supplies; selection described in § 361.36 in the (x) Administration of the comprehen- States that use an order of selection; sive system of personnel development and described in § 361.18, including per- (B) To the extent necessary, the pro- sonnel administration, administration vision of appropriate assessment ac- of affirmative action plans, and train- tivities to obtain necessary additional ing and staff development; data to make the eligibility determina- (xi) Administrative salaries, includ- tion and assignment; ing clerical and other support staff sal- (ii) To the extent additional data are aries, in support of these administra- necessary to make a determination of tive functions; the employment outcomes and the na- (xii) Travel costs related to carrying ture and scope of vocational rehabilita- out the program, other than travel tion services to be included in the indi- costs related to the provision of serv- vidualized plan for employment of an ices; eligible individual, a comprehensive as- (xiii) Costs incurred in conducting re- sessment to determine the unique views of determinations made by per- strengths, resources, priorities, con- sonnel of the designated State unit, in- cerns, abilities, capabilities, interests, cluding costs associated with medi- and informed choice, including the ation and impartial due process hear- need for supported employment, of the ings under § 361.57; and eligible individual. This comprehensive (xiv) Legal expenses required in the assessment— administration of the program. (A) Is limited to information that is (Authority: Sections 7(1) and 12(c) of the Re- necessary to identify the rehabilitation habilitation Act of 1973, as amended; 29 needs of the individual and to develop U.S.C. 705(1) and 709(c)) the individualized plan for employment of the eligible individual; (3) Applicant means an individual who (B) Uses as a primary source of infor- submits an application for vocational mation, to the maximum extent pos- rehabilitation services in accordance sible and appropriate and in accordance with § 361.41(b)(2). with confidentiality requirements— (Authority: Section 12(c) of the Rehabilita- (1) Existing information obtained for tion Act of 1973, as amended; 29 U.S.C. 709(c)) the purposes of determining the eligi- (4) Appropriate modes of communication bility of the individual and assigning means specialized aids and supports priority for an order of selection de- that enable an individual with a dis- scribed in § 361.36 for the individual; ability to comprehend and respond to and information that is being commu- (2) Information that can be provided nicated. Appropriate modes of commu- by the individual and, if appropriate, nication include, but are not limited by the family of the individual; to, the use of interpreters, open and (C) May include, to the degree needed closed captioned videos, specialized to make such a determination, an as- telecommunications services and audio sessment of the personality, interests, recordings, Brailled and large print interpersonal skills, intelligence and materials, materials in electronic for- related functional capacities, edu- mats, augmentative communication cational achievements, work experi- devices, graphic presentations, and ence, vocational aptitudes, personal simple language materials. and social adjustments, and employment opportunities of the individual (Authority: Section 12(c) of the Rehabilita- and the medical, psychiatric, psycho- tion Act of 1973, as amended; 29 U.S.C. 709(c)) logical, and other pertinent vocational, (5) Assessment for determining eligibility educational, cultural, social, rec- and vocational rehabilitation needs reational, and environmental factors means, as appropriate in each case— that affect the employment and reha- (i)(A) A review of existing data— bilitation needs of the individual;

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(D) May include, to the degree need- (B) Individuals with disabilities will be ed, an appraisal of the patterns of work deemed to mean more than one such behavior of the individual and services individual. needed for the individual to acquire oc- (Authority: Sections 7(3) and 12(c) of the Re- cupational skills and to develop work habilitation Act of 1973, as amended; 29 attitudes, work habits, work tolerance, U.S.C. 705(3) and 709(c)) and social and behavior patterns nec- (7) Community rehabilitation program— essary for successful job performance, (i) Community rehabilitation program including the use of work in real job means a program that provides directly situations to assess and develop the ca- or facilitates the provision of one or pacities of the individual to perform more of the following vocational reha- adequately in a work environment; and bilitation services to individuals with (E) To the maximum extent possible, disabilities to enable those individuals relies on information obtained from ex- to maximize their opportunities for periences in integrated employment employment, including career advance- settings in the community and in other ment: integrated community settings; (A) Medical, psychiatric, psycho- (iii) Referral, for the provision of re- logical, social, and vocational services that are provided under one manage- habilitation technology services to the ment. individual, to assess and develop the (B) Testing, fitting, or training in the capacities of the individual to perform use of prosthetic and orthotic devices. in a work environment; and (C) Recreational therapy. (iv) An exploration of the individual’s (D) Physical and occupational ther- abilities, capabilities, and capacity to apy. perform in work situations, which (E) Speech, language, and hearing must be assessed periodically during therapy. trial work experiences, including expe- (F) Psychiatric, psychological, and riences in which the individual is pro- social services, including positive be- vided appropriate supports and train- havior management. ing. (G) Assessment for determining eligibility and vocational rehabilitation (Authority: Sections 7(2) and 12(c) of the Re- needs. habilitation Act of 1973, as amended; 29 (H) Rehabilitation technology. U.S.C. 705(2) and 709(c)) (I) Job development, placement, and (6) Assistive technology terms—(i) As- retention services. sistive technology has the meaning given (J) Evaluation or control of specific such term in section 3 of the Assistive disabilities. Technology Act of 1998 (29 U.S.C. 3002). (K) Orientation and mobility services (ii) Assistive technology device has the for individuals who are blind. (L) Extended employment. meaning given such term in section 3 (M) Psychosocial rehabilitation serv- of the Assistive Technology Act of 1998, ices. except that the reference in such sec- (N) Supported employment services tion to the term individuals with disabil- and extended services. ities will be deemed to mean more than (O) Customized employment. one individual with a disability as de- (P) Services to family members if fined in paragraph (20)(A) of the Act. necessary to enable the applicant or el- (iii) Assistive technology service has igible individual to achieve an employ- the meaning given such term in section ment outcome. 3 of the Assistive Technology Act of (Q) Personal assistance services. 1998, except that the reference in such (R) Services similar to the services section to the term— described in paragraphs (c)(7)(i)(A) (A) Individual with a disability will be through (Q) of this section. deemed to mean an individual with a (ii) For the purposes of this defini- disability, as defined in paragraph tion, program means an agency, organi- (20)(A) of the Act; and zation, or institution, or unit of an agency, organization, or institution, that provides directly or facilitates the

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provision of vocational rehabilitation similar tasks and who have similar services as one of its major functions. training, experience, and skills; and (Authority: Section 7(4) of the Rehabilita- (D) Is eligible for the level of benefits tion Act of 1973, as amended; 29 U.S.C. 705(4)) provided to other employees; and (ii) Is at a location— (8) Comparable services and benefits— (A) Typically found in the commu- (i) Comparable services and benefits nity; and means services and benefits, including (B) Where the employee with a dis- accommodations and auxiliary aids and ability interacts for the purpose of per- services, that are— forming the duties of the position with (A) Provided or paid for, in whole or other employees within the particular in part, by other Federal, State, or work unit and the entire work site, local public agencies, by health insur- and, as appropriate to the work per- ance, or by employee benefits; formed, other persons (e.g., customers (B) Available to the individual at the and vendors), who are not individuals time needed to ensure the progress of with disabilities (not including super- the individual toward achieving the visory personnel or individuals who are employment outcome in the individ- providing services to such employee) to ual’s individualized plan for employ- the same extent that employees who ment in accordance with § 361.53; and are not individuals with disabilities (C) Commensurate to the services and who are in comparable positions that the individual would otherwise re- interact with these persons; and ceive from the designated State vocational rehabilitation agency. (iii) Presents, as appropriate, oppor- (ii) For the purposes of this defini- tunities for advancement that are simi- tion, comparable services and benefits lar to those for other employees who do not include awards and scholarships are not individuals with disabilities based on merit. and who have similar positions. (Authority: Sections 7(5) and 12(c) of the Re- (Authority: Sections 12(c) and 101(a)(8) of the habilitation Act of 1973, as amended; 29 Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(5) and 709(c)) U.S.C. 709(c) and 721(a)(8)) (9) Competitive integrated employment (10) Construction of a facility for a pub- means work that— lic or nonprofit community rehabilitation (i) Is performed on a full-time or program means— part-time basis (including self-employ- (i) The acquisition of land in connec- ment) and for which an individual is tion with the construction of a new compensated at a rate that– building for a community rehabilita- (A) Is not less than the higher of the tion program; rate specified in section 6(a)(1) of the (ii) The construction of new build- Fair Labor Standards Act of 1938 (29 ings; U.S.C. 206(a)(1)) or the rate required (iii) The acquisition of existing build- under the applicable State or local ings; minimum wage law for the place of em- (iv) The expansion, remodeling, alter- ployment; ation, or renovation of existing build- (B) Is not less than the customary ings; rate paid by the employer for the same (v) Architect’s fees, site surveys, and or similar work performed by other soil investigation, if necessary, in con- employees who are not individuals with nection with the acquisition of land or disabilities and who are similarly situ- existing buildings, or the construction, ated in similar occupations by the expansion, remodeling, or alteration of same employer and who have similar community rehabilitation facilities; training, experience, and skills; and (vi) The acquisition of initial fixed or (C) In the case of an individual who is movable equipment of any new, newly self-employed, yields an income that is acquired, newly expanded, newly re- comparable to the income received by modeled, newly altered, or newly ren- other individuals who are not individ- ovated buildings that are to be used for uals with disabilities and who are self- community rehabilitation program employed in similar occupations or on purposes; and

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(vii) Other direct expenditures appro- rehabilitation of individuals who are priate to the construction project, ex- blind. cept costs of off-site improvements. (Authority: Sections 7(8)(A) and 101(a)(2)(A) (Authority: Sections 7(6) and 12(c) of the Re- of the Rehabilitation Act of 1973, as amend- habilitation Act of 1973, as amended; 29 ed; 29 U.S.C. 705(8)(A) and 721(a)(2)(A)) U.S.C. 705(6) and 709(c)) (13) Designated State unit or State unit (11) Customized employment means means either— competitive integrated employment, (i) The State vocational rehabilita- for an individual with a significant dis- tion bureau, division, or other organi- ability, that is— zational unit that is primarily con- (i) Based on an individualized deter- cerned with vocational rehabilitation mination of the unique strengths, or vocational and other rehabilitation needs, and interests of the individual of individuals with disabilities and that with a significant disability; is responsible for the administration of (ii) Designed to meet the specific the vocational rehabilitation program abilities of the individual with a sig- of the State agency, as required under nificant disability and the business § 361.13(b); or needs of the employer; and (ii) The State agency that is pri- (iii) Carried out through flexible marily concerned with vocational reha- strategies, such as— bilitation or vocational and other reha- (A) Job exploration by the individual; bilitation of individuals with disabil- and ities. (B) Working with an employer to fa- (Authority: Sections 7(8)(B) and 101(a)(2)(B) cilitate placement, including— of the Rehabilitation Act of 1973, as amend- (1) Customizing a job description ed; 29 U.S.C. 705(8)(B) and 721(a)(2)(B)) based on current employer needs or on previously unidentified and unmet em- (14) Eligible individual means an appli- ployer needs; cant for vocational rehabilitation services who meets the eligibility require- (2) Developing a set of job duties, a work schedule and job arrangement, ments of § 361.42(a). and specifics of supervision (including (Authority: Sections 7(20)(A) and 102(a)(1) of performance evaluation and review), the Rehabilitation Act of 1973, as amended; and determining a job location; 29 U.S.C. 705(20)(A) and 722(a)(1)) (3) Using a professional representa- (15) Employment outcome means, with tive chosen by the individual, or if respect to an individual, entering, ad- elected self-representation, to work vancing in, or retaining full-time or, if with an employer to facilitate place- appropriate, part-time competitive in- ment; and tegrated employment, as defined in (4) Providing services and supports at paragraph (c)(9) of this section (includ- the job location. ing customized employment, self-em- (Authority: Section 7(7) and 12(c) of the Re- ployment, telecommuting, or business habilitation Act of 1973, as amended; 29 ownership), or supported employment U.S.C. 705(7) and 709(c)) as defined in paragraph (c)(53) of this (12) Designated State agency or State section, that is consistent with an indi- agency means the sole State agency, vidual’s unique strengths, resources, designated, in accordance with priorities, concerns, abilities, capabili- § 361.13(a), to administer, or supervise ties, interests, and informed choice. the local administration of, the voca- NOTE TO PARAGRAPH (c)(15): A designated tional rehabilitation services portion State unit may continue services to individ- of the Unified or Combined State Plan. uals with uncompensated employment goals The term includes the State agency for on their approved individualized plans for individuals who are blind, if designated employment prior to September 19, 2016 until as the sole State agency with respect June 30, 2017, unless a longer period of time to that part of the Unified or Combined State Plan relating to the vocational

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is required based on the needs of the indi- (ii) The remodeling or alteration of vidual with the disability, as documented in an existing building, provided the esti- the individual’s service record. mated cost of remodeling or alteration (Authority: Sections 7(11), 12(c), 100(a)(2), and does not exceed the appraised value of 102(b)(4)(A) of the Rehabilitation Act of 1973, the existing building; as amended; 29 U.S.C. 705(11), 709(c), 720(a)(2), (iii) The expansion of an existing and 722(b)(4)(A)) building, provided that— (16) Establishment, development, or im- (A) The existing building is complete provement of a public or nonprofit com- in all respects; munity rehabilitation program means— (B) The total size in square footage of (i) The establishment of a facility for the expanded building, notwith- a public or nonprofit community reha- standing the number of expansions, is bilitation program, as defined in para- not greater than twice the size of the graph (c)(17) of this section, to provide existing building; vocational rehabilitation services to (C) The expansion is joined struc- applicants or eligible individuals; turally to the existing building and (ii) Staffing, if necessary to estab- does not constitute a separate building; lish, develop, or improve a public or and nonprofit community rehabilitation (D) The costs of the expansion do not program for the purpose of providing exceed the appraised value of the exist- vocational rehabilitation services to ing building; applicants or eligible individuals, for a (iv) Architect’s fees, site survey, and maximum period of four years, with soil investigation, if necessary in con- Federal financial participation avail- nection with the acquisition, remod- able at the applicable matching rate eling, alteration, or expansion of an ex- for the following levels of staffing isting building; and costs: (v) The acquisition of fixed or mov- (A) 100 percent of staffing costs for the first year; able equipment, including the costs of (B) 75 percent of staffing costs for the installation of the equipment, if nec- second year; essary to establish, develop, or improve (C) 60 percent of staffing costs for the a community rehabilitation program. third year; and (Authority: Sections 7(12) and 12(c) of the Re- (D) 45 percent of staffing costs for the habilitation Act of 1973, as amended; 29 fourth year; and U.S.C. 705(12) and 709(c)) (iii) Other expenditures and activi- (18) Extended employment means work ties related to the establishment, de- in a non-integrated or sheltered setting velopment, or improvement of a public for a public or private nonprofit agency or nonprofit community rehabilitation or organization that provides com- program that are necessary to make pensation in accordance with the Fair the program functional or increase its Labor Standards Act. effectiveness in providing vocational rehabilitation services to applicants or (Authority: Section 12(c) of the Rehabilita- eligible individuals, but are not ongo- tion Act of 1973, as amended; 29 U.S.C. 709(c)) ing operating expenses of the program. (19) Extended services means ongoing (Authority: Sections 7(12) and 12(c) of the Re- support services and other appropriate habilitation Act of 1973, as amended; 29 services that are— U.S.C. 705(12) and 709(c)) (i) Needed to support and maintain (17) Establishment of a facility for a an individual with a most significant public or nonprofit community rehabilita- disability including a youth with a tion program means— most significant disability, in sup- (i) The acquisition of an existing ported employment; building and, if necessary, the land in (ii) Organized or made available, sin- connection with the acquisition, if the gly or in combination, in such a way as building has been completed in all re- to assist an eligible individual in main- spects for at least one year prior to the taining supported employment; date of acquisition and the Federal (iii) Based on the needs of an eligible share of the cost of acquisition is not individual, as specified in an individ- more than $300,000; ualized plan for employment;

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(iv) Provided by a State agency, a (B) Lives in the same household as an private nonprofit organization, em- applicant or eligible individual; ployer, or any other appropriate re- (ii) Who has a substantial interest in source, after an individual has made the well-being of that individual; and the transition from support from the (iii) Whose receipt of vocational re- designated State unit; and habilitation services is necessary to en- (v) Provided to a youth with a most able the applicant or eligible individual significant disability by the designated to achieve an employment outcome. State unit in accordance with require- (Authority: Sections 12(c) and 103(a)(19) of ments set forth in this part and part the Rehabilitation Act of 1973, as amended; 363 for a period not to exceed four 29 U.S.C. 709(c) and 723(a)(19)) years, or at such time that a youth reaches age 25 and no longer meets the (23) Governor means a chief executive definition of a youth with a disability officer of a State. under paragraph (c)(58) of this section, (Authority: Section 7(15) of the Rehabilita- whichever occurs first. The designated tion Act of 1973, as amended; 29 U.S.C. State unit may not provide extended 705(15)) services to an individual with a most (24) Impartial hearing officer—(i) Im- significant disability who is not a partial hearing officer means an indi- youth with a most significant dis- vidual who— ability. (A) Is not an employee of a public (Authority: Sections 7(13), 12(c), and 604(b) of agency (other than an administrative the Rehabilitation Act of 1973, as amended; law judge, hearing examiner, or em- 29 U.S.C. 705(13), 709(c), and 795i(b)) ployee of an institution of higher edu- (20) Extreme medical risk means a cation); probability of substantially increasing (B) Is not a member of the State Re- functional impairment or death if med- habilitation Council for the designated ical services, including mental health State unit; services, are not provided expedi- (C) Has not been involved previously tiously. in the vocational rehabilitation of the applicant or recipient of services; (Authority: Sections 12(c) and (D) Has knowledge of the delivery of 101(a)(8)(A)(i)(III) of the Rehabilitation Act vocational rehabilitation services, the of 1973, as amended; 29 U.S.C. 709(c) and vocational rehabilitation services por- 721(a)(8)(A)(i)(III)) tion of the Unified or Combined State (21) Fair hearing board means a com- Plan, and the Federal and State regula- mittee, body, or group of persons estab- tions governing the provision of serv- lished by a State prior to January 1, ices; 1985, that— (E) Has received training with re- (i) Is authorized under State law to spect to the performance of official du- review determinations made by per- ties; and sonnel of the designated State unit (F) Has no personal, professional, or that affect the provision of vocational financial interest that could affect the rehabilitation services; and objectivity of the individual. (ii) Carries out the responsibilities of (ii) An individual is not considered to the impartial hearing officer in accord- be an employee of a public agency for ance with the requirements in the purposes of this definition solely § 361.57(j). because the individual is paid by the agency to serve as a hearing officer. (Authority: Sections 12(c) and 102(c)(6) of the Rehabilitation Act of 1973, as amended; 29 (Authority: Sections 7(16) and 12(c) of the Re- U.S.C. 709(c) and 722(c)(6)) habilitation Act of 1973, as amended; 29 (22) Family member, for purposes of re- U.S.C. 705(16) and 709(c)) ceiving vocational rehabilitation serv- (25) Indian; American Indian; Indian ices in accordance with § 361.48(b)(9), American; Indian Tribe—(i) In general. means an individual— The terms ‘‘Indian’’, ‘‘American In- (i) Who either— dian’’, and ‘‘Indian American’’ mean an (A) Is a relative or guardian of an ap- individual who is a member of an In- plicant or eligible individual; or dian tribe and include a Native and a

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descendant of a Native, as such terms significant disability who meets the are defined in subsections (b) and (r) of designated State unit’s criteria for an section 3 of the Alaska Native Claims individual with a most significant dis- Settlement Act (43 U.S.C. 1602). ability. These criteria must be con- (ii) Indian tribe. The term ‘‘Indian sistent with the requirements in tribe’’ means any Federal or State In- § 361.36(d)(1) and (2). dian tribe, band, rancheria, pueblo, col- (Authority: Sections 7(21)(E) and 101(a)(5)(C) ony, or community, including any of the Rehabilitation Act of 1973, as amend- Alaska native village or regional vil- ed; 29 U.S.C. 705(21)(E) and 721(a)(5)(C)) lage corporation (as defined in or established pursuant to the Alaska Na- (30) Individual with a significant dis- tive Claims Settlement Act) and a trib- ability means an individual with a dis- al organization (as defined in section ability— 4(l) of the Indian Self-Determination (i) Who has a severe physical or men- and Education Assistance Act (25 tal impairment that seriously limits U.S.C. 450(b)(l)). one or more functional capacities (such as mobility, communication, self-care, (Authority: Section 7(19) of the Rehabilita- self-direction, interpersonal skills, tion Act of 1973, as amended; 29 U.S.C. work tolerance, or work skills) in 705(19)) terms of an employment outcome; (26) Individual who is blind means a (ii) Whose vocational rehabilitation person who is blind within the meaning can be expected to require multiple vo- of applicable State law. cational rehabilitation services over an (Authority: Section 12(c) of the Rehabilita- extended period of time; and tion Act of 1973, as amended; 29 U.S.C. 709(c)) (iii) Who has one or more physical or mental disabilities resulting from am- (27) Individual with a disability, except putation, arthritis, autism, blindness, as provided in paragraph (c)(28) of this burn injury, cancer, cerebral palsy, section, means an individual— cystic fibrosis, deafness, head injury, (i) Who has a physical or mental im- heart disease, hemiplegia, hemophilia, pairment; respiratory or pulmonary dysfunction, (ii) Whose impairment constitutes or mental illness, multiple sclerosis, mus- results in a substantial impediment to cular dystrophy, musculo-skeletal dis- employment; and orders, neurological disorders (includ- (iii) Who can benefit in terms of an ing stroke and epilepsy), spinal cord employment outcome from the provi- conditions (including paraplegia and sion of vocational rehabilitation serv- quadriplegia), sickle cell anemia, intel- ices. lectual disability, specific learning dis- (Authority: Section 7(20)(A) of the Rehabili- ability, end-stage renal disease, or an- tation Act of 1973, as amended; 29 U.S.C. other disability or combination of dis- 705(20)(A)) abilities determined on the basis of an (28) Individual with a disability, for assessment for determining eligibility purposes of §§ 361.5(c)(13), 361.13(a), and vocational rehabilitation needs to 361.13(b)(1), 361.17(a), (b), (c), and (j), cause comparable substantial func- 361.18(b), 361.19, 361.20, 361.23(b)(2), tional limitation. 361.29(a) and (d)(8), and 361.51(b), means (31) Individual’s representative means an individual— any representative chosen by an appli- (i) Who has a physical or mental im- cant or eligible individual, as appro- pairment that substantially limits one priate, including a parent, guardian, or more major life activities; other family member, or advocate, un- (ii) Who has a record of such an im- less a representative has been ap- pairment; or pointed by a court to represent the in- (iii) Who is regarded as having such dividual, in which case the court-ap- an impairment. pointed representative is the individual’s representative. (Authority: Section 7(20)(B) of the Rehabili- tation Act of 1973, as amended; 29 U.S.C. (Authority: Sections 7(22) and 12(c) of the Re- 705(20)(B)) habilitation Act of 1973, as amended; 29 (29) Individual with a most significant U.S.C. 705(22) and 709(c)) disability means an individual with a (32) Integrated setting means—

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(i) With respect to the provision of tended to substitute for individual services, a setting typically found in counselor judgment. the community in which applicants or Example 1: The cost of a uniform or other eligible individuals interact with non- suitable clothing that is required for an indi- disabled individuals other than non- vidual’s job placement or job-seeking activi- disabled individuals who are providing ties. services to those applicants or eligible Example 2: The cost of short-term shelter individuals; and that is required in order for an individual to (ii) With respect to an employment participate in assessment activities or voca- outcome, means a setting— tional training at a site that is not within (A) Typically found in the commu- commuting distance of an individual’s home. nity; and Example 3: The initial one-time costs, such as a security deposit or charges for the initi- (B) Where the employee with a dis- ation of utilities, that are required in order ability interacts, for the purpose of for an individual to relocate for a job place- performing the duties of the position, ment. with other employees within the particular work unit and the entire work (ii) [Reserved] site, and, as appropriate to the work (35) Mediation means the act or proc- performed, other persons (e.g., cus- ess of using an independent third party tomers and vendors) who are not indi- to act as a mediator, intermediary, or viduals with disabilities (not including conciliator to assist persons or parties supervisory personnel or individuals in settling differences or disputes prior who are providing services to such em- to pursuing formal administrative or ployee) to the same extent that em- other legal remedies. Mediation under ployees who are not individuals with the program must be conducted in ac- disabilities and who are in comparable cordance with the requirements in positions interact with these persons. § 361.57(d) by a qualified and impartial mediator as defined in § 361.5(c)(43). (Authority: Section 12(c) of the Rehabilita- tion Act of 1973, as amended; 29 U.S.C. 709(c)) (Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act of 1973, as amended; 29 (33) Local workforce development board U.S.C. 709(c) and 722(c)(4)) means a local board, as defined in section 3 of the Workforce Innovation and (36) Nonprofit, with respect to a com- Opportunity Act. munity rehabilitation program, means a community rehabilitation program (Authority: Section 7(25) of the Rehabilita- carried out by a corporation or associa- tion Act of 1973, as amended; 29 U.S.C. tion, no part of the net earnings of 705(25)) which inures, or may lawfully inure, to (34) Maintenance means monetary the benefit of any private shareholder support provided to an individual for or individual and the income of which expenses, such as food, shelter, and is exempt from taxation under section clothing, that are in excess of the nor- 501(c)(3) of the Internal Revenue Code mal expenses of the individual and that of 1986. are necessitated by the individual’s (Authority: Section 7(26) of the Rehabilita- participation in an assessment for de- tion Act of 1973, as amended; 29 U.S.C. termining eligibility and vocational re- 705(26)) habilitation needs or the individual’s receipt of vocational rehabilitation (37) Ongoing support services, as used services under an individualized plan in the definition of supported employ- for employment. ment, means services that— (i) Are needed to support and main- (Authority: Sections 12(c) and 103(a)(7) of the tain an individual with a most signifi- Rehabilitation Act of 1973, as amended; 29 cant disability, including a youth with U.S.C. 709(c) and 723(a)(7)) a most significant disability, in sup- (i) Examples: The following are exam- ported employment; ples of expenses that would meet the (ii) Are identified based on a deter- definition of maintenance. The exam- mination by the designated State unit ples are illustrative, do not address all of the individual’s need as specified in possible circumstances, and are not in- an individualized plan for employment;

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(iii) Are furnished by the designated pervising, and directing personal as- State unit from the time of job place- sistance services, provided by one or ment until transition to extended serv- more persons, that are— ices, unless post-employment services (i) Designed to assist an individual are provided following transition, and with a disability to perform daily liv- thereafter by one or more extended ing activities on or off the job that the services providers throughout the indi- individual would typically perform vidual’s term of employment in a par- without assistance if the individual did ticular job placement; not have a disability; (iv) Include an assessment of employ- (ii) Designed to increase the individ- ment stability and provision of specific ual’s control in life and ability to per- services or the coordination of services form everyday activities on or off the at or away from the worksite that are job; needed to maintain stability based on— (iii) Necessary to the achievement of (A) At a minimum, twice-monthly an employment outcome; and monitoring at the worksite of each in- (iv) Provided only while the indi- dividual in supported employment; or vidual is receiving other vocational re- (B) If under specific circumstances, habilitation services. The services may especially at the request of the indi- include training in managing, super- vidual, the individualized plan for em- vising, and directing personal assist- ployment provides for off-site moni- ance services. toring, twice monthly meetings with the individual; (Authority: Sections 7(28), 12(c), 102(b)(4)(B)(i)(I)(bb), and 103(a)(9) of the Re- (v) Consist of— habilitation Act of 1973, as amended; 29 (A) Any particularized assessment U.S.C. 705(28), 709(c), 722(b)(4)(B)(i)(I)(bb), and supplementary to the comprehensive 723(a)(9)) assessment of rehabilitation needs described in paragraph (c)(5)(ii) of this (39) Physical and mental restoration section; services means— (B) The provision of skilled job train- (i) Corrective surgery or therapeutic ers who accompany the individual for treatment that is likely, within a rea- intensive job skill training at the work sonable period of time, to correct or site; modify substantially a stable or slowly (C) Job development and training; progressive physical or mental impair- (D) Social skills training; ment that constitutes a substantial (E) Regular observation or super- impediment to employment; vision of the individual; (ii) Diagnosis of and treatment for (F) Follow-up services including reg- mental or emotional disorders by ular contact with the employers, the qualified personnel in accordance with individuals, the parents, family mem- State licensure laws; bers, guardians, advocates or author- (iii) Dentistry; ized representatives of the individuals, (iv) Nursing services; and other suitable professional and in- (v) Necessary hospitalization (either formed advisors, in order to reinforce inpatient or outpatient care) in con- and stabilize the job placement; nection with surgery or treatment and (G) Facilitation of natural supports clinic services; at the worksite; (vi) Drugs and supplies; (H) Any other service identified in (vii) Prosthetic and orthotic devices; the scope of vocational rehabilitation (viii) Eyeglasses and visual services, services for individuals, described in including visual training, and the ex- § 361.48(b); or amination and services necessary for (I) Any service similar to the fore- the prescription and provision of eye- going services. glasses, contact lenses, microscopic lenses, telescopic lenses, and other spe- (Authority: Sections 7(27) and 12(c) of the Re- cial visual aids prescribed by personnel habilitation Act of 1973, as amended; 29 who are qualified in accordance with U.S.C. 705(27) and 709(c)) State licensure laws; (38) Personal assistance services means (ix) Podiatry; a range of services, including, among (x) Physical therapy; other things, training in managing, su- (xi) Occupational therapy;

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(xii) Speech or hearing therapy; ration. If more comprehensive services are (xiii) Mental health services; required, then a new rehabilitation effort (xiv) Treatment of either acute or should be considered. Post-employment serv- chronic medical complications and ices are to be provided under an amended individualized plan for employment; thus, a re- emergencies that are associated with determination of eligibility is not required. or arise out of the provision of physical The provision of post-employment services is and mental restoration services, or subject to the same requirements in this that are inherent in the condition part as the provision of any other vocational under treatment; rehabilitation service. Post-employment (xv) Special services for the treat- services are available to assist an individual ment of individuals with end-stage to maintain employment, e.g., the individ- renal disease, including transplan- ual’s employment is jeopardized because of conflicts with supervisors or co-workers, and tation, dialysis, artificial kidneys, and the individual needs mental health services supplies; and and counseling to maintain the employment, (xvi) Other medical or medically re- or the individual requires assistive tech- lated rehabilitation services. nology to maintain the employment; to regain employment, e.g., the individual’s job is (Authority: Sections 12(c) and 103(a)(6) of the eliminated through reorganization and new Rehabilitation Act of 1973, as amended; 29 placement services are needed; and to ad- U.S.C. 709(c) and 723(a)(6)) vance in employment, e.g., the employment (40) Physical or mental impairment is no longer consistent with the individual’s means— unique strengths, resources, priorities, con- (i) Any physiological disorder or concerns, abilities, capabilities, interests, and dition, cosmetic disfigurement, or ana- informed choice. tomical loss affecting one or more of (42) Pre-employment transition services the following body systems: neuro- means the required activities and au- logical, musculo-skeletal, special sense thorized activities specified in organs, respiratory (including speech § 361.48(a)(2) and (3). organs), cardiovascular, reproductive, (Authority: Sections 7(30) and 113(b) and (c) digestive, genitourinary, hemic and of the Rehabilitation Act of 1973, as amend- lymphatic, skin, and endocrine; or ed; 29 U.S.C. 705(30) and 733(b) and (c)) (ii) Any mental or psychological disorder such as intellectual disability, (43) Qualified and impartial mediator— organic brain syndrome, emotional or (i) Qualified and impartial mediator mental illness, and specific learning means an individual who— disabilities. (A) Is not an employee of a public (41) Post-employment services means agency (other than an administrative one or more of the services identified law judge, hearing examiner, employee in § 361.48(b) that are provided subse- of a State office of mediators, or em- quent to the achievement of an employee of an institution of higher edu- ployment outcome and that are nec- cation); essary for an individual to maintain, (B) Is not a member of the State Re- regain, or advance in employment, con- habilitation Council for the designated sistent with the individual’s unique State unit; strengths, resources, priorities, con- (C) Has not been involved previously cerns, abilities, capabilities, interests, in the vocational rehabilitation of the and informed choice. applicant or recipient of services; (D) Is knowledgeable of the voca- (Authority: Sections 12(c) and 103(a)(20) of tional rehabilitation program and the the Rehabilitation Act of 1973, as amended; applicable Federal and State laws, reg- 29 U.S.C. 709(c) and 723(a)(20)) ulations, and policies governing the NOTE TO PARAGRAPH (c)(41): Post-employ- provision of vocational rehabilitation ment services are intended to ensure that services; the employment outcome remains consistent (E) Has been trained in effective me- with the individual’s unique strengths, re- diation techniques consistent with any sources, priorities, concerns, abilities, capa- State-approved or -recognized certifi- bilities, interests, and informed choice. These services are available to meet reha- cation, licensing, registration, or other bilitation needs that do not require a com- requirements; and plex and comprehensive provision of services (F) Has no personal, professional, or and, thus, should be limited in scope and du- financial interest that could affect the

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individual’s objectivity during the me- viding structured activities and serv- diation proceedings. ices. (ii) An individual is not considered to (Authority: Section 121(e) of the Rehabilita- be an employee of the designated State tion Act of 1973, as amended; 29 U.S.C. 741(e)) agency or designated State unit for the purposes of this definition solely be- (47) Sole local agency means a unit or combination of units of general local cause the individual is paid by the des- government or one or more Indian ignated State agency or designated tribes that has the sole responsibility State unit to serve as a mediator. under an agreement with, and the su- (Authority: Sections 12(c) and 102(c)(4) of the pervision of, the State agency to con- Rehabilitation Act of 1973, as amended; 29 duct a local or tribal vocational reha- U.S.C. 709(c) and 722(c)(4)) bilitation program, in accordance with (44) Rehabilitation engineering means the vocational rehabilitation services the systematic application of engineer- portion of the Unified or Combined State Plan. ing sciences to design, develop, adapt, test, evaluate, apply, and distribute (Authority: Section 7(24) of the Rehabilita- technological solutions to problems tion Act of 1973, as amended; 29 U.S.C. confronted by individuals with disabil- 705(24)) ities in functional areas, such as mobil- (48) State means any of the 50 States, ity, communications, hearing, vision, the District of Columbia, the Common- and cognition, and in activities associ- wealth of Puerto Rico, the United ated with employment, independent States Virgin Islands, Guam, American living, education, and integration into Samoa, and the Commonwealth of the the community. Northern Mariana Islands. (Authority: Sections 7(32) and (12(c) of the (Authority: Section 7(34) of the Rehabilita- Rehabilitation Act of 1973, as amended; 29 tion Act of 1973, as amended; 29 U.S.C. U.S.C. 705(32) and 709(c)) 705(34)) (45) Rehabilitation technology means (49) State workforce development board the systematic application of tech- means a State workforce development nologies, engineering methodologies, board, as defined in section 3 of the or scientific principles to meet the Workforce Innovation and Opportunity needs of, and address the barriers con- Act (29 U.S.C. 3102). fronted by, individuals with disabilities (Authority: Section 7(35) of the Rehabilita- in areas that include education, reha- tion Act of 1973, as amended; 29 U.S.C. bilitation, employment, transpor- 705(35)) tation, independent living, and recre- (50) Statewide workforce development ation. The term includes rehabilitation system means a workforce development engineering, assistive technology de- system, as defined in section 3 of the vices, and assistive technology serv- Workforce Innovation and Opportunity ices. Act (29 U.S.C. 3102). (Authority: Section 7(32) of the Rehabilita- (Authority: Section 7(36) of the Rehabilita- tion Act of 1973, as amended; 29 U.S.C. tion Act of 1973, as amended; 29 U.S.C. 705(32)) 705(36)) (46) Reservation means a Federal or (51) Student with a disability—(i) Stu- State Indian reservation, a public do- dent with a disability means, in general, main Indian allotment, a former Indian an individual with a disability in a sec- reservation in Oklahoma, and land held ondary, postsecondary, or other recog- by incorporated Native groups, re- nized education program who— gional corporations, and village cor- (A)(1) Is not younger than the ear- porations under the provisions of the liest age for the provision of transition Alaska Native Claims Settlement Act services under section (43 U.S.C. 1601 et seq.); or a defined area 614(d)(1)(A)(i)(VIII) of the Individuals of land recognized by a State or the with Disabilities Education Act (20 Federal Government where there is a U.S.C. 1414(d)(1)(A)(i)(VIII)); or concentration of tribal members and (2) If the State involved elects to use on which the tribal government is pro- a lower minimum age for receipt of

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pre-employment transition services grated employment has been inter- under this Act, is not younger than rupted or intermittent as a result of a that minimum age; and significant disability; and (B)(1) Is not older than 21 years of (B) Who, because of the nature and age; or severity of their disabilities, need in- (2) If the State law for the State pro- tensive supported employment services vides for a higher maximum age for re- and extended services after the transi- ceipt of services under the Individuals tion from support provided by the des- with Disabilities Education Act (20 ignated State unit, in order to perform U.S.C. 1400 et seq.), is not older than this work. that maximum age; and (ii) For purposes of this part, an indi- (C)(1) Is eligible for, and receiving, vidual with a most significant dis- special education or related services ability, whose supported employment under Part B of the Individuals with in an integrated setting does not sat- Disabilities Education Act (20 U.S.C. isfy the criteria of competitive inte- 1411 et seq.); or grated employment, as defined in para- (2) Is a student who is an individual graph (c)(9) of this section is considered with a disability, for purposes of sec- to be working on a short-term basis to- tion 504. ward competitive integrated employ- (ii) Students with disabilities means ment so long as the individual can rea- more than one student with a dis- sonably anticipate achieving competi- ability. tive integrated employment— (A) Within six months of achieving a (Authority: Sections 7(37) and 12(c) of the Re- habilitation Act of 1973, as amended; 29 supported employment outcome; or U.S.C. 705(37) and 709(c)) (B) In limited circumstances, within a period not to exceed 12 months from (52) Substantial impediment to employ- the achievement of the supported em- ment means that a physical or mental ployment outcome, if a longer period is impairment (in light of attendant med- necessary based on the needs of the in- ical, psychological, vocational, edu- dividual, and the individual has dem- cational, communication, and other re- onstrated progress toward competitive lated factors) hinders an individual earnings based on information con- from preparing for, entering into, en- tained in the service record. gaging in, advancing in, or retaining employment consistent with the indi- (Authority: Sections 7(38), 12(c), and 602 of the Rehabilitation Act of 1973, as amended; vidual’s abilities and capabilities. 29 U.S.C. 705(38), 709(c), and 795g) (Authority: Sections 7(20)(A) and 12(c) of the (54) Supported employment services Rehabilitation Act of 1973, as amended; 29 means ongoing support services, in- U.S.C. 705(20)(A) and 709(c)) cluding customized employment, and (53) Supported employment—(i) Sup- other appropriate services needed to ported employment means competitive support and maintain an individual integrated employment, including cus- with a most significant disability, in- tomized employment, or employment cluding a youth with a most significant in an integrated work setting in which disability, in supported employment an individual with a most significant that are— disability, including a youth with a (i) Organized and made available, sin- most significant disability, is working gly or in combination, in such a way as on a short-term basis toward competi- to assist an eligible individual to tive integrated employment that is in- achieve competitive integrated em- dividualized, and customized, con- ployment; sistent with the unique strengths, (ii) Based on a determination of the abilities, interests, and informed needs of an eligible individual, as speci- choice of the individual, including with fied in an individualized plan for em- ongoing support services for individ- ployment; uals with the most significant disabil- (iii) Provided by the designated State ities— unit for a period of time not to exceed (A) For whom competitive integrated 24 months, unless under special cir- employment has not historically oc- cumstances the eligible individual and curred, or for whom competitive inte- the rehabilitation counselor jointly

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agree to extend the time to achieve the penses for training in the use of public employment outcome identified in the transportation vehicles and systems. individualized plan for employment; (Authority: Sections 12(c) and 103(a)(8) of the and Rehabilitation Act of 1973, as amended; 29 (iv) Following transition, as post-em- U.S.C. 709(c) and 723(a)(8)) ployment services that are unavailable from an extended services provider and (i) Examples. The following are exam- that are necessary to maintain or re- ples of expenses that would meet the gain the job placement or advance in definition of transportation. The exam- employment. ples are purely illustrative, do not address all possible circumstances, and (Authority: Sections 7(39), 12(c), and are not intended as substitutes for in- 103(a)(16) of the Rehabilitation Act of 1973, as dividual counselor judgment. amended; 29 U.S.C. 705(39), 709(c), and 723(a)(16)) Example 1: Travel and related expenses for a personal care attendant or aide if the serv- (55) Transition services means a co- ices of that person are necessary to enable ordinated set of activities for a student the applicant or eligible individual to travel or youth with a disability— to participate in any vocational rehabilita- (i) Designed within an outcome-ori- tion service. ented process that promotes movement Example 2: The purchase and repair of vehi- from school to post-school activities, cles, including vans, but not the modifica- including postsecondary education, vo- tion of these vehicles, as modification would cational training, competitive inte- be considered a rehabilitation technology service. grated employment, supported employ- Example 3: Relocation expenses incurred by ment, continuing and adult education, an eligible individual in connection with a adult services, independent living, or job placement that is a significant distance community participation; from the eligible individual’s current resi- (ii) Based upon the individual stu- dence. dent’s or youth’s needs, taking into ac- (ii) [Reserved] count the student’s or youth’s pref- (57) Vocational rehabilitation services— erences and interests; (i) If provided to an individual, means (iii) That includes instruction, com- those services listed in § 361.48; and munity experiences, the development (ii) If provided for the benefit of of employment and other post-school groups of individuals, means those adult living objectives, and, if appro- services listed in § 361.49. priate, acquisition of daily living skills and functional vocational evaluation; (Authority: Sections 7(40) and 103 of the Re- (iv) That promotes or facilitates the habilitation Act of 1973, as amended; 29 achievement of the employment out- U.S.C. 705(40) and 723) come identified in the student’s or (58) Youth with a disability—(i) Youth youth’s individualized plan for employ- with a disability means an individual ment; and with a disability who is not— (v) That includes outreach to and en- (A) Younger than 14 years of age; and gagement of the parents, or, as appro- (B) Older than 24 years of age. priate, the representative of such a stu- (ii) Youth with disabilities means more dent or youth with a disability. than one youth with a disability. (Authority: Sections 12(c) and 103(a)(15) and (Authority: Section 7(42) of the Rehabilita- (b)(7) of the Rehabilitation Act of 1973, as tion Act of 1973, as amended; 29 U.S.C. amended; 29 U.S.C. 709(c) and 723(a)(15) and 705(42)) (b)(7)) [81 FR 55741, Aug. 19, 2016, as amended at 82 (56) Transportation means travel and FR 31913, July 11, 2017] related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service, including ex-

