State Independent Living Council Discussion Archive

Code of Federal Regulations Title 34 Part 364

Posted by: Lou Diehl
Date Mailed: Wednesday, August 27th 2003 05:04 PM

[Code of Federal Regulations]

[Title 34, Volume 2]

[Revised as of July 1, 2001]

>From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR364]

 

[Page 337-356]

 

                           TITLE 34--EDUCATION

 

              CHAPTER III--OFFICE OF SPECIAL EDUCATION AND

            REHABILITATIVE SERVICES, DEPARTMENT OF EDUCATION

 

PART 364--STATE INDEPENDENT LIVING SERVICES PROGRAM AND CENTERS FOR
INDEPENDENT LIVING PROGRAM: GENERAL PROVISIONS

 

                           Subpart A--General

 

Sec. 364.1  What programs are covered?

 

    (a) This part includes general requirements applicable to the 
conduct of the following programs authorized under title VII of the

Rehabilitation Act of 1973, as amended:

    (1) The State Independent Living Services (SILS) program (34
CFR part 365).

    (2) The Centers for Independent Living (CIL) program (34 CFR part 366).

    (b) Some provisions in this part also are made specifically 
applicable to the Independent Living Services for Older Individuals
Who Are Blind (OIB) program (34 CFR part 367).

 

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

 

Sec. 364.2  What is the purpose of the programs authorized by
chapter 1           of title VII?

 

    The purpose of the SILS and CIL programs authorized by chapter
1 of title VII of the Act is to promote a philosophy of independent
living (IL), including a philosophy of consumer control, peer support,
self-help, self-determination, equal access, and individual and system 
advocacy, to maximize the leadership, empowerment, independence,
and productivity of individuals with significant disabilities, and to 
promote and maximize the integration and full inclusion of
individuals with significant disabilities into the mainstream of American
society by providing financial assistance to States--

    (a) For providing, expanding, and improving the provision of IL
services;

    (b) To develop and support statewide networks of centers for 
independent living (centers); and

    (c) For improving working relationships among--

    (1) SILS programs;
    (2) Centers;
    (3) Statewide Independent Living Councils (SILCs) established
under section 705 of the Act;
    (4) State vocational rehabilitation (VR) programs receiving 
assistance under title I and under part C of title VI of the Act;

    (5) Client assistance programs (CAPs) receiving assistance
under section 112 of the Act;

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

    (7) Programs funded under other Federal laws; and

    (8) Programs funded through non-Federal sources.

 

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

 

Sec. 364.3  What regulations apply?

 

    The following regulations apply to the SILS and CIL programs:

    (a) The Education Department General Administrative Regulations
(EDGAR) as follows:

    (1) 34 CFR part 74 (Administration of Grants to Institutions of
Higher Education, Hospitals, and Nonprofit Organizations), with
respect to grants or subgrants to an eligible agency that is not a State or
local government or Indian tribal organization.

    (2) 34 CFR part 75 (Direct Grant Programs), with respect to
grants under subparts B and C of 34 CFR part 366.

    (3) 34 CFR part 76 (State-Administered Programs), with respect
to grants under 34 CFR part 365 and subpart D of 34 CFR part 366.

    (4) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).

    (5) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).

    (6) 34 CFR part 80 (Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments), with
respect to grants to an eligible agency that is a State or local government
or Indian tribal organization.

    (7) 34 CFR part 81 (General Education Provisions
Act--Enforcement).

    (8) 34 CFR part 82 (New Restrictions on Lobbying).

    (9) 34 CFR part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace(Grants)).

 

[[Page 339]]

 

    (10) 34 CFR part 86 (Drug-Free Schools and Campuses).

    (b) The regulations in this part 364.

    (c) The regulations in 34 CFR parts 365 and 366 as applicable.

 

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

 

Sec. 364.4  What definitions apply?

 

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

in 34 CFR parts 365, 366, and 367 are defined in 34 CFR 77.1:

 

    Applicant

    Application

    Award

    Department

    EDGAR

    Fiscal year

    Nonprofit

    Private

    Project

    Public

    Secretary

    (b) Other definitions. The following definitions also apply to
this part and to 34 CFR parts 365, 366, and 367:

    Act means the Rehabilitation Act of 1973, as amended.

    Administrative support services means assistance to support IL 
programs and the activities of centers and may include financial
and technical assistance in planning, budget development, and
evaluation of 
center activities, and support for financial management (including 
audits), personnel development, and recordkeeping activities.