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Subpart B—State Plan and Other the State meets the requirements of Requirements for Vocational this part, including any policies, proce- Rehabilitation Services dures, or descriptions submitted under this part that are in effect on July 22, § 361.10 Submission, approval, and dis- 2014. approval of the State plan. (f) Due process. If the Secretary dis- (a) Purpose. (1) To be eligible to re- approves the vocational rehabilitation ceive funds under this part for a fiscal services portion of the Unified or Com- year, a State must submit, and have bined State Plan, the Secretary will approved, a vocational rehabilitation follow these procedures: services portion of a Unified or Com- (1) Informal resolution. Prior to dis- bined State Plan in accordance with approving the vocational rehabilita- section 102 or 103 of the Workforce In- tion services portion of the Unified or novation and Opportunity Act. Combined State Plan, the Secretary at- (2) The vocational rehabilitation tempts to resolve disputes informally services portion of the Unified or Com- with State officials. bined State Plan must satisfy all requirements set forth in this part. (2) Notice. If, after reasonable effort (b) Separate part relating to the voca- has been made to resolve the dispute, tional rehabilitation of individuals who no resolution has been reached, the are blind. If a separate State agency ad- Secretary provides notice to the State ministers or supervises the administra- agency of the intention to disapprove tion of a separate part of the voca- the vocational rehabilitation services tional rehabilitation services portion portion of the Unified or Combined of the Unified or Combined State Plan State Plan and of the opportunity for a relating to the vocational rehabilita- hearing. tion of individuals who are blind, that (3) State plan hearing. If the State part of the vocational rehabilitation agency requests a hearing, the Sec- services portion of the Unified or Com- retary designates one or more individ- bined State Plan must separately con- uals, either from the Department or form to all applicable requirements elsewhere, not responsible for or con- under this part. nected with the administration of this (c) Public participation. Prior to the program, to conduct a hearing in ac- adoption of any substantive policies or cordance with the provisions of 34 CFR procedures specific to the provision of vocational rehabilitation services part 81, subpart A. under the vocational rehabilitation (4) Initial decision. The hearing officer services portion of the Unified or Com- issues an initial decision in accordance bined State Plan, including making with 34 CFR 81.41. any substantive amendment to those (5) Petition for review of an initial deci- policies and procedures, the designated sion. The State agency may seek the State agency must conduct public Secretary’s review of the initial deci- meetings throughout the State, in ac- sion in accordance with 34 CFR part 81. cordance with the requirements of (6) Review by the Secretary. The Sec- § 361.20. retary reviews the initial decision in (d) Submission, approval, disapproval, accordance with 34 CFR 81.43. and duration. All requirements regard- (7) Final decision of the Department. ing the submission, approval, dis- The final decision of the Department is approval, and duration of the voca- made in accordance with 34 CFR 81.44. tional rehabilitation services portion (8) Judicial review. A State may ap- of the Unified or Combined State Plan peal the Secretary’s decision to dis- are governed by regulations set forth approve the vocational rehabilitation in subpart D of this part. (e) Submission of policies and proce- services portion of the Unified or Com- dures. The State is not required to sub- bined State Plan by filing a petition mit policies, procedures, or descrip- for review with the United States tions required under this part that Court of Appeals for the circuit in have been previously submitted to the Secretary and that demonstrate that

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which the State is located, in accord- Secretary’s review of the initial deci- ance with section 107(d) of the Act. sion in accordance with 34 CFR 81.42. (g) Review by the Secretary. The Sec- (Approved by the Office of Management and retary reviews the initial decision in Budget under control number 1205–0522) accordance with 34 CFR 81.43. (Authority: Sections 101(a) and (b) and 107(d) (h) Final decision of the Department. of the Rehabilitation Act of 1973, as amend- The final decision of the Department is ed; 29 U.S.C. 721(a) and (b) and 727(d); and 20 made in accordance with 34 CFR 81.44. U.S.C. 1231g(a)) (i) Judicial review. A State may ap- [81 FR 55741, Aug. 19, 2016, as amended at 81 peal the Secretary’s decision to with- FR 55779, Aug. 19, 2016] hold or limit payments by filing a petition for review with the United States § 361.11 Withholding of funds. Court of Appeals for the circuit in (a) Basis for withholding. The Sec- which the State is located, in accord- retary may withhold or limit payments ance with section 107(d) of the Act. under section 111 or 603(a) of the Act, (Authority: Sections 12(c), 101(b), and 107(c) as provided by section 107(c) of the Act, and (d) of the Rehabilitation Act of 1973, as if the Secretary determines that— amended; 29 U.S.C. 709(c), 721(b) and 727(c) (1) The vocational rehabilitation and (d)) services portion of the Unified or Com- bined State Plan, including the sup- ADMINISTRATION ported employment supplement, has been so changed that it no longer con- § 361.12 Methods of administration. forms with the requirements of this The vocational rehabilitation serv- part or part 363; or ices portion of the Unified or Combined (2) In the administration of the voca- State Plan must assure that the State tional rehabilitation services portion agency, and the designated State unit of the Unified or Combined State Plan if applicable, employs methods of ad- there is a failure to comply substan- ministration found necessary by the tially with any provision of such plan Secretary for the proper and efficient or with an evaluation standard or per- administration of the plan and for car- formance indicator established under rying out all functions for which the section 106 of the Act. State is responsible under the plan and (b) Informal resolution. Prior to with- this part. These methods must include holding or limiting payments in ac- procedures to ensure accurate data col- cordance with this section, the Sec- lection and financial accountability. retary attempts to resolve disputed (Approved by the Office of Management and issues informally with State officials. Budget under control number 1205–0522) (c) Notice. If, after reasonable effort (Authority: Sections 12(c) and 101(a)(6) and has been made to resolve the dispute, (a)(10)(A) of the Rehabilitation Act of 1973, as no resolution has been reached, the amended; 29 U.S.C. 709(c) and 721(a)(6) and Secretary provides notice to the State (a)(10)(A)) agency of the intention to withhold or limit payments and of the opportunity § 361.13 State agency for administra- for a hearing. tion. (d) Withholding hearing. If the State (a) Designation of State agency. The agency requests a hearing, the Sec- vocational rehabilitation services por- retary designates one or more individ- tion of the Unified or Combined State uals, either from the Department or Plan must designate a State agency as elsewhere, not responsible for or con- the sole State agency to administer the nected with the administration of this vocational rehabilitation services por- program, to conduct a hearing in action of the Unified or Combined State cordance with the provisions of 34 CFR Plan, or to supervise its administration part 81, subpart A. in a political subdivision of the State (e) Initial decision. The hearing officer by a sole local agency, in accordance issues an initial decision in accordance with the following requirements: with 34 CFR 81.41. (1) General. Except as provided in (f) Petition for review of an initial deci- paragraphs (a)(2) and (3) of this section, sion. The State agency may seek the the vocational rehabilitation services

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portion of the Unified or Combined vocational rehabilitation program State Plan must provide that the des- under the vocational rehabilitation ignated State agency is one of the fol- services portion of the Unified or Com- lowing types of agencies: bined State Plan; (i) A State agency that is primarily (ii) Has a full-time director who is re- concerned with vocational rehabilita- sponsible for the day-to-day operations tion or vocational and other rehabilita- of the vocational rehabilitation pro- tion of individuals with disabilities; or gram; (ii) A State agency that includes a (iii) Has a staff, at least 90 percent of vocational rehabilitation unit as pro- whom are employed full time on the re- vided in paragraph (b) of this section. habilitation work of the organizational (2) American Samoa. In the case of unit; American Samoa, the vocational reha- (iv) Is located at an organizational bilitation services portion of the Uni- level and has an organizational status fied or Combined State Plan must des- within the State agency comparable to ignate the Governor. that of other major organizational (3) Designated State agency for individ- units of the agency; and uals who are blind. If a State commis- (v) Has the sole authority and re- sion or other agency that provides as- sponsibility described within the des- sistance or services to individuals who ignated State agency in paragraph (a) are blind is authorized under State law of this section to expend funds made to provide vocational rehabilitation available under the Act in a manner services to individuals who are blind, that is consistent with the purpose of and this commission or agency is pri- the Act. marily concerned with vocational reha- (2) In the case of a State that has not bilitation or includes a vocational re- designated a separate State agency for habilitation unit as provided in para- individuals who are blind, as provided graph (b) of this section, the vocational for in paragraph (a)(3) of this section, rehabilitation services portion of the the State may assign responsibility for Unified or Combined State Plan may the part of the vocational rehabilita- designate that agency as the sole State tion services portion of the Unified or agency to administer the part of the Combined State Plan under which vo- plan under which vocational rehabilita- cational rehabilitation services are tion services are provided for individ- provided to individuals who are blind uals who are blind or to supervise its to one organizational unit of the des- administration in a political subdivi- ignated State agency and may assign sion of the State by a sole local agen- responsibility for the rest of the plan cy. to another organizational unit of the (b) Designation of State unit—(1) Gen- designated State agency, with the pro- eral. If the designated State agency is visions of paragraph (b)(1) of this sec- not of the type specified in paragraph tion applying separately to each of (a)(1)(i) of this section or if the des- these units. ignated State agency specified in para- (c) Responsibility for administration— graph (a)(3) of this section is not pri- (1) Required activities. At a minimum, marily concerned with vocational reha- the following activities are the respon- bilitation or vocational and other reha- sibility of the designated State unit or bilitation of individuals with disabil- the sole local agency under the super- ities, the vocational rehabilitation vision of the State unit: services portion of the Unified or Com- (i) All decisions affecting eligibility bined State Plan must assure that the for vocational rehabilitation services, agency (or each agency if two agencies the nature and scope of available serv- are designated) includes a vocational ices, and the provision of these serv- rehabilitation bureau, division, or unit ices. that— (ii) The determination to close the (i) Is primarily concerned with voca- record of services of an individual who tional rehabilitation or vocational and has achieved an employment outcome other rehabilitation of individuals with in accordance with § 361.56. disabilities and is responsible for the (iii) Policy formulation and imple- administration of the State agency’s mentation.

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(iv) The allocation and expenditure agency, the designated State agency of vocational rehabilitation funds. must— (v) Participation as a partner in the (1) Ensure that each local agency is one-stop service delivery system estab- under the supervision of the designated lished under title I of the Workforce In- State unit and is the sole local agency novation and Opportunity Act, in ac- as defined in § 361.5(c)(47) that is re- cordance with 20 CFR part 678. sponsible for the administration of the (2) Non-delegable responsibility. The re- program within the political subdivi- sponsibility for the functions described sion that it serves; and in paragraph (c)(1) of this section may (2) Develop methods that each local not be delegated to any other agency agency will use to administer the voca- or individual. tional rehabilitation program, in accordance with the vocational rehabili- (Approved by the Office of Management and tation services portion of the Unified Budget under control number 1205–0522) or Combined State Plan. (Authority: Section 101(a)(2) of the Rehabili- (b) A separate local agency serving tation Act of 1973, as amended; 29 U.S.C. individuals who are blind may admin- 721(a)(2)) ister that part of the plan relating to vocational rehabilitation of individuals § 361.14 Substitute State agency. who are blind, under the supervision of (a) General provisions. (1) If the Sec- the designated State unit for individ- retary has withheld all funding from a uals who are blind. State under § 361.11, the State may designate another agency to substitute for (Approved by the Office of Management and Budget under control number 1205–0522) the designated State agency in carrying out the State’s program of voca- (Authority: Sections 7(24) and 101(a)(2)(A) of tional rehabilitation services. the Rehabilitation Act of 1973, as amended; (2) Any public or nonprofit private 29 U.S.C. 705(24) and 721(a)(2)(A)) organization or agency within the § 361.16 Establishment of an inde- State or any political subdivision of pendent commission or a State Re- the State is eligible to be a substitute habilitation Council. agency. (a) General requirement. Except as pro- (3) The substitute agency must sub- vided in paragraph (b) of this section, mit a vocational rehabilitation serv- the vocational rehabilitation services ices portion of the Unified or Combined portion of the Unified or Combined State Plan that meets the require- State Plan must contain one of the fol- ments of this part. lowing two assurances: (4) The Secretary makes no grant to (1) An assurance that the designated a substitute agency until the Secretary State agency is an independent State approves its plan. commission that— (b) Substitute agency matching share. (i) Is responsible under State law for The Secretary does not make any pay- operating, or overseeing the operation ment to a substitute agency unless it of, the vocational rehabilitation pro- has provided assurances that it will gram in the State and is primarily con- contribute the same matching share as cerned with vocational rehabilitation the State would have been required to or vocational and other rehabilitation contribute if the State agency were services, in accordance with carrying out the vocational rehabilita- § 361.13(a)(1)(i); tion program. (ii) Is consumer-controlled by persons (Authority: Section 107(c)(3) of the Rehabili- who— tation Act of 1973, as amended; 29 U.S.C. (A) Are individuals with physical or 727(c)(3)) mental impairments that substantially limit major life activities; and § 361.15 Local administration. (B) Represent individuals with a (a) If the vocational rehabilitation broad range of disabilities, unless the services portion of the Unified or Com- designated State unit under the direc- bined State Plan provides for the ad- tion of the commission is the State ministration of the plan by a local agency for individuals who are blind;

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(iii) Includes family members, advo- habilitation services portion of the cates, or other representatives of indi- Unified or Combined State Plan under viduals with mental impairments; and which vocational rehabilitation serv- (iv) Conducts the functions identified ices are provided to individuals who are in § 361.17(h)(4). blind, the State must either establish a (2) An assurance that— separate State Rehabilitation Council (i) The State has established a State for each agency that does not meet the Rehabilitation Council (Council) that requirements in paragraph (a)(1) of this meets the requirements of § 361.17; section or establish one State Rehabili- (ii) The designated State unit, in ac- tation Council for both agencies if nei- cordance with § 361.29, jointly develops, ther agency meets the requirements of agrees to, and reviews annually State paragraph (a)(1) of this section. goals and priorities and jointly submits (Approved by the Office of Management and to the Secretary annual reports of Budget under control number 1205–0522) progress with the Council; (Authority: Sections 101(a)(21) of the Reha- (iii) The designated State unit regu- bilitation Act of 1973, as amended; 29 U.S.C. larly consults with the Council regard- 721(a)(21)) ing the development, implementation, and revision of State policies and pro- § 361.17 Requirements for a State Re- cedures of general applicability per- habilitation Council. taining to the provision of vocational If the State has established a Council rehabilitation services; under § 361.16(a)(2) or (b), the Council (iv) The designated State unit trans- must meet the following requirements: mits to the Council— (a) Appointment. (1) The members of (A) All plans, reports, and other in- the Council must be appointed by the formation required under this part to Governor or, in the case of a State be submitted to the Secretary; that, under State law, vests authority (B) All policies and information on for the administration of the activities all practices and procedures of general carried out under this part in an entity applicability provided to or used by re- other than the Governor (such as one habilitation personnel providing voca- or more houses of the State legislature tional rehabilitation services under or an independent board), the chief of- this part; and ficer of that entity. (C) Copies of due process hearing de- (2) The appointing authority must se- cisions issued under this part and lect members of the Council after solic- transmitted in a manner to ensure that iting recommendations from represent- the identity of the participants in the atives of organizations representing a hearings is kept confidential; and broad range of individuals with disabil- (v) The vocational rehabilitation ities and organizations interested in in- services portion of the Unified or Com- dividuals with disabilities. In selecting bined State Plan, and any revision to members, the appointing authority the vocational rehabilitation services must consider, to the greatest extent portion of the Unified or Combined practicable, the extent to which minor- State Plan, includes a summary of ity populations are represented on the input provided by the Council, includ- Council. ing recommendations from the annual (b) Composition—(1) General. Except as report of the Council, the review and provided in paragraph (b)(3) of this sec- analysis of consumer satisfaction de- tion, the Council must be composed of scribed in § 361.17(h)(4), and other re- at least 15 members, including— ports prepared by the Council, and the (i) At least one representative of the designated State unit’s response to the Statewide Independent Living Council, input and recommendations, including who must be the chairperson or other its reasons for rejecting any input or designee of the Statewide Independent recommendation of the Council. Living Council; (b) Exception for separate State agency (ii) At least one representative of a for individuals who are blind. In the case parent training and information center of a State that designates a separate established pursuant to section 682(a) State agency under § 361.13(a)(3) to ad- of the Individuals with Disabilities minister the part of the vocational re- Education Act;

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(iii) At least one representative of uals who are blind. Except as provided the Client Assistance Program estab- in paragraph (b)(4) of this section, if lished under part 370 of this chapter, the State establishes a separate Coun- who must be the director of or other cil for a separate State agency for indi- individual recommended by the Client viduals who are blind, that Council Assistance Program; must— (iv) At least one qualified vocational (i) Conform with all of the composi- rehabilitation counselor with knowl- tion requirements for a Council under edge of and experience with vocational paragraph (b)(1) of this section, except rehabilitation programs who serves as the requirements in paragraph an ex officio, nonvoting member of the (b)(1)(vii), unless the exception in para- Council if employed by the designated graph (b)(4) of this section applies; and State agency; (ii) Include— (v) At least one representative of (A) At least one representative of a community rehabilitation program disability advocacy group representing service providers; individuals who are blind; and (vi) Four representatives of business, (B) At least one representative of an industry, and labor; individual who is blind, has multiple (vii) Representatives of disability disabilities, and has difficulty rep- groups that include a cross section of— resenting himself or herself or is un- (A) Individuals with physical, cog- able due to disabilities to represent nitive, sensory, and mental disabilities; himself or herself. and (4) Exception. If State law in effect on (B) Representatives of individuals October 29, 1992 requires a separate with disabilities who have difficulty Council under paragraph (b)(3) of this representing themselves or are unable section to have fewer than 15 members, due to their disabilities to represent the separate Council is in compliance themselves; with the composition requirements in (viii) Current or former applicants paragraphs (b)(1)(vi) and (viii) of this for, or recipients of, vocational reha- section if it includes at least one rep- bilitation services; resentative who meets the require- (ix) In a State in which one or more ments for each of those paragraphs. projects are funded under section 121 of (c) Majority. (1) A majority of the the Act (American Indian Vocational Council members must be individuals Rehabilitation Services), at least one with disabilities who meet the require- representative of the directors of the ments of § 361.5(c)(28) and are not em- projects in such State; ployed by the designated State unit. (x) At least one representative of the (2) In the case of a separate Council State educational agency responsible established under § 361.16(b), a majority for the public education of students of the Council members must be indi- with disabilities who are eligible to re- viduals who are blind and are not em- ceive services under this part and part ployed by the designated State unit. B of the Individuals with Disabilities (d) Chairperson. (1) The chairperson Education Act; must be selected by the members of the (xi) At least one representative of the Council from among the voting mem- State workforce development board; bers of the Council, subject to the veto and power of the Governor; or (xii) The director of the designated (2) In States in which the Governor State unit as an ex officio, nonvoting does not have veto power pursuant to member of the Council. State law, the appointing authority de- (2) Employees of the designated State scribed in paragraph (a)(1) of this sec- agency. Employees of the designated tion must designate a member of the State agency may serve only as non- Council to serve as the chairperson of voting members of the Council. This the Council or must require the Coun- provision does not apply to the rep- cil to designate a member to serve as resentative appointed pursuant to chairperson. paragraph (b)(1)(iii) of this section. (e) Terms of appointment. (1) Each (3) Composition of a separate Council member of the Council must be ap- for a separate State agency for individ- pointed for a term of no more than

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three years, and each member of the (ii) Evaluate the effectiveness of the Council, other than a representative vocational rehabilitation program and identified in paragraph (b)(1)(iii) or (ix) submit reports of progress to the Sec- of this section, may serve for no more retary in accordance with § 361.29(e); than two consecutive full terms. (3) Advise the designated State agen- (2) A member appointed to fill a va- cy and the designated State unit re- cancy occurring prior to the end of the garding activities carried out under term for which the predecessor was ap- this part and assist in the preparation pointed must be appointed for the re- of the vocational rehabilitation serv- mainder of the predecessor’s term. ices portion of the Unified or Combined (3) The terms of service of the mem- State Plan and amendments to the bers initially appointed must be, as plan, applications, reports, needs as- specified by the appointing authority sessments, and evaluations required by as described in paragraph (a)(1) of this this part; section, for varied numbers of years to (4) To the extent feasible, conduct a ensure that terms expire on a stag- review and analysis of the effectiveness gered basis. of, and consumer satisfaction with— (f) Vacancies. (1) A vacancy in the (i) The functions performed by the membership of the Council must be designated State agency; filled in the same manner as the origi- (ii) The vocational rehabilitation nal appointment, except the appointing services provided by State agencies and authority as described in paragraph other public and private entities re- (a)(1) of this section may delegate the sponsible for providing vocational re- authority to fill that vacancy to the habilitation services to individuals remaining members of the Council with disabilities under the Act; and after making the original appointment. (iii) The employment outcomes (2) No vacancy affects the power of achieved by eligible individuals receiv- the remaining members to execute the ing services under this part, including duties of the Council. the availability of health and other employment benefits in connection (g) Conflict of interest. No member of with those employment outcomes; the Council may cast a vote on any (5) Prepare and submit to the Gov- matter that would provide direct finan- ernor and to the Secretary no later cial benefit to the member or the mem- than 90 days after the end of the Fed- ber’s organization or otherwise give eral fiscal year an annual report on the the appearance of a conflict of interest status of vocational rehabilitation pro- under State law. grams operated within the State and (h) Functions. The Council must, make the report available to the public after consulting with the State work- through appropriate modes of commu- force development board— nication; (1) Review, analyze, and advise the (6) To avoid duplication of efforts and designated State unit regarding the enhance the number of individuals performance of the State unit’s respon- served, coordinate activities with the sibilities under this part, particularly activities of other councils within the responsibilities related to— State, including the Statewide Inde- (i) Eligibility, including order of se- pendent Living Council established lection; under chapter 1, title VII of the Act, (ii) The extent, scope, and effective- the advisory panel established under ness of services provided; and section 612(a)(21) of the Individuals (iii) Functions performed by State with Disabilities Education Act, the agencies that affect or potentially af- State Developmental Disabilities Plan- fect the ability of individuals with dis- ning Council described in section 124 of abilities in achieving employment out- the Developmental Disabilities Assist- comes under this part; ance and Bill of Rights Act, the State (2) In partnership with the designated mental health planning council estab- State unit— lished under section 1914(a) of the Pub- (i) Develop, agree to, and review lic Health Service Act, and the State State goals and priorities in accord- workforce development board, and with ance with § 361.29(c); and the activities of entities carrying out

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programs under the Assistive Tech- carry out sections 112 and 121 of the nology Act of 1998; Act, may be used to compensate and (7) Provide for coordination and the reimburse the expenses of Council establishment of working relationships members in accordance with section between the designated State agency 105(g) of the Act. and the Statewide Independent Living Council and centers for independent (Approved by the Office of Management and living within the State; and Budget under control number 1205–0522) (8) Perform other comparable func- (Authority: Section 105 of the Rehabilitation tions, consistent with the purpose of Act of 1973, as amended; 29 U.S.C. 725) this part, as the Council determines to be appropriate, that are comparable to § 361.18 Comprehensive system of per- the other functions performed by the sonnel development. Council. The vocational rehabilitation serv- (i) Resources. (1) The Council, in con- ices portion of the Unified or Combined junction with the designated State State Plan must describe the proce- unit, must prepare a plan for the provi- dures and activities the State agency sion of resources, including staff and will undertake to establish and main- other personnel, that may be necessary tain a comprehensive system of per- and sufficient for the Council to carry sonnel development designed to ensure out its functions under this part. an adequate supply of qualified reha- (2) The resource plan must, to the bilitation personnel, including profes- maximum extent possible, rely on the sionals and paraprofessionals, for the use of resources in existence during the designated State unit. If the State period of implementation of the plan. agency has a State Rehabilitation (3) Any disagreements between the Council, this description must, at a designated State unit and the Council minimum, specify that the Council has regarding the amount of resources nec- an opportunity to review and comment essary to carry out the functions of the on the development of plans, policies, Council must be resolved by the Gov- and procedures necessary to meet the ernor, consistent with paragraphs (i)(1) requirements of paragraphs (b) through and (2) of this section. (d) of this section. This description (4) The Council must, consistent with must also conform with the following State law, supervise and evaluate the requirements: staff and personnel that are necessary (a) Personnel and personnel develop- to carry out its functions. ment data system. The vocational reha- (5) Those staff and personnel that are bilitation services portion of the Uni- assisting the Council in carrying out fied or Combined State Plan must de- its functions may not be assigned du- scribe the development and mainte- ties by the designated State unit or any other agency or office of the State nance of a system by the State agency that would create a conflict of interest. for collecting and analyzing on an an- (j) Meetings. The Council must— nual basis data on qualified personnel (1) Convene at least four meetings a needs and personnel development, in year in locations determined by the accordance with the following require- Council to be necessary to conduct ments: Council business. The meetings must (1) Data on qualified personnel needs be publicly announced, open, and acces- must include— sible to the general public, including (i) The number of personnel who are individuals with disabilities, unless employed by the State agency in the there is a valid reason for an executive provision of vocational rehabilitation session; and services in relation to the number of (2) Conduct forums or hearings, as individuals served, broken down by per- appropriate, that are publicly an- sonnel category; nounced, open, and accessible to the (ii) The number of personnel cur- public, including individuals with dis- rently needed by the State agency to abilities. provide vocational rehabilitation serv- (k) Compensation. Funds appropriated ices, broken down by personnel cat- under title I of the Act, except funds to egory; and

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(iii) Projections of the number of per- recognized certification, licensing, or sonnel, broken down by personnel cat- registration requirements, or, in the egory, who will be needed by the State absence of these requirements, other agency to provide vocational rehabili- comparable requirements (including tation services in the State in five State personnel requirements) that years based on projections of the num- apply to the profession or discipline in ber of individuals to be served, includ- which that category of personnel is ing individuals with significant disabil- providing vocational rehabilitation ities, the number of personnel expected services; and to retire or leave the field, and other (ii) The establishment and mainte- relevant factors. nance of education and experience re- (2) Data on personnel development quirements, to ensure that the per- must include— sonnel have a 21st-century under- (i) A list of the institutions of higher standing of the evolving labor force education in the State that are pre- and the needs of individuals with dis- paring vocational rehabilitation professionals, by type of program; abilities, including requirements for— (ii) The number of students enrolled (A)(1) Attainment of a baccalaureate at each of those institutions, broken degree in a field of study reasonably re- down by type of program; and lated to vocational rehabilitation, to (iii) The number of students who indicate a level of competency and graduated during the prior year from skill demonstrating basic preparation each of those institutions with certifi- in a field of study such as vocational cation or licensure, or with the creden- rehabilitation counseling, social work, tials for certification or licensure, bro- psychology, disability studies, business ken down by the personnel category for administration, human resources, spe- which they have received, or have the cial education, supported employment, credentials to receive, certification or customized employment, economics, or licensure. another field that reasonably prepares (b) Plan for recruitment, preparation, individuals to work with consumers and retention of qualified personnel. The and employers; and vocational rehabilitation services por- (2) Demonstrated paid or unpaid ex- tion of the Unified or Combined State perience, for not less than one year, Plan must describe the development, consisting of— updating, and implementation of a plan (i) Direct work with individuals with to address the current and projected disabilities in a setting such as an needs for personnel who are qualified in independent living center; accordance with paragraph (c) of this (ii) Direct service or advocacy activi- section. The plan must identify the ties that provide such individual with personnel needs based on the data col- experience and skills in working with lection and analysis system described individuals with disabilities; or in paragraph (a) of this section and must provide for the coordination and (iii) Direct experience in competitive facilitation of efforts between the des- integrated employment environments ignated State unit and institutions of as an employer, as a small business higher education and professional asso- owner or operator, or in self-employ- ciations to recruit, prepare, and retain ment, or other experience in human re- personnel who are qualified in accord- sources or recruitment, or experience ance with paragraph (c) of this section, in supervising employees, training, or including personnel from minority other activities; or backgrounds and personnel who are in- (B) Attainment of a master’s or doc- dividuals with disabilities. toral degree in a field of study such as (c) Personnel standards. (1) The voca- vocational rehabilitation counseling, tional rehabilitation services portion law, social work, psychology, disability of the Unified or Combined State Plan studies, business administration, must include the State agency’s poli- human resources, special education, cies and describe— management, public administration, or (i) Standards that are consistent another field that reasonably provides with any national or State-approved or competence in the employment sector,

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in a disability field, or in both busi- local area, such as independent living ness-related and rehabilitation-related programs, Social Security work incen- fields; and tives, and the Social Security (2) As used in this section— Administration‘s Ticket-to-Work pro- (i) Profession or discipline means a spe- gram; cific occupational category, including (F) Caseload management, including any paraprofessional occupational cat- familiarity with effective caseload egory, that— management practices and the use of (A) Provides rehabilitation services any available automated or informa- to individuals with disabilities; tion technology resources; (B) Has been established or des- (G) In-depth knowledge of labor mar- ignated by the State unit; and ket trends, occupational requirements, (C) Has a specified scope of responsi- and other labor market information bility. that provides information about em- (ii) Ensuring that personnel have a ployers, business practices, and em- 21st-century understanding of the ployer personnel needs, such as data evolving labor force and the needs of provided by the Bureau of Labor Sta- individuals with disabilities means tistics and the Department of Labor’s that personnel have specialized train- O*NET occupational system; ing and experience that enables them (H) The use of labor market informa- to work effectively with individuals tion for vocational rehabilitation coun- with disabilities to assist them to seling, vocational planning, and the achieve competitive integrated em- provision of information to consumers ployment and with employers who hire for the purposes of making informed such individuals. Relevant personnel choices, business engagement and busi- skills include, but are not limited to— ness relationships, and job develop- (A) Understanding the functional ment and job placement; limitations of various disabilities and (I) The use of labor market informa- the vocational implications of func- tion to support building and maintain- tional limitations on employment, es- ing relationships with employers and pecially with regard to individuals to inform delivery of job development whose disabilities may require special- and job placement activities that re- ized services or groups of individuals spond to today’s labor market; with disabilities who comprise an in- (J) Understanding the effective utili- creasing proportion of the State VR zation of rehabilitation technology and caseloads, such as individuals with job accommodations; traumatic brain injury, post-traumatic (K) Training in understanding the stress syndrome, mental illnesses, au- provisions of the Americans with Dis- tism, blindness or deaf-blindness; abilities Act and other employment (B) Vocational assessment tools and discrimination and employment-re- strategies and the interpretation of vo- lated laws; cational assessment results, including, (L) Advocacy skills to modify attitu- when appropriate, situational and dinal and environmental barriers to work-based assessments and analysis of employment for individuals with dis- transferrable work skills; abilities, including those with the most (C) Counseling and guidance skills, significant disabilities; including individual and group coun- (M) Skills to address cultural diver- seling and career guidance; sity among consumers, particularly af- (D) Effective use of practices leading fecting workplace settings, including to competitive integrated employment, racial and ethnic diversity and such as supported employment, cus- generational differences; and tomized employment, internships, ap- (N) Understanding confidentiality prenticeships, paid work experiences, and ethical standards and practices, es- etc.; pecially related to new challenges in (E) Case management and employ- use of social media, new partnerships, ment services planning, including fa- and data sharing. miliarity and use of the broad range of (d) Staff development. (1) The voca- disability, employment, and social tional rehabilitation services portion services programs in the state and of the Unified or Combined State Plan

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must include the State agency’s poli- (e) Personnel to address individual com- cies and describe the procedures and munication needs. The vocational reha- activities the State agency will under- bilitation services portion of the Uni- take to ensure that all personnel em- fied or Combined State Plan must de- ployed by the State unit receive appro- scribe how the designated State unit priate and adequate training, including includes among its personnel, or ob- a description of— tains the services of— (i) A system of staff development for (1) Individuals able to communicate rehabilitation professionals and para- in the native languages of applicants, professionals within the State unit, recipients of services, and eligible indi- particularly with respect to assess- viduals who have limited English pro- ment, vocational counseling, job place- ficiency; and ment, and rehabilitation technology, (2) Individuals able to communicate including training implemented in co- with applicants, recipients of services, ordination with entities carrying out and eligible individuals in appropriate State programs under section 4 of the modes of communication. Assistive Technology Act of 1998 (29 (f) Coordination with personnel devel- U.S.C. 3003); opment under the Individuals with Dis- (ii) Procedures for acquiring and disabilities Education Act. The vocational seminating to rehabilitation profes- rehabilitation services portion of the sionals and paraprofessionals within Unified or Combined State Plan must the designated State unit significant describe the procedures and activities knowledge from research and other the State agency will undertake to co- sources; and ordinate its comprehensive system of (iii) Policies and procedures relating personnel development under the Act to the establishment and maintenance with personnel development under the of standards to ensure that personnel, Individuals with Disabilities Education including rehabilitation professionals Act. and paraprofessionals, needed within (Approved by the Office of Management and the designated State unit to carry out Budget under control number 1205–0522) this part are appropriately and ade- (Authority: Sections 12(c) and 101(a)(7) of the quately prepared and trained. Rehabilitation Act of 1973, as amended; 29 (2) The specific training areas for U.S.C. 709(c) and 721(a)(7)) staff development must be based on the needs of each State unit and may in- § 361.19 Affirmative action for individ- clude, but are not limited to— uals with disabilities. (i) Training regarding the Workforce The vocational rehabilitation serv- Innovation and Opportunity Act and ices portion of the Unified or Combined the amendments it made to the Reha- State Plan must assure that the State bilitation Act of 1973; agency takes affirmative action to em- (ii) Training with respect to the re- ploy and advance in employment quali- quirements of the Americans with Dis- fied individuals with disabilities cov- abilities Act, the Individuals with Dis- ered under and on the same terms and abilities Education Act, and Social Se- conditions as stated in section 503 of curity work incentive programs, in- the Act. cluding programs under the Ticket to (Approved by the Office of Management and Work and Work Incentives Improve- Budget under control number 1205–0522) ment Act of 1999, training to facilitate informed choice under this program, (Authority: Section 101(a)(6)(B) of the Reha- bilitation Act of 1973, as amended; 29 U.S.C. and training to improve the provision 721(a)(6)(B)) of services to culturally diverse populations; and § 361.20 Public participation require- (iii) Activities related to— ments. (A) Recruitment and retention of (a) Conduct of public meetings. (1) The qualified rehabilitation personnel; vocational rehabilitation services por- (B) Succession planning; and tion of the Unified or Combined State (C) Leadership development and ca- Plan must assure that prior to the pacity building. adoption of any substantive policies or

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procedures governing the provision of (iv) Minor revisions to vocational re- vocational rehabilitation services habilitation procedures or policies to under the Unified or Combined State correct production errors, such as ty- Plan, the designated State agency con- pographical and grammatical mis- ducts public meetings throughout the takes; and State to provide the public, including (v) Changes to contract procedures individuals with disabilities, an oppor- that do not affect the delivery of voca- tunity to comment on the policies or tional rehabilitation services. procedures. (b) Notice requirements. The voca- (2) For purposes of this section, sub- tional rehabilitation services portion stantive changes to the policies or pro- of the Unified or Combined State Plan cedures governing the provision of vo- must assure that the designated State cational rehabilitation services that agency, prior to conducting the public would require the conduct of public meetings, provides appropriate and suf- meetings are those that directly impact the nature and scope of the serv- ficient notice throughout the State of ices provided to individuals with dis- the meetings in accordance with— abilities, or the manner in which indi- (1) State law governing public meet- viduals interact with the designated ings; or State agency or in matters related to (2) In the absence of State law gov- the delivery of vocational rehabilita- erning public meetings, procedures de- tion services. Examples of substantive veloped by the designated State agency changes include, but are not limited in consultation with the State Reha- to— bilitation Council. (i) Any changes to policies or proce- (c) Summary of input of the State Reha- dures that fundamentally alter the bilitation Council. The vocational reha- rights and responsibilities of individ- bilitation services portion of the Uni- uals with disabilities in the vocational fied or Combined State Plan must pro- rehabilitation process; vide a summary of the input of the (ii) Organizational changes to the State Rehabilitation Council, if the designated State agency or unit that State agency has a Council, into the would likely affect the manner in vocational rehabilitation services por- which services are delivered; tion of the Unified or Combined State (iii) Any changes that affect the na- Plan and any amendment to that por- ture and scope of vocational rehabilitation of the plan, in accordance with tion services provided by the des- § 361.16(a)(2)(v). ignated State agency or unit; (d) Special consultation requirements. (iv) Changes in formal or informal The vocational rehabilitation services dispute procedures; portion of the Unified or Combined (v) The adoption or amendment of State Plan must assure that the State policies instituting an order of selection; and agency actively consults with the di- (vi) Changes to policies and proce- rector of the Client Assistance Pro- dures regarding the financial participa- gram, the State Rehabilitation Coun- tion of eligible individuals. cil, if the State agency has a Council, (3) Non-substantive, e.g., administra- and, as appropriate, Indian tribes, trib- tive changes that would not require the al organizations, and native Hawaiian need for public hearings include: organizations on its policies and proce- (i) Internal procedures that do not di- dures governing the provision of voca- rectly affect individuals receiving vo- tional rehabilitation services under the cational rehabilitation services, such vocational rehabilitation services por- as payment processing or personnel tion of the Unified or Combined State procedures; Plan. (ii) Changes to the case management (e) Appropriate modes of communica- system that only affect vocational re- tion. The State unit must provide to habilitation personnel; the public, through appropriate modes (iii) Changes in indirect cost alloca- of communication, notices of the pub- tions, internal fiscal review procedures, lic meetings, any materials furnished or routine reporting requirements; prior to or during the public meetings,

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and the policies and procedures gov- cational services, including pre-em- erning the provision of vocational re- ployment transition services, in school habilitation services under the voca- to the receipt of vocational rehabilita- tional rehabilitation services portion tion services under the responsibility of the Unified or Combined State Plan. of the designated State agency. (Approved by the Office of Management and (2) These plans, policies, and proce- Budget under control number 1205–0522) dures in paragraph (a)(1) of this section must provide for the development and (Authority: Sections 12(c), 101(a)(16)(A), and approval of an individualized plan for 105(c)(3) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(16)(A), and employment in accordance with § 361.45 725(c)(3)) as early as possible during the transition planning process and not later § 361.21 Consultations regarding the than the time a student with a dis- administration of the vocational re- ability determined to be eligible for vo- habilitation services portion of the cational rehabilitation services leaves Unified or Combined State plan. the school setting or, if the designated The vocational rehabilitation serv- State unit is operating under an order ices portion of the Unified or Combined of selection, before each eligible stu- State Plan must assure that, in con- dent with a disability able to be served nection with matters of general policy under the order leaves the school set- arising in the administration of the voting. cational rehabilitation services portion (b) Formal interagency agreement. The of the Unified or Combined State Plan, vocational rehabilitation services por- the designated State agency takes into tion of the Unified or Combined State account the views of— Plan must include information on a (a) Individuals and groups of individ- formal interagency agreement with the uals who are recipients of vocational State educational agency that, at a rehabilitation services or, as appro- minimum, provides for— priate, the individuals’ representatives; (1) Consultation and technical assist- (b) Personnel working in programs ance, which may be provided using al- that provide vocational rehabilitation ternative means for meeting participa- services to individuals with disabil- tion (such as video conferences and ities; conference calls), to assist educational (c) Providers of vocational rehabili- agencies in planning for the transition tation services to individuals with dis- of students with disabilities from abilities; school to post-school activities, includ- (d) The director of the Client Assist- ing pre-employment transition services ance Program; and and other vocational rehabilitation (e) The State Rehabilitation Council, services; if the State has a Council. (2) Transition planning by personnel (Approved by the Office of Management and of the designated State agency and Budget under control number 1205–0522) educational agency personnel for stu- (Authority: Sections 101(a)(16)(B) of the Re- dents with disabilities that facilitates habilitation Act of 1973, as amended; 29 the development and implementation U.S.C. 721(a)(16)(B)) of their individualized education programs (IEPs) under section 614(d) of the § 361.22 Coordination with education Individuals with Disabilities Education officials. Act; (a) Plans, policies, and procedures. (1) (3) The roles and responsibilities, in- The vocational rehabilitation services cluding financial responsibilities, of portion of the Unified or Combined each agency, including provisions for State Plan must contain plans, poli- determining State lead agencies and cies, and procedures for coordination qualified personnel responsible for between the designated State agency transition services and pre-employ- and education officials responsible for ment transition services; the public education of students with (4) Procedures for outreach to and disabilities that are designed to facili- identification of students with disabil- tate the transition of students with ities who are in need of transition serv- disabilities from the receipt of edu- ices and pre-employment transition

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services. Outreach to these students all requirements set forth in regula- should occur as early as possible during tions in subpart F of this part. the transition planning process and (Approved by the Office of Management and must include, at a minimum, a descrip- Budget under control number 1205–0522) tion of the purpose of the vocational rehabilitation program, eligibility re- (Authority: Section 101(a)(11)(A) of the Reha- quirements, application procedures, bilitation Act of 1973, as amended; 29 U.S.C. 721(a)(11)(A); Section 121(b)(1)(B)(iv) of the and scope of services that may be pro- Workforce Innovation and Opportunity Act; vided to eligible individuals; 29 U.S.C. 3151) (5) Coordination necessary to satisfy [81 FR 57779, Aug. 19, 2016] documentation requirements set forth in 34 CFR part 397 with regard to stu- § 361.24 Cooperation and coordination dents and youth with disabilities who with other entities. are seeking subminimum wage employ- (a) Interagency cooperation. The voca- ment; and tional rehabilitation services portion (6) Assurance that, in accordance of the Unified or Combined State Plan with 34 CFR 397.31, neither the State must describe the designated State educational agency nor the local edu- agency’s cooperation with and use of cational agency will enter into a con- the services and facilities of Federal, tract or other arrangement with an en- State, and local agencies and pro- tity, as defined in 34 CFR 397.5(d), for grams, including the State programs the purpose of operating a program carried out under section 4 of the As- under which a youth with a disability sistive Technology Act of 1998 (29 is engaged in work compensated at a U.S.C. 3003), programs carried out by subminimum wage. the Under Secretary for Rural Develop- (c) Construction. Nothing in this part ment of the Department of Agri- will be construed to reduce the obliga- culture, noneducational agencies serv- tion under the Individuals with Dis- ing out-of-school youth, and State use abilities Education Act (20 U.S.C. 1400 contracting programs, to the extent et seq.) of a local educational agency or that such Federal, State, and local any other agency to provide or pay for agencies and programs are not carrying any transition services that are also out activities through the statewide considered special education or related workforce development system. services and that are necessary for en- (b) Coordination with the Statewide suring a free appropriate public edu- Independent Living Council and inde- cation to children with disabilities pendent living centers. The vocational within the State involved. rehabilitation services portion of the Unified or Combined State Plan must (Approved by the Office of Management and assure that the designated State unit, Budget under control number 1205–0522) the Statewide Independent Living (Authority: Sections 12(c), 101(a)(11)(D), Council established under title VII, 101(c), and 511 of the Rehabilitation Act of chapter 1, part B of the Act, and the 1973, as amended; 29 U.S.C. 709(c), independent living centers established 721(a)(11)(D), 721(c), and 794g) under title VII, Chapter 1, Part C of the Act have developed working relation- § 361.23 Requirements related to the ships and coordinate their activities. statewide workforce development system. (c) Coordination with Employers. The vocational rehabilitation services por- As a required partner in the one-stop tion of the Unified or Combined State service delivery system (which is part Plan must describe how the designated of the statewide workforce develop- State unit will work with employers to ment system under title I of the Work- identify competitive integrated em- force Innovation and Opportunity Act), ployment opportunities and career ex- the designated State unit must satisfy ploration opportunities, in order to facilitate the provision of— (1) Vocational rehabilitation services; and

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(2) Transition services for youth with the State for individuals with multiple disabilities and students with disabil- impairments, including visual impair- ities, such as pre-employment transi- ments, and otherwise cooperate to pro- tion services. vide more effective services, including, (d) Cooperative agreement with recipi- if appropriate, entering into a written ents of grants for services to American In- cooperative agreement. dians—(1) General. In applicable cases, (f) Cooperative agreement regarding in- the vocational rehabilitation services dividuals eligible for home and commu- portion of the Unified or Combined nity-based waiver programs. The voca- State Plan must assure that the des- tional rehabilitation services portion ignated State agency has entered into of the Unified or Combined State Plan a formal cooperative agreement with must include an assurance that the each grant recipient in the State that designated State unit has entered into receives funds under part C of the Act a formal cooperative agreement with (American Indian Vocational Rehabili- the State agency responsible for ad- tation Services). ministering the State Medicaid plan (2) Contents of formal cooperative under title XIX of the Social Security agreement. The agreement required Act (42 U.S.C. 1396 et seq.) and the State under paragraph (d)(1) of this section agency with primary responsibility for must describe strategies for collabora- providing services and supports for in- tion and coordination in providing vo- dividuals with intellectual disabilities cational rehabilitation services to and individuals with developmental American Indians who are individuals disabilities, with respect to the deliv- with disabilities, including— ery of vocational rehabilitation serv- (i) Strategies for interagency referral ices, including extended services, for and information sharing that will as- individuals with the most significant sist in eligibility determinations and disabilities who have been determined the development of individualized to be eligible for home and community- plans for employment; based services under a Medicaid waiv- (ii) Procedures for ensuring that er, Medicaid State plan amendment, or American Indians who are individuals other authority related to a State Med- with disabilities and are living on or icaid program. near a reservation or tribal service (g) Interagency cooperation. The voca- area are provided vocational rehabili- tional rehabilitation services portion tation services; of the Unified or Combined State Plan (iii) Strategies for the provision of shall describe how the designated State transition planning by personnel of the agency will collaborate with the State designated State unit, the State edu- agency responsible for administering cational agency, and the recipient of the State Medicaid plan under title funds under part C of the Act, that will XIX of the Social Security Act (42 facilitate the development and ap- U.S.C. 1396 et seq.), the State agency re- proval of the individualized plan for sponsible for providing services for in- employment under § 361.45; and dividuals with developmental disabil- (iv) Provisions for sharing resources ities, and the State agency responsible in cooperative studies and assessments, for providing mental health services, to joint training activities, and other col- develop opportunities for community- laborative activities designed to im- based employment in integrated set- prove the provision of services to tings, to the greatest extent prac- American Indians who are individuals ticable. with disabilities. (h) Coordination with assistive tech- (e) Reciprocal referral services between nology programs. The vocational reha- two designated State units in the same bilitation services portion of the Uni- State. If there is a separate designated fied or Combined State Plan must in- State unit for individuals who are clude an assurance that the designated blind, the two designated State units State unit, and the lead agency and im- must establish reciprocal referral serv- plementing entity (if any) designated ices, use each other’s services and fa- by the Governor of the State under sec- cilities to the extent feasible, jointly tion 4 of the Assistive Technology Act plan activities to improve services in of 1998 (29 U.S.C. 3003), have developed

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working relationships and will enter stantially larger numbers of individ- into agreements for the coordination of uals with disabilities or of individuals their activities, including the referral with disabilities with particular types of individuals with disabilities to pro- of impairments; and grams and activities described in that (3) For purposes other than those section. specified in § 361.60(b)(3)(i) and con- (i) Coordination with ticket to work and sistent with the requirements in self-sufficiency program. The vocational § 361.60(b)(3)(ii), the State includes in rehabilitation services portion of the its vocational rehabilitation services Unified or Combined State Plan must portion of the Unified or Combined include an assurance that the des- State Plan, and the Secretary ap- ignated State unit will coordinate ac- proves, a waiver of the statewideness tivities with any other State agency requirement, in accordance with the that is functioning as an employment requirements of paragraph (b) of this network under the Ticket to Work and section. Self-Sufficiency Program established (b) Request for waiver. The request for under section 1148 of the Social Secu- a waiver of statewideness must— rity Act (42 U.S.C. 1320b–19). (1) Identify the types of services to be (Approved by the Office of Management and provided; Budget under control number 1205–0522) (2) Contain a written assurance from the local public agency that it will (Authority: Sections 12(c) and 101(a)(11) of the Rehabilitation Act of 1973, as amended; make available to the State unit the 29 U.S.C. 709(c) and 721(a)(11)) non-Federal share of funds; (3) Contain a written assurance that § 361.25 Statewideness. State unit approval will be obtained for The vocational rehabilitation serv- each proposed service before it is put ices portion of the Unified or Combined into effect; and State Plan must assure that services (4) Contain a written assurance that provided under the vocational rehabili- all other requirements of the voca- tation services portion of the Unified tional rehabilitation services portion or Combined State Plan will be avail- of the Unified or Combined State Plan, able in all political subdivisions of the including a State’s order of selection State, unless a waiver of statewideness requirements, will apply to all services is requested and approved in accord- approved under the waiver. ance with § 361.26. (Approved by the Office of Management and (Approved by the Office of Management and Budget under control number 1205–0522) Budget under control number 1205–0522) (Authority: Section 101(a)(4) of the Rehabili- (Authority: Section 101(a)(4) of the Rehabili- tation Act of 1973, as amended; 29 U.S.C. tation Act of 1973, as amended; 29 U.S.C. 721(a)(4)) 721(a)(4)) § 361.27 Shared funding and adminis- § 361.26 Waiver of statewideness. tration of joint programs. (a) Availability. The State unit may (a) If the vocational rehabilitation provide services in one or more polit- services portion of the Unified or Com- ical subdivisions of the State that in- bined State Plan provides for the des- crease services or expand the scope of ignated State agency to share funding services that are available statewide and administrative responsibility with under the vocational rehabilitation another State agency or local public services portion of the Unified or Com- agency to carry out a joint program to bined State Plan if— provide services to individuals with (1) The non-Federal share of the cost disabilities, the State must submit to of these services is met from funds pro- the Secretary for approval a plan that vided by a local public agency, includ- describes its shared funding and admin- ing funds contributed to a local public istrative arrangement. agency by a private agency, organiza- (b) The plan under paragraph (a) of tion, or individual; this section must include— (2) The services are likely to promote (1) A description of the nature and the vocational rehabilitation of sub- scope of the joint program;

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(2) The services to be provided under statewideness, in accordance with the joint program; § 361.26. (3) The respective roles of each par- (c) The cooperating agency’s con- ticipating agency in the administra- tribution toward the non-Federal share tion and provision of services; and required under the arrangement, as set (4) The share of the costs to be as- forth in paragraph (a) of this section, sumed by each agency. may be made through: (c) If a proposed joint program does (1) Cash transfers to the designated not comply with the statewideness requirement in § 361.25, the State unit State unit; must obtain a waiver of statewideness, (2) Certified personnel expenditures in accordance with § 361.26. for the time cooperating agency staff spent providing direct vocational reha- (Approved by the Office of Management and bilitation services pursuant to a third- Budget under control number 1205–0522) party cooperative arrangement that (Authority: Section 101(a)(2)(A) of the Reha- meets the requirements of this section. bilitation Act of 1973, as amended; 29 U.S.C. Certified personnel expenditures may 721(a)(2)(A)) include the allocable portion of staff § 361.28 Third-party cooperative ar- salary and fringe benefits based upon rangements involving funds from the amount of time cooperating agency other public agencies. staff directly spent providing services (a) The designated State unit may under the arrangement; and enter into a third-party cooperative ar- (3) other direct expenditures incurred rangement for providing or contracting by the cooperating agency for the sole for the provision of vocational rehabili- purpose of providing services under tation services with another State this section pursuant to a third-party agency or a local public agency that is cooperative arrangement that— providing part or all of the non-Federal (i) Meets the requirements of this share in accordance with paragraph (c) section; of this section, if the designated State (ii) Are verifiable as being incurred unit ensures that— under the third-party cooperative ar- (1) The services provided by the co- rangement; and operating agency are not the customary or typical services provided by (iii) Do not meet the definition of that agency but are new services that third-party in-kind contributions have a vocational rehabilitation focus under 2 CFR 200.96. or existing services that have been (Authority: Section 12(c) of the Rehabilita- modified, adapted, expanded, or recon- tion Act of 1973, as amended; 29 U.S.C. 709(c)) figured to have a vocational rehabilitation focus; § 361.29 Statewide assessment; annual (2) The services provided by the co- estimates; annual State goals and operating agency are only available to priorities; strategies; and progress applicants for, or recipients of, services reports. from the designated State unit; (a) Comprehensive statewide assess- (3) Program expenditures and staff ment. (1) The vocational rehabilitation providing services under the coopera- services portion of the Unified or Com- tive arrangement are under the admin- bined State Plan must include— istrative supervision of the designated (i) The results of a comprehensive, State unit; and (4) All requirements of the vocational statewide assessment, jointly con- rehabilitation services portion of the ducted by the designated State unit Unified or Combined State Plan, in- and the State Rehabilitation Council cluding a State’s order of selection, (if the State unit has a Council) every will apply to all services provided three years. Results of the assessment under the cooperative arrangement. are to be included in the vocational re- (b) If a third party cooperative ar- habilitation portion of the Unified or rangement does not comply with the Combined State Plan, submitted in ac- statewideness requirement in § 361.25, cordance with the requirements of the State unit must obtain a waiver of § 361.10(a) and the joint regulations of

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this part. The comprehensive needs as- retary) that includes, State estimates sessment must describe the rehabilita- of— tion needs of individuals with disabil- (1) The number of individuals in the ities residing within the State, particu- State who are eligible for services larly the vocational rehabilitation under this part; services needs of— (2) The number of eligible individuals (A) Individuals with the most signifi- who will receive services provided with cant disabilities, including their need funds provided under this part and for supported employment services; under part § 363, including, if the des- (B) Individuals with disabilities who ignated State agency uses an order of are minorities and individuals with dis- selection in accordance with § 361.36, es- abilities who have been unserved or un- timates of the number of individuals to derserved by the vocational rehabilita- be served under each priority category tion program carried out under this within the order; part; (3) The number of individuals who are (C) Individuals with disabilities eligible for services under paragraph served through other components of (b)(1) of this section, but are not re- the statewide workforce development ceiving such services due to an order of system as identified by those individ- selection; and uals and personnel assisting those indi- (4) The costs of the services described viduals through the components of the in paragraph (b)(2) of this section, in- system; and cluding, if the designated State agency (D) Youth with disabilities, and stu- uses an order of selection, the service dents with disabilities, including costs for each priority category within (1) Their need for pre-employment the order. transition services or other transition (c) Goals and priorities—(1) In general. services; and The vocational rehabilitation services (2) An assessment of the needs of in- portion of the Unified or Combined dividuals with disabilities for transi- State Plan must identify the goals and tion services and pre-employment tran- priorities of the State in carrying out sition services, and the extent to which the program. such services provided under this part (2) Council. The goals and priorities are coordinated with transition serv- must be jointly developed, agreed to, ices provided under the Individuals reviewed annually, and, as necessary, with Disabilities Education Act (20 revised by the designated State unit U.S.C. 1400 et seq.) in order to meet the and the State Rehabilitation Council, needs of individuals with disabilities. if the State unit has a Council. (ii) An assessment of the need to es- (3) Submission. The vocational reha- tablish, develop, or improve commu- bilitation services portion of the Uni- nity rehabilitation programs within fied or Combined State Plan must as- the State. sure that the State will submit to the (2) The vocational rehabilitation Secretary a report containing informa- services portion of the Unified or Com- tion regarding revisions in the goals bined State Plan must assure that the and priorities for any year in which the State will submit to the Secretary a State revises the goals and priorities at report containing information regard- such time and in such manner as deter- ing updates to the assessments under mined appropriate by the Secretary. paragraph (a) of this section for any (4) Basis for goals and priorities. The year in which the State updates the as- State goals and priorities must be sessments at such time and in such based on an analysis of— manner as the Secretary determines (i) The comprehensive statewide as- appropriate. sessment described in paragraph (a) of (b) Annual estimates. The vocational this section, including any updates to rehabilitation services portion of the the assessment; Unified or Combined State Plan must (ii) The performance of the State on include, and must assure that the the standards and indicators estab- State will submit a report to the Sec- lished under section 106 of the Act; and retary (at such time and in such man- (iii) Other available information on ner determined appropriate by the Sec- the operation and the effectiveness of

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the vocational rehabilitation program youth with disabilities on a statewide carried out in the State, including any basis; reports received from the State Reha- (4) Strategies to provide pre-employ- bilitation Council under § 361.17(h) and ment transition services; the findings and recommendations (5) Outreach procedures to identify from monitoring activities conducted and serve individuals with disabilities under section 107 of the Act. who are minorities and individuals (5) Service and outcome goals for cat- with disabilities who have been egories in order of selection. If the des- unserved or underserved by the voca- ignated State agency uses an order of tional rehabilitation program; selection in accordance with § 361.36, (6) As applicable, the plan of the the vocational rehabilitation services State for establishing, developing, or portion of the Unified or Combined improving community rehabilitation State Plan must identify the State’s programs; service and outcome goals and the time (7) Strategies to improve the per- within which these goals may be formance of the State with respect to achieved for individuals in each pri- the evaluation standards and perform- ority category within the order. ance indicators established pursuant to (d) Strategies. The vocational reha- section 106 of the Act and section 116 of bilitation services portion of the Uni- Workforce Innovation and Opportunity fied or Combined State Plan must de- Act; and scribe the strategies the State will use (8) Strategies for assisting other to address the needs identified in the components of the statewide workforce assessment conducted under paragraph development system in assisting indi- (a) of this section and achieve the goals viduals with disabilities. and priorities identified in paragraph (e) Evaluation and reports of progress. (c) of this section, including— (1) The vocational rehabilitation services portion of the Unified or Combined (1) The methods to be used to expand State Plan must include— and improve services to individuals (i) The results of an evaluation of the with disabilities, including how a broad effectiveness of the vocational rehabili- range of assistive technology services tation program; and and assistive technology devices will (ii) A joint report by the designated be provided to those individuals at State unit and the State Rehabilita- each stage of the rehabilitation process tion Council, if the State unit has a and how those services and devices will Council, to the Secretary on the be provided to individuals with disabil- progress made in improving the effec- ities on a statewide basis; tiveness of the program from the pre- (2) The methods to be used to im- vious year. This evaluation and joint prove and expand vocational rehabili- report must include— tation services for students with dis- (A) An evaluation of the extent to abilities, including the coordination of which the goals and priorities identi- services designed to facilitate the tran- fied in paragraph (c) of this section sition of such students from the receipt were achieved; of educational services in school to (B) A description of the strategies postsecondary life, including the re- that contributed to the achievement of ceipt of vocational rehabilitation serv- the goals and priorities; ices under the Act, postsecondary edu- (C) To the extent to which the goals cation, employment, and pre-employ- and priorities were not achieved, a de- ment transition services; scription of the factors that impeded (3) Strategies developed and imple- that achievement; and mented by the State to address the (D) An assessment of the perform- needs of students and youth with dis- ance of the State on the standards and abilities identified in the assessments indicators established pursuant to sec- described in paragraph (a) of this section 106 of the Act. tion and strategies to achieve the goals (2) The vocational rehabilitation and priorities identified by the State to services portion of the Unified or Com- improve and expand vocational reha- bined State Plan must assure that the bilitation services for students and designated State unit and the State

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Rehabilitation Council, if the State employment of individuals with dis- unit has a Council, will jointly submit abilities, including disability aware- to the Secretary a report that contains ness, and the requirements of the the information described in paragraph Americans with Disabilities Act of 1990 (e)(1) of this section at such time and (42 U.S.C. 12101 et seq.) and other em- in such manner the Secretary deter- ployment-related laws; mines appropriate. (b) Working with employers to— (1) Provide opportunities for work- (Approved by the Office of Management and Budget under control number 1205–0522) based learning experiences (including internships, short-term employment, (Authority: Section 101(a)(15) and (25) of the apprenticeships, and fellowships); Rehabilitation Act of 1973, as amended; 29 U.S.C. 721(a)(15) and (25)) (2) Provide opportunities for pre-employment transition services, in ac- § 361.30 Services to American Indians. cordance with the requirements under § 361.48(a); The vocational rehabilitation serv- (3) Recruit qualified applicants who ices portion of the Unified or Combined are individuals with disabilities; State Plan must assure that the des- (4) Train employees who are individ- ignated State agency provides voca- uals with disabilities; and tional rehabilitation services to Amer- (5) Promote awareness of disability- ican Indians who are individuals with related obstacles to continued employ- disabilities residing in the State to the ment. same extent as the designated State (c) Providing consultation, technical agency provides vocational rehabilita- assistance, and support to employers tion services to other significant popu- on workplace accommodations, assist- lations of individuals with disabilities ive technology, and facilities and residing in the State. workplace access through collabora- (Approved by the Office of Management and tion with community partners and em- Budget under control number 1205–0522) ployers, across States and nationally, (Authority: Sections 101(a)(13) and 121(b)(3) to enable the employers to recruit, job of the Rehabilitation Act of 1973, as amend- match, hire, and retain qualified indi- ed; 29 U.S.C. 721(a)(13) and 741(b)(3)) viduals with disabilities who are recipients of vocational rehabilitation serv- § 361.31 Cooperative agreements with ices under this part, or who are appli- private nonprofit organizations. cants for such services; and The vocational rehabilitation serv- (d) Assisting employers with utilizing ices portion of the Unified or Combined available financial support for hiring State Plan must describe the manner or accommodating individuals with in which cooperative agreements with disabilities. private nonprofit vocational rehabilitation service providers will be estab- (Approved by the Office of Management and Budget under control number 1205–0522) lished. (Authority: Section 109 of the Rehabilitation (Approved by the Office of Management and Act of 1973, as amended; 29 U.S.C. 728A) Budget under control number 1205–0522) (Authority: Section 101(a)(24)(B) of the Reha- § 361.33 [Reserved] bilitation Act of 1973, as amended; 29 U.S.C. 721(a)(24)(B)) § 361.34 Supported employment State plan supplement. § 361.32 Provision of training and serv- (a) The vocational rehabilitation ices for employers. services portion of the Unified or Com- The designated State unit may ex- bined State Plan must assure that the pend payments received under this part State has an acceptable plan under to educate and provide services to em- part 363 of this chapter that provides ployers who have hired or are inter- for the use of funds under that part to ested in hiring individuals with disabil- supplement funds under this part for ities under the vocational rehabilita- the cost of services leading to sup- tion program, including— ported employment. (a) Providing training and technical (b) The supported employment plan, assistance to employers regarding the including any needed revisions, must

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be submitted as a supplement to the § 361.36 Ability to serve all eligible in- vocational rehabilitation services por- dividuals; order of selection for tion of the Unified or Combined State services. Plan submitted under this part. (a) General provisions—(1) The des- (Approved by the Office of Management and ignated State unit either must be able Budget under control number 1205–0522) to provide the full range of services listed in section 103(a) of the Act and (Authority: Sections 101(a)(22) and 606 of the § 361.48, as appropriate, to all eligible Rehabilitation Act of 1973, as amended; 29 individuals or, in the event that voca- U.S.C. 721(a)(22) and 795k) tional rehabilitation services cannot be § 361.35 Innovation and expansion ac- provided to all eligible individuals in tivities. the State who apply for the services, include in the vocational rehabilita- (a) The vocational rehabilitation tion services portion of the Unified or services portion of the Unified or Com- Combined State Plan the order to be bined State Plan must assure that the followed in selecting eligible individ- State will reserve and use a portion of uals to be provided vocational rehabili- the funds allotted to the State under tation services. section 110 of the Act— (2) The ability of the designated (1) For the development and imple- State unit to provide the full range of mentation of innovative approaches to vocational rehabilitation services to expand and improve the provision of all eligible individuals must be sup- vocational rehabilitation services to ported by a determination that satis- individuals with disabilities, particu- fies the requirements of paragraph (b) larly individuals with the most signifi- or (c) of this section and a determina- cant disabilities, including transition tion that, on the basis of the des- services for students and youth with ignated State unit’s projected fiscal disabilities and pre-employment tran- and personnel resources and its assess- sition services for students with dis- ment of the rehabilitation needs of in- abilities, consistent with the findings dividuals with significant disabilities of the comprehensive statewide assess- within the State, it can— ment of the rehabilitation needs of in- (i) Continue to provide services to all dividuals with disabilities under individuals currently receiving serv- § 361.29(a) and the State’s goals and pri- ices; orities under § 361.29(c); (ii) Provide assessment services to all (2) To support the funding of the individuals expected to apply for serv- State Rehabilitation Council, if the ices in the next fiscal year; State has a Council, consistent with (iii) Provide services to all individ- the resource plan identified in uals who are expected to be determined § 361.17(i); and eligible in the next fiscal year; and (3) To support the funding of the (iv) Meet all program requirements. Statewide Independent Living Council, (3) If the designated State unit is un- consistent with the Statewide Inde- able to provide the full range of voca- pendent Living Council resource plan tional rehabilitation services to all eli- prepared under Section 705(e)(1) of the gible individuals in the State who Act. apply for the services, the vocational (b) The vocational rehabilitation rehabilitation services portion of the services portion of the Unified or Com- Unified or Combined State Plan must— bined State Plan must— (i) Show the order to be followed in (1) Describe how the reserved funds selecting eligible individuals to be pro- will be used; and vided vocational rehabilitation serv- (2) Include a report describing how ices; the reserved funds were used. (ii) Provide a justification for the order of selection; (Approved by the Office of Management and (iii) Identify service and outcome Budget under control number 1205–0522) goals and the time within which the (Authority: Sections 12(c) and 101(a)(18) of goals may be achieved for individuals the Rehabilitation Act of 1973, as amended; in each priority category within the 29 U.S.C. 709(c) and 721(a) (18)) order, as required under § 361.29(c)(5);

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(iv) Assure that— State unit is able to provide the full (A) In accordance with criteria estab- range of vocational rehabilitation serv- lished by the State for the order of se- ices to all eligible individuals in the lection, individuals with the most sig- next fiscal year must be based on— nificant disabilities will be selected (i) A demonstration that cir- first for the provision of vocational re- cumstances have changed that will habilitation services; and allow the designated State unit to (B) Individuals who do not meet the meet the requirements of paragraph order of selection criteria will have ac- (a)(2) of this section in the next fiscal cess to services provided through the year, including— information and referral system estab- (A) An estimate of the number of and lished under § 361.37; and projected costs of serving, in the next (v) State whether the designated fiscal year, individuals with existing State unit will elect to serve, in its dis- individualized plans for employment; cretion, eligible individuals (whether (B) The projected number of individ- or not the individuals are receiving vo- uals with disabilities who will apply for cational rehabilitation services under services and will be determined eligible the order of selection) who require spe- in the next fiscal year and the pro- cific services or equipment to maintain jected costs of serving those individ- employment, notwithstanding the as- uals; surance provided pursuant to para- (C) The projected costs of admin- graph (3)(iv)(A) of this section. istering the program in the next fiscal (b) Basis for assurance that services can year, including, but not limited to, be provided to all eligible individuals. (1) For a designated State unit that deter- costs of staff salaries and benefits, out- mined, for the current fiscal year and reach activities, and required statewide the preceding fiscal year, that it is able studies; and to provide the full range of services, as (D) The projected revenues and pro- appropriate, to all eligible individuals, jected number of qualified personnel the State unit, during the current fis- for the program in the next fiscal year. cal and preceding fiscal year, must (ii) Comparable data, as relevant, for have in fact— the current or preceding fiscal year, or (i) Provided assessment services to for both years, of the costs listed in all applicants and the full range of paragraphs (b)(2)(i)(A) through (C) of services, as appropriate, to all eligible this section and the resources identi- individuals; fied in paragraph (b)(2)(i)(D) of this sec- (ii) Made referral forms widely avail- tion and an explanation of any pro- able throughout the State; jected increases or decreases in these (iii) Conducted outreach efforts to costs and resources; and identify and serve individuals with dis- (iii) A determination that the pro- abilities who have been unserved or un- jected revenues and the projected num- derserved by the vocational rehabilita- ber of qualified personnel for the pro- tion system; and gram in the next fiscal year are ade- (iv) Not delayed, through waiting quate to cover the costs identified in lists or other means, determinations of paragraphs (b)(2)(i)(A) through (C) of eligibility, the development of individ- this section to ensure the provision of ualized plans for employment for indi- the full range of services, as appro- viduals determined eligible for voca- priate, to all eligible individuals. tional rehabilitation services, or the (c) Determining need for establishing provision of services for eligible indi- and implementing an order of selection. viduals for whom individualized plans (1) The designated State unit must de- for employment have been developed. termine, prior to the beginning of each (2) For a designated State unit that fiscal year, whether to establish and was unable to provide the full range of implement an order of selection. services to all eligible individuals dur- (2) If the designated State unit deter- ing the current or preceding fiscal year mines that it does not need to establish or that has not met the requirements an order of selection, it must reevalu- in paragraph (b)(1) of this section, the ate this determination whenever determination that the designated changed circumstances during the

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course of a fiscal year, such as a de- (i) The designated State unit must crease in its fiscal or personnel re- continue to provide pre-employment sources or an increase in its program transition services to students with costs, indicate that it may no longer be disabilities who were receiving such able to provide the full range of serv- services prior to being determined eli- ices, as appropriate, to all eligible indi- gible for vocational rehabilitation viduals, as described in paragraph (a)(2) services; and of this section. (ii) The designated State unit must (3) If a designated State unit estab- continue to provide to an eligible indi- lishes an order of selection, but deter- vidual all needed services listed on the mines that it does not need to imple- individualized plan for employment if ment that order at the beginning of the the individual had begun receiving fiscal year, it must continue to meet such services prior to the effective date the requirements of paragraph (a)(2) of of the State’s order of selection; and this section, or it must implement the (4) Ensure that its funding arrange- order of selection by closing one or ments for providing services under the more priority categories. vocational rehabilitation services por- (d) Establishing an order of selection— tion of the Unified or Combined State (1) Basis for order of selection. An order Plan, including third-party arrange- of selection must be based on a refine- ments and awards under the establishment of the three criteria in the defini- ment authority, are consistent with tion of individual with a significant dis- the order of selection. If any funding ability in section 7(21)(A) of the Act and arrangements are inconsistent with the § 361.5(c)(30). order of selection, the designated State (2) Factors that cannot be used in deter- unit must renegotiate these funding ar- mining order of selection of eligible indi- rangements so that they are consistent viduals. An order of selection may not with the order of selection. be based on any other factors, includ- (f) State Rehabilitation Council. The ing— designated State unit must consult (i) Any duration of residency require- with the State Rehabilitation Council, ment, provided the individual is if the State unit has a Council, regard- present in the State; ing the— (ii) Type of disability; (1) Need to establish an order of se- (iii) Age, sex, race, color, or national lection, including any reevaluation of origin; the need under paragraph (c)(2) of this (iv) Source of referral; section; (v) Type of expected employment (2) Priority categories of the par- outcome; ticular order of selection; (vi) The need for specific services ex- (3) Criteria for determining individ- cept those services provided in accord- uals with the most significant disabil- ance with 361.36(a)(3)(v), or anticipated ities; and cost of services required by an individual; or (4) Administration of the order of se- (vii) The income level of an indi- lection. vidual or an individual’s family. (Approved by the Office of Management and (e) Administrative requirements. In ad- Budget under control number 1205–0522) ministering the order of selection, the (Authority: Sections 12(d); 101(a)(5); designated State unit must— 101(a)(12); 101(a)(15)(A), (B) and (C); (1) Implement the order of selection 101(a)(21)(A)(ii); and 504(a) of the Rehabilita- on a statewide basis; tion Act of 1973, as amended; 29 U.S.C. 709(d), (2) Notify all eligible individuals of 721(a)(5), 721(a)(12), 721(a)(15)(A), (B) and (C); the priority categories in a State’s 721(a)(21)(A)(ii), and 794(a)) order of selection, their assignment to a particular category, and their right § 361.37 Information and referral pro- to appeal their category assignment; grams. (3) Continue to provide services to (a) General provisions. The vocational any recipient who has begun to receive rehabilitation services portion of the services irrespective of the severity of Unified or Combined State Plan must the individual’s disability as follows— assure that—

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(1) The designated State agency will later date if, at that time, he or she implement an information and referral chooses to pursue an employment out- system adequate to ensure that indi- come; and viduals with disabilities, including eli- (5) Refer the individual, as appro- gible individuals who do not meet the priate, to the Social Security Adminis- agency’s order of selection criteria for tration in order to obtain information receiving vocational rehabilitation concerning the ability of individuals services if the agency is operating on with disabilities to work while receiv- an order of selection, are provided ac- ing benefits from the Social Security curate vocational rehabilitation infor- Administration. mation and guidance (which may in- (c) Criteria for appropriate referrals. In clude counseling and referral for job placement) using appropriate modes of making the referrals identified in para- communication to assist them in pre- graph (a)(2) of this section, the des- paring for, securing, retaining, advanc- ignated State unit must— ing in, or regaining employment; and (1) Refer the individual to Federal or (2) The designated State agency will State programs, including programs refer individuals with disabilities to carried out by other components of the other appropriate Federal and State statewide workforce development sys- programs, including other components tem, best suited to address the specific of the statewide workforce develop- employment needs of an individual ment system. with a disability; and (b) The designated State unit must (2) Provide the individual who is refer to appropriate programs and serv- being referred— ice providers best suited to address the (i) A notice of the referral by the des- specific rehabilitation, independent liv- ignated State agency to the agency ing and employment needs of an indi- carrying out the program; vidual with a disability who makes an (ii) Information identifying a specific informed choice not to pursue an em- point of contact within the agency to ployment outcome under the voca- which the individual is being referred; tional rehabilitation program, as de- and fined in § 361.5(c)(15). Before making the referral required by this paragraph, the (iii) Information and advice regard- State unit must— ing the most suitable services to assist (1) Consistent with § 361.42(a)(4)(i), ex- the individual to prepare for, secure, plain to the individual that the purpose retain, or regain employment. of the vocational rehabilitation pro- (d) Order of selection. In providing the gram is to assist individuals to achieve information and referral services under an employment outcome as defined in this section to eligible individuals who § 361.5(c)(15); are not in the priority category or cat- (2) Consistent with § 361.52, provide egories to receive vocational rehabili- the individual with information con- tation services under the State’s order cerning the availability of employment of selection, the State unit must iden- options, and of vocational rehabilita- tify, as part of its reporting under section services, to assist the individual tion 101(a)(10) of the Act and § 361.40, to achieve an appropriate employment the number of eligible individuals who outcome; did not meet the agency’s order of se- (3) Inform the individual that serv- lection criteria for receiving voca- ices under the vocational rehabilita- tional rehabilitation services and did tion program can be provided to eligi- receive information and referral serv- ble individuals in an extended employ- ices under this section. ment setting if necessary for purposes of training or otherwise preparing for (Approved by the Office of Management and employment in an integrated setting; Budget under control number 1205–0522) (4) Inform the individual that, if he (Authority: Sections 7(11), 12(c), 101(a)(5)(E), or she initially chooses not to pursue 101(a)(10)(C)(ii), and 101(a)(20) of the Rehabili- an employment outcome as defined in tation Act of 1973, as amended; 29 U.S.C. § 361.5(c)(15), he or she can seek services 705(11), 709(c), 721(a)(5)(E), 721(a)(10)(C)(ii), from the designated State unit at a and 721(a)(20))

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§ 361.38 Protection, use, and release of (v) These policies and procedures pro- personal information. vide no fewer protections for individuals than State laws and regulations. (a) General provisions. (1) The State (2) The State unit may establish rea- agency and the State unit must adopt sonable fees to cover extraordinary and implement written policies and costs of duplicating records or making procedures to safeguard the confiden- extensive searches and must establish tiality of all personal information, in- policies and procedures governing ac- cluding photographs and lists of names. cess to records. These policies and procedures must en- (b) State program use. All personal in- sure that— formation in the possession of the (i) Specific safeguards are established State agency or the designated State to protect current and stored personal unit must be used only for the purposes information, including a requirement directly connected with the adminis- that data only be released when gov- tration of the vocational rehabilitation erned by a written agreement between program. Information containing iden- the designated State unit and receiving tifiable personal information may not entity under paragraphs (d) and (e)(1) be shared with advisory or other bodies of this section, which addresses the re- that do not have official responsibility quirements in this section; for administration of the program. In (ii) All applicants and recipients of the administration of the program, the services and, as appropriate, those indi- State unit may obtain personal infor- viduals’ representatives, service pro- mation from service providers and co- viders, cooperating agencies, and inter- operating agencies under assurances ested persons are informed through ap- that the information may not be fur- propriate modes of communication of ther divulged, except as provided under the confidentiality of personal infor- paragraphs (c), (d), and (e) of this sec- mation and the conditions for access- tion. ing and releasing this information; (c) Release to applicants and recipients (iii) All applicants and recipients of of services. (1) Except as provided in services or their representatives are in- paragraphs (c)(2) and (3) of this section, formed about the State unit’s need to if requested in writing by an applicant collect personal information and the or recipient of services, the State unit policies governing its use, including— must make all requested information (A) Identification of the authority in that individual’s record of services under which information is collected; accessible to and must release the information to the individual or the indi- (B) Explanation of the principal pur- vidual’s representative in a timely poses for which the State unit intends manner. to use or release the information; (2) Medical, psychological, or other (C) Explanation of whether providing information that the State unit deter- requested information to the State mines may be harmful to the indi- unit is mandatory or voluntary and the vidual may not be released directly to effects of not providing requested in- the individual, but must be provided to formation; the individual through a third party (D) Identification of those situations chosen by the individual, which may in which the State unit requires or include, among others, an advocate, a does not require informed written con- family member, or a qualified medical sent of the individual before informa- or mental health professional, unless a tion may be released; and representative has been appointed by a (E) Identification of other agencies court to represent the individual, in to which information is routinely re- which case the information must be released; leased to the court-appointed rep- (iv) An explanation of State policies resentative. and procedures affecting personal in- (3) If personal information has been formation will be provided to each in- obtained from another agency or orga- dividual in that individual’s native lan- nization, it may be released only by, or guage or through the appropriate mode under the conditions established by, of communication; and the other agency or organization.