 

(Authority: 29 U.S.C. 796c(c)(2))

 

    Advocacy means pleading an individual's cause or speaking or
writing in support of an individual. To the extent permitted by State law
or the rules of the agency before which an individual is appearing, a non-
lawyer may engage in advocacy on behalf of another individual.
Advocacy 
may--

    (1) Involve representing an individual--

    (i) Before private entities or organizations, government
agencies 
(whether State, local, or Federal), or in a court of law (whether
State or Federal); or

    (ii) In negotiations or mediation, in formal or informal 
administrative proceedings before government agencies (whether
State, local, or Federal), or in legal proceedings in a court of law; and

    (2) Be on behalf of--

    (i) A single individual, in which case it is individual
advocacy;

    (ii) A group or class of individuals, in which case it is
systems (or systemic) advocacy; or

    (iii) Oneself, in which case it is self advocacy.

    Attendant care means a personal assistance service provided to
an individual with significant disabilities in performing a variety of
tasks required to meet essential personal needs in areas such as 
bathing, communicating, cooking, dressing, eating, homemaking, 
toileting, and transportation.

 

(Authority: 20 U.S.C. 706(30)(B)(vi))

 

    Center for independent living means a consumer-controlled, 
community-based, cross-disability, nonresidential, private
nonprofit agency that--

    (1) Is designed and operated within a local community by
individuals with disabilities; and

    (2) Provides an array of IL services.

 

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

 

    Consumer control means, with respect to a center or eligible
agency, that the center or eligible agency vests power and authority in 
individuals with disabilities, including individuals who are or
have been recipients of IL services.

 

(Authority: 29 U.S.C. 796a(2))

 

    Cross-disability means, with respect to a center, that a center
provides IL services to individuals representing a range of
significant disabilities and does not require the presence of one or more
specific significant disabilities before determining that an individual is 
eligible for IL services.

 

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

 

    Designated State agency or State agency means the sole State
agency designated to administer (or supervise local administration of) the
State plan for VR services. The term includes the State agency for 
individuals who are blind, if that agency has been designated as
the sole State agency with respect to that part of the State VR plan 
relating to the vocational rehabilitation of individuals who are
blind.

 

(Authority: 29 U.S.C.. 706(3) and 721(a)(1)(A))

 

    Designated State unit means either--

 

[[Page 340]]

 

    (1) The State agency or the bureau, division, or other 
organizational unit within a State agency that is primarily
concerned with the vocational rehabilitation, or vocational and other 
rehabilitation, of individuals with disabilities and that is
responsible for  the administration of the VR program of the State agency; or

    (2) The independent State commission, board, or other agency
that has the vocational rehabilitation, or vocational and other 
rehabilitation, of individuals with disabilities as its primary 
function.

 

(Authority: 29 U.S.C. 706(3) and 721(a)(2)(A))

 

    Eligible agency means a consumer-controlled, community-based,
cross-disability, nonresidential, private, nonprofit agency.

 

Authority: 29 U.S.C. 796f-5)

 

    Independent living core services mean, for purposes of services
that are supported under the SILS or CIL programs--

    (1) Information and referral services;

    (2) IL skills training;

    (3) Peer counseling, including cross-disability peer
counseling; and

    (4) Individual and systems advocacy.

 

(Authority: 29 U.S.C. 706(29))

 

    Independent living services includes the independent living
core services and--

    (1) Counseling services, including psychological,
psychotherapeutic,
and related services;

    (2) Services related to securing housing or shelter, including 
services related to community group living, that are supportive of
the purposes of the Act, and adaptive housing services, including 
appropriate accommodations to and modifications of any space used
to serve, or to be occupied by, individuals with significant
disabilities;

    (3) Rehabilitation technology;

    (4) Mobility training;

    (5) Services and training for individuals with cognitive and
sensory disabilities, including life skills training and interpreter and
reader services;

    (6) Personal assistance services, including attendant care and
the training of personnel providing these services;

    (7) Surveys, directories, and other activities to identify 
appropriate housing, recreation opportunities, and accessible 
transportation, and other support services;

    (8) Consumer information programs on rehabilitation and IL
services available under the Act, especially for minorities and other
individuals with significant disabilities who have traditionally been unserved
or 
underserved by programs under the Act;

    (9) Education and training necessary for living in a community
and participating in community activities;

    (10) Supported living;

    (11) Transportation, including referral and assistance for 
transportation;

    (12) Physical rehabilitation;

    (13) Therapeutic treatment;