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(4) An applicant or recipient of serv- nization assures the State unit that ices who believes that information in the information will be used only for the individual’s record of services is in- the purpose for which it is being pro- accurate or misleading may request vided and will not be further released that the designated State unit amend to the individual. the information. If the information is (3) The State unit must release per- not amended, the request for an sonal information if required by Fed- amendment must be documented in the eral law or regulations. record of services, consistent with (4) The State unit must release per- § 361.47(a)(12). sonal information in response to inves- (d) Release for audit, evaluation, and tigations in connection with law en- research. Personal information may be forcement, fraud, or abuse, unless ex- released to an organization, agency, or pressly prohibited by Federal or State individual engaged in audit, evalua- laws or regulations, and in response to tion, or research only for purposes dian order issued by a judge, magistrate, rectly connected with the administra- or other authorized judicial officer. tion of the vocational rehabilitation (5) The State unit also may release program or for purposes that would sig- personal information in order to pro- nificantly improve the quality of life tect the individual or others if the indi- for applicants and recipients of serv- vidual poses a threat to his or her safe- ices and only if, in accordance with a ty or to the safety of others. written agreement, the organization, agency, or individual assures that— (Authority: Sections 12(c) and 101(a)(6)(A) of the Rehabilitation Act of 1973, as amended; (1) The information will be used only 29 U.S.C. 709(c) and 721(a)(6)(A)) for the purposes for which it is being provided; § 361.39 State-imposed requirements. (2) The information will be released The designated State unit must, only to persons officially connected upon request, identify those regula- with the audit, evaluation, or research; tions and policies relating to the ad- (3) The information will not be re- ministration or operation of its voca- leased to the involved individual; tional rehabilitation program that are (4) The information will be managed State-imposed, including any regula- in a manner to safeguard confiden- tions or policy based on State interpre- tiality; and tation of any Federal law, regulation, (5) The final product will not reveal or guideline. any personal identifying information without the informed written consent (Authority: Section 17 of the Rehabilitation of the involved individual or the indi- Act of 1973, as amended; 29 U.S.C. 714) vidual’s representative. (e) Release to other programs or au- § 361.40 Reports; Evaluation standards thorities. (1) Upon receiving the in- and performance indicators. formed written consent of the indi- (a) Reports. (1) The vocational reha- vidual or, if appropriate, the individ- bilitation services portion of the Uni- ual’s representative, the State unit fied or Combined State Plan must as- may release personal information to sure that the designated State agency another agency or organization, in ac- will submit reports, including reports cordance with a written agreement, for required under sections 13, 14, and its program purposes only to the ex- 101(a)(10) of the Act— tent that the information may be re- (i) In the form and level of detail and leased to the involved individual or the at the time required by the Secretary individual’s representative and only to regarding applicants for and eligible the extent that the other agency or or- individuals receiving services, includ- ganization demonstrates that the in- ing students receiving pre-employment formation requested is necessary for its transition services in accordance with program. § 361.48(a); and (2) Medical or psychological informa- (ii) In a manner that provides a com- tion that the State unit determines plete count (other than the informa- may be harmful to the individual may tion obtained through sampling con- be released if the other agency or orga- sistent with section 101(a)(10)(E) of the

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Act) of the applicants and eligible indi- cluding applications made through viduals to— common intake procedures in one-stop (A) Permit the greatest possible centers under section 121 of the Work- cross-classification of data; and force Innovation and Opportunity Act, (B) Protect the confidentiality of the an eligibility determination must be identity of each individual. made within 60 days, unless— (2) The designated State agency must (i) Exceptional and unforeseen cir- comply with any requirements nec- cumstances beyond the control of the essary to ensure the accuracy and designated State unit preclude making verification of those reports. an eligibility determination within 60 (b) Evaluation standards and perform- days and the designated State unit and ance indicators—(1) Standards and indi- the individual agree to a specific exten- cators. The evaluation standards and sion of time; or performance indicators for the voca- (ii) An exploration of the individual’s tional rehabilitation program carried abilities, capabilities, and capacity to out under this part are subject to the perform in work situations is carried performance accountability provisions out in accordance with § 361.42(e). described in section 116(b) of the Work- (2) An individual is considered to force Innovation and Opportunity Act have submitted an application when and implemented in regulations set the individual or the individual’s rep- forth in subpart E of this part. resentative, as appropriate— (2) Compliance. A State’s compliance (i)(A) Has completed and signed an with common performance measures agency application form; and any necessary corrective actions will be determined in accordance with (B) Has completed a common intake regulations set forth in subpart E of application form in a one-stop center this part. requesting vocational rehabilitation services; or (Approved by the Office of Management and (C) Has otherwise requested services Budget under control number 1205–0522) from the designated State unit; (Authority: Sections 12(c), 101(a)(10)(A) and (ii) Has provided to the designated (F), and 106 of the Rehabilitation Act of 1973, State unit information necessary to as amended; 29 U.S.C. 709(c),721(a)(10)(A) and initiate an assessment to determine (F), and 726) eligibility and priority for services; [81 FR 55741, Aug. 19, 2016, as amended at 81 and FR 55780, Aug. 19, 2016] (iii) Is available to complete the assessment process. PROVISION AND SCOPE OF SERVICES (3) The designated State unit must § 361.41 Processing referrals and ap- ensure that its application forms are plications. widely available throughout the State, (a) Referrals. The designated State particularly in the one-stop centers unit must establish and implement under section 121 of the Workforce In- standards for the prompt and equitable novation and Opportunity Act. handling of referrals of individuals for (Authority: Sections 12(c), 101(a)(6)(A), and vocational rehabilitation services, in- 102(a)(6) of the Rehabilitation Act of 1973, as cluding referrals of individuals made amended; 29 U.S.C. 709(c), 721(a)(6)(A), and through the one-stop service delivery 722(a)(6)) systems under section 121 of the Work- force Innovation and Opportunity Act. § 361.42 Assessment for determining The standards must include timelines eligibility and priority for services. for making good faith efforts to inform In order to determine whether an in- these individuals of application re- dividual is eligible for vocational reha- quirements and to gather information bilitation services and the individual’s necessary to initiate an assessment for priority under an order of selection for determining eligibility and priority for services (if the State is operating under services. an order of selection), the designated (b) Applications. (1) Once an indi- State unit must conduct an assessment vidual has submitted an application for for determining eligibility and priority vocational rehabilitation services, infor services. The assessment must be

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conducted in the most integrated set- (a)(3)(i)(A) of this section), but is un- ting possible, consistent with the indi- able to provide appropriate evidence, vidual’s needs and informed choice, and such as an award letter, to support in accordance with the following provi- that assertion, the State unit must sions: verify the applicant’s eligibility under (a) Eligibility requirements—(1) Basic title II or title XVI of the Social Secu- requirements. The designated State rity Act by contacting the Social Secu- unit’s determination of an applicant’s rity Administration. This verification eligibility for vocational rehabilitation must be made within a reasonable pe- services must be based only on the fol- riod of time that enables the State unit lowing requirements: to determine the applicant’s eligibility (i) A determination by qualified per- for vocational rehabilitation services sonnel that the applicant has a phys- within 60 days of the individual sub- ical or mental impairment; mitting an application for services in (ii) A determination by qualified per- accordance with § 361.41(b)(2). sonnel that the applicant’s physical or (4) Achievement of an employment out- mental impairment constitutes or re- come. Any eligible individual, including sults in a substantial impediment to an individual whose eligibility for vo- employment for the applicant; and cational rehabilitation services is (iii) A determination by a qualified based on the individual being eligible vocational rehabilitation counselor for Social Security benefits under title employed by the designated State unit II or title XVI of the Social Security that the applicant requires vocational Act, must intend to achieve an employ- rehabilitation services to prepare for, ment outcome that is consistent with secure, retain, advance in, or regain the applicant’s unique strengths, re- employment that is consistent with sources, priorities, concerns, abilities, the individual’s unique strengths, re- capabilities, interests, and informed sources, priorities, concerns, abilities, choice. capabilities, interest, and informed (i) The State unit is responsible for choice. For purposes of an assessment informing individuals, through its ap- for determining eligibility and voca- plication process for vocational reha- tional rehabilitation needs under this bilitation services, that individuals part, an individual is presumed to have who receive services under the program a goal of an employment outcome. must intend to achieve an employment (2) Presumption of benefit. The des- outcome. ignated State unit must presume that (ii) The applicant’s completion of the an applicant who meets the eligibility application process for vocational re- requirements in paragraphs (a)(1)(i) habilitation services is sufficient evi- and (ii) of this section can benefit in dence of the individual’s intent to terms of an employment outcome. achieve an employment outcome, and (3) Presumption of eligibility for Social no additional demonstration on the Security recipients and beneficiaries. (i) part of the applicant is required for Any applicant who has been deter- purposes of satisfying paragraph (a)(4) mined eligible for Social Security ben- of this section. efits under title II or title XVI of the (5) Interpretation. Nothing in this sec- Social Security Act is— tion, including paragraph (a)(3)(i), is to (A) Presumed eligible for vocational be construed to create an entitlement rehabilitation services under para- to any vocational rehabilitation serv- graphs (a)(1) and (2) of this section; and ice. (B) Considered an individual with a (b) Interim determination of eligibility. significant disability as defined in (1) The designated State unit may ini- § 361.5(c)(29). tiate the provision of vocational reha- (ii) If an applicant for vocational re- bilitation services for an applicant on habilitation services asserts that he or the basis of an interim determination she is eligible for Social Security bene- of eligibility prior to the 60-day period fits under title II or title XVI of the described in § 361.41(b)(2). Social Security Act (and, therefore, is (2) If a State chooses to make in- presumed eligible for vocational reha- terim determinations of eligibility, the bilitation services under paragraph designated State unit must—

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(i) Establish criteria and conditions (1) Must base its determination of for making those determinations; each of the basic eligibility require- (ii) Develop and implement proce- ments in paragraph (a) of this section dures for making the determinations; on— and (i) A review and assessment of exist- (iii) Determine the scope of services ing data, including counselor observa- that may be provided pending the final tions, education records, information determination of eligibility. provided by the individual or the indi- (3) If a State elects to use an interim vidual’s family, particularly informa- eligibility determination, the des- tion used by education officials, and ignated State unit must make a final determinations made by officials of determination of eligibility within 60 other agencies; and days of the individual submitting an (ii) To the extent existing data do application for services in accordance not describe the current functioning of with § 361.41(b)(2). the individual or are unavailable, in- (c) Prohibited factors. (1) The voca- sufficient, or inappropriate to make an tional rehabilitation services portion eligibility determination, an assess- of the Unified or Combined State Plan ment of additional data resulting from must assure that the State unit will the provision of vocational rehabilita- not impose, as part of determining eli- tion services, including trial work ex- gibility under this section, a duration periences, assistive technology devices of residence requirement that excludes and services, personal assistance serv- from services any applicant who is ices, and any other support services present in the State. The designated that are necessary to determine wheth- State unit may not require the appli- er an individual is eligible; and cant to demonstrate a presence in the (2) Must base its presumption under State through the production of any paragraph (a)(3)(i) of this section that documentation that under State or an applicant who has been determined local law, or practical circumstances, eligible for Social Security benefits results in a de facto duration of resi- under title II or title XVI of the Social dence requirement. Security Act satisfies each of the basic (2) In making a determination of eli- eligibility requirements in paragraph gibility under this section, the des- (a) of this section on determinations ignated State unit also must ensure made by the Social Security Adminis- that— tration. (i) No applicant or group of appli- (e) Trial work experiences for individ- cants is excluded or found ineligible uals with significant disabilities. (1) Prior solely on the basis of the type of dis- to any determination that an indi- ability; and vidual with a disability is unable to (ii) The eligibility requirements are benefit from vocational rehabilitation applied without regard to the— services in terms of an employment (A) Age, sex, race, color, or national outcome because of the severity of that origin of the applicant; individual’s disability or that the indi- (B) Type of expected employment vidual is ineligible for vocational reha- outcome; bilitation services, the designated (C) Source of referral for vocational State unit must conduct an explo- rehabilitation services; ration of the individual’s abilities, ca- (D) Particular service needs or an- pabilities, and capacity to perform in ticipated cost of services required by realistic work situations. an applicant or the income level of an (2)(i) The designated State unit must applicant or applicant’s family; develop a written plan to assess peri- (E) Applicants’ employment history odically the individual’s abilities, ca- or current employment status; and pabilities, and capacity to perform in (F) Applicants’ educational status or competitive integrated work situations current educational credential. through the use of trial work experi- (d) Review and assessment of data for ences, which must be provided in com- eligibility determination. Except as pro- petitive integrated employment set- vided in paragraph (e) of this section, tings to the maximum extent possible, the designated State unit— consistent with the informed choice

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and rehabilitation needs of the indi- alone would not constitute clear and con- vidual. vincing evidence. Clear and convincing evi- (ii) Trial work experiences include dence might include a description of assess- supported employment, on-the-job ments, including situational assessments training, and other experiences using and supported employment assessments, realistic integrated work settings. from service providers who have concluded that they would be unable to meet the indi- (iii) Trial work experiences must be vidual’s needs due to the severity of the indi- of sufficient variety and over a suffi- vidual’s disability. The demonstration of cient period of time for the designated ‘‘clear and convincing evidence’’ must in- State unit to determine that— clude, if appropriate, a functional assess- (A) There is sufficient evidence to ment of skill development activities, with conclude that the individual can ben- any necessary supports (including assistive efit from the provision of vocational technology), in real life settings. (S. Rep. No. rehabilitation services in terms of an 357, 102d Cong., 2d. Sess. 37–38 (1992)) employment outcome; or (B) There is clear and convincing evi- § 361.43 Procedures for ineligibility de- dence that due to the severity of the termination. individual’s disability, the individual is If the State unit determines that an incapable of benefitting from the provi- applicant is ineligible for vocational sion of vocational rehabilitation serv- rehabilitation services or determines ices in terms of an employment out- that an individual receiving services come; and under an individualized plan for em- (iv) The designated State unit must ployment is no longer eligible for serv- provide appropriate supports, includ- ices, the State unit must— ing, but not limited to, assistive technology devices and services and per- (a) Make the determination only sonal assistance services, to accommo- after providing an opportunity for full date the rehabilitation needs of the in- consultation with the individual or, as dividual during the trial work experi- appropriate, with the individual’s rep- ences. resentative; (f) Data for determination of priority (b) Inform the individual in writing, for services under an order of selection. If supplemented as necessary by other ap- the designated State unit is operating propriate modes of communication under an order of selection for services, consistent with the informed choice of as provided in § 361.36, the State unit the individual, of the ineligibility de- must base its priority assignments termination, including the reasons for on— that determination, the requirements (1) A review of the data that was de- under this section, and the means by veloped under paragraphs (d) and (e) of which the individual may express and this section to make the eligibility de- seek remedy for any dissatisfaction, in- termination; and cluding the procedures for review of (2) An assessment of additional data, State unit personnel determinations in to the extent necessary. accordance with § 361.57; (Authority: Sections 7(2), 12(c), 101(a)(12), (c) Provide the individual with a de- 102(a), 103(a)(1), 103(a)(9), 103(a)(10), and scription of services available from a 103(a)(14) of the Rehabilitation Act of 1973, as client assistance program established amended; 29 U.S.C. 705(2), 709(c), 721(a)(12), 722(a), 723(a)(1), 723(a)(9), 723(a)(10), and under 34 CFR part 370 and information 723(a)(14)) on how to contact that program; (d) Refer the individual— NOTE TO § 361.42: Clear and convincing evidence means that the designated State unit (1) To other programs that are part has a high degree of certainty before it can of the one-stop service delivery system conclude that an individual is incapable of under the Workforce Innovation and benefiting from services in terms of an em- Opportunity Act that can address the ployment outcome. The clear and convincing individual’s training or employment- standard constitutes the highest standard used in our civil system of law and is to be related needs; or individually applied on a case-by-case basis. (2) To Federal, State, or local pro- The term clear means unequivocal. For ex- grams or service providers, including, ample, the use of an intelligence test result

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as appropriate, independent living pro- vidual to whom the State unit is able grams and extended employment pro- to provide services; and viders, best suited to meet their reha- (2) Services will be provided in ac- bilitation needs, if the ineligibility de- cordance with the provisions of the in- termination is based on a finding that dividualized plan for employment. the individual has chosen not to pur- (b) Purpose. (1) The designated State sue, or is incapable of achieving, an unit must conduct an assessment for employment outcome as defined in determining vocational rehabilitation § 361.5(c)(15). needs, if appropriate, for each eligible (e) Review within 12 months and an- individual or, if the State is operating nually thereafter if requested by the under an order of selection, for each el- individual or, if appropriate, by the in- igible individual to whom the State is dividual’s representative any ineligibility determination that is based on a able to provide services. The purpose of finding that the individual is incapable this assessment is to determine the of achieving an employment outcome. employment outcome, and the nature This review need not be conducted in and scope of vocational rehabilitation situations in which the individual has services to be included in the individ- refused it, the individual is no longer ualized plan for employment. present in the State, the individual’s (2) The individualized plan for em- whereabouts are unknown, or the indi- ployment must be designed to achieve vidual’s medical condition is rapidly a specific employment outcome, as de- progressive or terminal. fined in § 361.5(c)(15), that is selected by the individual consistent with the indi- (Authority: Sections 12(c) and 102(a)(5) and (c) of the Rehabilitation Act of 1973, as vidual’s unique strengths, resources, amended; 29 U.S.C. 709(c) and 722(a)(5)and (c)) priorities, concerns, abilities, capabilities, interests, and informed choice. § 361.44 Closure without eligibility de- (c) Required information. The State termination. unit must provide the following infor- The designated State unit may not mation to each eligible individual or, close an applicant’s record of services as appropriate, the individual’s rep- prior to making an eligibility deter- resentative, in writing and, if appro- mination unless the applicant declines priate, in the native language or mode to participate in, or is unavailable to of communication of the individual or complete, an assessment for deter- the individual’s representative: mining eligibility and priority for serv- (1) Options for developing an individ- ices, and the State unit has made a ualized plan for employment. Informa- reasonable number of attempts to con- tion on the available options for devel- tact the applicant or, if appropriate, oping the individualized plan for em- the applicant’s representative to en- ployment, including the option that an courage the applicant’s participation. eligible individual or, as appropriate, (Authority: Section 12(c) of the Rehabilita- the individual’s representative may de- tion Act of 1973, as amended; 29 U.S.C. 709(c)) velop all or part of the individualized plan for employment— § 361.45 Development of the individualized plan for employment. (i) Without assistance from the State unit or other entity; or (a) General requirements. The voca- (ii) With assistance from— tional rehabilitation services portion (A) A qualified vocational rehabilita- of the Unified or Combined State Plan must assure that— tion counselor employed by the State (1) An individualized plan for employ- unit; ment meeting the requirements of this (B) A qualified vocational rehabilita- section and § 361.46 is developed and im- tion counselor who is not employed by plemented in a timely manner for each the State unit; individual determined to be eligible for (C) A disability advocacy organiza- vocational rehabilitation services or, if tion; or the designated State unit is operating (D) Resources other than those in under an order of selection in accord- paragraph (c)(1)(ii)(A) through (C) of ance with § 361.36, for each eligible indi- this section.

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(2) Additional information. Additional (i) The employment outcome, includ- information to assist the eligible indi- ing the employment setting; vidual or, as appropriate, the individ- (ii) The specific vocational rehabili- ual’s representative in developing the tation services needed to achieve the individualized plan for employment, in- employment outcome, including the cluding— settings in which services will be pro- (i) Information describing the full vided; range of components that must be in- (iii) The entity or entities that will cluded in an individualized plan for em- provide the vocational rehabilitation ployment; services; and (ii) As appropriate to each eligible in- (iv) The methods available for pro- dividual— curing the services; (A) An explanation of agency guide- (3) The individualized plan for em- lines and criteria for determining an ployment is— eligible individual’s financial commit- (i) Agreed to and signed by the eligi- ments under an individualized plan for ble individual or, as appropriate, the employment; individual’s representative; and (B) Information on the availability of (ii) Approved and signed by a quali- assistance in completing State unit fied vocational rehabilitation coun- forms required as part of the individ- selor employed by the designated State ualized plan for employment; and unit; (C) Additional information that the (4) A copy of the individualized plan eligible individual requests or the for employment and a copy of any State unit determines to be necessary amendments to the individualized plan to the development of the individual- for employment are provided to the eli- ized plan for employment; gible individual or, as appropriate, to (iii) A description of the rights and the individual’s representative, in writ- remedies available to the individual, ing and, if appropriate, in the native including, if appropriate, recourse to language or mode of communication of the processes described in § 361.57; and the individual or, as appropriate, the (iv) A description of the availability individual’s representative; of a client assistance program estab- (5) The individualized plan for em- lished under part 370 of this chapter ployment is reviewed at least annually and information on how to contact the by a qualified vocational rehabilitation client assistance program. counselor and the eligible individual (3) Individuals entitled to benefits under or, as appropriate, the individual’s rep- title II or XVI of the Social Security Act. resentative to assess the eligible indi- For individuals entitled to benefits vidual’s progress in achieving the iden- under title II or XVI of the Social Se- tified employment outcome; curity Act on the basis of a disability (6) The individualized plan for em- or blindness, the State unit must pro- ployment is amended, as necessary, by vide to the individual general informa- the individual or, as appropriate, the tion on additional supports and assist- individual’s representative, in collabo- ance for individuals with disabilities ration with a representative of the desiring to enter the workforce, includ- State unit or a qualified vocational re- ing assistance with benefits planning. habilitation counselor (to the extent (d) Mandatory procedures. The des- determined to be appropriate by the in- ignated State unit must ensure that— dividual), if there are substantive (1) The individualized plan for em- changes in the employment outcome, ployment is a written document pre- the vocational rehabilitation services pared on forms provided by the State to be provided, or the providers of the unit; vocational rehabilitation services; (2) The individualized plan for em- (7) Amendments to the individualized ployment is developed and imple- plan for employment do not take effect mented in a manner that gives eligible until agreed to and signed by the eligi- individuals the opportunity to exercise ble individual or, as appropriate, the informed choice, consistent with individual’s representative and by a § 361.52, in selecting— qualified vocational rehabilitation

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counselor employed by the designated consistent with the informed choice of State unit; the individual in accordance with the (8) The individualized plan for em- provisions of § 361.5(c)(5)(ii). ployment is amended, as necessary, to (ii) In preparing the comprehensive include the postemployment services assessment, the State unit must use, to and service providers that are nec- the maximum extent possible and ap- essary for the individual to maintain, propriate and in accordance with con- advance in or regain employment, confidentiality requirements, existing in- sistent with the individual’s unique formation that is current as of the date strengths, resources, priorities, con- of the development of the individual- cerns, abilities, capabilities, interests, ized plan for employment, including in- and informed choice; and formation— (9) An individualized plan for employ- (A) Available from other programs ment for a student with a disability is and providers, particularly information developed— used by education officials and the So- (i) In consideration of the student’s cial Security Administration; individualized education program or (B) Provided by the individual and 504 services, as applicable; and (ii) In accordance with the plans, the individual’s family; and policies, procedures, and terms of the (C) Obtained under the assessment interagency agreement required under for determining the individual’s eligi- § 361.22. bility and vocational rehabilitation (e) Standards for developing the indi- needs. vidualized plan for employment. The in- (Authority: Sections 7(2)(B), 101(a)(9), 102(b), dividualized plan for employment must and 103(a)(1) of the Rehabilitation Act of be developed as soon as possible, but 1973, as amended; 29 U.S.C. 705(2)(B), 721(a)(9), not later than 90 days after the date of 722(b), and 723(a)(1)) determination of eligibility, unless the State unit and the eligible individual § 361.46 Content of the individualized agree to the extension of that deadline plan for employment. to a specific date by which the individ- (a) Mandatory components. Regardless ualized plan for employment must be of the approach in § 361.45(c)(1) that an completed. eligible individual selects for purposes (f) Data for preparing the individual- of developing the individualized plan ized plan for employment. (1) Preparation for employment, each individualized without comprehensive assessment. To plan for employment must— the extent possible, the employment (1) Include a description of the spe- outcome and the nature and scope of cific employment outcome, as defined rehabilitation services to be included in § 361.5(c)(15), that is chosen by the el- in the individual’s individualized plan igible individual and is consistent with for employment must be determined the individual’s unique strengths, re- based on the data used for the assess- sources, priorities, concerns, abilities, ment of eligibility and priority for capabilities, career interests, and in- services under § 361.42. formed choice consistent with the gen- (2) Preparation based on comprehensive assessment. eral goal of competitive integrated em- (i) If additional data are necessary to ployment (except that in the case of an determine the employment outcome eligible individual who is a student or and the nature and scope of services to a youth with a disability, the descrip- be included in the individualized plan tion may be a description of the indi- for employment of an eligible individual’s projected post-school employ- vidual, the State unit must conduct a ment outcome); comprehensive assessment of the (2) Include a description under § 361.48 unique strengths, resources, priorities, of— concerns, abilities, capabilities, inter- (i) These specific rehabilitation serv- ests, and informed choice, including ices needed to achieve the employment the need for supported employment outcome, including, as appropriate, the services, of the eligible individual, in provision of assistive technology de- the most integrated setting possible, vices, assistive technology services,

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and personal assistance services, in- (1) Specify the supported employ- cluding training in the management of ment services to be provided by the those services; and designated State unit; (ii) In the case of a plan for an eligi- (2) Specify the expected extended ble individual that is a student or services needed, which may include youth with a disability, the specific natural supports; transition services and supports needed (3) Identify the source of extended to achieve the individual’s employment services or, to the extent that it is not outcome or projected post-school em- possible to identify the source of ex- ployment outcome. tended services at the time the individ- (3) Provide for services in the most ualized plan for employment is devel- integrated setting that is appropriate oped, include a description of the basis for the services involved and is con- for concluding that there is a reason- sistent with the informed choice of the able expectation that those sources eligible individual; will become available; (4) Include timelines for the achieve- (4) Provide for periodic monitoring to ment of the employment outcome and ensure that the individual is making for the initiation of services; satisfactory progress toward meeting (5) Include a description of the entity the weekly work requirement estab- or entities chosen by the eligible indi- lished in the individualized plan for vidual or, as appropriate, the individ- employment by the time of transition ual’s representative that will provide to extended services; the vocational rehabilitation services (5) Provide for the coordination of and the methods used to procure those services provided under an individual- services; ized plan for employment with services (6) Include a description of the cri- provided under other individualized teria that will be used to evaluate plans established under other Federal progress toward achievement of the or State programs; employment outcome; and (6) To the extent that job skills training is provided, identify that the (7) Include the terms and conditions training will be provided on site; and of the individualized plan for employ- (7) Include placement in an inte- ment, including, as appropriate, infor- grated setting for the maximum num- mation describing— ber of hours possible based on the (i) The responsibilities of the des- unique strengths, resources, priorities, ignated State unit; concerns, abilities, capabilities, inter- (ii) The responsibilities of the eligi- ests, and informed choice of individuals ble individual, including— with the most significant disabilities. (A) The responsibilities the indi- (c) Post-employment services. The individual will assume in relation to vidualized plan for employment for achieving the employment outcome; each individual must contain, as deter- (B) If applicable, the extent of the in- mined to be necessary, statements con- dividual’s participation in paying for cerning— the cost of services; and (1) The expected need for post-em- (C) The responsibility of the indi- ployment services prior to closing the vidual with regard to applying for and record of services of an individual who securing comparable services and bene- has achieved an employment outcome; fits as described in § 361.53; and (2) A description of the terms and (iii) The responsibilities of other en- conditions for the provision of any tities as the result of arrangements post-employment services; and made pursuant to the comparable serv- (3) If appropriate, a statement of how ices or benefits requirements in § 361.53. post-employment services will be pro- (b) Supported employment requirements. vided or arranged through other enti- An individualized plan for employment ties as the result of arrangements for an individual with a most signifi- made pursuant to the comparable serv- cant disability for whom an employ- ices or benefits requirements in § 361.53. ment outcome in a supported employ- (d) Coordination of services for students ment setting has been determined to be with disabilities. The individualized plan appropriate must— for employment for a student with a

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disability must be coordinated with the (6) The individualized plan for em- individualized education program or ployment, and any amendments to the 504 services, as applicable, for that in- individualized plan for employment, dividual in terms of the goals, objec- consistent with the requirements under tives, and services identified in the § 361.46. education program. (7) Documentation describing the ex- (Approved by the Office of Management and tent to which the applicant or eligible Budget under control number 1205–0522) individual exercised informed choice regarding the provision of assessment (Authority: Sections 101(a)(8), 101(a)(9), and services and the extent to which the el- 102(b)(4) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 721(a)(8), 721(a)(9), and igible individual exercised informed 722(b)(4)) choice in the development of the individualized plan for employment with § 361.47 Record of services. respect to the selection of the specific (a) The designated State unit must employment outcome, the specific vo- maintain for each applicant and eligi- cational rehabilitation services needed ble individual a record of services that to achieve the employment outcome, includes, to the extent pertinent, the the entity to provide the services, the following documentation: employment setting, the settings in (1) If an applicant has been deter- which the services will be provided, and mined to be an eligible individual, doc- the methods to procure the services. umentation supporting that determina- (8) In the event that an individual’s tion in accordance with the require- individualized plan for employment ments under § 361.42. provides for vocational rehabilitation (2) If an applicant or eligible indi- services in a non-integrated setting, a vidual receiving services under an indi- justification to support the need for vidualized plan for employment has the non-integrated setting. been determined to be ineligible, docu- (9) In the event that an individual ob- mentation supporting that determina- tains competitive employment, tion in accordance with the require- verification that the individual is com- ments under § 361.43. pensated at or above the minimum (3) Documentation that describes the wage and that the individual’s wage justification for closing an applicant’s and level of benefits are not less than or eligible individual’s record of serv- that customarily paid by the employer ices if that closure is based on reasons for the same or similar work performed other than ineligibility, including, as by non-disabled individuals in accord- appropriate, documentation indicating ance with § 361.5(c)(9)(i). that the State unit has satisfied the re- (10) In the event an individual quirements in § 361.44. achieves an employment outcome in (4) If an individual has been deter- which the individual is compensated in mined to be an individual with a sig- accordance with section 14(c) of the nificant disability or an individual Fair Labor Standards Act or the des- with a most significant disability, doc- ignated State unit closes the record of umentation supporting that determina- services of an individual in extended tion. employment on the basis that the indi- (5) If an individual with a significant vidual is unable to achieve an employ- disability requires an exploration of ment outcome consistent with abilities, capabilities, and capacity to § 361.5(c)(15) or that an eligible indi- perform in realistic work situations vidual through informed choice chooses through the use of trial work experi- to remain in extended employment, ences to determine whether the indi- documentation of the results of the vidual is an eligible individual, docu- semi-annual and annual reviews re- mentation supporting the need for, and quired under § 361.55, of the individual’s the plan relating to, that exploration input into those reviews, and of the in- and documentation regarding the peri- dividual’s or, if appropriate, the indi- odic assessments carried out during the vidual’s representative’s acknowledg- trial work experiences in accordance ment that those reviews were con- with the requirements under § 361.42(e). ducted.

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(11) Documentation concerning any type of disability, from Federal funds action or decision resulting from a re- reserved in accordance with § 361.65, quest by an individual under § 361.57 for and any funds made available from a review of determinations made by State, local, or private funding sources. designated State unit personnel. Funds reserved and made available (12) In the event that an applicant or may be used for the required, author- eligible individual requests under ized, and pre-employment transition § 361.38(c)(4) that documentation in the coordination activities under para- record of services be amended and the graphs (2), (3) and (4) of this section. documentation is not amended, docu- (1) Availability of services. Pre-employ- mentation of the request. ment transition services must be made (13) In the event an individual is re- available Statewide to all students ferred to another program through the with disabilities, regardless of whether State unit’s information and referral the student has applied or been deter- system under § 361.37, including other mined eligible for vocational rehabili- components of the statewide workforce tation services. development system, documentation (2) Required activities. The designated on the nature and scope of services pro- State unit must provide the following vided by the designated State unit to pre-employment transition services: the individual and on the referral (i) Job exploration counseling; itself, consistent with the require- (ii) Work-based learning experiences, ments of § 361.37. which may include in-school or after (14) In the event an individual’s school opportunities, or experience record of service is closed under § 361.56, outside the traditional school setting documentation that demonstrates the (including internships), that is pro- services provided under the individ- vided in an integrated environment in ual’s individualized plan for employ- the community to the maximum ex- ment contributed to the achievement tent possible; of the employment outcome. (iii) Counseling on opportunities for (15) In the event an individual’s enrollment in comprehensive transi- record of service is closed under § 361.56, tion or postsecondary educational pro- documentation verifying that the programs at institutions of higher edu- visions of § 361.56 have been satisfied. cation; (b) The State unit, in consultation with the State Rehabilitation Council (iv) Workplace readiness training to if the State has a Council, must deter- develop social skills and independent mine the type of documentation that living; and the State unit must maintain for each (v) Instruction in self-advocacy (in- applicant and eligible individual in cluding instruction in person-centered order to meet the requirements in planning), which may include peer paragraph (a) of this section. mentoring (including peer mentoring from individuals with disabilities (Authority: Sections 12(c), 101(a)(6), (9), (14), working in competitive integrated em- and (20) and 102(a), (b), and (d) of the Reha- ployment). bilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6), (9), (14), and (20), and 722(a), (3) Authorized activities. Funds avail- (b), and (d)) able and remaining after the provision of the required activities described in § 361.48 Scope of vocational rehabilita- paragraph (a)(2) of this section may be tion services for individuals with used to improve the transition of stu- disabilities. dents with disabilities from school to (a) Pre-employment transition services. postsecondary education or an employ- Each State must ensure that the des- ment outcome by— ignated State unit, in collaboration (i) Implementing effective strategies with the local educational agencies in- to increase the likelihood of inde- volved, provide, or arrange for the pro- pendent living and inclusion in com- vision of, pre-employment transition munities and competitive integrated services for all students with disabil- workplaces; ities, as defined in § 361.5(c)(51), in need (ii) Developing and improving strate- of such services, without regard to the gies for individuals with intellectual

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disabilities and individuals with sig- (iv) When invited, attending person- nificant disabilities to live independ- centered planning meetings for individ- ently; participate in postsecondary uals receiving services under title XIX education experiences; and obtain, ad- of the Social Security Act (42 U.S.C. vance in and retain competitive inte- 1396 et seq.); and grated employment; (b) Services for individuals who have (iii) Providing instruction to voca- applied for or been determined eligible for tional rehabilitation counselors, school vocational rehabilitation services. As ap- transition personnel, and other persons propriate to the vocational rehabilita- supporting students with disabilities; tion needs of each individual and con- (iv) Disseminating information about sistent with each individual’s individ- innovative, effective, and efficient ap- ualized plan for employment, the des- proaches to achieve the goals of this ignated State unit must ensure that section; the following vocational rehabilitation (v) Coordinating activities with tran- services are available to assist the in- sition services provided by local edu- dividual with a disability in preparing cational agencies under the Individuals for, securing, retaining, advancing in with Disabilities Education Act (20 or regaining an employment outcome U.S.C. 1400 et seq.); that is consistent with the individual’s (vi) Applying evidence-based findings unique strengths, resources, priorities, to improve policy, procedure, practice, concerns, abilities, capabilities, inter- and the preparation of personnel, in ests, and informed choice: order to better achieve the goals of this (1) Assessment for determining eligi- section; bility and priority for services by (vii) Developing model transition qualified personnel, including, if appro- demonstration projects; priate, an assessment by personnel (viii) Establishing or supporting skilled in rehabilitation technology, in multistate or regional partnerships in- accordance with § 361.42. volving States, local educational agen- (2) Assessment for determining voca- cies, designated State units, developmental disability agencies, private tional rehabilitation needs by qualified businesses, or other participants to personnel, including, if appropriate, an achieve the goals of this section; and assessment by personnel skilled in re- (ix) Disseminating information and habilitation technology, in accordance strategies to improve the transition to with § 361.45. postsecondary activities of individuals (3) Vocational rehabilitation coun- who are members of traditionally seling and guidance, including informa- unserved and underserved populations. tion and support services to assist an (4) Pre-employment transition coordina- individual in exercising informed tion. Each local office of a designated choice in accordance with § 361.52. State unit must carry out responsibil- (4) Referral and other services nec- ities consisting of— essary to assist applicants and eligible (i) Attending individualized edu- individuals to secure needed services cation program meetings for students from other agencies, including other with disabilities, when invited; components of the statewide workforce (ii) Working with the local workforce development system, in accordance development boards, one-stop centers, with §§ 361.23, 361.24, and 361.37, and to and employers to develop work oppor- advise those individuals about client tunities for students with disabilities, assistance programs established under including internships, summer employ- 34 CFR part 370. ment and other employment opportuni- (5) In accordance with the definition ties available throughout the school in § 361.5(c)(39), physical and mental year, and apprenticeships; restoration services, to the extent that (iii) Working with schools, including financial support is not readily avail- those carrying out activities under sec- able from a source other than the des- tion 614(d) of the IDEA, to coordinate ignated State unit (such as through and ensure the provision of pre-employ- health insurance or a comparable serv- ment transition services under this ice or benefit as defined in section; § 361.5(c)(10)).

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(6) Vocational and other training (16) Occupational licenses, tools, services, including personal and voca- equipment, initial stocks, and supplies. tional adjustment training, advanced (17) Rehabilitation technology in ac- training in, but not limited to, a field cordance with the definition of that of science, technology, engineering, term in § 361.5(c)(45), including vehic- mathematics (including computer ular modification, telecommuni- science), medicine, law, or business); cations, sensory, and other techno- books, tools, and other training mate- logical aids and devices. rials, except that no training or train- (18) Transition services for students ing services in an institution of higher and youth with disabilities, that facili- education (universities, colleges, com- tate the transition from school to post- munity or junior colleges, vocational secondary life, such as achievement of schools, technical institutes, or hos- an employment outcome in competi- pital schools of nursing or any other tive integrated employment, or pre- postsecondary education institution) employment transition services for may be paid for with funds under this students. part unless maximum efforts have been (19) Technical assistance and other made by the State unit and the indi- consultation services to conduct mar- vidual to secure grant assistance in ket analyses, develop business plans, whole or in part from other sources to and otherwise provide resources, to the pay for that training. extent those resources are authorized (7) Maintenance, in accordance with to be provided through the statewide the definition of that term in workforce development system, to eli- § 361.5(c)(34). gible individuals who are pursuing self- (8) Transportation in connection with employment or telecommuting or es- the provision of any vocational reha- tablishing a small business operation bilitation service and in accordance as an employment outcome. with the definition of that term in (20) Customized employment in ac- § 361.5(c)(57). cordance with the definition of that term in § 361.5(c)(11). (9) Vocational rehabilitation services (21) Other goods and services deter- to family members, as defined in mined necessary for the individual § 361.5(c)(23), of an applicant or eligible with a disability to achieve an employ- individual if necessary to enable the ment outcome. applicant or eligible individual to achieve an employment outcome. (Authority: Sections 7(37), 12(c), 103(a), and (10) Interpreter services, including 113 of the Rehabilitation Act of 1973, as sign language and oral interpreter amended; 29 U.S.C. 705(37), 709(c), 723(a), and services, for individuals who are deaf or 733) hard of hearing and tactile interpreting § 361.49 Scope of vocational rehabilita- services for individuals who are deaf- tion services for groups of individ- blind provided by qualified personnel. uals with disabilities. (11) Reader services, rehabilitation (a) The designated State unit may teaching services, and orientation and provide for the following vocational re- mobility services for individuals who habilitation services for the benefit of are blind. groups of individuals with disabilities: (12) Job-related services, including (1) The establishment, development, job search and placement assistance, or improvement of a public or other job retention services, follow-up serv- nonprofit community rehabilitation ices, and follow-along services. program that is used to provide voca- (13) Supported employment services tional rehabilitation services that pro- in accordance with the definition of mote integration into the community that term in § 361.5(c)(54). and prepare individuals with disabil- (14) Personal assistance services in ities for competitive integrated em- accordance with the definition of that ployment, including supported employ- term in § 361.5(c)(39). ment and customized employment, and (15) Post-employment services in ac- under special circumstances, the con- cordance with the definition of that struction of a facility for a public or term in § 361.5(c)(42). nonprofit community rehabilitation

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program as defined in §§ 361.5(c)(10), provided throughout the operation of 361.5(c)(16) and 361.5(c)(17). Examples of the small business enterprise. special circumstances include the de- (ii) Initial stocks and supplies includes struction by natural disaster of the those items necessary to the establish- only available center serving an area ment of a new business enterprise dur- or a State determination that con- ing the initial establishment period, struction is necessary in a rural area which may not exceed six months. because no other public agencies or pri- (iii) Costs of establishing a small vate nonprofit organizations are cur- business enterprise may include oper- rently able to provide vocational reha- ational costs during the initial estab- bilitation services to individuals. lishment period, which may not exceed (2) Telecommunications systems that six months. have the potential for substantially (iv) If the designated State unit pro- improving vocational rehabilitation vides for these services, it must ensure service delivery methods and devel- that only individuals with significant oping appropriate programming to disabilities will be selected to partici- meet the particular needs of individ- pate in this supervised program. uals with disabilities, including tele- (v) If the designated State unit pro- phone, television, video description vides for these services and chooses to services, satellite, tactile-vibratory de- set aside funds from the proceeds of the vices, and similar systems, as appro- operation of the small business enter- priate. prises, the State unit must maintain a (3) Special services to provide non- visual access to information for indi- description of the methods used in set- viduals who are blind, including the ting aside funds and the purposes for use of telecommunications, Braille, which funds are set aside. Funds may sound recordings, or other appropriate be used only for small business enter- media; captioned television, films, or prises purposes, and benefits that are video cassettes for individuals who are provided to operators from set-aside deaf or hard of hearing; tactile mate- funds must be provided on an equitable rials for individuals who are deaf-blind; basis. and other special services that provide (6) Consultation and technical assist- information through tactile, vibratory, ance services to assist State edu- auditory, and visual media. cational agencies and local educational (4) Technical assistance to businesses agencies in planning for the transition that are seeking to employ individuals of students and youth with disabilities with disabilities. from school to postsecondary life, in- (5) In the case of any small business cluding employment. enterprise operated by individuals with (7) Transition services to youth with significant disabilities under the super- disabilities and students with disabil- vision of the designated State unit, in- ities who may not have yet applied or cluding enterprises established under been determined eligible for vocational the Randolph-Sheppard program, man- rehabilitation services, for which a vo- agement services and supervision pro- cational rehabilitation counselor vided by the State unit along with the works in concert with educational acquisition by the State unit of vend- agencies, providers of job training pro- ing facilities or other equipment, ini- grams, providers of services under the tial stocks and supplies, and initial op- Medicaid program under title XIX of erating expenses, in accordance with the Social Security Act (42 U.S.C. 1396 the following requirements: et seq.), entities designated by the (i) Management services and super- State to provide services for individ- vision includes inspection, quality con- uals with developmental disabilities, trol, consultation, accounting, regu- centers for independent living (as de- lating, in-service training, and related fined in section 702 of the Act), housing services provided on a systematic basis and transportation authorities, work- to support and improve small business force development systems, and busi- enterprises operated by individuals nesses and employers. These specific with significant disabilities. Manage- transition services are to benefit a ment services and supervision may be group of students with disabilities or

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youth with disabilities and are not in- uals with disabilities within the State dividualized services directly related to who are eligible to receive support an individualized plan for employment under this title and who are not served goal. Services may include, but are not under this section. limited to, group tours of universities (b) If the designated State unit pro- and vocational training programs, em- vides for vocational rehabilitation ployer or business site visits to learn services for groups of individuals, it about career opportunities, career fairs must— coordinated with workforce develop- (1) Develop and maintain written ment and employers to facilitate mock policies covering the nature and scope interviews and resume writing, and of each of the vocational rehabilitation other general services applicable to services it provides and the criteria groups of students with disabilities and under which each service is provided; youth with disabilities. and (8) The establishment, development, (2) Maintain information to ensure or improvement of assistive technology the proper and efficient administration demonstration, loan, reutilization, or of those services in the form and detail financing programs in coordination and at the time required by the Sec- with activities authorized under the retary, including the types of services Assistive Technology Act of 1998 (29 provided, the costs of those services, U.S.C. 3001 et seq.) to promote access to and, to the extent feasible, estimates of assistive technology for individuals the numbers of individuals benefiting with disabilities and employers. from those services. (9) Support (including, as appro- (Authority: Sections 12(c), 101(a)(6)(A), and priate, tuition) for advanced training 103(b) of the Rehabilitation Act of 1973, as in a field of science, technology, engi- amended; 29 U.S.C. 709(c), 721(a)(6), and neering, or mathematics (including 723(b)) computer science), medicine, law, or business, provided after an individual § 361.50 Written policies governing the eligible to receive services under this provision of services for individuals title demonstrates— with disabilities. (i) Such eligibility; (a) Policies. The State unit must de- (ii) Previous completion of a bach- velop and maintain written policies elor’s degree program at an institution covering the nature and scope of each of higher education or scheduled com- of the vocational rehabilitation serv- pletion of such a degree program prior ices specified in § 361.48 and the criteria to matriculating in the program for under which each service is provided. which the individual proposes to use The policies must ensure that the pro- the support; and vision of services is based on the reha- (iii) Acceptance by a program at an bilitation needs of each individual as institution of higher education in the identified in that individual’s individ- United States that confers a master’s ualized plan for employment and is degree in a field of science, technology, consistent with the individual’s in- engineering, or mathematics (including formed choice. The written policies computer science), a juris doctor de- may not establish any arbitrary limits gree, a master of business administra- on the nature and scope of vocational tion degree, or a doctor of medicine de- rehabilitation services to be provided gree, except that— to the individual to achieve an employ- (A) No training provided at an insti- ment outcome. The policies must be tution of higher education may be paid developed in accordance with the fol- for with funds under this program un- lowing provisions: less maximum efforts have been made (b) Out-of-State services. (1) The State by the designated State unit to secure unit may establish a preference for in- grant assistance, in whole or in part, State services, provided that the pref- from other sources to pay for such erence does not effectively deny an in- training; and dividual a necessary service. If the in- (B) Nothing in this paragraph pre- dividual chooses an out-of-State serv- vents any designated State unit from ice at a higher cost than an in-State providing similar support to individ- service, if either service would meet

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the individual’s rehabilitation needs, tional rehabilitation services under the designated State unit is not re- this part meets program accessibility sponsible for those costs in excess of requirements consistent with the re- the cost of the in-State service. quirements, as applicable, of the Archi- (2) The State unit may not establish tectural Barriers Act of 1968, the Amer- policies that effectively prohibit the icans with Disabilities Act of 1990, sec- provision of out-of-State services. tion 504 of the Act, and the regulations (c) Payment for services. (1) The State implementing these laws. unit must establish and maintain writ- (b) Affirmative action. The vocational ten policies to govern the rates of pay- rehabilitation services portion of the ment for all purchased vocational reha- Unified or Combined State Plan must bilitation services. assure that community rehabilitation (2) The State unit may establish a fee programs that receive assistance under schedule designed to ensure a reason- part B of title I of the Act take affirm- able cost to the program for each serv- ative action to employ and advance in ice, if the schedule is— employment qualified individuals with (i) Not so low as to effectively deny disabilities covered under and on the an individual a necessary service; and same terms and conditions as in sec- (ii) Not absolute and permits exception 503 of the Act. tions so that individual needs can be (c) Special communication needs per- addressed. sonnel. The designated State unit must (3) The State unit may not place ab- ensure that providers of vocational re- solute dollar limits on specific service habilitation services are able to com- categories or on the total services pro- municate— vided to an individual. (1) In the native language of appli- (d) Duration of services. (1) The State cants and eligible individuals who have unit may establish reasonable time pe- limited English proficiency; and riods for the provision of services pro- (2) By using appropriate modes of vided that the time periods are— communication used by applicants and (i) Not so short as to effectively deny eligible individuals. an individual a necessary service; and (ii) Not absolute and permit excep- (Approved by the Office of Management and tions so that individual needs can be Budget under control number 1205–0522) addressed. (Authority: Sections 12(c) and 101(a)(6)(B) (2) The State unit may not establish and (C) of the Rehabilitation Act of 1973, as absolute time limits on the provision amended; 29 U.S.C. 709(c) and 721(a)(6)(B) and of specific services or on the provision (C)) of services to an individual. The duration of each service needed by an indi- § 361.52 Informed choice. vidual must be determined on an indi- (a) General provision. The vocational vidual basis and reflected in that indi- rehabilitation services portion of the vidual’s individualized plan for employ- Unified or Combined State Plan must ment. assure that applicants and recipients of (e) Authorization of services. The State services or, as appropriate, their rep- unit must establish policies related to resentatives are provided information the timely authorization of services, and support services to assist appli- including any conditions under which cants and recipients of services in exer- verbal authorization can be given. cising informed choice throughout the (Authority: Sections 12(c) and 101(a)(6) of the rehabilitation process consistent with Rehabilitation Act of 1973, as amended and 29 the provisions of section 102(d) of the U.S.C. 709(c) and 721(a)(6)) Act and the requirements of this section. § 361.51 Standards for facilities and (b) Written policies and procedures. The providers of services. designated State unit, in consultation (a) Accessibility of facilities. The voca- with its State Rehabilitation Council, tional rehabilitation services portion if it has a Council, must develop and of the Unified or Combined State Plan implement written policies and proce- must assure that any facility used in dures that enable an applicant or re- connection with the delivery of voca- cipient of services to exercise informed

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choice throughout the vocational reha- sessment for determining eligibility bilitation process. These policies and and vocational rehabilitation needs procedures must provide for— and during development of the individ- (1) Informing each applicant and re- ualized plan for employment, the des- cipient of services (including students ignated State unit must provide the in- with disabilities who are making the dividual or the individual’s representa- transition from programs under the re- tive, or assist the individual or the in- sponsibility of an educational agency dividual’s representative in acquiring, to programs under the responsibility of information necessary to make an in- the designated State unit and includ- formed choice about the specific voca- ing youth with disabilities), through tional rehabilitation services, includ- appropriate modes of communication, ing the providers of those services, that about the availability of and opportu- are needed to achieve the individual’s nities to exercise informed choice, including the availability of support employment outcome. This informa- services for individuals with cognitive tion must include, at a minimum, in- or other disabilities who require assist- formation relating to the— ance in exercising informed choice (1) Cost, accessibility, and duration throughout the vocational rehabilita- of potential services; tion process; (2) Consumer satisfaction with those (2) Assisting applicants and recipi- services to the extent that information ents of services in exercising informed relating to consumer satisfaction is choice in decisions related to the provi- available; sion of assessment services; (3) Qualifications of potential service (3) Developing and implementing providers; flexible procurement policies and (4) Types of services offered by the methods that facilitate the provision of potential providers; vocational rehabilitation services and (5) Degree to which services are pro- that afford recipients of services mean- vided in integrated settings; and ingful choices among the methods used (6) Outcomes achieved by individuals to procure vocational rehabilitation working with service providers, to the services; (4) Assisting eligible individuals or, extent that such information is avail- as appropriate, the individuals’ rep- able. resentatives, in acquiring information (d) Methods or sources of information. that enables them to exercise informed In providing or assisting the individual choice in the development of their indi- or the individual’s representative in ac- vidualized plans for employment with quiring the information required under respect to the selection of the— paragraph (c) of this section, the State (i) Employment outcome; unit may use, but is not limited to, the (ii) Specific vocational rehabilitation following methods or sources of infor- services needed to achieve the employ- mation: ment outcome; (1) Lists of services and service pro- (iii) Entity that will provide the serv- viders. ices; (2) Periodic consumer satisfaction (iv) Employment setting and the set- surveys and reports. tings in which the services will be pro- (3) Referrals to other consumers, con- vided; and sumer groups, or disability advisory (v) Methods available for procuring councils qualified to discuss the serv- the services; and ices or service providers. (5) Ensuring that the availability and scope of informed choice is consistent (4) Relevant accreditation, certifi- with the obligations of the designated cation, or other information relating State agency under this part. to the qualifications of service pro- (c) Information and assistance in the viders. selection of vocational rehabilitation services and service providers. In assisting an applicant and eligible individual in exercising informed choice during the as-

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(5) Opportunities for individuals to (4) Job-related services, including job visit or experience various work and search and placement assistance, job service provider settings. retention services, follow-up services, (Approved by the Office of Management and and follow-along services. Budget under control number 1205–0522) (5) Rehabilitation technology, including telecommunications, sensory, and (Authority: Sections 12(c), 101(a)(19), other technological aids and devices. 102(b)(2)(B), and 102(d) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), (6) Post-employment services con- 721(a)(19), 722(b)(2)(B), and 722(d)) sisting of the services listed under paragraphs (b)(1) through (5) of this § 361.53 Comparable services and ben- section. efits. (c) Provision of services. (1) If com- (a) Determination of availability. The parable services or benefits exist under vocational rehabilitation services por- any other program and are available to tion of the Unified or Combined State the individual at the time needed to Plan must assure that prior to pro- ensure the progress of the individual viding an accommodation or auxiliary toward achieving the employment out- aid or service or any vocational reha- come in the individual’s individualized bilitation services, except those serv- plan for employment, the designated ices listed in paragraph (b) of this sec- State unit must use those comparable tion, to an eligible individual or to services or benefits to meet, in whole members of the individual’s family, the or part, the costs of the vocational re- State unit must determine whether habilitation services. comparable services and benefits, as (2) If comparable services or benefits defined in § 361.5(c)(8), exist under any exist under any other program, but are other program and whether those serv- not available to the individual at the ices and benefits are available to the time needed to ensure the progress of individual unless such a determination the individual toward achieving the would interrupt or delay— employment outcome specified in the (1) The progress of the individual to- individualized plan for employment, ward achieving the employment out- the designated State unit must provide come identified in the individualized vocational rehabilitation services until plan for employment; those comparable services and benefits (2) An immediate job placement; or become available. (3) The provision of vocational reha- (d) Interagency coordination. (1) The bilitation services to any individual vocational rehabilitation services por- who is determined to be at extreme tion of the Unified or Combined State medical risk, based on medical evi- Plan must assure that the Governor, in dence provided by an appropriate quali- consultation with the entity in the fied medical professional. State responsible for the vocational re- (b) Exempt services. The following vo- habilitation program and other appro- cational rehabilitation services de- priate agencies, will ensure that an scribed in § 361.48(b) are exempt from a interagency agreement or other mech- determination of the availability of anism for interagency coordination comparable services and benefits under takes effect between the designated paragraph (a) of this section: State vocational rehabilitation unit (1) Assessment for determining eligi- and any appropriate public entity, in- bility and vocational rehabilitation cluding the State entity responsible for needs. administering the State Medicaid pro- (2) Counseling and guidance, includ- gram, a public institution of higher ing information and support services to education, and a component of the assist an individual in exercising in- statewide workforce development sys- formed choice. tem, to ensure the provision of voca- (3) Referral and other services to se- tional rehabilitation services, and, if cure needed services from other agen- appropriate, accommodations or auxil- cies, including other components of the iary aids and services, (other than statewide workforce development sys- those services listed in paragraph (b) of tem, if those services are not available this section) that are included in the under this part. individualized plan for employment of

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an eligible individual, including the (iv) Procedures for coordination of serv- provision of those vocational rehabili- ices. Information specifying policies tation services (including, if appro- and procedures for public entities to priate, accommodations or auxiliary determine and identify interagency co- aids and services) during the pendency ordination responsibilities of each pub- of any interagency dispute in accord- lic entity to promote the coordination ance with the provisions of paragraph and timely delivery of vocational reha- (d)(3)(iii) of this section. bilitation services, and accommoda- (2) The Governor may meet the re- tions or auxiliary aids and services, quirements of paragraph (d)(1) of this other than those listed in paragraph (b) section through— of this section. (i) A State statute or regulation; (e) Responsibilities under other law. (1) (ii) A signed agreement between the If a public entity (other than the des- respective officials of the public enti- ignated State unit) is obligated under ties that clearly identifies the respon- Federal law (such as the Americans sibilities of each public entity for the with Disabilities Act, section 504 of the provision of the services; or Act, or section 188 of the Workforce In- (iii) Another appropriate mechanism novation and Opportunity Act) or as determined by the designated State State law, or assigned responsibility vocational rehabilitation unit. under State policy or an interagency (3) The interagency agreement or agreement established under this sec- other mechanism for interagency co- tion, to provide or pay for any services ordination must include the following: considered to be vocational rehabilita- (i) Agency financial responsibility. An tion services (e.g., interpreter services identification of, or description of a under § 361.48(j)), and, if appropriate, method for defining, the financial re- accommodations or auxiliary aids and sponsibility of the designated State services other than those services list- unit and other public entities for the ed in paragraph (b) of this section, the provision of vocational rehabilitation public entity must fulfill that obliga- services, and, if appropriate, accom- tion or responsibility through— modations or auxiliary aids and services other than those listed in para- (i) The terms of the interagency graph (b) of this section and a provi- agreement or other requirements of sion stating the financial responsi- this section; bility of the public entity for providing (ii) Providing or paying for the serv- those services. ice directly or by contract; or (ii) Conditions, terms, and procedures of (iii) Other arrangement. reimbursement. Information specifying (2) If a public entity other than the the conditions, terms, and procedures designated State unit fails to provide under which the designated State unit or pay for vocational rehabilitation must be reimbursed by the other public services, and, if appropriate, accom- entities for providing vocational reha- modations or auxiliary aids and serv- bilitation services, and accommoda- ices for an eligible individual as estab- tions or auxiliary aids and services lished under this section, the des- based on the terms of the interagency ignated State unit must provide or pay agreement or other mechanism for for those services to the individual and interagency coordination. may claim reimbursement for the serv- (iii) Interagency disputes. Information ices from the public entity that failed specifying procedures for resolving to provide or pay for those services. interagency disputes under the inter- The public entity must reimburse the agency agreement or other mechanism designated State unit pursuant to the for interagency coordination, including terms of the interagency agreement or procedures under which the designated other mechanism described in para- State unit may initiate proceedings to graph (d) of this section in accordance secure reimbursement from other public entities or otherwise implement the with the procedures established in the provisions of the agreement or mechanism.

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agreement or mechanism pursuant to quire the financial participation of the paragraph (d)(3)(ii) of this section. individual— (i) As a condition for furnishing the (Approved by the Office of Management and Budget under control number 1205–0522) following vocational rehabilitation services: (Authority: Sections 12(c) and 101(a)(8) of the (A) Assessment for determining eligi- Rehabilitation Act of 1973, as amended; 29 bility and priority for services under U.S.C. 709(c) and 721(a)(8)) § 361.48(b)(1), except those non-assess- § 361.54 Participation of individuals in ment services that are provided to an cost of services based on financial individual with a significant disability need. during either an exploration of the individual’s abilities, capabilities, and (a) No Federal requirement. There is no capacity to perform in work situations Federal requirement that the financial through the use of trial work experi- need of individuals be considered in the ences under § 361.42(e). provision of vocational rehabilitation (B) Assessment for determining voca- services. tional rehabilitation needs under (b) State unit requirements. (1) The § 361.48(b)(2). State unit may choose to consider the (C) Vocational rehabilitation coun- financial need of eligible individuals or seling and guidance under § 361.48(b)(3). individuals who are receiving services (D) Referral and other services under through trial work experiences under § 361.48(b)(4). § 361.42(e) for purposes of determining (E) Job-related services under the extent of their participation in the § 361.48(b)(12). costs of vocational rehabilitation serv- (F) Personal assistance services ices, other than those services identi- under § 361.48(b)(14). fied in paragraph (b)(3) of this section. (G) Any auxiliary aid or service (e.g., (2) If the State unit chooses to con- interpreter services under sider financial need— § 361.48(b)(10), reader services under (i) It must maintain written poli- § 361.48(b)(11)) that an individual with a cies— disability requires under section 504 of (A) Explaining the method for deter- the Act (29 U.S.C. 794) or the Ameri- mining the financial need of an eligible cans with Disabilities Act (42 U.S.C. individual; and 12101, et seq.), or regulations imple- (B) Specifying the types of voca- menting those laws, in order for the in- tional rehabilitation services for which dividual to participate in the voca- the unit has established a financial tional rehabilitation program as au- needs test; thorized under this part; or (ii) The policies must be applied uni- (ii) As a condition for furnishing any formly to all individuals in similar cir- vocational rehabilitation service if the cumstances; individual in need of the service has (iii) The policies may require dif- been determined eligible for Social Se- ferent levels of need for different geo- curity benefits under titles II or XVI of graphic regions in the State, but must the Social Security Act. be applied uniformly to all individuals within each geographic region; and (Authority: Section 12(c) of the Rehabilita- tion Act of 1973, as amended; 29 U.S.C. 709(c)) (iv) The policies must ensure that the level of an individual’s participation in § 361.55 Semi-annual and annual re- the cost of vocational rehabilitation view of individuals in extended em- services is— ployment and other employment (A) Reasonable; under special certificate provisions (B) Based on the individual’s finan- of the Fair Labor Standards Act. cial need, including consideration of (a) The vocational rehabilitation any disability-related expenses paid by services portion of the Unified or Com- the individual; and bined State Plan must assure that the (C) Not so high as to effectively deny designated State unit conducts a semi- the individual a necessary service. annual review and reevaluation for the (3) The designated State unit may first two years of such employment and not apply a financial needs test, or re- annually thereafter, in accordance

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with the requirements in paragraph (b) § 361.56 Requirements for closing the of this section for an individual with a record of services of an individual disability served under this part— who has achieved an employment (1) Who has a record of service, as de- outcome. scribed in § 361.47, as either an appli- The record of services of an indi- cant or eligible individual under the vidual who has achieved an employ- vocational rehabilitation program; and ment outcome may be closed only if all (2)(i) Who has achieved employment of the following requirements are met: in which the individual is compensated (a) Employment outcome achieved. The in accordance with section 14(c) of the individual has achieved the employment outcome that is described in the Fair Labor Standards Act; or individual’s individualized plan for em- (ii) Who is in extended employment, ployment in accordance with including those individuals whose § 361.46(a)(1) and is consistent with the record of service is closed while the in- individual’s unique strengths, re- dividual is in extended employment on sources, priorities, concerns, abilities, the basis that the individual is unable capabilities, interests, and informed to achieve an employment outcome choice. consistent with § 361.5(c)(15) or that the (b) Employment outcome maintained. individual made an informed choice to The individual has maintained the em- remain in extended employment. ployment outcome for an appropriate (b) For each individual with a dis- period of time, but not less than 90 ability who meets the criteria in para- days, necessary to ensure the stability graph (a) of this section, the designated of the employment outcome, and the State unit must— individual no longer needs vocational (1) Semi-annually review and re- rehabilitation services. evaluate the status of each individual (c) Satisfactory outcome. At the end of for two years after the individual’s the appropriate period under paragraph record of services is closed (and annu- (b) of this section, the individual and ally thereafter) to determine the inter- the qualified rehabilitation counselor ests, priorities, and needs of the indi- employed by the designated State unit consider the employment outcome to vidual with respect to competitive in- be satisfactory and agree that the indi- tegrated employment or training for vidual is performing well in the em- competitive integrated employment; ployment. (2) Enable the individual or, if appro- (d) Post-employment services. The indi- priate, the individual’s representative vidual is informed through appropriate to provide input into the review and re- modes of communication of the avail- evaluation and must document that ability of post-employment services. input in the record of services, consistent with § 361.47(a)(10), with the in- (Authority: Sections 12(c), 101(a)(6), and 106(a)(2) of the Rehabilitation Act of 1973, as dividual’s or, as appropriate, the indi- amended; 29 U.S.C. 709(c), 721(a)(6), and vidual’s representative’s signed ac- 726(a)(2)) knowledgment that the review and reevaluation have been conducted; and § 361.57 Review of determinations (3) Make maximum efforts, including made by designated State unit per- identifying and providing vocational sonnel. rehabilitation services, reasonable ac- (a) Procedures. The designated State commodations, and other necessary unit must develop and implement pro- support services, to assist the indi- cedures to ensure that an applicant or vidual in engaging in competitive inte- recipient of services who is dissatisfied grated employment as defined in with any determination made by per- § 361.5(c)(9). sonnel of the designated State unit that affects the provision of vocational (Approved by the Office of Management and rehabilitation services may request, or, Budget under control number 1205–0522) if appropriate, may request through (Authority: Sections 12(c) and 101(a)(14) of the individual’s representative, a time- the Rehabilitation Act of 1973, as amended; ly review of that determination. The 29 U.S.C. 709(c) and 721(a)(14)) procedures must be in accordance with

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paragraphs (b) through (k) of this sec- formation that supports the applicant’s tion: or recipient’s position; and (b) General requirements. (1) Notifica- (ii) Allow an applicant or recipient to tion. Procedures established by the be represented during mediation ses- State unit under this section must pro- sions or due process hearings by coun- vide an applicant or recipient or, as ap- sel or other advocate selected by the propriate, the individual’s representa- applicant or recipient. tive notice of— (4) Impact on provision of services. The (i) The right to obtain review of State unit may not institute a suspen- State unit determinations that affect sion, reduction, or termination of voca- the provision of vocational rehabilita- tional rehabilitation services being tion services through an impartial due provided to an applicant or recipient, process hearing under paragraph (e) of including evaluation and assessment this section; services and individualized plan for em- (ii) The right to pursue mediation ployment development, pending a reso- under paragraph (d) of this section lution through mediation, pending a with respect to determinations made decision by a hearing officer or review- by designated State unit personnel ing official, or pending informal resolu- that affect the provision of vocational tion under this section unless— rehabilitation services to an applicant (i) The individual or, in appropriate or recipient; cases, the individual’s representative (iii) The names and addresses of indi- requests a suspension, reduction, or viduals with whom requests for medi- termination of services; or ation or due process hearings may be filed; (ii) The State agency has evidence (iv) The manner in which a mediator that the services have been obtained or impartial hearing officer may be se- through misrepresentation, fraud, collected consistent with the require- lusion, or criminal conduct on the part ments of paragraphs (d) and (f) of this of the individual or the individual’s section; and representative. (v) The availability of the client as- (5) Ineligibility. Applicants who are sistance program, established under 34 found ineligible for vocational rehabili- CFR part 370, to assist the applicant or tation services and previously eligible recipient during mediation sessions or individuals who are determined to be impartial due process hearings. no longer eligible for vocational reha- (2) Timing. Notice described in para- bilitation services pursuant to § 361.43 graph (b)(1) of this section must be pro- are permitted to challenge the deter- vided in writing— minations of ineligibility under the (i) At the time the individual applies procedures described in this section. for vocational rehabilitation services (c) Informal dispute resolution. The under this part; State unit may develop an informal (ii) At the time the individual is as- process for resolving a request for re- signed to a category in the State’s view without conducting mediation or order of selection, if the State has es- a formal hearing. A State’s informal tablished an order of selection under process must not be used to deny the § 361.36; right of an applicant or recipient to a (iii) At the time the individualized hearing under paragraph (e) of this sec- plan for employment is developed; and tion or any other right provided under (iv) Whenever vocational rehabilita- this part, including the right to pursue tion services for an individual are re- mediation under paragraph (d) of this duced, suspended, or terminated. section. If informal resolution under (3) Evidence and representation. Proce- this paragraph or mediation under dures established under this section paragraph (d) of this section is not suc- must— cessful in resolving the dispute within (i) Provide an applicant or recipient the time period established under para- or, as appropriate, the individual’s rep- graph (e)(1) of this section, a formal resentative with an opportunity to sub- hearing must be conducted within that mit during mediation sessions or due same time period, unless the parties process hearings evidence and other in- agree to a specific extension of time.

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(d) Mediation. (1) The State must es- fidential and may not be used as evi- tablish and implement procedures, as dence in any subsequent due process required under paragraph (b)(1)(ii) of hearings or civil proceedings, and the this section, to allow an applicant or parties to the mediation process may recipient and the State unit to resolve be required to sign a confidentiality disputes involving State unit deter- pledge prior to the commencement of minations that affect the provision of the process. vocational rehabilitation services (4) An agreement reached by the par- through a mediation process that must ties to the dispute in the mediation be made available, at a minimum, process must be described in a written whenever an applicant or recipient or, mediation agreement that is developed as appropriate, the individual’s rep- by the parties with the assistance of resentative requests an impartial due the qualified and impartial mediator process hearing under this section. and signed by both parties. Copies of (2) Mediation procedures established the agreement must be sent to both by the State unit under paragraph (d) parties. of this section must ensure that— (5) The costs of the mediation process (i) Participation in the mediation must be paid by the State. The State is process is voluntary on the part of the not required to pay for any costs re- applicant or recipient, as appropriate, lated to the representation of an appli- and on the part of the State unit; cant or recipient authorized under (ii) Use of the mediation process is paragraph (b)(3)(ii) of this section. not used to deny or delay the appli- (e) Impartial due process hearings. The cant’s or recipient’s right to pursue State unit must establish and imple- resolution of the dispute through an ment formal review procedures, as re- impartial hearing held within the time quired under paragraph (b)(1)(i) of this period specified in paragraph (e)(1) of section, that provide that— this section or any other rights pro- (1) Hearing conducted by an impar- vided under this part. At any point dur- tial hearing officer, selected in according the mediation process, either party ance with paragraph (f) of this section, or the mediator may elect to terminate must be held within 60 days of an appli- the mediation. In the event mediation cant’s or recipient ’s request for review is terminated, either party may pursue of a determination made by personnel resolution through an impartial hear- of the State unit that affects the provi- ing; sion of vocational rehabilitation serv- (iii) The mediation process is con- ices to the individual, unless informal ducted by a qualified and impartial me- resolution or a mediation agreement is diator, as defined in § 361.5(c)(43), who achieved prior to the 60th day or the must be selected from a list of quali- parties agree to a specific extension of fied and impartial mediators main- time; tained by the State— (2) In addition to the rights described (A) On a random basis; in paragraph (b)(3) of this section, the (B) By agreement between the direc- applicant or recipient or, if appro- tor of the designated State unit and priate, the individual’s representative the applicant or recipient or, as appro- must be given the opportunity to priate, the recipient’s representative; present witnesses during the hearing or and to examine all witnesses and other (C) In accordance with a procedure relevant sources of information and established in the State for assigning evidence; mediators, provided this procedure en- (3) The impartial hearing officer sures the neutrality of the mediator as- must— signed; and (i) Make a decision based on the pro- (iv) Mediation sessions are scheduled visions of the approved vocational re- and conducted in a timely manner and habilitation services portion of the are held in a location and manner that Unified or Combined State Plan, the is convenient to the parties to the dis- Act, Federal vocational rehabilitation pute. regulations, and State regulations and (3) Discussions that occur during the policies that are consistent with Fed- mediation process must be kept con- eral requirements; and

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(ii) Provide to the individual or, if (i) Provides both parties with an op- appropriate, the individual’s represent- portunity to submit additional evi- ative and to the State unit a full writ- dence and information relevant to a ten report of the findings and grounds final decision concerning the matter for the decision within 30 days of the under review; completion of the hearing; and (ii) May not overturn or modify the (4) The hearing officer’s decision is hearing officer’s decision, or any part final, except that a party may request of that decision, that supports the posi- an impartial review under paragraph tion of the applicant or recipient un- (g)(1) of this section if the State has es- less the reviewing official concludes, tablished procedures for that review, based on clear and convincing evi- and a party involved in a hearing may dence, that the decision of the impar- bring a civil action under paragraph (i) tial hearing officer is clearly erroneous of this section. on the basis of being contrary to the (f) Selection of impartial hearing offi- approved vocational rehabilitation cers. The impartial hearing officer for a services portion of the Unified or Com- particular case must be selected— bined State Plan, the Act, Federal vo- (1) From a list of qualified impartial cational rehabilitation regulations, or hearing officers maintained by the State regulations and policies that are State unit. Impartial hearing officers consistent with Federal requirements; included on the list must be— (iii) Makes an independent, final de- (i) Identified by the State unit if the cision following a review of the entire State unit is an independent commis- hearing record and provides the decision; or sion in writing, including a full report (ii) Jointly identified by the State of the findings and the statutory, regu- unit and the State Rehabilitation latory, or policy grounds for the deci- Council if the State has a Council; and sion, to the applicant or recipient or, as appropriate, the individual’s rep- (2)(i) On a random basis; or resentative and to the State unit with- (ii) By agreement between the direc- in 30 days of the request for adminis- tor of the designated State unit and trative review under paragraph (g)(1) of the applicant or recipient or, as appro- this section; and priate, the individual’s representative. (iv) May not delegate the responsi- (g) Administrative review of hearing of- bility for making the final decision ficer’s decision. The State may establish under paragraph (g) of this section to procedures to enable a party who is dis- any officer or employee of the des- satisfied with the decision of the im- ignated State unit. partial hearing officer to seek an im- (4) The reviewing official’s decision partial administrative review of the de- under paragraph (g) of this section is cision under paragraph (e)(3) of this final unless either party brings a civil section in accordance with the fol- action under paragraph (i) of this sec- lowing requirements: tion. (1) A request for administrative re- (h) Implementation of final decisions. If view under paragraph (g) of this sec- a party brings a civil action under tion must be made within 20 days of paragraph (h) of this section to chal- the mailing of the impartial hearing lenge the final decision of a hearing of- officer’s decision. ficer under paragraph (e) of this section (2) Administrative review of the hear- or to challenge the final decision of a ing officer’s decision must be con- State reviewing official under para- ducted by— graph (g) of this section, the final deci- (i) The chief official of the designated sion of the hearing officer or State re- State agency if the State has estab- viewing official must be implemented lished both a designated State agency pending review by the court. and a designated State unit under (i) Civil action. (1) Any party who dis- § 361.13(b); or agrees with the findings and decision of (ii) An official from the office of the an impartial hearing officer under Governor. paragraph (e) of this section in a State (3) The reviewing official described in that has not established administrative paragraph (g)(2)(i) of this section— review procedures under paragraph (g)

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of this section and any party who dis- (ii) The number of mediations held, agrees with the findings and decision including the number of mediation under paragraph (g)(3)(iii) of this sec- agreements reached. tion have a right to bring a civil action (iii) The number of hearings and re- with respect to the matter in dispute. views sought from impartial hearing The action may be brought in any officers and State reviewing officials, State court of competent jurisdiction including the type of complaints and or in a district court of the United the issues involved. States of competent jurisdiction with- (iv) The number of hearing officer de- out regard to the amount in con- cisions that were not reviewed by ad- troversy. ministrative reviewing officials. (2) In any action brought under para- (v) The number of hearing decisions graph (i) of this section, the court— that were reviewed by State reviewing officials and, based on these reviews, (i) Receives the records related to the the number of hearing decisions that impartial due process hearing and the were— records related to the administrative (A) Sustained in favor of an applicant review process, if applicable; or recipient; (ii) Hears additional evidence at the (B) Sustained in favor of the des- request of a party; and ignated State unit; (iii) Basing its decision on the pre- (C) Reversed in whole or in part in ponderance of the evidence, grants the favor of the applicant or recipient; and relief that the court determines to be (D) Reversed in whole or in part in appropriate. favor of the State unit. (j) State fair hearing board. A fair (2) The State unit director also must hearing board as defined in § 361.5(c)(21) collect and submit to the Secretary is authorized to carry out the respon- copies of all final decisions issued by sibilities of the impartial hearing offi- impartial hearing officers under para- cer under paragraph (e) of this section graph (e) of this section and by State in accordance with the following cri- review officials under paragraph (g) of teria: this section. (1) The fair hearing board may con- (3) The confidentiality of records of duct due process hearings either collec- applicants and recipients maintained tively or by assigning responsibility for by the State unit may not preclude the conducting the hearing to one or more access of the Secretary to those members of the fair hearing board. records for the purposes described in (2) The final decision issued by the this section. fair hearing board following a hearing (Authority: Sections 12(c) and 102(c) of the under paragraph (j)(1) of this section Rehabilitation Act of 1973, as amended; 29 must be made collectively by, or by a U.S.C. 709(c) and 722(c)) majority vote of, the fair hearing board. Subpart C—Financing of State Vo- (3) The provisions of paragraphs cational Rehabilitation Pro- (b)(1), (2), and (3) of this section that grams relate to due process hearings and of paragraphs (e), (f), (g), and (h) of this § 361.60 Matching requirements. section do not apply to fair hearing (a) Federal share—(1) General. Except boards under this paragraph (j). as provided in paragraph (a)(2) of this (k) Data collection. (1) The director of section, the Federal share for expendi- the designated State unit must collect tures made by the State under the vo- and submit, at a minimum, the fol- cational rehabilitation services portion lowing data to the Secretary for inclu- of the Unified or Combined State Plan, sion each year in the annual report to including expenditures for the provi- Congress under section 13 of the Act: sion of vocational rehabilitation serv- (i) A copy of the standards used by ices and the administration of the vo- State reviewing officials for reviewing cational rehabilitation services portion decisions made by impartial hearing of the Unified or Combined State Plan, officers under this section. is 78.7 percent.

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(2) Construction projects. The Federal (C) Except as provided in paragraph share for expenditures made for the (b)(3)(i) of this section, all Federal construction of a facility for commu- funds must be used on a statewide basis nity rehabilitation program purposes consistent with § 361.25, unless a waiver may not be more than 50 percent of the of statewideness is obtained under total cost of the project. § 361.26; and (b) Non-Federal share—(1) General. Ex- (iii) Any other purpose under the vo- cept as provided in paragraph (b)(2) and cational rehabilitation services portion (b)(3) of this section, expenditures of the Unified or Combined State Plan, made under the vocational rehabilita- provided the expenditures do not ben- tion services portion of the Unified or efit in any way the donor, employee, Combined State Plan to meet the non- officer, or agent, any member of his or Federal share under this section must her immediate family, his or her part- be consistent with the provisions of 2 ner, an individual with whom the donor CFR 200.306(b). has a close personal relationship, or an (2) Third party in-kind contributions. individual, entity, or organization with Third party in-kind contributions spec- whom the donor shares a financial or ified in 2 CFR 200.306(b) may not be other interest. The Secretary does not used to meet the non-Federal share consider a donor’s receipt from the under this section. State unit of a subaward or contract (3) Contributions by private entities. with funds allotted under this part to Expenditures made from those cash be a benefit for the purposes of this contributions provided by private orga- paragraph if the subaward or contract nizations, agencies, or individuals and that are deposited in the State agen- is awarded under the State’s regular cy’s account or, if applicable, sole local competitive procedures. agency’s account, in accordance with (Authority: Sections 7(14), 12(c), 101(a)(3), State law prior to their expenditure 101(a)(4), and 104 of the Rehabilitation Act of and that are earmarked, under a condi- 1973, as amended; 29 U.S.C. 705(14), 709(c), tion imposed by the contributor, may 721(a)(3), 721(a)(4), and 724)) be used as part of the non-Federal Example for paragraph (b)(3): Contributions share under this section if the funds may be earmarked in accordance with are earmarked for— § 361.60(b)(3)(iii) for providing particular serv- (i) Meeting in whole or in part the ices (e.g., rehabilitation technology serv- State’s share for establishing a com- ices); serving individuals with certain types munity rehabilitation program or con- of disabilities (e.g., individuals who are structing a particular facility for com- blind), consistent with the State’s order of selection, if applicable; providing services to munity rehabilitation program pur- special groups that State or Federal law per- poses; mits to be targeted for services (e.g., stu- (ii) Particular geographic areas with- dents with disabilities who are receiving spe- in the State for any purpose under the cial education services), consistent with the vocational rehabilitation services por- State’s order of selection, if applicable; or tion of the Unified or Combined State carrying out particular types of administra- Plan, other than those described in tive activities permissible under State law. paragraph (b)(3)(i) of this section, in Contributions also may be restricted to par- accordance with the following criteria: ticular geographic areas to increase services (A) Before funds that are earmarked or expand the scope of services that are for a particular geographic area may be available statewide under the vocational rehabilitation services portion of the Unified used as part of the non-Federal share, or Combined State Plan in accordance with the State must notify the Secretary the requirements in § 361.60(b)(3)(ii). that the State cannot provide the full non-Federal share without using these § 361.61 Limitation on use of funds for funds. construction expenditures. (B) Funds that are earmarked for a No more than 10 percent of a State’s particular geographic area may be used allotment for any fiscal year under sec- as part of the non-Federal share with- tion 110 of the Act may be spent on the out requesting a waiver of statewideness under § 361.26.

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construction of facilities for commu- part of the plan for the fiscal year 2 nity rehabilitation program purposes. years prior to that previous fiscal year. (Authority: Section 101(a)(17)(A) of the Reha- (d) Waiver or modification. (1) The Sec- bilitation Act of 1973, as amended; 29 U.S.C. retary may waive or modify the main- 721(a)(17)(A)) tenance of effort requirement in paragraph (a) of this section if the Sec- § 361.62 Maintenance of effort require- retary determines that a waiver or ments. modification is necessary to permit the (a) General requirements. The Sec- State to respond to exceptional or un- retary reduces the amount otherwise controllable circumstances, such as a payable to a State for any fiscal year major natural disaster or a serious eco- by the amount by which the total ex- nomic downturn, that— penditures from non-Federal sources (i) Cause significant unanticipated under the vocational rehabilitation expenditures or reductions in revenue services portion of the Unified or Com- that result in a general reduction of bined State Plan for any previous fiscal programs within the State; or year were less than the total of those expenditures for the fiscal year two (ii) Require the State to make sub- years prior to that previous fiscal year. stantial expenditures in the vocational (b) Specific requirements for construc- rehabilitation program for long-term tion of facilities. If the State provides purposes due to the one-time costs as- for the construction of a facility for sociated with the construction of a fa- community rehabilitation program cility for community rehabilitation purposes, the amount of the State’s program purposes, the establishment of share of expenditures for vocational re- a facility for community rehabilitation habilitation services under the plan, program purposes, or the acquisition of other than for the construction of a fa- equipment. cility for community rehabilitation (2) The Secretary may waive or mod- program purposes or the establishment ify the maintenance of effort require- of a facility for community rehabilita- ment in paragraph (b) of this section or tion purposes, must be at least equal to the 10 percent allotment limitation in the expenditures for those services for § 361.61 if the Secretary determines that the second prior fiscal year. a waiver or modification is necessary (c) Separate State agency for vocational to permit the State to respond to ex- rehabilitation services for individuals who ceptional or uncontrollable cir- are blind. If there is a separate part of cumstances, such as a major natural the vocational rehabilitation services disaster, that result in significant de- portion of the Unified or Combined struction of existing facilities and re- State Plan administered by a separate quire the State to make substantial ex- State agency to provide vocational re- penditures for the construction of a fa- habilitation services for individuals cility for community rehabilitation who are blind— program purposes or the establishment (1) Satisfaction of the maintenance of a facility for community rehabilita- of effort requirements under para- tion program purposes in order to pro- graphs (a) and (b) of this section is de- vide vocational rehabilitation services. termined based on the total amount of (3) A written request for waiver or a State’s non-Federal expenditures modification, including supporting jus- under both parts of the vocational re- tification, must be submitted to the habilitation services portion of the Secretary for consideration as soon as Unified or Combined State Plan; and the State has determined that it has (2) If a State fails to meet any main- failed to satisfy its maintenance of ef- tenance of effort requirement, the Sec- retary reduces the amount otherwise fort requirement due to an exceptional payable to the State for a fiscal year or uncontrollable circumstance, as de- under each part of the plan in direct scribed in paragraphs (d)(1) and (2) of proportion to the amount by which this section. non-Federal expenditures under each (Authority: Sections 101(a)(17) and 111(a)(2) part of the plan in any previous fiscal of the Rehabilitation Act of 1973, as amend- year were less than they were for that ed; 29 U.S.C. 721(a)(17) and 731(a)(2))

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§ 361.63 Program income. funds before requesting additional (a) Definition. For purposes of this funds from the Department. section, program income means gross (4) Program income cannot be used to income received by the State that is di- meet the non-Federal share require- rectly generated by a supported activ- ment under § 361.60. ity under this part or earned as a result (Authority: Sections 12(c) and 108 of the Re- of the Federal award during the period habilitation Act of 1973, as amended; 29 of performance, as defined in 2 CFR U.S.C. 709(c) and 728; 2 CFR part 200) 200.80. (b) Sources. Sources of program in- § 361.64 Obligation of Federal funds. come include, but are not limited to: (a) Except as provided in paragraph Payments from the Social Security Ad- (b) of this section, any Federal award ministration for assisting Social Secu- funds, including reallotted funds, that rity beneficiaries and recipients to are appropriated for a fiscal year to achieve employment outcomes; pay- carry out a program under this part ments received from workers’ com- that are not obligated by the State by pensation funds; payments received by the beginning of the succeeding fiscal the State agency from insurers, con- year remain available for obligation by sumers, or others for services to defray the State during that succeeding fiscal part or all of the costs of services pro- year. vided to particular individuals; and in- (b) Federal funds appropriated for a come generated by a State-operated fiscal year remain available for obliga- community rehabilitation program for tion in the succeeding fiscal year only activities authorized under this part. to the extent that the State met the (c) Use of program income. (1) Except matching requirement for those Fed- as provided in paragraph (c)(2) of this eral funds by obligating, in accordance section, program income, whenever with 34 CFR 76.707, the non-Federal earned, must be used for the provision share in the fiscal year for which the of vocational rehabilitation services funds were appropriated. and the administration of the vocational rehabilitation services portion (Authority: Section 19 of the Rehabilitation of the Unified or Combined State Plan. Act of 1973, as amended; 29 U.S.C. 716) Program income— (i) Is considered earned in the fiscal § 361.65 Allotment and payment of year in which it is received; and Federal funds for vocational rehabilitation services. (ii) Must be disbursed during the period of performance of the award. (a) Allotment. (1) The allotment of (2) Payments provided to a State Federal funds for vocational rehabilita- from the Social Security Administra- tion services for each State is com- tion for assisting Social Security bene- puted in accordance with the require- ficiaries and recipients to achieve em- ments of section 110 of the Act, and ployment outcomes may also be used payments are made to the State on a to carry out programs under part B of quarterly basis, unless some other pe- title I of the Act (client assistance), riod is established by the Secretary. title VI of the Act (supported employ- (2) If the vocational rehabilitation ment), and title VII of the Act (inde- services portion of the Unified or Com- pendent living). bined State Plan designates one State (3)(i) The State must use program in- agency to administer, or supervise the come to supplement Federal funds that administration of, the part of the plan support program activities that are under which vocational rehabilitation subject to this part. See, for example, 2 services are provided for individuals CFR 200.307(e)(2). who are blind and another State agen- (ii) Notwithstanding 2 CFR 200.305(a) cy to administer the rest of the plan, and to the extent that program income the division of the State’s allotment is funds are available, a State must dis- a matter for State determination. burse those funds (including repay- (3) Reservation for pre-employment ments to a revolving fund), rebates, re- transition services. (i) Pursuant to sec- funds, contract settlements, audit re- tion 110(d) of the Act, the State must coveries, and interest earned on such reserve at least 15 percent of the

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State’s allotment, received in accord- to outline a strategic vision of, and ance with section 110(a) of the Act for goals for, how their workforce develop- the provision of pre-employment tran- ment systems will achieve the purposes sition services, as described in of the Workforce Innovation and Op- § 361.48(a) of this part. portunity Act (WIOA). (ii) The funds reserved in accordance (b) The Unified and Combined State with paragraph (a)(3)(i) of this sec- Plans serve as 4-year action plans to tion— develop, align, and integrate the (A) Must only be used for pre-employ- State’s systems and provide a platform ment transition services specified in to achieve the State’s vision and stra- § 361.48(a); and tegic and operational goals. A Unified (B) Must not be used to pay for administrative costs, (as defined in or Combined State Plan is intended to: § 361.5(c)(2)) associated with the provi- (1) Align, in strategic coordination, sion of such services or any other voca- the six core programs required in the tional rehabilitation services. Unified State Plan pursuant to (b) Reallotment. (1) The Secretary de- § 361.105(b), and additional Combined termines not later than 45 days before State Plan partner programs that may the end of a fiscal year which States, if be part of the Combined State Plan any, will not use their full allotment. pursuant to § 361.140; (2) As soon as possible, but not later (2) Direct investments in economic, than the end of the fiscal year, the Sec- education, and workforce training pro- retary reallots these funds to other grams to focus on providing relevant States that can use those additional education and training to ensure that funds during the period of performance individuals, including youth and indi- of the award, provided the State can viduals with barriers to employment, meet the matching requirement by ob- have the skills to compete in the job ligating the non-Federal share of any market and that employers have a reallotted funds in the fiscal year for ready supply of skilled workers; which the funds were appropriated. (3) Apply strategies for job-driven (3) In the event more funds are re- training consistently across Federal quested by agencies than are available, the Secretary will determine the proc- programs; and ess for allocating funds available for (4) Enable economic, education, and reallotment. workforce partners to build a skilled (4) Funds reallotted to another State workforce through innovation in, and are considered to be an increase in the alignment of, employment, training, recipient State’s allotment for the fis- and education programs. cal year for which the funds were appropriated. § 361.105 What are the general requirements for the Unified State Plan? (Authority: Sections 12(c), 110, and 111 of the Rehabilitation Act of 1973, as amended; 29 (a) The Unified State Plan must be U.S.C. 709(c), 730, and 731) submitted in accordance with § 361.130 and WIOA sec. 102(c), as explained in Subpart D—Unified and Combined joint planning guidelines issued by the State Plans Under Title I of the Secretaries of Labor and Education. Workforce Innovation and (b) The Governor of each State must Opportunity Act submit, at a minimum, in accordance with § 361.130, a Unified State Plan to the Secretary of Labor to be eligible to AUTHORITY: Secs. 102, 103, and 503, Pub. L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). receive funding for the workforce development system’s six core programs: SOURCE: 81 FR 56022, Aug. 19, 2016, unless (1) The adult, dislocated worker, and otherwise noted. youth programs authorized under sub- § 361.100 What are the purposes of the title B of title I of WIOA and adminis- Unified and Combined State Plans? tered by the U.S. Department of Labor (a) The Unified and Combined State (DOL); Plans provide the framework for States