    (14) Provision of needed prostheses and other appliances and 
devices;

    (15) Individual and group social and recreational services;

    (16) Training to develop skills specifically designed for
youths who are individuals with significant disabilities to promote
self-awareness and esteem, develop advocacy and self-empowerment skills, and
explore career options;

    (17) Services for children;

    (18) Services under other Federal, State, or local programs
designed to provide resources, training, counseling, or other assistance of 
substantial benefit in enhancing the independence, productivity,
and quality of life of individuals with significant disabilities;

    (19) Appropriate preventive services to decrease the need of 
individuals with significant disabilities assisted under the Act
for similar services in the future;

    (20) Community awareness programs to enhance the understanding
and integration into society of individuals with significant
disabilities; 

and

    (21) Any other services that may be necessary to improve the
ability of an individual with a significant disability to function,
continue functioning, or move toward functioning independently in the family
or community or to continue in employment and that are not
inconsistent with any other provisions of the Act.

 

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

 

 

[[Page 341]]

 

 

    Individual with a disability means an individual who--

    (1) Has a physical, mental, cognitive, or sensory impairment
that substantially limits one or more of the individual's major life 
activities;

    (2) Has a record of such an impairment; or

    (3) Is regarded as having such an impairment.

 

(Authority: 29 U.S.C. 706(8)(B))

 

    Individual with a significant disability means an individual
with a severe physical, mental, cognitive, or sensory impairment whose
ability to function independently in the family or community or whose
ability to obtain, maintain, or advance in employment is substantially limited
and for whom the delivery of IL services will improve the ability to 
function, continue functioning, or move toward functioning
independently in the family or community or to continue in employment.

 

(Authority: 29 U.S.C. 706(15)(B))

 

    Legally authorized advocate or representative means an
individual who is authorized under State law to act or advocate on behalf of 
another individual. Under certain circumstances, State law permits
only an attorney, legal guardian, or individual with a power of attorney
to act or advocate on behalf of another individual. In other
circumstances,State law may permit other individuals to act or advocate on behalf
of another individual.

 

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

 

    Minority group means Alaskan Natives, American Indians, Asian 
Americans, Blacks (African Americans), Hispanic Americans, Native 
Hawaiians, and Pacific Islanders.

    Nonresidential means, with respect to a center, that the
center, as of October 1, 1994, does not operate or manage housing or shelter
for individuals as an IL service on either a temporary or long-term
basis unless the housing or shelter is--

    (1) Incidental to the overall operation of the center;

    (2) Necessary so that the individual may receive an IL service;
and

    (3) Limited to a period not to exceed eight weeks during any
six-month period.

 

(Authority: 29 U.S.C. 796a, 796f-1(f) and 706f-2(f))

 

    Peer relationships mean relationships involving mutual support
and assistance among individuals with significant disabilities who are 
actively pursuing IL goals.

    Peer role models means individuals with significant
disabilities whose achievements can serve as a positive example for other
individuals with significant disabilities.

    Personal assistance services means a range of IL services,
provided by one or more persons, designed to assist an individual with a 
significant disability to perform daily living activities on or off
the job that the individual would typically perform if the individual
did not have a disability. These IL services must be designed to
increase the individual's control in life and ability to perform everyday 
activities on or off the job.

 

(Authority: 29 U.S.C. 706(11))

 

    Service provider means--

    (1) A designated State unit (DSU) that directly provides IL
services to individuals with significant disabilities;

    (2) A center that receives financial assistance under part B or
C of chapter 1 of title VII of the Act; or

    (3) Any other entity or individual that meets the requirements
of Sec. 364.43(e) and provides IL services under a grant or contract
from the DSU pursuant to Sec. 364.43(b).

 

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

 

    Significant disability means a severe physical, mental,
cognitive, or sensory impairment that substantially limits an individual's
ability to function independently in the family or community or to obtain, 
maintain, or advance in employment.

    State means, except for sections 711(a)(2)(A) and 721(c)(2)(A)
and where otherwise specified in the Act, in addition to each of the
several States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the United States Virgin Islands,

 

[[Page 342]]

 

Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and the Republic of Palau (until the Compact of Free Association
with Palau takes effect).

 

(Authority: 29 U.S.C. 706(16))

 

    State plan means the State IL plan required under section 704
of title VII of the Act.

    Transportation means travel and related expenses that are
necessary to enable an individual with a significant disability to benefit
from another IL service and travel and related expenses for an attendant
or aide if the services of that attendant or aide are necessary to
enable an individual with a significant disability to benefit from that IL
service.