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(2) The Adult Education and Family (i) A description of how the State Literacy Act (AEFLA) program au- strategy will be implemented by each thorized under title II of WIOA and ad- core program’s lead State agency; ministered by the U.S. Department of (ii) State operating systems, includ- Education (ED); ing data systems, and policies that will (3) The Employment Service program support the implementation of the authorized under the Wagner-Peyser State’s strategy identified in para- Act of 1933, as amended by WIOA title graph (d)(1) of this section; III and administered by DOL; and (iii) Program-specific requirements (4) The Vocational Rehabilitation for the core programs required by program authorized under title I of the WIOA sec. 102(b)(2)(D); Rehabilitation Act of 1973, as amended (iv) Assurances required by sec. by title IV of WIOA and administered 102(b)(2)(E) of WIOA, including an as- by ED. surance that the lead State agencies (c) The Unified State Plan must out- responsible for the administration of line the State’s 4-year strategy for the the core programs reviewed and com- core programs described in paragraph mented on the appropriate operational (b) of this section and meet the re- planning of the Unified State Plan and quirements of sec. 102(b) of WIOA, as approved the elements as serving the explained in the joint planning guide- needs of the population served by such lines issued by the Secretaries of Labor programs, and other assurances deemed and Education. necessary by the Secretaries of Labor (d) The Unified State Plan must in- and Education under sec. 102(b)(2)(E)(x) clude strategic and operational plan- of WIOA; ning elements to facilitate the develop- (v) A description of joint planning ment of an aligned, coordinated, and and coordination across core programs, comprehensive workforce development required one-stop partner programs, system. The Unified State Plan must and other programs and activities in include: the Unified State Plan; and (1) Strategic planning elements that (vi) Any additional operational plan- describe the State’s strategic vision ning requirements imposed by the Sec- and goals for preparing an educated retary of Labor or the Secretary of and skilled workforce under sec. Education under sec. 102(b)(2)(C)(viii) 102(b)(1) of WIOA. The strategic plan- of WIOA. ning elements must be informed by and (e) All of the requirements in this include an analysis of the State’s eco- subpart that apply to States also apply nomic conditions and employer and to outlying areas. workforce needs, including education and skill needs. § 361.110 What are the program-spe- (2) Strategies for aligning the core cific requirements in the Unified programs and Combined State Plan State Plan for the adult, dislocated partner programs as described in worker, and youth programs au- § 361.140(d), as well as other resources thorized under Workforce Innova- available to the State, to achieve the tion and Opportunity Act title I? strategic vision and goals in accord- The program-specific requirements ance with sec. 102(b)(1)(E) of WIOA. for the adult, dislocated worker, and (3) Operational planning elements in youth programs that must be included accordance with sec. 102(b)(2) of WIOA in the Unified State Plan are described that support the strategies for aligning in sec. 102(b)(2)(D) of WIOA. Additional the core programs and other resources planning requirements may be ex- available to the State to achieve the plained in joint planning guidelines State’s vision and goals and a descrip- issued by the Secretaries of Labor and tion of how the State Workforce Devel- Education. opment Board (WDB) will implement its functions, in accordance with sec. 101(d) of WIOA. Operational planning elements must include:

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§ 361.115 What are the program-spe- § 361.125 What are the program-specific requirements in the Unified cific requirements in the Unified State Plan for the Adult Education State Plan for the State Vocational and Family Literacy Act program Rehabilitation program authorized authorized under Workforce Inno- under title I of the Rehabilitation vation and Opportunity Act title II? Act of 1973, as amended by Work- force Innovation and Opportunity The program-specific requirements Act title IV? for the AEFLA program in title II that The program specific-requirements must be included in the Unified State for the vocational rehabilitation serv- Plan are described in secs. 102(b)(2)(C) ices portion of the Unified or Combined and 102(b)(2)(D)(ii) of WIOA. State Plan are set forth in sec. 101(a) of (a) With regard to the description re- the Rehabilitation Act of 1973, as quired in sec. 102(b)(2)(D)(ii)(I) of WIOA amended. All submission requirements pertaining to content standards, the for the vocational rehabilitation serv- Unified State Plan must describe how ices portion of the Unified or Combined the eligible agency will, by July 1, 2016, State Plan are in addition to the joint- align its content standards for adult ly developed strategic and operational education with State-adopted chal- content requirements prescribed by lenging academic content standards sec. 102(b) of WIOA. under the Elementary and Secondary § 361.130 What is the development, Education Act of 1965, as amended. submission, and approval process of (b) With regard to the description re- the Unified State Plan? quired in sec. 102(b)(2)(C)(iv) of WIOA (a) The Unified State Plan described pertaining to the methods and factors in § 361.105 must be submitted in ac- the State will use to distribute funds cordance with WIOA sec. 102(c), as ex- under the core programs, for title II of plained in joint planning guidelines WIOA, the Unified State Plan must in- issued jointly by the Secretaries of clude— Labor and Education. (1) How the eligible agency will (b) A State must submit its Unified award multi-year grants on a competi- State Plan to the Secretary of Labor tive basis to eligible providers in the pursuant to a process identified by the State; and Secretary. (2) How the eligible agency will pro- (1) The initial Unified State Plan must be submitted no later than 120 vide direct and equitable access to days prior to the commencement of the funds using the same grant or contract second full program year of WIOA. announcement and application proce- (2) Subsequent Unified State Plans dure. must be submitted no later than 120 days prior to the end of the 4-year pe- § 361.120 What are the program-spe- riod covered by a preceding Unified cific requirements in the Unified State Plan for the Employment State Plan. Service program authorized under (3) For purposes of paragraph (b) of the Wagner-Peyser Act, as amended this section, ‘‘program year’’ means by Workforce Innovation and Op- July 1 through June 30 of any year. portunity Act title III? (c) The Unified State Plan must be developed with the assistance of the The Employment Service program State WDB, as required by 20 CFR authorized under the Wagner-Peyser 679.130(a) and WIOA sec. 101(d), and Act of 1933, as amended by WIOA title must be developed in coordination with III, is subject to requirements in sec. administrators with optimum policy- 102(b) of WIOA, including any addi- making authority for the core pro- tional requirements imposed by the grams and required one-stop partners. Secretary of Labor under secs. (d) The State must provide an oppor- 102(b)(2)(C)(viii) and 102(b)(2)(D)(iv) of tunity for public comment on and WIOA, as explained in joint planning input into the development of the Uni- guidelines issued by the Secretaries of fied State Plan prior to its submission. Labor and Education. (1) The opportunity for public comment must include an opportunity for

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comment by representatives of Local paragraph (h) of this section within 90 WDBs and chief elected officials, busi- days of the receipt by the Secretaries, nesses, representatives of labor organi- the Unified State Plan will be consid- zations, community-based organiza- ered approved. tions, adult education providers, institutions of higher education, other § 361.135 What are the requirements stakeholders with an interest in the for modification of the Unified services provided by the six core pro- State Plan? grams, and the general public, includ- (a) In addition to the required modi- ing individuals with disabilities. fication review set forth in paragraph (2) Consistent with the ‘‘Sunshine (b) of this section, a Governor may sub- Provision’’ of WIOA in sec. 101(g), the mit a modification of its Unified State State WDB must make information re- Plan at any time during the 4-year pe- garding the Unified State Plan avail- riod of the plan. able to the public through electronic (b) Modifications are required, at a means and regularly occurring open minimum: meetings in accordance with State law. (1) At the end of the first 2-year pe- The Unified State Plan must describe riod of any 4-year State Plan, wherein the State’s process and timeline for en- the State WDB must review the Unified suring a meaningful opportunity for State Plan, and the Governor must public comment. submit modifications to the plan to re- (e) Upon receipt of the Unified State flect changes in labor market and eco- Plan from the State, the Secretary of nomic conditions or other factors af- Labor will ensure that the entire Uni- fecting the implementation of the Uni- fied State Plan is submitted to the Sec- fied State Plan; retary of Education pursuant to a proc- (2) When changes in Federal or State ess developed by the Secretaries. law or policy substantially affect the (f) The Unified State Plan is subject strategies, goals, and priorities upon to the approval of both the Secretary which the Unified State Plan is based; of Labor and the Secretary of Edu- (3) When there are changes in the cation. statewide vision, strategies, policies, (g) Before the Secretaries of Labor State negotiated levels of performance and Education approve the Unified as described in § 361.170(b), the method- State Plan, the vocational rehabilita- ology used to determine local allocation services portion of the Unified tion of funds, reorganizations that State Plan described in WIOA sec. change the working relationship with 102(b)(2)(D)(iii) must be approved by system employees, changes in organi- the Commissioner of the Rehabilita- zational responsibilities, changes to tion Services Administration. the membership structure of the State (h) The Secretaries of Labor and Edu- WDB or alternative entity, and similar cation will review and approve the Uni- substantial changes to the State’s fied State Plan within 90 days of re- workforce development system. ceipt by the Secretary of Labor, unless (c) Modifications to the Unified State the Secretary of Labor or the Sec- Plan are subject to the same public re- retary of Education determines in writ- view and comment requirements in ing within that period that: § 361.130(d) that apply to the develop- (1) The plan is inconsistent with a ment of the original Unified State core program’s requirements; Plan. (2) The Unified State Plan is incon- (d) Unified State Plan modifications sistent with any requirement of sec. 102 must be approved by the Secretaries of of WIOA; or Labor and Education, based on the ap- (3) The plan is incomplete or other- proval standards applicable to the wise insufficient to determine whether original Unified State Plan under it is consistent with a core program’s § 361.130. This approval must come after requirements or other requirements of the approval of the Commissioner of WIOA. the Rehabilitation Services Adminis- (i) If neither the Secretary of Labor tration for modification of any portion nor the Secretary of Education makes of the plan described in sec. the written determination described in 102(b)(2)(D)(iii) of WIOA.

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§ 361.140 What are the general require- accordance with applicable Federal ments for submitting a Combined law); State Plan? (8) Senior Community Service Em- (a) A State may choose to develop ployment Programs under title V of and submit a 4-year Combined State the Older Americans Act of 1965 (42 Plan in lieu of the Unified State Plan U.S.C. 3056 et seq.); described in §§ 361.105 through 361.125. (9) Employment and training activi- (b) A State that submits a Combined ties carried out by the Department of State Plan covering an activity or pro- Housing and Urban Development gram described in paragraph (d) of this (HUD); section that is, in accordance with (10) Employment and training activi- WIOA sec. 103(c), approved or deemed ties carried out under the Community complete under the law relating to the Services Block Grant Act (42 U.S.C. program will not be required to submit 9901 et seq.); and any other plan or application in order (11) Reintegration of offenders pro- to receive Federal funds to carry out grams authorized under sec. 212 of the the core programs or the program or Second Chance Act of 2007 (42 U.S.C. activities described under paragraph 17532). (d) of this section that are covered by (e) A Combined State Plan must con- the Combined State Plan. tain: (c) If a State develops a Combined (1) For the core programs, the infor- State Plan, it must be submitted in ac- mation required by sec. 102(b) of WIOA cordance with the process described in and §§ 361.105 through 361.125, as ex- § 361.143. plained in the joint planning guidelines (d) If a State chooses to submit a issued by the Secretaries; Combined State Plan, the plan must include the six core programs and one (2) For the Combined State Plan or more of the Combined State Plan partner programs and activities, except partner programs and activities de- as described in paragraph (h) of this scribed in sec. 103(a)(2) of WIOA. The section, the information required by Combined State Plan partner programs the law authorizing and governing that and activities that may be included in program to be submitted to the appro- the Combined State Plan are: priate Secretary, any other applicable (1) Career and technical education legal requirements, and any common programs authorized under the Carl D. planning requirements described in sec. Perkins Career and Technical Edu- 102(b) of WIOA, as explained in the cation Act of 2006 (20 U.S.C. 2301 et joint planning guidelines issued by the seq.); Secretaries; (2) Temporary Assistance for Needy (3) A description of the methods used Families or TANF, authorized under for joint planning and coordination part A of title IV of the Social Security among the core programs, and with the Act (42 U.S.C. 601 et seq.); required one-stop partner programs (3) Employment and training pro- and other programs and activities in- grams authorized under sec. 6(d)(4) of cluded in the State Plan; and the Food and Nutrition Act of 2008 (7 (4) An assurance that all of the enti- U.S.C. 2015(d)(4)); ties responsible for planning or admin- (4) Work programs authorized under istering the programs described in the sec. 6(o) of the Food and Nutrition Act Combined State Plan have had a mean- of 2008 (7 U.S.C. 2015(o)); ingful opportunity to review and com- (5) Trade adjustment assistance ac- ment on all portions of the plan. tivities under chapter 2 of title II of (f) Each Combined State Plan partner the Trade Act of 1974 (19 U.S.C. 2271 et program included in the Combined seq.); State Plan remains subject to the ap- (6) Services for veterans authorized plicable program-specific requirements under chapter 41 of title 38 United of the Federal law and regulations, and States Code; any other applicable legal or program (7) Programs authorized under State requirements, governing the implemen- unemployment compensation laws (in tation and operation of that program.

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(g) For purposes of §§ 361.140 through grams must include an opportunity for 361.145 the term ‘‘appropriate Sec- comment by representatives of Local retary’’ means the head of the Federal WDBs and chief elected officials, busi- agency who exercises either plan or ap- nesses, representatives of labor organi- plication approval authority for the zations, community-based organiza- program or activity under the Federal tions, adult education providers, insti- law authorizing the program or activ- tutions of higher education, other ity or, if there are no planning or appli- stakeholders with an interest in the cation requirements, who exercises ad- services provided by the six core pro- ministrative authority over the programs, and the general public, includ- gram or activity under that Federal ing individuals with disabilities. law. (2) Consistent with the ‘‘Sunshine (h) States that include employment Provision’’ of WIOA in sec. 101(g), the and training activities carried out State WDB must make information re- under the Community Services Block garding the Combined State Plan Grant (CSBG) Act (42 U.S.C. 9901 et available to the public through elec- seq.) under a Combined State Plan would submit all other required ele- tronic means and regularly occurring ments of a complete CSBG State Plan open meetings in accordance with directly to the Federal agency that ad- State law. The Combined State Plan ministers the program, according to must describe the State’s process and the requirements of Federal law and timeline for ensuring a meaningful op- regulations. portunity for public comment on the (i) States that submit employment portions of the plan covering core pro- and training activities carried out by grams. HUD under a Combined State Plan (3) The portions of the plan that would submit any other required plan- cover the Combined State Plan partner ning documents for HUD programs di- programs are subject to any public rectly to HUD, according to the re- comment requirements applicable to quirements of Federal law and regula- those programs. tions. (d) The State must submit to the Secretaries of Labor and Education and § 361.143 What is the development, to the Secretary of the agency with re- submission, and approval process of the Combined State Plan? sponsibility for approving the program’s plan or deeming it complete (a) For purposes of § 361.140(a), if a under the law governing the program, State chooses to develop a Combined as part of its Combined State Plan, any State Plan it must submit the Com- plan, application, form, or any other bined State Plan in accordance with similar document that is required as a the requirements described below and condition for the approval of Federal sec. 103 of WIOA, as explained in the funding under the applicable program joint planning guidelines issued by the or activity. Such submission must Secretaries of Labor and Education. (b) The Combined State Plan must be occur in accordance with a process developed with the assistance of the identified by the relevant Secretaries State WDB, as required by 20 CFR in paragraph (a) of this section. 679.130(a) and WIOA sec. 101(d), and (e) The Combined State Plan will be must be developed in coordination with approved or disapproved in accordance administrators with optimum policy- with the requirements of sec. 103(c) of making authority for the core pro- WIOA. grams and required one-stop partners. (1) The portion of the Combined (c) The State must provide an oppor- State Plan covering programs adminis- tunity for public comment on and tered by the Departments of Labor and input into the development of the Com- Education must be reviewed, and ap- bined State Plan prior to its submis- proved or disapproved, by the appro- sion. priate Secretary within 90 days begin- (1) The opportunity for public com- ning on the day the Combined State ment for the portions of the Combined Plan is received by the appropriate State Plan that cover the core pro- Secretary from the State, consistent

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with paragraph (f) of this section. Be- Secretary does not make the written fore the Secretaries of Labor and Edu- determination described in paragraph cation approve the Combined State (f) of this section within the relevant Plan, the vocational rehabilitation period of time after submission of the services portion of the Combined State Combined State Plan, that portion of Plan described in WIOA sec. the Combined State Plan over which 102(b)(2)(D)(iii) must be approved by the Secretary has jurisdiction will be the Commissioner of the Rehabilita- considered approved. tion Services Administration. (h) The Secretaries of Labor and Edu- (2) If an appropriate Secretary other cation’s written determination of ap- than the Secretary of Labor or the Sec- proval or disapproval regarding the retary of Education has authority to portion of the plan for the six core pro- approve or deem complete a portion of grams may be separate from the writ- the Combined State Plan for a program ten determination of approval, dis- or activity described in § 361.140(d), that approval, or completeness of the proportion of the Combined State Plan must be reviewed, and approved, dis- gram-specific requirements of Com- approved, or deemed complete, by the bined State Plan partner programs and appropriate Secretary within 120 days activities described in § 361.140(d) and beginning on the day the Combined included in the Combined State Plan. State Plan is received by the appro- (i) Special rule. In paragraphs (f)(1) priate Secretary from the State con- and (3) of this section, the term ‘‘cri- sistent with paragraph (f) of this sec- teria for approval of a plan or application. tion,’’ with respect to a State or a core (f) The appropriate Secretaries will program or a program under the Carl review and approve or deem complete D. Perkins Career and Technical Edu- the Combined State Plan within 90 or cation Act of 2006 (20 U.S.C. 2301 et 120 days, as appropriate, as described in seq.), includes a requirement for agree- paragraph (e) of this section, unless the ment between the State and the appro- Secretaries of Labor and Education or priate Secretaries regarding State per- appropriate Secretary have determined formance measures or State perform- in writing within that period that: ance accountability measures, as the (1) The Combined State Plan is in- case may be, including levels of per- consistent with the requirements of formance. the six core programs or the Federal laws authorizing or applicable to the § 361.145 What are the requirements program or activity involved, including for modifications of the Combined the criteria for approval of a plan or State Plan? application, or deeming the plan com- (a) For the core program portions of plete, if any, under such law; the Combined State Plan, modifica- (2) The portion of the Combined tions are required, at a minimum: State Plan describing the six core pro- (1) By the end of the first 2-year pe- grams or the program or activity de- riod of any 4-year State Plan. The scribed in paragraph (a) of this section State WDB must review the Combined involved does not satisfy the criteria as provided in sec. 102 or 103 of WIOA, as State Plan, and the Governor must applicable; or submit modifications to the Combined (3) The Combined State Plan is in- State Plan to reflect changes in labor complete, or otherwise insufficient to market and economic conditions or determine whether it is consistent with other factors affecting the implemen- a core program’s requirements, other tation of the Combined State Plan; requirements of WIOA, or the Federal (2) When changes in Federal or State laws authorizing, or applicable to, the law or policy substantially affect the program or activity described in strategies, goals, and priorities upon § 361.140(d), including the criteria for which the Combined State Plan is approval of a plan or application, if based; any, under such law. (3) When there are changes in the (g) If the Secretary of Labor, the Sec- statewide vision, strategies, policies, retary of Education, or the appropriate State negotiated levels of performance

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as described in § 361.170(b), the method- mitted for approval to only the appro- ology used to determine local alloca- priate Secretary, based on the approval tion of funds, reorganizations that standards applicable to the original change the working relationship with Combined State Plan under § 361.143, if system employees, changes in organi- the State elects, or in accordance with zational responsibilities, changes to the procedures and requirements appli- the membership structure of the State cable to the particular Combined State WDB or alternative entity, and similar Plan partner program. substantial changes to the State’s (3) A State also may amend its Com- workforce development system. bined State Plan to add a Combined (b) In addition to the required modi- State Plan partner program or activity fication review described in paragraph described in § 361.140(d). (a)(1) of this section, a State may submit a modification of its Combined (d) Modifications of the Combined State Plan at any time during the 4- State Plan are subject to the same pub- year period of the plan. lic review and comment requirements (c) For any Combined State Plan that apply to the development of the partner programs and activities de- original Combined State Plan as described in § 361.140(d) that are included scribed in § 361.143(c) except that, if the in a State’s Combined State Plan, the modification, amendment, or revision State— affects the administration of a par- (1) May decide if the modification re- ticular Combined State Plan partner quirements under WIOA sec. 102(c)(3) program and has no impact on the that apply to the core programs will Combined State Plan as a whole or the apply to the Combined State Plan part- integration and administration of the ner programs, as long as consistent core and other Combined State Plan with any other modification require- partner programs at the State level, a ments for the programs, or may com- State may comply instead with the ply with the requirements applicable to procedures and requirements applica- only the particular program or activ- ble to the particular Combined State ity; and Plan partner program. (2) Must submit, in accordance with (e) Modifications for the core pro- the procedure described in § 361.143, any gram portions of the Combined State modification, amendment, or revision Plan must be approved by the Secre- required by the Federal law authorizing, or applicable to, the Combined taries of Labor and Education, based State Plan partner program or activ- on the approval standards applicable to ity. the original Combined State Plan (i) If the underlying programmatic under § 361.143. This approval must requirements change (e.g., the author- come after the approval of the Com- izing statute is reauthorized) for Fed- missioner of the Rehabilitation Serv- eral laws authorizing such programs, a ices Administration for modification of State must either modify its Combined any portion of the Combined State State Plan or submit a separate plan to Plan described in sec. 102(b)(2)(D)(iii) of the appropriate Federal agency in ac- WIOA. cordance with the new Federal law authorizing the Combined State Plan Subpart E—Performance Account- partner program or activity and other ability Under Title I of the legal requirements applicable to such program or activity. Workforce Innovation and (ii) If the modification, amendment, Opportunity Act or revision affects the administration of only that particular Combined State AUTHORITY: Secs. 116, 189, and 503 of Pub. L. Plan partner program and has no im- 113–128, 128 Stat. 1425 (Jul. 22, 2014). pact on the Combined State Plan as a SOURCE: 81 FR 56026, Aug. 19, 2016, unless whole or the integration and adminis- otherwise noted. tration of the core and other Combined State Plan partner programs at the State level, modifications must be sub-

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§ 361.150 What definitions apply to (4) Programs must include partici- Workforce Innovation and Oppor- pants in their performance calcula- tunity Act performance account- tions. ability provisions? (b) Reportable individual. An indi- (a) Participant. A reportable individual who has taken action that dem- vidual who has received services other onstrates an intent to use program than the services described in para- services and who meets specific report- graph (a)(3) of this section, after satis- ing criteria of the program, including: fying all applicable programmatic re- (1) Individuals who provide identi- quirements for the provision of serv- fying information; ices, such as eligibility determination. (2) Individuals who only use the self- (1) For the Vocational Rehabilitation service system; or (VR) program, a participant is a re- (3) Individuals who only receive in- portable individual who has an ap- formation-only services or activities. proved and signed Individualized Plan for Employment (IPE) and has begun (c) Exit. As defined for the purpose of to receive services. performance calculations, exit is the (2) For the Workforce Innovation and point after which a participant who has Opportunity Act (WIOA) title I youth received services through any program program, a participant is a reportable meets the following criteria: individual who has satisfied all appli- (1) For the adult, dislocated worker, cable program requirements for the and youth programs authorized under provision of services, including eligi- WIOA title I, the AEFLA program au- bility determination, an objective as- thorized under WIOA title II, and the sessment, and development of an indi- Employment Service program author- vidual service strategy, and received 1 ized under the Wagner-Peyser Act, as of the 14 WIOA youth program ele- amended by WIOA title III, exit date is ments identified in sec. 129(c)(2) of the last date of service. WIOA. (i) The last day of service cannot be (3) The following individuals are not determined until at least 90 days have participants: elapsed since the participant last re- (i) Individuals in an Adult Education ceived services; services do not include and Family Literacy Act (AEFLA) pro- self-service, information-only services gram who have not completed at least or activities, or follow-up services. 12 contact hours; This also requires that there are no (ii) Individuals who only use the self- plans to provide the participant with service system. future services. (A) Subject to paragraph (a)(3)(ii)(B) (ii) [Reserved]. of this section, self-service occurs when (2)(i) For the VR program authorized individuals independently access any under title I of the Rehabilitation Act workforce development system pro- of 1973, as amended by WIOA title IV gram’s information and activities in ei- (VR program): ther a physical location, such as a one- (A) The participant’s record of serv- stop center resource room or partner agency, or remotely via the use of elec- ice is closed in accordance with § 361.56 tronic technologies. because the participant has achieved (B) Self-service does not uniformly an employment outcome; or apply to all virtually accessed services. (B) The participant’s service record is For example, virtually accessed serv- closed because the individual has not ices that provide a level of support be- achieved an employment outcome or yond independent job or information the individual has been determined in- seeking on the part of an individual eligible after receiving services in ac- would not qualify as self-service. cordance with § 361.43. (iii) Individuals who receive informa- (ii) Notwithstanding any other provi- tion-only services or activities, which sion of this section, a participant will provide readily available information not be considered as meeting the defi- that does not require an assessment by nition of exit from the VR program if a staff member of the individual’s the participant’s service record is skills, education, or career objectives. closed because the participant has

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achieved a supported employment out- er programs, the AEFLA program, and come in an integrated setting but not the VR program are: in competitive integrated employment. (i) The percentage of participants (3)(i) A State may implement a com- who are in unsubsidized employment mon exit policy for all or some of the during the second quarter after exit core programs in WIOA title I and the from the program; Employment Service program author- (ii) The percentage of participants ized under the Wagner-Peyser Act, as who are in unsubsidized employment amended by WIOA title III, and any ad- during the fourth quarter after exit ditional required partner program(s) from the program; listed in sec. 121(b)(1)(B) of WIOA that (iii) Median earnings of participants is under the authority of the U.S. De- who are in unsubsidized employment partment of Labor (DOL). during the second quarter after exit (ii) If a State chooses to implement a from the program; common exit policy, the policy must (iv)(A) The percentage of those par- require that a participant is exited ticipants enrolled in an education or only when all of the criteria in para- training program (excluding those in graph (c)(1) of this section are met for on-the-job training [OJT] and cus- the WIOA title I core programs and the tomized training) who attained a rec- Employment Service program author- ognized postsecondary credential or a ized under the Wagner-Peyser Act, as secondary school diploma, or its recog- amended by WIOA title III, as well as nized equivalent, during participation any additional required partner pro- in or within 1 year after exit from the grams listed in sec. 121(b)(1)(B) of program. WIOA under the authority of DOL to (B) A participant who has attained a which the common exit policy applies secondary school diploma or its recog- in which the participant is enrolled. nized equivalent is included in the per- (d) State. For purposes of this part, centage of participants who have at- other than in regard to sanctions or tained a secondary school diploma or the statistical adjustment model, all recognized equivalent only if the par- references to ‘‘State’’ include the out- ticipant also is employed or is enrolled lying areas of American Samoa, Guam, in an education or training program Commonwealth of the Northern Mar- leading to a recognized postsecondary iana Islands, the U.S. Virgin Islands, credential within 1 year after exit from and, as applicable, the Republic of the program; Palau. (v) The percentage of participants who, during a program year, are in an § 361.155 What are the primary indica- education or training program that tors of performance under the leads to a recognized postsecondary Workforce Innovation and Oppor- credential or employment and who are tunity Act? achieving measurable skill gains, de- (a) All States submitting either a fined as documented academic, tech- Unified or Combined State Plan under nical, occupational, or other forms of §§ 361.130 and 361.143, must propose ex- progress, towards such a credential or pected levels of performance for each of employment. Depending upon the type the primary indicators of performance of education or training program, docu- for the adult, dislocated worker, and mented progress is defined as one of youth programs authorized under the following: WIOA title I; the AEFLA program au- (A) Documented achievement of at thorized under WIOA title II; the Em- least one educational functioning level ployment Service program authorized of a participant who is receiving in- under the Wagner-Peyser Act, as struction below the postsecondary edu- amended by WIOA title III; and the VR cation level; program authorized under title I of the (B) Documented attainment of a sec- Rehabilitation Act of 1973, as amended ondary school diploma or its recog- by WIOA title IV. nized equivalent; (1) Primary indicators of performance. (C) Secondary or postsecondary tran- The six primary indicators of perform- script or report card for a sufficient ance for the adult and dislocated work- number of credit hours that shows a

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participant is meeting the State unit’s fourth quarter after exit from the pro- academic standards; gram; (D) Satisfactory or better progress (3) Median earnings of participants report, towards established milestones, who are in unsubsidized employment such as completion of OJT or comple- during the second quarter after exit tion of 1 year of an apprenticeship pro- from the program; gram or similar milestones, from an (4) The percentage of those partici- employer or training provider who is pants enrolled in an education or train- providing training; or ing program (excluding those in OJT (E) Successful passage of an exam and customized training) who obtained that is required for a particular occu- a recognized postsecondary credential pation or progress in attaining tech- or a secondary school diploma, or its nical or occupational skills as evi- recognized equivalent, during partici- denced by trade-related benchmarks pation in or within 1 year after exit such as knowledge-based exams. from the program, except that a partic- (vi) Effectiveness in serving employ- ipant who has attained a secondary ers. school diploma or its recognized equiv- (2) Participants. For purposes of the alent is included as having attained a primary indicators of performance in secondary school diploma or recognized paragraph (a)(1) of this section, ‘‘par- equivalent only if the participant is ticipant’’ will have the meaning given also employed or is enrolled in an edu- to it in § 361.150(a), except that— cation or training program leading to a (i) For purposes of determining pro- recognized postsecondary credential gram performance levels under indica- within 1 year from program exit; tors set forth in paragraphs (a)(1)(i) (5) The percentage of participants through (iv) and (vi) of this section, a who during a program year, are in an ‘‘participant’’ does not include a par- education or training program that ticipant who received services under leads to a recognized postsecondary sec. 225 of WIOA and exits such pro- credential or employment and who are gram while still in a correctional institution as defined in sec. 225(e)(1) of achieving measurable skill gains, de- WIOA; and fined as documented academic, technical, occupational or other forms of (ii) The Secretaries of Labor and Education may, as needed and con- progress towards such a credential or sistent with the Paperwork Reduction employment. Depending upon the type Act (PRA), make further determina- of education or training program, docu- tions as to the participants to be in- mented progress is defined as one of cluded in calculating program perform- the following: ance levels for purposes of any of the (i) Documented achievement of at performance indicators set forth in least one educational functioning level paragraph (a)(1) of this section. of a participant who is receiving in- (b) The primary indicators in para- struction below the postsecondary edu- graphs (a)(1)(i) through (iii) and (vi) of cation level; this section apply to the Employment (ii) Documented attainment of a sec- Service program authorized under the ondary school diploma or its recog- Wagner-Peyser Act, as amended by nized equivalent; WIOA title III. (iii) Secondary or postsecondary (c) For the youth program authorized transcript or report card for a suffi- under WIOA title I, the primary indica- cient number of credit hours that tors are: shows a participant is achieving the (1) Percentage of participants who State unit’s academic standards; are in education or training activities, (iv) Satisfactory or better progress or in unsubsidized employment, during report, towards established milestones, the second quarter after exit from the such as completion of OJT or comple- program; tion of 1 year of an apprenticeship pro- (2) Percentage of participants in edu- gram or similar milestones, from an cation or training activities, or in un- employer or training provider who is subsidized employment, during the providing training; or

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(v) Successful passage of an exam year and the 3 preceding program that is required for a particular occu- years, as applicable to the program; pation or progress in attaining tech- (5) The percentage of participants in nical or occupational skills as evi- a program who attained unsubsidized denced by trade-related benchmarks employment related to the training re- such as knowledge-based exams. ceived (often referred to as training-re- (6) Effectiveness in serving employ- lated employment) through WIOA title ers. I, subtitle B programs; (6) The amount of funds spent on ca- § 361.160 What information is required reer services and the amount of funds for State performance reports? spent on training services for the most (a) The State performance report re- recent program year and the 3 pre- quired by sec. 116(d)(2) of WIOA must ceding program years, as applicable to be submitted annually using a tem- the program; plate the Departments of Labor and (7) The average cost per participant Education will disseminate, and must for those participants who received ca- provide, at a minimum, information on reer services and training services, re- the actual performance levels achieved spectively, during the most recent pro- consistent with § 361.175 with respect gram year and the 3 preceding program to: years, as applicable to the program; (1) The total number of participants (8) The percentage of a State’s an- served, and the total number of partici- nual allotment under WIOA sec. 132(b) pants who exited each of the core pro- that the State spent on administrative grams identified in sec. 116(b)(3)(A)(ii) costs; and of WIOA, including disaggregated (9) Information that facilitates com- counts of those who participated in and parisons of programs with programs in exited a core program, by: other States. (i) Individuals with barriers to em- (10) For WIOA title I programs, a ployment as defined in WIOA sec. 3(24); State performance narrative, which, and for States in which a local area is im- (ii) Co-enrollment in any of the pro- plementing a pay-for-performance con- grams in WIOA sec. 116(b)(3)(A)(ii). tracting strategy, at a minimum pro- (2) Information on the performance vides: levels achieved for the primary indicators of performance for all of the core (i) A description of pay-for-perform- programs identified in § 361.155 includ- ance contract strategies being used for ing disaggregated levels for: programs; (i) Individuals with barriers to em- (ii) The performance of service pro- ployment as defined in WIOA sec. 3(24); viders entering into contracts for such (ii) Age; strategies, measured against the levels (iii) Sex; and of performance specified in the con- (iv) Race and ethnicity. tracts for such strategies; and (3) The total number of participants (iii) An evaluation of the design of who received career services and the the programs and performance strate- total number of participants who gies and, when available, the satisfac- exited from career services for the tion of employers and participants who most recent program year and the 3 received services under such strategies. preceding program years, and the total (b) The disaggregation of data for the number of participants who received State performance report must be done training services and the total number in compliance with WIOA sec. of participants who exited from train- 116(d)(6)(C). ing services for the most recent pro- (c) The State performance reports gram year and the 3 preceding program must include a mechanism of elec- years, as applicable to the program; tronic access to the State’s local area (4) Information on the performance and eligible training provider (ETP) levels achieved for the primary indica- performance reports. tors of performance consistent with (d) States must comply with these re- § 361.155 for career services and training quirements from sec. 116 of WIOA as services for the most recent program explained in joint guidance issued by

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the Departments of Labor and Edu- ance and Results Act of 1993, as amend- cation, which may include information ed. on reportable individuals as deter- (c) An objective statistical adjust- mined by the Secretaries of Labor and ment model will be developed and dis- Education. seminated by the Secretaries of Labor and Education. The model will be based § 361.165 May a State establish additional indicators of performance? on: (1) Differences among States in ac- States may identify additional indi- tual economic conditions, including cators of performance for the six core but not limited to unemployment rates programs. If a State does so, these indi- and job losses or gains in particular in- cators must be included in the Unified or Combined State Plan. dustries; and (2) The characteristics of partici- § 361.170 How are State levels of per- pants, including but not limited to: formance for primary indicators es- (i) Indicators of poor work history; tablished? (ii) Lack of work experience; (a) A State must submit in the State (iii) Lack of educational or occupa- Plan expected levels of performance on tional skills attainment; the primary indicators of performance (iv) Dislocation from high-wage and for each core program as required by high-benefit employment; sec. 116(b)(3)(A)(iii) of WIOA as ex- (v) Low levels of literacy; plained in joint guidance issued by the (vi) Low levels of English pro- Secretaries of Labor and Education. ficiency; (1) The initial State Plan submitted (vii) Disability status; under WIOA must contain expected levels of performance for the first 2 years (viii) Homelessness; of the State Plan. (ix) Ex-offender status; and (2) States must submit expected lev- (x) Welfare dependency. els of performance for the third and (d) The objective statistical adjust- fourth year of the State Plan before ment model developed under paragraph the third program year consistent with (c) of this section will be: §§ 361.135 and 361.145. (1) Applied to the core programs’ pri- (b) States must reach agreement on mary indicators upon availability of levels of performance with the Secre- data which are necessary to populate taries of Labor and Education for each the model and apply the model to the indicator for each core program. These local core programs; are the negotiated levels of perform- (2) Subject to paragraph (d)(1) of this ance. The negotiated levels must be section, used before the beginning of a based on the following factors: program year in order to reach agree- (1) How the negotiated levels of per- ment on State negotiated levels for the formance compare with State levels of upcoming program year; and performance established for other (3) Subject to paragraph (d)(1) of this States; section, used to revise negotiated lev- (2) The application of an objective els at the end of a program year based statistical model established by the on actual economic conditions and Secretaries of Labor and Education, characteristics of participants served, subject to paragraph (d) of this section; (3) How the negotiated levels pro- consistent with sec. 116(b)(3)(A)(vii) of mote continuous improvement in per- WIOA. formance based on the primary indica- (e) The negotiated levels revised at tors and ensure optimal return on in- the end of the program year, based on vestment of Federal funds; and the statistical adjustment model, are (4) The extent to which the nego- the adjusted levels of performance. tiated levels assist the State in meet- (f) States must comply with these re- ing the performance goals established quirements from sec. 116 of WIOA as by the Secretaries of Labor and Edu- explained in joint guidance issued by cation for the core programs in accord- the Departments of Labor and Edu- ance with the Government Perform- cation.

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§ 361.175 What responsibility do States formance in accordance with sec. 116(f) have to use quarterly wage record of WIOA. information for performance accountability? § 361.185 When are sanctions applied for a State’s failure to submit an an- (a)(1) States must, consistent with nual performance report? State laws, use quarterly wage record information in measuring a State’s (a) Sanctions will be applied when a performance on the primary indicators State fails to submit the State annual of performance outlined in § 361.155 and performance report required under sec. a local area’s performance on the pri- 116(d)(2) of WIOA. A State fails to re- mary indicators of performance identi- port if the State either: fied in § 361.205. (1) Does not submit a State annual (2) The use of social security numbers performance report by the date for from participants and such other infor- timely submission set in performance mation as is necessary to measure the reporting guidance; or progress of those participants through (2) Submits a State annual performance report by the date for timely sub- quarterly wage record information is mission, but the report is incomplete. authorized. (b) Sanctions will not be applied if (3) To the extent that quarterly wage the reporting failure is due to excep- records are not available for a partici- tional circumstances outside of the pant, States may use other informa- State’s control. Exceptional cir- tion as is necessary to measure the cumstances may include, but are not progress of those participants through limited to: methods other than quarterly wage (1) Natural disasters; record information. (2) Unexpected personnel transitions; (b) ‘‘Quarterly wage record informa- and tion’’ means intrastate and interstate (3) Unexpected technology related wages paid to an individual, the social issues. security number (or numbers, if more (c) In the event that a State may not than one) of the individual, and the be able to submit a complete and accu- name, address, State, and the Federal rate performance report by the dead- employer identification number of the line for timely reporting: employer paying the wages to the indi- (1) The State must notify the Sec- vidual. retary of Labor or Secretary of Edu- (c) The Governor may designate a cation as soon as possible, but no later State agency (or appropriate State en- than 30 days prior to the established tity) to assist in carrying out the per- deadline for submission, of a potential formance reporting requirements for impact on the State’s ability to submit WIOA core programs and ETPs. The its State annual performance report in Governor or such agency (or appro- order to not be considered failing to re- priate State entity) is responsible for: port. (1) Facilitating data matches; (2) In circumstances where unex- (2) Data quality reliability; and pected events occur less than 30 days (3) Protection against disaggregation before the established deadline for sub- that would violate applicable privacy mission of the State annual perform- standards. ance reports, the Secretaries of Labor and Education will review requests for § 361.180 When is a State subject to a extending the reporting deadline in ac- financial sanction under the Work- cordance with the Departments of force Innovation and Opportunity Labor and Education’s procedures that Act? will be established in guidance. A State will be subject to financial sanction under WIOA sec. 116(f) if it § 361.190 When are sanctions applied fails to: for failure to achieve adjusted lev- (a) Submit the State annual perform- els of performance? ance report required under WIOA sec. (a) States’ negotiated levels of per- 116(d)(2); or formance will be adjusted through the (b) Meet adjusted levels of perform- application of the statistical adjust- ance for the primary indicators of per- ment model established under § 361.170

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to account for actual economic condi- least 2 years of complete data in a tions experienced during a program State. year and characteristics of partici- (5) The individual indicator score, pants, annually at the close of each which is expressed as the percent program year. achieved, compares the actual results (b) Any State that fails to meet ad- achieved by each core program on each justed levels of performance for the of the individual primary indicators to primary indicators of performance out- the adjusted levels of performance for lined in § 361.155 for any year will re- each of the program’s primary indica- ceive technical assistance, including tors of performance. assistance in the development of a per- (d) A performance failure occurs formance improvement plan provided when: by the Secretary of Labor or Secretary (1) Any overall State program score of Education. or overall State indicator score falls (c) Whether a State has failed to below 90 percent for the program year; meet adjusted levels of performance or will be determined using the following (2) Any of the States’ individual indi- three criteria: cator scores fall below 50 percent for (1) The overall State program score, the program year. which is expressed as the percent (e) Sanctions based on performance achieved, compares the actual results failure will be applied to States if, for achieved by a core program on the pri- 2 consecutive years, the State fails to mary indicators of performance to the meet: adjusted levels of performance for that (1) 90 percent of the overall State core program. The average of the per- program score for the same core pro- centages achieved of the adjusted level gram; of performance for each of the primary (2) 90 percent of the overall State indicator score for the same primary in- indicators by a core program will con- dicator; or stitute the overall State program (3) 50 percent of the same indicator score. score for the same program. (2) However, until all indicators for the core program have at least 2 years § 361.195 What should States expect of complete data, the overall State pro- when a sanction is applied to the gram score will be based on a compari- Governor’s Reserve Allotment? son of the actual results achieved to (a) The Secretaries of Labor and Edu- the adjusted level of performance for cation will reduce the Governor’s Re- each of the primary indicators that serve Allotment by five percent of the have at least 2 years of complete data maximum available amount for the im- for that program; mediately succeeding program year if: (3) The overall State indicator score, (1) The State fails to submit the which is expressed as the percent State annual performance reports as achieved, compares the actual results required under WIOA sec. 116(d)(2), as achieved on a primary indicator of per- defined in § 361.185; formance by all core programs in a (2) The State fails to meet State ad- State to the adjusted levels of perform- justed levels of performance for the ance for that primary indicator. The same primary performance indicator(s) average of the percentages achieved of under either § 361.190(d)(1) for the sec- the adjusted level of performance by ond consecutive year as defined in all of the core programs on that indi- § 361.190; or cator will constitute the overall State (3) The State’s score on the same in- indicator score. dicator for the same program falls (4) However, until all indicators for below 50 percent under § 361.190(d)(2) for the State have at least 2 years of com- the second consecutive year as defined plete data, the overall State indicator in § 361.190. score will be based on a comparison of (b) If the State fails under para- the actual results achieved to the ad- graphs (a)(1) and either (a)(2) or (3) of justed level of performance for each of this section in the same program year, the primary indicators that have at the Secretaries of Labor and Education

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will reduce the Governor’s Reserve Al- (b) In addition to the indicators de- lotment by 10 percent of the maximum scribed in paragraph (a) of this section, available amount for the immediately under § 361.165, the Governor may apply succeeding program year. additional indicators of performance to (c) If a State’s Governor’s Reserve local areas in the State. Allotment is reduced: (c) States must annually make local (1) The reduced amount will not be area performance reports available to returned to the State in the event that the public using a template that the the State later improves performance Departments of Labor and Education or submits its annual performance re- will disseminate in guidance, including port; and by electronic means. The State must (2) The Governor’s Reserve will con- provide electronic access to the public tinue to be set at the reduced level in local area performance report in its an- each subsequent year until the Sec- nual State performance report. retary of Labor or the Secretary of (d) The local area performance report Education, depending on which pro- must include: gram is impacted, determines that the (1) The actual results achieved under State met the State adjusted levels of § 361.155 and the information required performance for the applicable primary under § 361.160(a); performance indicators and has sub- (2) The percentage of a local area’s mitted all of the required performance allotment under WIOA secs. 128(b) and reports. 133(b) that the local area spent on ad- (d) A State may request review of a ministrative costs; and sanction the Secretary of Labor im- (3) Other information that facilitates poses in accordance with the provisions comparisons of programs with pro- of 20 CFR 683.800. grams in other local areas (or planning regions if the local area is part of a § 361.200 What other administrative planning region). actions will be applied to States’ (e) The disaggregation of data for the performance requirements? local area performance report must be (a) In addition to sanctions for fail- done in compliance with WIOA sec. ure to report or failure to meet ad- 116(d)(6)(C). justed levels of performance, States (f) States must comply with any re- will be subject to administrative ac- quirements from sec. 116(d)(3) of WIOA tions in the case of poor performance. as explained in guidance, including the (b) States’ performance achievement use of the performance reporting tem- on the individual primary indicators plate, issued by DOL. will be assessed in addition to the overall State program score and overall § 361.210 How are local performance State indicator score. Based on this as- levels established? sessment, as clarified and explained in (a) The objective statistical adjust- guidance, for performance on any indi- ment model required under sec. vidual primary indicator, the Sec- 116(b)(3)(A)(viii) of WIOA and described retary of Labor or the Secretary of in § 361.170(c) must be: Education will require the State to es- (1) Applied to the core programs’ pri- tablish a performance risk plan to ad- mary indicators upon availability of dress continuous improvement on the data which are necessary to populate individual primary indicator. the model and apply the model to the local core programs; § 361.205 What performance indicators (2) Used in order to reach agreement apply to local areas and what infor- on local negotiated levels of perform- mation must be included in local ance for the upcoming program year; area performance reports? and (a) Each local area in a State under (3) Used to establish adjusted levels WIOA title I is subject to the same pri- of performance at the end of a program mary indicators of performance for the year based on actual conditions, con- core programs for WIOA title I under sistent with WIOA sec. 116(c)(3). § 361.155(a)(1) and (c) that apply to the (b) Until all indicators for the core State. program in a local area have at least 2

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years of complete data, the comparison Pay-for-performance contract strate- of the actual results achieved to the gies must be implemented in accord- adjusted levels of performance for each ance with 20 CFR part 683, subpart E of the primary indicators only will be and § 361.160. applied where there are at least 2 years of complete data for that program. § 361.220 Under what circumstances (c) The Governor, Local Workforce may a corrective action or sanction be applied to local areas for poor Development Board (WDB), and chief performance? elected official must reach agreement on local negotiated levels of perform- (a) If a local area fails to meet the ance based on a negotiations process adjusted levels of performance agreed before the start of a program year with to under § 361.210 for the primary indi- the use of the objective statistical cators of performance in the adult, dis- model described in paragraph (a) of located worker, and youth programs this section. The negotiations will in- authorized under WIOA title I in any clude a discussion of circumstances not program year, technical assistance accounted for in the model and will must be provided by the Governor or, upon the Governor’s request, by the take into account the extent to which Secretary of Labor. the levels promote continuous im- (1) A State must establish the thresh- provement. The objective statistical old for failure to meet adjusted levels model will be applied at the end of the of performance for a local area before program year based on actual economic coming to agreement on the negotiated conditions and characteristics of the levels of performance for the local participants served. area. (d) The negotiations process de- (i) A State must establish the ad- scribed in paragraph (c) of this section justed level of performance for a local must be developed by the Governor and area, using the statistical adjustment disseminated to all Local WDBs and model described in § 361.170(c). chief elected officials. (ii) At least 2 years of complete data (e) The Local WDBs may apply per- on any indicator for any local core pro- formance measures to service providers gram are required in order to establish that differ from the performance indi- adjusted levels of performance for a cators that apply to the local area. local area. These performance measures must be (2) The technical assistance may in- established after considering: clude: (1) The established local negotiated (i) Assistance in the development of a levels; performance improvement plan; (2) The services provided by each pro- (ii) The development of a modified vider; and local or regional plan; or (3) The populations the service pro- (iii) Other actions designed to assist viders are intended to serve. the local area in improving performance. § 361.215 Under what circumstances (b) If a local area fails to meet the are local areas eligible for State In- adjusted levels of performance agreed centive Grants? to under § 361.210 for the same primary (a) The Governor is not required to indicators of performance for the same award local incentive funds, but is au- core program authorized under WIOA thorized to provide incentive grants to title I for a third consecutive program local areas for performance on the pri- year, the Governor must take correc- mary indicators of performance con- tive actions. The corrective actions sistent with WIOA sec. 134(a)(3)(A)(xi). must include the development of a re- (b) The Governor may use non-Fed- organization plan under which the Gov- eral funds to create incentives for the ernor: Local WDBs to implement pay-for-per- (1) Requires the appointment and cer- formance contract strategies for the tification of a new Local WDB, con- delivery of training services described sistent with the criteria established in WIOA sec. 134(c)(3) or activities de- under 20 CFR 679.350; scribed in WIOA sec. 129(c)(2) in the (2) Prohibits the use of eligible pro- local areas served by the Local WDBs. viders and one-stop partners that have

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been identified as achieving poor levels Education will disseminate including of performance; or through electronic means, the ETP (3) Takes such other significant ac- performance reports for ETPs who pro- tions as the Governor determines are vide services under sec. 122 of WIOA appropriate. that are described in 20 CFR 680.400 through 680.530. These reports at a min- § 361.225 Under what circumstances imum must include, consistent with may local areas appeal a reorganization plan? § 361.175 and with respect to each program of study that is eligible to receive (a) The Local WDB and chief elected funds under WIOA: official for a local area that is subject (1) The total number of participants to a reorganization plan under WIOA as defined by § 361.150(a) who received sec. 116(g)(2)(A) may appeal to the Gov- training services under the adult and ernor to rescind or revise the reorga- dislocated worker programs authorized nization plan not later than 30 days after receiving notice of the reorga- under WIOA title I for the most recent nization plan. The Governor must year and the 3 preceding program make a final decision within 30 days years, including: after receipt of the appeal. (i) The number of participants under (b) The Local WDB and chief elected the adult and dislocated worker pro- official may appeal the final decision of grams disaggregated by barriers to em- the Governor to the Secretary of Labor ployment; not later than 30 days after receiving (ii) The number of participants under the decision from the Governor. Any the adult and dislocated worker pro- appeal of the Governor’s final decision grams disaggregated by race, ethnicity, must be: sex, and age; (1) Appealed jointly by the Local (iii) The number of participants WDB and chief elected official to the under the adult and dislocated worker Secretary of Labor under 20 CFR programs disaggregated by the type of 683.650; and training entity for the most recent pro- (2) Must be submitted by certified gram year and the 3 preceding program mail, return receipt requested, to the years; Secretary of Labor, U.S. Department of (2) The total number of participants Labor, 200 Constitution Ave. NW., who exit a program of study or its Washington, DC 20210, Attention: equivalent, including disaggregate ASET. A copy of the appeal must be si- counts by the type of training entity multaneously provided to the Gov- during the most recent program year ernor. and the 3 preceding program years; (c) Upon receipt of the joint appeal (3) The average cost-per-participant from the Local WDB and chief elected for participants who received training official, the Secretary of Labor must services for the most recent program make a final decision within 30 days. In year and the 3 preceding program years making this determination the Sec- disaggregated by type of training enti- retary of Labor may consider any com- ty; ments submitted by the Governor in (4) The total number of individuals response to the appeals. exiting from the program of study (or (d) The decision by the Governor on the appeal becomes effective at the the equivalent) with respect to all indi- time it is issued and remains effective viduals engaging in the program of unless the Secretary of Labor rescinds study (or the equivalent); and or revises the reorganization plan (5) The levels of performance under WIOA sec. 116(g)(2)(C). achieved for the primary indicators of performance identified in § 361.230 What information is required § 361.155(a)(1)(i) through (iv) with re- for the eligible training provider spect to all individuals engaging in a performance reports? program of study (or the equivalent). (a) States are required to make avail- (b) Apprenticeship programs reg- able and publish annually using a tem- istered under the National Apprentice- plate the Departments of Labor and ship Act are not required to submit

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ETP performance information. If a reg- of Labor or Secretary of Education: A istered apprenticeship program volun- WIOA title I core program; the Em- tarily submits performance informa- ployment Service program authorized tion to a State, the State must include under the Wagner-Peyser Act, as this information in the report. amended by WIOA title III; or the VR (c) The State must provide a mecha- program authorized under title I of the nism of electronic access to the public Rehabilitation Act of 1973, as amended ETP performance report in its annual by WIOA title IV. State performance report. (b) For individual records submitted (d) States must comply with any re- to the Secretary of Labor, those quirements from sec. 116(d)(4) of WIOA records may be required to be inte- as explained in guidance issued by grated across all programs adminis- DOL. tered by the Secretary of Labor in one (e) The Governor may designate one single file. or more State agencies such as a State (c) States must comply with the re- Education Agency or other State Edu- quirements of sec. 116(d)(2) of WIOA as cational Authority to assist in over- explained in guidance issued by the De- seeing ETP performance and facili- partments of Labor and Education. tating the production and dissemination of ETP performance reports. These § 361.240 What are the requirements agencies may be the same agencies for data validation of State annual that are designated as responsible for performance reports? administering the ETP list as provided (a) States must establish procedures, under 20 CFR 680.500. The Governor or consistent with guidelines issued by such agencies, or authorities, is respon- the Secretary of Labor or the Sec- sible for: retary of Education, to ensure that (1) Facilitating data matches be- they submit complete annual perform- tween ETP records and unemployment ance reports that contain information insurance (UI) wage data in order to that is valid and reliable, as required produce the report; by WIOA sec. 116(d)(5). (2) The creation and dissemination of (b) If a State fails to meet standards the reports as described in paragraphs in paragraph (a) of this section as de- (a) through (d) of this section; termined by the Secretary of Labor or (3) Coordinating the dissemination of the Secretary of Education, the appro- the performance reports with the ETP priate Secretary will provide technical list and the information required to ac- assistance and may require the State company the list, as provided in 20 CFR to develop and implement corrective 680.500. actions, which may require the State to provide training for its subrecipi- § 361.235 What are the reporting re- ents. quirements for individual records (c) The Secretaries of Labor and Edu- for core Workforce Innovation and cation will provide training and tech- Opportunity Act (WIOA) title I programs; the Wagner-Peyser Act Em- nical assistance to States in order to ployment Service program, as implement this section. States must amended by WIOA title III; and the comply with the requirements of sec. Vocational Rehabilitation program 116(d)(5) of WIOA as explained in guid- authorized under title I of the Re- ance. habilitation Act of 1973, as amended by WIOA title IV? Subpart F—Description of the (a) On a quarterly basis, each State One-Stop Delivery System must submit to the Secretary of Labor Under Title I of the Workforce or the Secretary of Education, as appropriate, individual records that in- Innovation and Opportunity clude demographic information, infor- Act mation on services received, and information on resulting outcomes, as ap- AUTHORITY: Secs. 503, 107, 121, 134, 189, Pub. propriate, for each reportable indi- L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). vidual in either of the following pro- SOURCE: 81 FR 56033, Aug. 19, 2016, unless grams administered by the Secretary otherwise noted.

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§ 361.300 What is the one-stop delivery mandatory comprehensive physical system? one-stop center and any affiliated sites (a) The one-stop delivery system or specialized centers. The provision of brings together workforce develop- programs and services by electronic ment, educational, and other human methods such as Web sites, telephones, resource services in a seamless cus- or other means must improve the effi- tomer-focused service delivery network ciency, coordination, and quality of that enhances access to the programs’ one-stop partner services. Electronic services and improves long-term em- delivery must not replace access to ployment outcomes for individuals re- such services at a comprehensive one- ceiving assistance. One-stop partners stop center or be a substitute to mak- administer separately funded programs ing services available at an affiliated as a set of integrated streamlined serv- site if the partner is participating in an ices to customers. affiliated site. Electronic delivery sys- (b) Title I of the Workforce Innova- tems must be in compliance with the tion and Opportunity Act (WIOA) as- nondiscrimination and equal oppor- signs responsibilities at the local, tunity provisions of WIOA sec. 188 and State, and Federal level to ensure the its implementing regulations at 29 CFR creation and maintenance of a one-stop part 38. delivery system that enhances the (f) The design of the local area’s one- range and quality of education and stop delivery system must be described workforce development services that in the Memorandum of Understanding employers and individual customers (MOU) executed with the one-stop part- can access. ners, described in § 361.500. (c) The system must include at least one comprehensive physical center in § 361.305 What is a comprehensive one- each local area as described in § 361.305. stop center and what must be provided there? (d) The system may also have additional arrangements to supplement the (a) A comprehensive one-stop center comprehensive center. These arrange- is a physical location where job seeker ments include: and employer customers can access the (1) An affiliated site or a network of programs, services, and activities of all affiliated sites, where one or more required one-stop partners. A com- partners make programs, services, and prehensive one-stop center must have activities available, as described in at least one title I staff person phys- § 361.310; ically present. (2) A network of eligible one-stop (b) The comprehensive one-stop cen- partners, as described in §§ 361.400 ter must provide: through 361.410, through which each (1) Career services, described in partner provides one or more of the § 361.430; programs, services, and activities that (2) Access to training services de- are linked, physically or techno- scribed in 20 CFR 680.200; logically, to an affiliated site or access (3) Access to any employment and point that assures customers are pro- training activities carried out under vided information on the availability sec. 134(d) of WIOA; of career services, as well as other pro- (4) Access to programs and activities gram services and activities, regardless carried out by one-stop partners listed of where they initially enter the public in §§ 361.400 through 361.410, including workforce system in the local area; and the Employment Service program au- (3) Specialized centers that address thorized under the Wagner-Peyser Act, specific needs, including those of dis- as amended by WIOA title III (Wagner- located workers, youth, or key indus- Peyser Act Employment Service pro- try sectors, or clusters. gram); and (e) Required one-stop partner pro- (5) Workforce and labor market infor- grams must provide access to pro- mation. grams, services, and activities through (c) Customers must have access to electronic means if applicable and these programs, services, and activities practicable. This is in addition to pro- during regular business days at a com- viding access to services through the prehensive one-stop center. The Local

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Workforce Development Board (WDB) ter(s) in each local area. If used by may establish other service hours at local areas as a part of the service de- other times to accommodate the sched- livery strategy, affiliate sites must be ules of individuals who work on regular implemented in a manner that supple- business days. The State WDB will ments and enhances customer access to evaluate the hours of access to service services. as part of the evaluation of effective- (b) As described in § 361.315, Wagner- ness in the one-stop certification proc- Peyser Act employment services can- ess described in § 361.800(b). not be a stand-alone affiliated site. (d) ‘‘Access’’ to each partner program (c) States, in conjunction with the and its services means: Local WDBs, must examine lease (1) Having a program staff member agreements and property holdings physically present at the one-stop center; throughout the one-stop delivery sys- (2) Having a staff member from a dif- tem in order to use property in an effi- ferent partner program physically cient and effective way. Where nec- present at the one-stop center appro- essary and appropriate, States and priately trained to provide information Local WDBs must take expeditious to customers about the programs, serv- steps to align lease expiration dates ices, and activities available through with efforts to consolidate one-stop op- partner programs; or erations into service points where Wag- (3) Making available a direct linkage ner-Peyser Act employment services through technology to program staff are colocated as soon as reasonably who can provide meaningful informa- possible. These steps must be included tion or services. in the State Plan. (i) A ‘‘direct linkage’’ means pro- (d) All affiliated sites must be phys- viding direct connection at the one- ically and programmatically accessible stop center, within a reasonable time, to individuals with disabilities, as de- by phone or through a real-time Web- scribed in 29 CFR part 38, the imple- based communication to a program menting regulations of WIOA sec. 188. staff member who can provide program information or services to the cus- § 361.315 Can a stand-alone Wagner- tomer. Peyser Act Employment Service of- (ii) A ‘‘direct linkage’’ cannot exclu- fice be designated as an affiliated sively be providing a phone number or one-stop site? computer Web site or providing infor- (a) Separate stand-alone Wagner- mation, pamphlets, or materials. Peyser Act Employment Service offices (e) All comprehensive one-stop cen- are not permitted under WIOA, as also ters must be physically and program- described in 20 CFR 652.202. matically accessible to individuals (b) If Wagner-Peyser Act employ- with disabilities, as described in 29 ment services are provided at an affili- CFR part 38, the implementing regula- ated site, there must be at least one or tions of WIOA sec. 188. more other partners in the affiliated § 361.310 What is an affiliated site and site with a physical presence of com- what must be provided there? bined staff more than 50 percent of the (a) An affiliated site, or affiliate one- time the center is open. Additionally, stop center, is a site that makes avail- the other partner must not be the part- able to job seeker and employer cus- ner administering local veterans’ em- tomers one or more of the one-stop ployment representatives, disabled vet- partners’ programs, services, and ac- erans’ outreach program specialists, or tivities. An affiliated site does not unemployment compensation pro- need to provide access to every re- grams. If Wagner-Peyser Act employ- quired one-stop partner program. The ment services and any of these 3 pro- frequency of program staff’s physical grams are provided at an affiliated presence in the affiliated site will be site, an additional partner or partners determined at the local level. Affili- must have a presence of combined staff ated sites are access points in addition in the center more than 50 percent of to the comprehensive one-stop cen- the time the center is open.

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§ 361.320 Are there any requirements (6) Career and technical education for networks of eligible one-stop programs at the postsecondary level partners or specialized centers? authorized under the Carl D. Perkins Any network of one-stop partners or Career and Technical Education Act of specialized centers, as described in 2006 (20 U.S.C. 2301 et seq.); § 361.300(d)(3), must be connected to the (7) Trade Adjustment Assistance ac- comprehensive one-stop center and any tivities authorized under chapter 2 of appropriate affiliate one-stop centers, title II of the Trade Act of 1974 (19 for example, by having processes in U.S.C. 2271 et seq.); place to make referrals to these cen- (8) Jobs for Veterans State Grants ters and the partner programs located programs authorized under chapter 41 in them. Wagner-Peyser Act employ- of title 38, U.S.C.; ment services cannot stand alone in a (9) Employment and training activi- specialized center. Just as described in ties carried out under the Community § 361.315 for an affiliated site, a special- Services Block Grant (42 U.S.C. 9901 et ized center must include other pro- seq.); grams besides Wagner-Peyser Act em- (10) Employment and training activi- ployment services, local veterans’ employment representatives, disabled vet- ties carried out by the Department of erans’ outreach program specialists, Housing and Urban Development; and unemployment compensation. (11) Programs authorized under State unemployment compensation laws (in § 361.400 Who are the required one- accordance with applicable Federal stop partners? law); (a) Section 121(b)(1)(B) of WIOA iden- (12) Programs authorized under sec. tifies the entities that are required 212 of the Second Chance Act of 2007 (42 partners in the local one-stop delivery U.S.C. 17532); and systems. (13) Temporary Assistance for Needy (b) The required partners are the en- Families (TANF) authorized under part tities responsible for administering the A of title IV of the Social Security Act following programs and activities in (42 U.S.C. 601 et seq.), unless exempted the local area: by the Governor under § 361.405(b). (1) Programs authorized under title I of WIOA, including: § 361.405 Is Temporary Assistance for (i) Adults; Needy Families a required one-stop (ii) Dislocated workers; partner? (iii) Youth; (a) Yes, TANF, authorized under part (iv) Job Corps; A of title IV of the Social Security Act (v) YouthBuild; (42 U.S.C. 601 et seq.), is a required part- (vi) Native American programs; and ner. (vii) Migrant and seasonal farm- (b) The Governor may determine that worker programs; TANF will not be a required partner in (2) The Wagner-Peyser Act Employ- ment Service program authorized the State, or within some specific local under the Wagner-Peyser Act (29 U.S.C. areas in the State. In this instance, the 49 et seq.), as amended by WIOA title Governor must notify the Secretaries III; of the U.S. Departments of Labor and (3) The Adult Education and Family Health and Human Services in writing Literacy Act (AEFLA) program au- of this determination. thorized under title II of WIOA; (c) In States, or local areas within a (4) The Vocational Rehabilitation State, where the Governor has deter- (VR) program authorized under title I mined that TANF is not required to be of the Rehabilitation Act of 1973 (29 a partner, local TANF programs may U.S.C. 720 et seq.), as amended by WIOA still work in collaboration or partner- title IV; ship with the local one-stop centers to (5) The Senior Community Service deliver employment and training serv- Employment Program authorized ices to the TANF population unless in- under title V of the Older Americans consistent with the Governor’s direc- Act of 1965 (42 U.S.C. 3056 et seq.); tion.

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§ 361.410 What other entities may (e) of this section. If a program or ac- serve as one-stop partners? tivity listed in § 361.400 is not carried (a) Other entities that carry out a out in a local area, the requirements workforce development program, in- relating to a required one-stop partner cluding Federal, State, or local pro- are not applicable to such program or grams and programs in the private sec- activity in that local one-stop delivery tor, may serve as additional partners system. in the one-stop delivery system if the (b) For title II of WIOA, the entity or Local WDB and chief elected official(s) agency that carries out the program approve the entity’s participation. for the purposes of paragraph (a) of this (b) Additional partners may include, section is the sole entity or agency in but are not limited to: the State or outlying area responsible (1) Employment and training pro- for administering or supervising policy grams administered by the Social Se- for adult education and literacy activi- curity Administration, including the ties in the State or outlying area. The Ticket to Work and Self-Sufficiency State eligible entity or agency may Program established under sec. 1148 of delegate its responsibilities under the Social Security Act (42 U.S.C. paragraph (a) of this section to one or 1320b–19); (2) Employment and training pro- more eligible providers or consortium grams carried out by the Small Busi- of eligible providers. ness Administration; (c) For the VR program, authorized (3) Supplemental Nutrition Assist- under title I of the Rehabilitation Act ance Program (SNAP) employment and of 1973, as amended by WIOA title IV, training programs, authorized under the entity that carries out the program secs. 6(d)(4) and 6(o) of the Food and for the purposes of paragraph (a) of this Nutrition Act of 2008 (7 U.S.C. section is the designated State agen- 2015(d)(4)); cies or designated State units specified (4) Client Assistance Program au- under sec. 101(a)(2) of the Rehabilita- thorized under sec. 112 of the Rehabili- tion Act that is primarily concerned tation Act of 1973 (29 U.S.C. 732); with vocational rehabilitation, or voca- (5) Programs authorized under the tional and other rehabilitation, of indi- National and Community Service Act viduals with disabilities. of 1990 (42 U.S.C. 12501 et seq.); and (d) Under WIOA title I, the national (6) Other appropriate Federal, State programs, including Job Corps, the Na- or local programs, including, but not tive American program, YouthBuild, limited to, employment, education, and Migrant and Seasonal Farmworker and training programs provided by public libraries or in the private sector. programs are required one-stop partners. The entity for the Native Amer- § 361.415 What entity serves as the ican program, YouthBuild, and Mi- one-stop partner for a particular grant and Seasonal Farmworker pro- program in the local area? grams is the grantee of those respec- (a) The entity that carries out the tive programs. The entity for Job program and activities listed in Corps is the Job Corps center. § 361.400 or § 361.410, and therefore serves (e) For the Carl D. Perkins Career as the one-stop partner, is the grant re- and Technical Education Act of 2006, cipient, administrative entity, or orga- the entity that carries out the program nization responsible for administering for the purposes of paragraph (a) of this the funds of the specified program in section is the eligible recipient or re- the local area. The term ‘‘entity’’ does cipients at the postsecondary level, or not include the service providers that a consortium of eligible recipients at contract with, or are subrecipients of, the postsecondary level in the local the local administrative entity. For area. The eligible recipient at the post- programs that do not include local ad- secondary level may also request as- ministrative entities, the responsible sistance from the State eligible agency State agency must be the partner. Spe- cific entities for particular programs in completing its responsibilities under are identified in paragraphs (b) through paragraph (a) of this section.

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§ 361.420 What are the roles and re- (b) One-stop centers provide services sponsibilities of the required one- to individual customers based on indi- stop partners? vidual needs, including the seamless Each required partner must: delivery of multiple services to indi- (a) Provide access to its programs or vidual customers. There is no required activities through the one-stop deliv- sequence of services. ery system, in addition to any other appropriate locations; § 361.430 What are career services? (b) Use a portion of funds made avail- Career services, as identified in sec. able to the partner’s program, to the 134(c)(2) of WIOA, consist of three extent consistent with the Federal law types: authorizing the partner’s program and (a) Basic career services must be with Federal cost principles in 2 CFR made available and, at a minimum, parts 200 and 3474 (requiring, among must include the following services, as other things, that costs are allowable, consistent with allowable program ac- reasonable, necessary, and allocable), tivities and Federal cost principles: to: (1) Determinations of whether the in- (1) Provide applicable career services; dividual is eligible to receive assist- and ance from the adult, dislocated worker, (2) Work collaboratively with the or youth programs; State and Local WDBs to establish and (2) Outreach, intake (including work- maintain the one-stop delivery system. er profiling), and orientation to infor- This includes jointly funding the one- mation and other services available stop infrastructure through partner through the one-stop delivery system. contributions that are based upon: For the TANF program, States must (i) A reasonable cost allocation provide individuals with the oppor- methodology by which infrastructure tunity to initiate an application for costs are charged to each partner based TANF assistance and non-assistance on proportionate use and relative ben- benefits and services, which could be efit received; implemented through the provision of (ii) Federal cost principles; and paper application forms or links to the (iii) Any local administrative cost re- application Web site; quirements in the Federal law author- (3) Initial assessment of skill levels izing the partner’s program. (This is including literacy, numeracy, and further described in § 361.700.) English language proficiency, as well (c) Enter into an MOU with the Local as aptitudes, abilities (including skills WDB relating to the operation of the gaps), and supportive services needs; one-stop delivery system that meets (4) Labor exchange services, includ- the requirements of § 361.500(b); ing— (d) Participate in the operation of (i) Job search and placement assist- the one-stop delivery system con- ance, and, when needed by an indi- sistent with the terms of the MOU, re- vidual, career counseling, including— quirements of authorizing laws, the (A) Provision of information on in- Federal cost principles, and all other demand industry sectors and occupa- applicable legal requirements; and tions (as defined in sec. 3(23) of WIOA); (e) Provide representation on the and State and Local WDBs as required and (B) Provision of information on non- participate in Board committees as traditional employment; and needed. (ii) Appropriate recruitment and other business services on behalf of em- § 361.425 What are the applicable ca- ployers, including information and re- reer services that must be provided ferrals to specialized business services through the one-stop delivery sys- other than those traditionally offered tem by required one-stop partners? through the one-stop delivery system; (a) The applicable career services to (5) Provision of referrals to and co- be delivered by required one-stop part- ordination of activities with other pro- ners are those services listed in § 361.430 grams and services, including programs that are authorized to be provided and services within the one-stop deliv- under each partner’s program. ery system and, when appropriate,

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other workforce development pro- available staff and within a reasonable grams; time. (6) Provision of workforce and labor (ii) The costs associated in providing market employment statistics infor- this assistance may be paid for by the mation, including the provision of ac- State’s unemployment insurance pro- curate information relating to local, gram, or the WIOA adult or dislocated regional, and national labor market worker programs, or some combination areas, including— thereof. (i) Job vacancy listings in labor mar- (11) Assistance in establishing eligi- ket areas; bility for programs of financial aid as- (ii) Information on job skills nec- sistance for training and education essary to obtain the vacant jobs listed; programs not provided under WIOA. and (b) Individualized career services (iii) Information relating to local oc- must be made available if determined cupations in demand and the earnings, to be appropriate in order for an indi- skill requirements, and opportunities vidual to obtain or retain employment. for advancement for those jobs; These services include the following (7) Provision of performance informa- services, as consistent with program tion and program cost information on requirements and Federal cost prin- eligible providers of education, train- ciples: ing, and workforce services by program (1) Comprehensive and specialized as- and type of providers; sessments of the skill levels and serv- (8) Provision of information, in usa- ice needs of adults and dislocated ble and understandable formats and workers, which may include— languages, about how the local area is (i) Diagnostic testing and use of performing on local performance ac- other assessment tools; and countability measures, as well as any (ii) In-depth interviewing and evalua- additional performance information re- tion to identify employment barriers lating to the area’s one-stop delivery and appropriate employment goals; system; (2) Development of an individual em- (9) Provision of information, in usa- ployment plan, to identify the employ- ble and understandable formats and ment goals, appropriate achievement languages, relating to the availability objectives, and appropriate combina- of supportive services or assistance, tion of services for the participant to and appropriate referrals to those serv- achieve his or her employment goals, ices and assistance, including: Child including the list of, and information care; child support; medical or child about, the eligible training providers health assistance available through the (as described in 20 CFR 680.180); State’s Medicaid program and Chil- (3) Group counseling; dren’s Health Insurance Program; benefits under SNAP; assistance through (4) Individual counseling; the earned income tax credit; and as- (5) Career planning; sistance under a State program for (6) Short-term pre-vocational serv- TANF, and other supportive services ices including development of learning and transportation provided through skills, communication skills, inter- that program; viewing skills, punctuality, personal (10) Provision of information and maintenance skills, and professional meaningful assistance to individuals conduct services to prepare individuals seeking assistance in filing a claim for for unsubsidized employment or train- unemployment compensation. ing; (i) ‘‘Meaningful assistance’’ means: (7) Internships and work experiences (A) Providing assistance on-site that are linked to careers (as described using staff who are well-trained in un- in 20 CFR 680.170); employment compensation claims fil- (8) Workforce preparation activities; ing and the rights and responsibilities (9) Financial literacy services as de- of claimants; or scribed in sec. 129(b)(2)(D) of WIOA and (B) Providing assistance by phone or 20 CFR 681.500; via other technology, as long as the as- (10) Out-of-area job search assistance sistance is provided by trained and and relocation assistance; and

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(11) English language acquisition and (iv) Honing job interview techniques integrated education and training pro- for efficiency and compliance; grams. (v) Analyzing employee turnover; (c) Follow-up services must be pro- (vi) Creating job accommodations vided, as appropriate, including: Coun- and using assistive technologies; or seling regarding the workplace, for par- (vii) Explaining labor and employ- ticipants in adult or dislocated worker ment laws to help employers comply workforce investment activities who with discrimination, wage/hour, and are placed in unsubsidized employ- safety/health regulations; ment, for up to 12 months after the (5) Customized labor market informa- first day of employment. tion for specific employers, sectors, in- (d) In addition to the requirements in dustries or clusters; and paragraph (a)(2) of this section, TANF (6) Other similar customized services. agencies must identify employment services and related support being pro- (c) Local areas may also provide vided by the TANF program (within other business services and strategies the local area) that qualify as career that meet the workforce investment services and ensure access to them via needs of area employers, in accordance the local one-stop delivery system. with partner programs’ statutory requirements and consistent with Fed- § 361.435 What are the business serv- eral cost principles. These business ices provided through the one-stop services may be provided through effec- delivery system, and how are they tive business intermediaries working in provided? conjunction with the Local WDB, or (a) Certain career services must be through the use of economic develop- made available to local employers, spe- ment, philanthropic, and other public cifically labor exchange activities and and private resources in a manner de- labor market information described in termined appropriate by the Local § 361.430(a)(4)(ii) and (a)(6). Local areas WDB and in cooperation with the must establish and develop relation- State. Allowable activities, consistent ships and networks with large and with each partner’s authorized activi- small employers and their inter- ties, include, but are not limited to: mediaries. Local areas also must de- (1) Developing and implementing in- velop, convene, or implement industry dustry sector strategies (including or sector partnerships. strategies involving industry partner- (b) Customized business services may ships, regional skills alliances, indus- be provided to employers, employer as- try skill panels, and sectoral skills sociations, or other such organizations. partnerships); These services are tailored for specific (2) Customized assistance or referral employers and may include: for assistance in the development of a (1) Customized screening and referral registered apprenticeship program; of qualified participants in training (3) Developing and delivering innova- services to employers; tive workforce investment services and (2) Customized services to employers, strategies for area employers, which employer associations, or other such may include career pathways, skills organizations, on employment-related upgrading, skill standard development issues; and certification for recognized post- (3) Customized recruitment events secondary credential or other employer and related services for employers in- use, and other effective initiatives for cluding targeted job fairs; meeting the workforce investment (4) Human resource consultation needs of area employers and workers; services, including but not limited to (4) Assistance to area employers in assistance with: managing reductions in force in coordi- (i) Writing/reviewing job descriptions nation with rapid response activities and employee handbooks; and with strategies for the aversion of (ii) Developing performance evalua- layoffs, which may include strategies tion and personnel policies; such as early identification of firms at (iii) Creating orientation sessions for risk of layoffs, use of feasibility studies new workers; to assess the needs of and options for

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at-risk firms, and the delivery of em- the one-stop delivery system in the ployment and training activities to ad- local area. Two or more local areas in dress risk factors; a region may develop a single joint (5) The marketing of business serv- MOU, if they are in a region that has ices to appropriate area employers, in- submitted a regional plan under sec. cluding small and mid-sized employers; 106 of WIOA. and (b) The MOU must include: (6) Assisting employers with access- (1) A description of services to be pro- ing local, State, and Federal tax cred- vided through the one-stop delivery its. system, including the manner in which (d) All business services and strate- the services will be coordinated and de- gies must be reflected in the local plan, livered through the system; described in 20 CFR 679.560(b)(3). (2) Agreement on funding the costs of § 361.440 When may a fee be charged the services and the operating costs of for the business services in this the system, including: subpart? (i) Funding of infrastructure costs of (a) There is no requirement that a one-stop centers in accordance with fee-for-service be charged to employ- §§ 361.700 through 361.755; and ers. (ii) Funding of the shared services (b) No fee may be charged for services and operating costs of the one-stop de- provided in § 361.435(a). livery system described in § 361.760; (c) A fee may be charged for services (3) Methods for referring individuals provided under § 361.435(b) and (c). Serv- between the one-stop operators and ices provided under § 361.435(c) may be partners for appropriate services and provided through effective business activities; intermediaries working in conjunction (4) Methods to ensure that the needs with the Local WDB and may also be of workers, youth, and individuals with provided on a fee-for-service basis or barriers to employment, including in- through the leveraging of economic de- dividuals with disabilities, are ad- velopment, philanthropic, and other dressed in providing access to services, public and private resources in a man- including access to technology and ma- ner determined appropriate by the terials that are available through the Local WDB. The Local WDB may exam- one-stop delivery system; ine the services provided compared (5) The duration of the MOU and pro- with the assets and resources available cedures for amending it; and within the local one-stop delivery sys- (6) Assurances that each MOU will be tem and through its partners to deter- reviewed, and if substantial changes mine an appropriate cost structure for have occurred, renewed, not less than services, if any. once every 3-year period to ensure ap- (d) Any fees earned are recognized as propriate funding and delivery of serv- program income and must be expended ices. by the partner in accordance with the (c) The MOU may contain any other partner program’s authorizing statute, provisions agreed to by the parties that implementing regulations, and Federal are consistent with WIOA title I, the cost principles identified in Uniform authorizing statutes and regulations of Guidance. one-stop partner programs, and the § 361.500 What is the Memorandum of WIOA regulations. Understanding for the one-stop de- (d) When fully executed, the MOU livery system and what must be in- must contain the signatures of the cluded in the Memorandum of Un- Local WDB, one-stop partners, the derstanding? chief elected official(s), and the time (a) The MOU is the product of local period in which the agreement is effec- discussion and negotiation, and is an tive. The MOU must be updated not agreement developed and executed be- less than every 3 years to reflect any tween the Local WDB and the one-stop changes in the signatory official of the partners, with the agreement of the Board, one-stop partners, and chief chief elected official and the one-stop elected officials, or one-stop infrastruc- partners, relating to the operation of ture funding.

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(e) If a one-stop partner appeal to the the Local WDB and one-stop partners State regarding infrastructure costs, must amend the MOU to include the in- using the process described in § 361.750, frastructure funding of the one-stop results in a change to the one-stop centers. Infrastructure funding is de- partner’s infrastructure cost contribu- scribed in detail in §§ 361.700 through tions, the MOU must be updated to re- 361.760. flect the final one-stop partner infra- (c) The Local WDB must report to structure cost contributions. the State WDB, Governor, and relevant State agency when MOU negotiations § 361.505 Is there a single Memo- with one-stop partners have reached an randum of Understanding for the impasse. local area, or must there be different Memoranda of Under- (1) The Local WDB and partners must standing between the Local Work- document the negotiations and efforts force Development Board and each that have taken place in the MOU. The partner? State WDB, one-stop partner programs, (a) A single ‘‘umbrella’’ MOU may be and the Governor may consult with the developed that addresses the issues re- appropriate Federal agencies to ad- lating to the local one-stop delivery dress impasse situations related to system for the Local WDB, chief elect- issues other than infrastructure funded official and all partners. Alter- ing after attempting to address the im- natively, the Local WDB (with agree- passe. Impasses related to infrastruc- ment of chief elected official) may ture cost funding must be resolved enter into separate agreements be- using the State infrastructure cost tween each partner or groups of part- funding mechanism described in ners. § 361.730. (b) Under either approach, the re- (2) The Local WDB must report fail- quirements described in § 361.500 apply. ure to execute an MOU with a required Since funds are generally appropriated partner to the Governor, State WDB, annually, the Local WDB may nego- and the State agency responsible for tiate financial agreements with each administering the partner’s program. partner annually to update funding of Additionally, if the State cannot assist services and operating costs of the sys- the Local WDB in resolving the im- tem under the MOU. passe, the Governor or the State WDB must report the failure to the Sec- § 361.510 How must the Memorandum retary of Labor and to the head of any of Understanding be negotiated? other Federal agency with responsi- (a) WIOA emphasizes full and effec- bility for oversight of a partner’s pro- tive partnerships between Local WDBs, gram. chief elected officials, and one-stop partners. Local WDBs and partners § 361.600 Who may operate one-stop must enter into good-faith negotia- centers? tions. Local WDBs, chief elected offi- (a) One-stop operators may be a sin- cials, and one-stop partners may also gle entity (public, private, or non- request assistance from a State agency profit) or a consortium of entities. If responsible for administering the part- the consortium of entities is one of ner program, the Governor, State one-stop partners, it must include a WDB, or other appropriate parties on minimum of three of the one-stop part- other aspects of the MOU. ners described in § 361.400. (b) Local WDBs and one-stop partners (b) The one-stop operator may oper- must establish, in the MOU, how they ate one or more one-stop centers. will fund the infrastructure costs and There may be more than one one-stop other shared costs of the one-stop cen- operator in a local area. ters. If agreement regarding infrastruc- (c) The types of entities that may be ture costs is not reached when other a one-stop operator include: sections of the MOU are ready, an in- (1) An institution of higher edu- terim infrastructure funding agree- cation; ment may be included instead, as de- (2) An Employment Service State scribed in § 361.715(c). Once agreement agency established under the Wagner- on infrastructure funding is reached, Peyser Act;

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(3) A community-based organization, and procedures it uses for procurement nonprofit organization, or workforce with non-Federal funds. intermediary; (c) All other non-Federal entities, in- (4) A private for-profit entity; cluding subrecipients of a State (such (5) A government agency; as local areas), must use a competitive (6) A Local WDB, with the approval process based on local procurement of the chief elected official and the policies and procedures and the prin- Governor; or ciples of competitive procurement in (7) Another interested organization the Uniform Guidance set out at 2 CFR or entity, which is capable of carrying 200.318 through 200.326. All references to out the duties of the one-stop operator. ‘‘noncompetitive proposals’’ in the Uni- Examples may include a local chamber form Guidance at 2 CFR 200.320(f) will of commerce or other business organi- be read as ‘‘sole source procurement’’ zation, or a labor organization. for the purposes of implementing this (d) Elementary schools and sec- section. ondary schools are not eligible as one- (d) Entities must prepare written stop operators, except that a nontradi- documentation explaining the deter- tional public secondary school such as mination concerning the nature of the a night school, adult school, or an area competitive process to be followed in career and technical education school selecting a one-stop operator. may be selected. (e) The State and Local WDBs must § 361.610 When is the sole-source selec- ensure that, in carrying out WIOA pro- tion of one-stop operators appro- grams and activities, one-stop opera- priate, and how is it conducted? tors: (a) States may select a one-stop oper- (1) Disclose any potential conflicts of ator through sole source selection interest arising from the relationships when allowed under the same policies of the operators with particular train- and procedures used for competitive ing service providers or other service procurement with non-Federal funds, providers (further discussed in 20 CFR while other non-Federal entities in- 679.430); cluding subrecipients of a State (such (2) Do not establish practices that as local areas) may select a one-stop create disincentives to providing serv- operator through sole selection when ices to individuals with barriers to em- consistent with local procurement poli- ployment who may require longer-term cies and procedures and the Uniform career and training services; and Guidance set out at 2 CFR 200.320. (3) Comply with Federal regulations (b) In the event that sole source pro- and procurement policies relating to curement is determined necessary and the calculation and use of profits, in- reasonable, in accordance with cluding those at 20 CFR 683.295, the § 361.605(c), written documentation Uniform Guidance at 2 CFR part 200, must be prepared and maintained con- and other applicable regulations and cerning the entire process of making policies. such a selection. (c) Such sole source procurement § 361.605 How is the one-stop operator must include appropriate conflict of in- selected? terest policies and procedures. These (a) Consistent with paragraphs (b) policies and procedures must conform and (c) of this section, the Local WDB to the specifications in 20 CFR 679.430 must select the one-stop operator for demonstrating internal controls through a competitive process, as re- and preventing conflict of interest. quired by sec. 121(d)(2)(A) of WIOA, at (d) A Local WDB may be selected as least once every 4 years. A State may a one-stop operator through sole source require, or a Local WDB may choose to procurement only with agreement of implement, a competitive selection the chief elected official in the local process more than once every 4 years. area and the Governor. The Local WDB (b) In instances in which a State is must establish sufficient conflict of in- conducting the competitive process de- terest policies and procedures and scribed in paragraph (a) of this section, these policies and procedures must be the State must follow the same policies approved by the Governor.

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§ 361.615 May an entity currently serv- in the development of the local plan; ing as one-stop operator compete to prepare and submit local plans (as re- be a one-stop operator under the quired under sec. 107 of WIOA); be re- procurement requirements of this sponsible for oversight of itself; man- subpart? age or significantly participate in the (a) Local WDBs may compete for and competitive selection process for one- be selected as one-stop operators, as stop operators; select or terminate one- long as appropriate firewalls and con- stop operators, career services, and flict of interest policies and procedures youth providers; negotiate local per- are in place. These policies and proce- formance accountability measures; or dures must conform to the specifica- develop and submit budget for activi- tions in 20 CFR 679.430 for dem- ties of the Local WDB in the local area. onstrating internal controls and pre- (2) An entity serving as a one-stop venting conflict of interest. operator, that also serves a different (b) State and local agencies may role within the one-stop delivery sys- compete for and be selected as one-stop tem, may perform some or all of these operators by the Local WDB, as long as functions when it is acting in its other appropriate firewalls and conflict of in- role, if it has established sufficient terest policies and procedures are in firewalls and conflict of interest poli- place. These policies and procedures cies and procedures. The policies and must conform to the specifications in procedures must conform to the speci- 20 CFR 679.430 for demonstrating inter- fications in 20 CFR 679.430 for dem- nal controls and preventing conflict of onstrating internal controls and pre- interest. venting conflict of interest. (c) In the case of single-area States where the State WDB serves as the § 361.625 Can a one-stop operator also Local WDB, the State agency is eligi- be a service provider? ble to compete for and be selected as Yes, but there must be appropriate operator as long as appropriate fire- firewalls in place in regards to the walls and conflict of interest policies competition, and subsequent oversight, are in place and followed for the com- monitoring, and evaluation of perform- petition. These policies and procedures ance of the service provider. The oper- must conform to the specifications in ator cannot develop, manage, or con- 20 CFR 679.430 for demonstrating inter- duct the competition of a service pro- nal controls and preventing conflicts of vider in which it intends to compete. In interest. cases where an operator is also a service provider, there must be firewalls § 361.620 What is the one-stop opera- and internal controls within the oper- tor’s role? ator-service provider entity, as well as (a) At a minimum, the one-stop oper- specific policies and procedures at the ator must coordinate the service deliv- Local WDB level regarding oversight, ery of required one-stop partners and monitoring, and evaluation of perform- service providers. Local WDBs may es- ance of the service provider. The fire- tablish additional roles of one-stop op- walls must conform to the specifica- erator, including, but not limited to: tions in 20 CFR 679.430 for dem- Coordinating service providers across onstrating internal controls and pre- the one-stop delivery system, being the venting conflicts of interest. primary provider of services within the center, providing some of the services § 361.630 Can State merit staff still within the center, or coordinating serv- work in a one-stop center where the ice delivery in a multi-center area, operator is not a governmental enti- which may include affiliated sites. The ty? competition for a one-stop operator Yes. State merit staff can continue must clearly articulate the role of the to perform functions and activities in one-stop operator. the one-stop center. The Local WDB (b)(1) Subject to paragraph (b)(2) of and one-stop operator must establish a this section, a one-stop operator may system for management of merit staff not perform the following functions: in accordance with State policies and Convene system stakeholders to assist procedures. Continued use of State

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merit staff for the provision of Wagner- gram; and all other applicable legal re- Peyser Act services or services from quirements. other programs with merit staffing requirements must be included in the § 361.705 What guidance must the Gov- competition for and final contract with ernor issue regarding one-stop in- the one-stop operator when Wagner- frastructure funding? Peyser Act services or services from (a) The Governor, after consultation other programs with merit staffing re- with chief elected officials, the State quirements are being provided. WDB, and Local WDBs, and consistent with guidance and policies provided by § 361.635 What is the compliance date the State WDB, must develop and issue of the provisions of this subpart? guidance for use by local areas, specifi- (a) No later than July 1, 2017, one- cally: stop operators selected under the com- (1) Guidelines for State-administered petitive process described in this sub- one-stop partner programs for deter- part must be in place and operating the mining such programs’ contributions one-stop center. to a one-stop delivery system, based on (b) By November 17, 2016, every Local such programs’ proportionate use of WDB must demonstrate it is taking such system, and relative benefit re- steps to prepare for competition of its ceived, consistent with Office of Man- one-stop operator. This demonstration may include, but is not limited to, agement and Budget (OMB) Uniform market research, requests for informa- Administrative Requirements, Cost tion, and conducting a cost and price Principles, and Audit Requirements for analysis. Federal Awards in 2 CFR part 200, including determining funding for the § 361.700 What are the one-stop infra- costs of infrastructure; and structure costs? (2) Guidance to assist Local WDBs, (a) Infrastructure costs of one-stop chief elected officials, and one-stop centers are nonpersonnel costs that are partners in local areas in determining necessary for the general operation of equitable and stable methods of fund- the one-stop center, including: ing the costs of infrastructure at one- (1) Rental of the facilities; stop centers based on proportionate use (2) Utilities and maintenance; and relative benefit received, and con- (3) Equipment (including assessment- sistent with Federal cost principles related products and assistive tech- contained in the Uniform Guidance at 2 nology for individuals with disabil- CFR part 200. ities); and (b) The guidance must include: (4) Technology to facilitate access to (1) The appropriate roles of the one- the one-stop center, including tech- stop partner programs in identifying nology used for the center’s planning one-stop infrastructure costs; and outreach activities. (2) Approaches to facilitate equitable (b) Local WDBs may consider com- and efficient cost allocation that re- mon identifier costs as costs of one- sults in a reasonable cost allocation stop infrastructure. methodology where infrastructure (c) Each entity that carries out a costs are charged to each partner based program or activities in a local one- on its proportionate use of the one-stop stop center, described in §§ 361.400 centers and relative benefit received, through 361.410, must use a portion of consistent with Federal cost principles the funds available for the program and at 2 CFR part 200; and activities to maintain the one-stop de- (3) The timelines regarding notifica- livery system, including payment of tion to the Governor for not reaching the infrastructure costs of one-stop local agreement and triggering the centers. These payments must be in ac- State funding mechanism described in cordance with this subpart; Federal § 361.730, and timelines for a one-stop cost principles, which require that all costs must be allowable, reasonable, partner to submit an appeal in the necessary, and allocable to the pro- State funding mechanism.

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§ 361.710 How are infrastructure costs (b) In developing the section of the funded? MOU on one-stop infrastructure fund- Infrastructure costs are funded either ing described in § 361.755, the Local through the local funding mechanism WDB and chief elected officials will: described in § 361.715 or through the (1) Ensure that the one-stop partners State funding mechanism described in adhere to the guidance identified in § 361.730. § 361.705 on one-stop delivery system infrastructure costs. § 361.715 How are one-stop infrastruc- (2) Work with one-stop partners to ture costs funded in the local fund- achieve consensus and informally me- ing mechanism? diate any possible conflicts or disagree- (a) In the local funding mechanism, ments among one-stop partners. the Local WDB, chief elected officials, (3) Provide technical assistance to and one-stop partners agree to new one-stop partners and local grant amounts and methods of calculating recipients to ensure that those entities amounts each partner will contribute are informed and knowledgeable of the for one-stop infrastructure funding, in- elements contained in the MOU and the clude the infrastructure funding terms one-stop infrastructure costs arrange- in the MOU, and sign the MOU. The ment. local funding mechanism must meet all (c) The MOU may include an interim of the following requirements: infrastructure funding agreement, in- (1) The infrastructure costs are fund- cluding as much detail as the Local ed through cash and fairly evaluated WDB has negotiated with one-stop non-cash and third-party in-kind part- partners, if all other parts of the MOU ner contributions and include any have been negotiated, in order to allow funding from philanthropic organiza- the partner programs to operate in the tions or other private entities, or one-stop centers. The interim infra- through other alternative financing op- structure funding agreement must be tions, to provide a stable and equitable finalized within 6 months of when the funding stream for ongoing one-stop MOU is signed. If the interim infra- delivery system operations; structure funding agreement is not fi- (2) Contributions must be negotiated nalized within that timeframe, the between one-stop partners, chief elect- Local WDB must notify the Governor, ed officials, and the Local WDB and the as described in § 361.725. amount to be contributed must be included in the MOU; § 361.720 What funds are used to pay (3) The one-stop partner program’s for infrastructure costs in the local proportionate share of funding must be one-stop infrastructure funding calculated in accordance with the Uni- mechanism? form Administrative Requirements, (a) In the local funding mechanism, Cost Principles, and Audit Require- one-stop partner programs may deter- ments for Federal Awards in 2 CFR mine what funds they will use to pay part 200 based upon a reasonable cost for infrastructure costs. The use of allocation methodology whereby infra- these funds must be in accordance with structure costs are charged to each the requirements in this subpart, and partner in proportion to its use of the with the relevant partner’s authorizing one-stop center, relative to benefits re- statutes and regulations, including, for ceived. Such costs must also be allow- example, prohibitions against sup- able, reasonable, necessary, and allo- planting non-Federal resources, statu- cable; tory limitations on administrative (4) Partner shares must be periodi- costs, and all other applicable legal re- cally reviewed and reconciled against quirements. In the case of partners ad- actual costs incurred, and adjusted to ministering programs authorized by ensure that actual costs charged to any title I of WIOA, these infrastructure one-stop partners are proportionate to costs may be considered program costs. the use of the one-stop center and rel- In the case of partners administering ative to the benefit received by the adult education and literacy programs one-stop partners and their respective authorized by title II of WIOA, these programs or activities. funds must include Federal funds made

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available for the local administration (4) Third-party in-kind contributions of adult education and literacy pro- are: grams authorized by title II of WIOA. (i) Contributions of space, equipment, These funds may also include non-Fed- technology, non-personnel services, or eral resources that are cash, in-kind or other like items to support the infra- third-party contributions. In the case structure costs associated with one- of partners administering the Carl D. stop operations, by a non-one-stop Perkins Career and Technical Edu- partner to support the one-stop center cation Act of 2006, funds used to pay for in general, not a specific partner; or infrastructure costs may include funds (ii) Contributions by a non-one-stop available for local administrative ex- partner of space, equipment, tech- penses, non-Federal resources that are nology, non-personnel services, or cash, in-kind or third-party contribu- other like items to support the infra- tions, and may include other funds structure costs associated with one- made available by the State. stop operations, to a one-stop partner (b) There are no specific caps on the to support its proportionate share of amount or percent of overall funding a one-stop infrastructure costs. one-stop partner may contribute to (iii) In-kind contributions described fund infrastructure costs under the in paragraphs (c)(4)(i) and (ii) of this local funding mechanism, except that section must be valued consistent with contributions for administrative costs 2 CFR 200.306 and reconciled on a reg- may not exceed the amount available ular basis to ensure they are fairly for administrative costs under the au- evaluated and meet the proportionate thorizing statute of the partner pro- share of the partner. gram. However, amounts contributed (5) All partner contributions, regard- for infrastructure costs must be allow- less of the type, must be reconciled on able and based on proportionate use of a regular basis (i.e., monthly or quar- the one-stop centers and relative ben- terly), comparing actual expenses in- efit received by the partner program, curred to relative benefits received, to taking into account the total cost of ensure each partner program is con- the one-stop infrastructure as well as tributing its proportionate share in ac- alternate financing options, and must cordance with the terms of the MOU. be consistent with 2 CFR part 200, including the Federal cost principles. § 361.725 What happens if consensus (c) Cash, non-cash, and third-party on infrastructure funding is not reached at the local level between in-kind contributions may be provided the Local Workforce Development by one-stop partners to cover their pro- Board, chief elected officials, and portionate share of infrastructure one-stop partners? costs. With regard to negotiations for infra- (1) Cash contributions are cash funds structure funding for Program Year provided to the Local WDB or its des- (PY) 2017 and for each subsequent pro- ignee by one-stop partners, either di- gram year thereafter, if the Local rectly or by an interagency transfer. WDB, chief elected officials, and one- (2) Non-cash contributions are com- stop partners do not reach consensus prised of— on methods of sufficiently funding (i) Expenditures incurred by one-stop local infrastructure through the local partners on behalf of the one-stop cen- funding mechanism in accordance with ter; and the Governor’s guidance issued under (ii) Non-cash contributions or goods § 361.705 and consistent with the regula- or services contributed by a partner tions in §§ 361.715 and 361.720, and in- program and used by the one-stop cen- clude that consensus agreement in the ter. signed MOU, then the Local WDB must (3) Non-cash contributions, especially notify the Governor by the deadline es- those set forth in paragraph (c)(2)(ii) of tablished by the Governor under this section, must be valued consistent § 361.705(b)(3). Once notified, the Gov- with 2 CFR 200.306 to ensure they are ernor must administer funding through fairly evaluated and meet the partners’ the State funding mechanism, as de- proportionate share. scribed in §§ 361.730 through 361.738, for

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the program year impacted by the local described in § 361.500 and specified in area’s failure to reach consensus. that MOU. (2) In States in which the policy- § 361.730 What is the State one-stop in- making authority is placed in an enti- frastructure funding mechanism? ty or official that is independent of the (a) Consistent with sec. authority of the Governor with respect 121(h)(1)(A)(i)(II) of WIOA, if the Local to the funds provided for adult edu- WDB, chief elected official, and one- cation and literacy activities author- stop partners in a local area do not ized under title II of WIOA, postsec- reach consensus agreement on methods ondary career and technical education of sufficiently funding the costs of in- activities authorized under the Carl D. frastructure of one-stop centers for a Perkins Career and Technical Edu- program year, the State funding mech- cation Act of 2006, or VR services au- anism is applicable to the local area thorized under title I of the Rehabilita- for that program year. tion Act of 1973 (other than sec. 112 or (b) In the State funding mechanism, the Governor, subject to the limita- part C), as amended by WIOA title IV, tions in paragraph (c) of this section, the determination of the amount each determines one-stop partner contribu- of the applicable partners must con- tions after consultation with the chief tribute to assist in paying the infra- elected officials, Local WDBs, and the structure costs of one-stop centers State WDB. This determination in- must be made by the official or chief volves: officer of the entity with such author- (1) The application of a budget for ity, in consultation with the Governor. one-stop infrastructure costs as de- (d) Any duty, ability, choice, respon- scribed in § 361.735, based on either sibility, or other action otherwise re- agreement reached in the local area ne- lated to the determination of infra- gotiations or the State WDB formula structure costs contributions that is outlined in § 361.745; assigned to the Governor in §§ 361.730 (2) The determination of each local through 361.745 also applies to this de- one-stop partner program’s propor- cision-making process performed by tionate use of the one-stop delivery the official or chief officer described in system and relative benefit received, paragraph (c)(2) of this section. consistent with the Uniform Guidance at 2 CFR part 200, including the Fed- § 361.731 What are the steps to deter- eral cost principles, the partner pro- mine the amount to be paid under grams’ authorizing laws and regula- the State one-stop infrastructure tions, and other applicable legal re- funding mechanism? quirements described in § 361.736; and (a) To initiate the State funding (3) The calculation of required state- mechanism, a Local WDB that has not wide program caps on contributions to reached consensus on methods of suffi- infrastructure costs from one-stop ciently funding local infrastructure partner programs in areas operating through the local funding mechanism under the State funding mechanism as as provided in § 361.725 must notify the described in § 361.738. Governor by the deadline established (c) In certain situations, the Gov- by the Governor under § 361.705(b)(3). ernor does not determine the infra- (b) Once a Local WDB has informed structure cost contributions for some one-stop partner programs under the the Governor that no consensus has State funding mechanism. been reached: (1) The Governor will not determine (1) The Local WDB must provide the the contribution amounts for infra- Governor with local negotiation mate- structure funds for Native American rials in accordance with § 361.735(a). program grantees described in 20 CFR (2) The Governor must determine the part 684. The appropriate portion of one-stop center budget by either: funds to be provided by Native Amer- (i) Accepting a budget previously ican program grantees to pay for one- agreed upon by partner programs in stop infrastructure must be determined the local negotiations, in accordance as part of the development of the MOU with § 361.735(b)(1); or

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(ii) Creating a budget for the one- reassess each one-stop partner’s pro- stop center using the State WDB for- portionate share and make adjust- mula (described in § 361.745) in accord- ments or identify alternate sources of ance with § 361.735(b)(3). funding to make up the difference be- (3) The Governor then must establish tween the capped amount and the pro- a cost allocation methodology to deter- portionate share of infrastructure mine the one-stop partner programs’ funding of the one-stop partner. proportionate shares of infrastructure (7) If none of the solutions given in costs, in accordance with § 361.736. paragraphs (b)(6)(i) and (ii) of this sec- (4)(i) Using the methodology estab- tion prove to be viable, the Governor lished under paragraph (b)(2)(ii) of this must reassess the proportionate shares section, and taking into consideration of each one-stop partner so that the ag- the factors concerning individual part- gregate amount attributable to the ner programs listed in § 361.737(b)(2), local partners for each program is less the Governor must determine each than that program’s cap amount. Upon partner’s proportionate share of the in- such reassessment, the Governor must frastructure costs, in accordance with direct each one-stop partner program § 361.737(b)(1), and to pay the reassessed amount toward (ii) In accordance with § 361.730(c), in the infrastructure funding costs of the some instances, the Governor does not one-stop center. determine a partner program’s proportionate share of infrastructure funding § 361.735 How are infrastructure cost costs, in which case it must be deter- budgets for the one-stop centers in mined by the entities named in a local area determined in the State § 361.730(c)(1) and (2). one-stop infrastructure funding (5) The Governor must then calculate mechanism? the statewide caps on the amounts that (a) Local WDBs must provide to the partner programs may be required to Governor appropriate and relevant ma- contribute toward infrastructure fund- terials and documents used in the ne- ing, according to the steps found at gotiations under the local funding § 361.738(a)(1) through (4). mechanism, including but not limited (6) The Governor must ensure that to: the local WIOA plan, the cost allo- the aggregate total of the infrastruc- cation method or methods proposed by ture contributions according to propor- the partners to be used in determining tionate share required of all local part- proportionate share, the proposed ner programs in local areas under the amounts or budget to fund infrastruc- State funding mechanism do not ex- ture, the amount of total partner funds ceed the cap for that particular pro- included, the type of funds or non-cash gram, in accordance with § 361.738(b)(1). contributions, proposed one-stop center If the total does not exceed the cap, the budgets, and any agreed upon or pro- Governor must direct each one-stop posed MOUs. partner program to pay the amount de- (b)(1) If a local area has reached termined under § 361.737(a) toward the agreement as to the infrastructure infrastructure funding costs of the one- budget for the one-stop centers in the stop center. If the total does exceed the local area, it must provide this budget cap, then to determine the amount to to the Governor as required by para- direct each one-stop program to pay, graph (a) of this section. If, as a result the Governor may: of the agreed upon infrastructure budg- (i) Ascertain, in accordance with et, only the individual programmatic § 361.738(b)(2)(i), whether the local part- contributions to infrastructure funding ner or partners whose proportionate based upon proportionate use of the shares are calculated above the indi- one-stop centers and relative benefit vidual program caps are willing to vol- received are at issue, the Governor untarily contribute above the capped may accept the budget, from which the amount to equal that program’s pro- Governor must calculate each partner’s portionate share; or contribution consistent with the cost (ii) Choose from the options provided allocation methodologies contained in in § 361.738(b)(2)(ii), including having the Uniform Guidance found in 2 CFR the local area re-enter negotiations to part 200, as described in § 361.736.

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(2) The Governor may also take into what the Governor determines is each consideration the extent to which the partner program’s proportionate share partners in the local area have agreed of infrastructure funds for that area, in determining the proportionate subject to the application of the caps shares, including any agreements described in § 361.738. reached at the local level by one or (b)(1) The Governor must use the cost more partners, as well as any other ele- allocation methodology—as deter- ment or product of the negotiating mined under § 361.736—to determine process provided to the Governor as re- each partner’s proportionate share of quired by paragraph (a) of this section. the infrastructure costs under the (3) If a local area has not reached State funding mechanism, subject to agreement as to the infrastructure considering the factors described in budget for the one-stop centers in the paragraph (b)(2) of this section. local area, or if the Governor deter- (2) In determining each partner pro- mines that the agreed upon budget gram’s proportionate share of infra- does not adequately meet the needs of structure costs, the Governor must the local area or does not reasonably take into account the costs of adminis- work within the confines of the local tration of the one-stop delivery system area’s resources in accordance with the for purposes not related to one-stop Governor’s one-stop budget guidance centers for each partner (such as costs (which is required to be issued by associated with maintaining the Local WIOA sec. 121(h)(1)(B) and under WDB or information technology sys- § 361.705), then, in accordance with tems), as well as the statutory require- § 361.745, the Governor must use the for- ments for each partner program, the mula developed by the State WDB partner program’s ability to fulfill based on at least the factors required such requirements, and all other appli- under § 361.745, and any associated cable legal requirements. The Governor weights to determine the local area may also take into consideration the budget. extent to which the partners in the local area have agreed in determining § 361.736 How does the Governor es- the proportionate shares, including any tablish a cost allocation method- agreements reached at the local level ology used to determine the one- by one or more partners, as well as any stop partner programs’ propor- other materials or documents of the tionate shares of infrastructure negotiating process, which must be costs under the State one-stop in- provided to the Governor by the Local frastructure funding mechanism? WDB and described in § 361.735(a). Once the appropriate budget is determined for a local area through either § 361.738 How are statewide caps on method described in § 361.735 (by ac- the contributions for one-stop infra- ceptance of a budget agreed upon in structure funding determined in local negotiation or by the Governor the State one-stop infrastructure funding mechanism? applying the formula detailed in § 361.745), the Governor must determine (a) The Governor must calculate the the appropriate cost allocation meth- statewide cap on the contributions for odology to be applied to the one-stop one-stop infrastructure funding re- partners in such local area, consistent quired to be provided by each one-stop with the Federal cost principles per- partner program for those local areas mitted under 2 CFR part 200, to fund that have not reached agreement. The the infrastructure budget. cap is the amount determined under paragraph (a)(4) of this section, which § 361.737 How are one-stop partner the Governor derives by: programs’ proportionate shares of (1) First, determining the amount re- infrastructure costs determined sulting from applying the percentage under the State one-stop infrastruc- for the corresponding one-stop partner ture funding mechanism? program provided in paragraph (d) of (a) The Governor must direct the this section to the amount of Federal one-stop partners in each local area funds provided to carry out the one- that have not reached agreement under stop partner program in the State for the local funding mechanism to pay the applicable fiscal year;

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(2) Second, selecting a factor (or fac- structure funding, consistent with the tors) that reasonably indicates the use requirement that each one-stop partner of one-stop centers in the State, apply- pay an amount that is consistent with ing such factor(s) to all local areas in the proportionate use of the one-stop the State, and determining the per- center and relative benefit received by centage of such factor(s) applicable to the partner, the program’s authorizing the local areas that reached agreement laws and regulations, the Federal cost under the local funding mechanism in principles in 2 CFR part 200, and other the State; applicable legal requirements. (3) Third, determining the amount re- (3) If applicable under paragraph sulting from applying the percentage (b)(2)(ii) of this section, the Local determined in paragraph (a)(2) of this WDB, chief elected officials, and one- section to the amount determined stop partners, after renegotiation, may under paragraph (a)(1) of this section come to agreement, sign an MOU, and for the one-stop partner program; and proceed under the local funding mecha- (4) Fourth, determining the amount nism. Such actions do not require the that results from subtracting the redetermination of the applicable caps amount determined under paragraph under paragraph (a) of this section. (a)(3) of this section from the amount (4) If, after renegotiation, agreement determined under paragraph (a)(1) of among partners still cannot be reached this section. The outcome of this final or alternate financing cannot be identi- calculation results in the partner pro- fied, the Governor may adjust the spec- gram’s cap. ified allocation, in accordance with the (b)(1) The Governor must ensure that amounts available and the limitations the funds required to be contributed by described in paragraph (d) of this sec- each partner program in the local areas tion. In determining these adjust- in the State under the State funding ments, the Governor may take into ac- mechanism, in aggregate, do not ex- count information relating to the re- ceed the statewide cap for each pro- negotiation as well as the information gram as determined under paragraph described in § 361.735(a). (a) of this section. (2) If the contributions initially de- (c) Limitations. Subject to paragraph termined under § 361.737 would exceed (a) of this section and in accordance the applicable cap determined under with WIOA sec. 121(h)(2)(D), the fol- paragraph (a) of this section, the Gov- lowing limitations apply to the Gov- ernor may: ernor’s calculations of the amount that (i) Ascertain if the one-stop partner one-stop partners in local areas that whose contribution would otherwise have not reached agreement under the exceed the cap determined under para- local funding mechanism may be re- graph (a) of this section will volun- quired under § 361.736 to contribute to tarily contribute above the capped one-stop infrastructure funding: amount, so that the total contribu- (1) WIOA formula programs and Wag- tions equal that partner’s propor- ner-Peyser Act Employment Service. The tionate share. The one-stop partner’s portion of funds required to be contrib- contribution must still be consistent uted under the WIOA youth, adult, or with the program’s authorizing laws dislocated worker programs, or under and regulations, the Federal cost prin- the Wagner-Peyser Act (29 U.S.C. 49 et ciples in 2 CFR part 200, and other ap- seq.) must not exceed three percent of plicable legal requirements; or the amount of the program in the (ii) Direct or allow the Local WDB, State for a program year. chief elected officials, and one-stop (2) Other one-stop partners. For re- partners to: Re-enter negotiations, as quired one-stop partners other than necessary; reduce the infrastructure those specified in paragraphs (c)(1), (3), costs to reflect the amount of funds (5), and (6) of this section, the portion that are available for such costs with- of funds required to be contributed out exceeding the cap levels; reassess must not exceed 1.5 percent of the the proportionate share of each one- amount of Federal funds provided to stop partner; or identify alternative carry out that program in the State for sources of financing for one-stop infra- a fiscal year. For purposes of the Carl

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D. Perkins Career and Technical Edu- to provide more for infrastructure cation Act of 2006, the cap on contribu- costs than the amount that the Gov- tions is determined based on the funds ernor determined (as described in made available by the State for post- § 361.737). secondary level programs and activi- (5) TANF programs. For purposes of ties under sec. 132 of the Carl D. Per- TANF, the cap on contributions is de- kins Career and Technical Education termined based on the total Federal Act and the amount of funds used by TANF funds expended by the State for the State under sec. 112(a)(3) of the work, education, and training activi- Perkins Act during the prior year to ties during the prior Federal fiscal year administer postsecondary level pro- (as reported to the Department of grams and activities, as applicable. Health and Human Services (HHS) on (3) Vocational rehabilitation. (i) Within the quarterly TANF Financial Report a State, for the entity or entities ad- form), plus any additional amount of ministering the programs described in Federal TANF funds that the State WIOA sec. 121(b)(1)(B)(iv) and § 361.400, the allotment is based on the one State TANF agency reasonably determines Federal fiscal year allotment, even in was expended for administrative costs instances where that allotment is in connection with these activities but shared between two State agencies, and that was separately reported to HHS as the cumulative portion of funds re- an administrative cost. The State’s quired to be contributed must not ex- contribution to the one-stop infra- ceed— structure must not exceed 1.5 percent (A) 0.75 percent of the amount of Fed- of these combined expenditures. eral funds provided to carry out such (6) Community Services Block Grant program in the State for Fiscal Year (CSBG) programs. For purposes of 2016 for purposes of applicability of the CSBG, the cap on contributions will be State funding mechanism for PY 2017; based on the total amount of CSBG (B) 1.0 percent of the amount pro- funds determined by the State to have vided to carry out such program in the been expended by local CSBG-eligible State for Fiscal Year 2017 for purposes entities for the provision of employ- of applicability of the State funding ment and training activities during the mechanism for PY 2018; prior Federal fiscal year for which in- (C) 1.25 percent of the amount pro- formation is available (as reported to vided to carry out such program in the HHS on the CSBG Annual Report) and State for Fiscal Year 2018 for purposes any additional amount that the State of applicability of the State funding CSBG agency reasonably determines mechanism for PY 2019; was expended for administrative pur- (D) 1.5 percent of the amount proposes in connection with these activi- vided to carry out such program in the ties and was separately reported to State for Fiscal Year 2019 and following HHS as an administrative cost. The years for purposes of applicability of State’s contribution must not exceed the State funding mechanism for PY 1.5 percent of these combined expendi- 2020 and subsequent years. tures. (ii) The limitations set forth in paragraph (d)(3)(i) of this section for any (d) For programs for which it is not given fiscal year must be based on the otherwise feasible to determine the final VR allotment to the State in the amount of Federal funding used by the applicable Federal fiscal year. program until the end of that pro- (4) Federal direct spending programs. gram’s operational year—because, for For local areas that have not reached a example, the funding available for edu- one-stop infrastructure funding agree- cation, employment, and training ac- ment by consensus, an entity admin- tivities is included within funding for istering a program funded with direct the program that may also be used for Federal spending, as defined in sec. other unrelated activities—the deter- 250(c)(8) of the Balanced Budget and mination of the Federal funds provided Emergency Deficit Control Act of 1985, to carry out the program for a fiscal as in effect on February 15, 2014 (2 year under paragraph (a)(1) of this sec- U.S.C. 900(c)(8)), must not be required tion may be determined by:

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(1) The percentage of Federal funds § 361.745 What factors does the State available to the one-stop partner pro- Workforce Development Board use gram that were used by the one-stop to develop the formula described in partner program for education, em- Workforce Innovation and Oppor- ployment, and training activities in tunity Act, which is used by the the previous fiscal year for which data Governor to determine the appropriate one-stop infrastructure budg- are available; and et for each local area operating (2) Applying the percentage deter- under the State infrastructure mined under paragraph (d)(1) of this funding mechanism, if no reason- section to the total amount of Federal ably implementable locally nego- funds available to the one-stop partner tiated budget exists? program for the fiscal year for which The State WDB must develop a for- the determination under paragraph mula, as described in WIOA sec. (a)(1) of this section applies. 121(h)(3)(B), to be used by the Governor under § 361.735(b)(3) in determining the § 361.740 What funds are used to pay appropriate budget for the infrastruc- for infrastructure costs in the State one-stop infrastructure funding ture costs of one-stop centers in the mechanism? local areas that do not reach agreement under the local funding mecha- (a) In the State funding mechanism, nism and are, therefore, subject to the infrastructure costs for WIOA title I State funding mechanism. The formula programs, including Native American identifies the factors and cor- Programs described in 20 CFR part 684, responding weights for each factor that may be paid using program funds, ad- the Governor must use, which must in- ministrative funds, or both. Infrastruc- clude: The number of one-stop centers ture costs for the Senior Community in a local area; the population served Service Employment Program under by such centers; the services provided title V of the Older Americans Act (42 by such centers; and any factors relat- U.S.C. 3056 et seq.) may also be paid ing to the operations of such centers in using program funds, administrative the local area that the State WDB de- funds, or both. termines are appropriate. As indicated (b) In the State funding mechanism, in § 361.735(b)(1), if the local area has infrastructure costs for other required agreed on such a budget, the Governor one-stop partner programs (listed in may accept that budget in lieu of ap- §§ 361.400 through 361.410) are limited to plying the formula factors. the program’s administrative funds, as appropriate. § 361.750 When and how can a one-stop (c) In the State funding mechanism, partner appeal a one-stop infra- infrastructure costs for the adult edu- structure amount designated by the cation program authorized by title II of State under the State infrastruc- WIOA must be paid from the funds that ture funding mechanism? are available for local administration (a) The Governor must establish a and may be paid from funds made process, described under sec. available by the State or non-Federal 121(h)(2)(E) of WIOA, for a one-stop resources that are cash, in-kind, or partner administering a program de- third-party contributions. scribed in §§ 361.400 through 361.410 to (d) In the State funding mechanism, appeal the Governor’s determination infrastructure costs for the Carl D. regarding the one-stop partner’s por- Perkins Career and Technical Edu- tion of funds to be provided for one- cation Act of 2006 must be paid from stop infrastructure costs. This appeal funds available for local administra- process must be described in the Uni- tion of postsecondary level programs fied State Plan. and activities to eligible recipients or (b) The appeal may be made on the consortia of eligible recipients and ground that the Governor’s determina- may be paid from funds made available tion is inconsistent with proportionate by the State or non-Federal resources share requirements in § 361.735(a), the that are cash, in-kind, or third-party cost contribution limitations in contributions. § 361.735(b), the cost contribution caps

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in § 361.738, consistent with the process § 361.760 How do one-stop partners described in the State Plan. jointly fund other shared costs (c) The process must ensure prompt under the Memorandum of Under- resolution of the appeal in order to en- standing? sure the funds are distributed in a (a) In addition to jointly funding in- timely manner, consistent with the re- frastructure costs, one-stop partners quirements of 20 CFR 683.630. listed in §§ 361.400 through 361.410 must (d) The one-stop partner must submit use a portion of funds made available an appeal in accordance with State’s under their programs’ authorizing Fed- deadlines for appeals specified in the eral law (or fairly evaluated in-kind guidance issued under § 361.705(b)(3), or contributions) to pay the additional if the State has not set a deadline, within 21 days from the Governor’s de- costs relating to the operation of the termination. one-stop delivery system. These other costs must include applicable career § 361.755 What are the required ele- services and may include other costs, ments regarding infrastructure including shared services. funding that must be included in (b) For the purposes of paragraph (a) the one-stop Memorandum of Un- of this section, shared services’ costs derstanding? may include the costs of shared serv- The MOU, fully described in § 361.500, ices that are authorized for and may be must contain the following informa- commonly provided through the one- tion whether the local areas use either stop partner programs to any indi- the local one-stop or the State funding vidual, such as initial intake, assess- method: ment of needs, appraisal of basic skills, (a) The period of time in which this identification of appropriate services infrastructure funding agreement is ef- to meet such needs, referrals to other fective. This may be a different time one-stop partners, and business serv- period than the duration of the MOU. ices. Shared operating costs may also (b) Identification of an infrastructure and shared services budget that will be include shared costs of the Local periodically reconciled against actual WDB’s functions. costs incurred and adjusted accord- (c) Contributions to the additional ingly to ensure that it reflects a cost costs related to operation of the one- allocation methodology that dem- stop delivery system may be cash, non- onstrates how infrastructure costs are cash, or third-party in-kind contribu- charged to each partner in proportion tions, consistent with how these are to its use of the one-stop center and described in § 361.720(c). relative benefit received, and that com- (d) The shared costs described in plies with 2 CFR part 200 (or any cor- paragraph (a) of this section must be responding similar regulation or rul- allocated according to the proportion ing). of benefit received by each of the part- (c) Identification of all one-stop partners, consistent with the Federal law ners, chief elected officials, and Local authorizing the partner’s program, and WDB participating in the infrastruc- consistent with all other applicable ture funding arrangement. legal requirements, including Federal (d) Steps the Local WDB, chief elect- cost principles in 2 CFR part 200 (or ed officials, and one-stop partners used any corresponding similar regulation to reach consensus or an assurance or ruling) requiring that costs are al- that the local area followed the guid- lowable, reasonable, necessary, and al- ance for the State funding process. locable. (e) Description of the process to be (e) Any shared costs agreed upon by used among partners to resolve issues during the MOU duration period when the one-stop partners must be included consensus cannot be reached. in the MOU. (f) Description of the periodic modification and review process to ensure equitable benefit among one-stop partners.

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§ 361.800 How are one-stop centers and (1) Providing reasonable accommoda- one-stop delivery systems certified tions for individuals with disabilities; for effectiveness, physical and pro- (2) Making reasonable modifications grammatic accessibility, and contin- to policies, practices, and procedures uous improvement? where necessary to avoid discrimina- (a) The State WDB, in consultation tion against persons with disabilities; with chief elected officials and Local (3) Administering programs in the WDBs, must establish objective cri- most integrated setting appropriate; teria and procedures for Local WDBs to (4) Communicating with persons with use when certifying one-stop centers. disabilities as effectively as with oth- (1) The State WDB, in consultation ers; with chief elected officials and Local (5) Providing appropriate auxiliary WDBs, must review and update the cri- aids and services, including assistive teria every 2 years as part of the re- technology devices and services, where view and modification of State Plans necessary to afford individuals with pursuant to § 361.135. disabilities an equal opportunity to (2) The criteria must be consistent participate in, and enjoy the benefits with the Governor’s and State WDB’s of, the program or activity; and guidelines, guidance, and policies on infrastructure funding decisions, de- (6) Providing for the physical accessi- scribed in § 361.705. The criteria must bility of the one-stop center to individ- evaluate the one-stop centers and one- uals with disabilities. stop delivery system for effectiveness, (c) Evaluations of continuous im- including customer satisfaction, phys- provement must include how well the ical and programmatic accessibility, one-stop center supports the achieve- and continuous improvement. ment of the negotiated local levels of (3) When the Local WDB is the one- performance for the indicators of per- stop operator as described in 20 CFR formance for the local area described 679.410, the State WDB must certify the in sec. 116(b)(2) of WIOA and part 361. one-stop center. Other continuous improvement factors (b) Evaluations of effectiveness must may include a regular process for iden- include how well the one-stop center tifying and responding to technical as- integrates available services for par- sistance needs, a regular system of con- ticipants and businesses, meets the tinuing professional staff development, workforce development needs of par- and having systems in place to capture ticipants and the employment needs of and respond to specific customer feed- local employers, operates in a cost-effi- back. cient manner, coordinates services (d) Local WDBs must assess at least among the one-stop partner programs, once every 3 years the effectiveness, and provides access to partner program physical and programmatic accessi- services to the maximum extent prac- bility, and continuous improvement of ticable, including providing services one-stop centers and the one-stop de- outside of regular business hours where livery systems using the criteria and there is a workforce need, as identified procedures developed by the State by the Local WDB. These evaluations WDB. The Local WDB may establish must take into account feedback from additional criteria, or set higher stand- one-stop customers. They must also in- ards for service coordination, than clude evaluations of how well the one- those set by the State criteria. Local stop center ensures equal opportunity WDBs must review and update the cri- for individuals with disabilities to par- teria every 2 years as part of the Local ticipate in or benefit from one-stop Plan update process described in center services. These evaluations § 361.580. Local WDBs must certify one- must include criteria evaluating how stop centers in order to be eligible to well the centers and delivery systems use infrastructure funds in the State take actions to comply with the dis- funding mechanism described in ability-related regulations imple- § 361.730. menting WIOA sec. 188, set forth at 29 (e) All one-stop centers must comply CFR part 38. Such actions include, but with applicable physical and pro- are not limited to: grammatic accessibility requirements,

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as set forth in 29 CFR part 38, the im- Subpart C—How Are State Supported plementing regulations of WIOA sec. Employment Services Programs Financed? 188. 363.20 How does the Secretary allot funds? § 361.900 What is the common identi- 363.21 How does the Secretary reallot funds? fier to be used by each one-stop de- 363.22 How are funds reserved for youth livery system? with the most significant disabilities? 363.23 What are the matching requirements? (a) The common one-stop delivery 363.24 What is program income and how system identifier is ‘‘American Job may it be used? Center.’’ 363.25 What is the period of availability of (b) As of November 17, 2016, each one- funds? stop delivery system must include the ‘‘American Job Center’’ identifier or ‘‘a Subparts D–E [Reserved] proud partner of the American Job Center network’’ on all primary elec- Subpart F—What Post-Award Conditions Must Be Met by a State? tronic resources used by the one-stop delivery system, and on any newly 363.50 What collaborative agreements must printed, purchased, or created mate- the State develop? rials. 363.51 What are the allowable administra- (c) As of July 1, 2017, each one-stop tive costs? delivery system must include the 363.52 What are the information collection ‘‘American Job Center’’ identifier or ‘‘a and reporting requirements? proud partner of the American Job 363.53 What requirements must a designated State unit meet for the transition of an Center network’’ on all products, pro- individual to extended services? grams, activities, services, electronic 363.54 When will an individual be considered resources, facilities, and related prop- to have achieved an employment out- erty and new materials used in the one- come in supported employment? stop delivery system. 363.55 When will the service record of an in- (d) One-stop partners, States, or local dividual who has achieved an employ- areas may use additional identifiers on ment outcome in supported employment their products, programs, activities, be closed? services, facilities, and related prop- 363.56 What notice requirements apply to erty and materials. this program? AUTHORITY: Sections 602–608 of the Reha- bilitation Act of 1973, as amended; 29 U.S.C. PART 363—THE STATE SUPPORTED 795g–795m, unless otherwise noted. EMPLOYMENT SERVICES PROGRAM SOURCE: 81 FR 55780, Aug. 19, 2016, unless Subpart A—General otherwise noted. Sec. Subpart A—General 363.1 What is the State Supported Employ- ment Services program? § 363.1 What is the State Supported 363.2 Who is eligible for an award? Employment Services program? 363.3 Who is eligible for services? 363.4 What are the authorized activities (a) Under the State supported em- under the State Supported Employment ployment services program, the Sec- Services program? retary provides grants to assist States 363.5 What regulations apply? in developing and implementing col- 363.6 What definitions apply? laborative programs with appropriate entities to provide programs of sup- Subpart B—How Does a State Apply for a ported employment services for indi- Grant? viduals with the most significant disabilities, including youth with the 363.10 What documents must a State submit to receive a grant? most significant disabilities, to enable 363.11 What are the vocational rehabilita- them to achieve an employment out- tion services portion of the Unified or come of supported employment in com- Combined State Plan supplement re- petitive integrated employment. quirements? Grants made under the State supported

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