 

(Authority: 29 U.S.C. 706(30)(B)(xi) and 711(c))

 

    Unserved and underserved groups or populations, with respect to
groups or populations of individuals with significant disabilities
in a State, include, but are not limited to, groups or populations of 
individuals with significant disabilities who--

    (1) Have cognitive and sensory impairments;

    (2) Are members of racial and ethnic minority groups;

    (3) Live in rural areas; or

    (4) Have been identified by the eligible agency as unserved or 
underserved within a center's project area.

 

(Authority: 29 U.S.C. 706, 711(c), and 796f-796f-5)

 

Sec. 364.5  What is program income and how may it be used?

 

    (a) Definition. Program income means gross income received by
a grantee under title VII of the Act that is directly generated by an
activity supported under 34 CFR part 365, 366, or 367.

    (b) Sources. Sources of program income include, but are not
limited to, payments received from workers' compensation funds or fees for 
services to defray part or all of the costs of services provided to
particular consumers.

    (c) Use of program income. (1) Program income, whenever earned,
must be used for the provision of IL services or the administration of
the State plan, as appropriate.

    (2) A service provider is authorized to treat program income
as--

    (i) A deduction from total allowable costs charged to a Federal
grant, in accordance with 34 CFR 80.25(g)(1); or

    (ii) An addition to the grant funds to be used for additional 
allowable program expenditures, in accordance with 34 CFR
80.25(g)(2).

    (3) Program income may not be used to meet the non-Federal
share requirement under 34 CFR 365.12(b).

 

(Authority: 29 U.S.C. 711(c); 34 CFR 80.25)

 

Sec. 364.6  What requirements apply to the obligation of Federal
funds           and program income?

 

    (a) Except as provided in paragraph (b) of this section, any
Federal funds, including reallotted funds, that are appropriated for a
fiscal year to carry out a program under 34 CFR part 365, 366, or 367 that
are not obligated or expended by the DSU or center prior to the
beginning of the succeeding fiscal year, and any program income received during
a fiscal year that is not obligated or expended by the DSU or center
prior to the beginning of the succeeding fiscal year in which the program
income was received, remain available for obligation and
expenditure by the DSU or center during that succeeding fiscal year.

    (b) Federal funds appropriated for a fiscal year under part B
of chapter 1 and under chapter 2 of title VII of the Act remain
available for obligation in the succeeding fiscal year only to the extent
that the DSU complied with any matching requirement by obligating, in
accordance with 34 CFR 76.707, the non-Federal share in the fiscal year for
which the funds were appropriated.

 

(Authority: 29 U.S.C. 718)

 

            Subpart B--What Are the Application Requirements?

 

Sec. 364.10  What are the application requirements?

 

    To receive a grant from a State's allotment of funds under
parts B and C of chapter 1 of title VII of the Act and 34 CFR parts 365 and
366,
a State shall submit to the Secretary, and obtain approval of, a
three-year State plan

 

[[Page 343]]

 

meeting the requirements in subpart C of this part.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.11  When must the State plan be submitted for approval?

 

    The designated State unit (DSU) shall submit to the Secretary
for approval the three-year State plan no later than July 1 of the year
preceding the first fiscal year of the three-year period for which
the State plan is submitted.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c(a)(4))

 

Sec. 364.12  How does the Secretary approve State plans?

 

    (a) General. The Secretary approves a State plan that the
Secretary determines meets the requirements of section 704 of the Act and
subparts B through D of this part and disapproves a plan that does not meet
these requirements.

    (b) Informal resolution. If the Secretary intends to disapprove
the State plan, the Secretary attempts to resolve disputed issues
informally with State officials.

    (c) Notice of formal hearing. If, after reasonable effort has
been made to resolve the dispute informally, no resolution has been
reached, the Secretary provides written notice to the DSU and the SILC of
the intention to disapprove the State plan and of the opportunity for
a hearing.

    (d) Hearing. (1) If the DSU requests a hearing, the Secretary 
designates one or more individuals, either from the Department or 
elsewhere, not responsible for or connected with the Department's 
administration of the programs authorized by title VII of the Act,
to conduct a hearing.

    (2) If more than one individual is designated, the Secretary 
designates one of those individuals as the Chief Hearing Official
of the Hearing Panel. If one individual is designated, that individual is
the Hearing Official.

    (e) Judicial review. A State may appeal the Secretary's
decision to disapprove its State plan by filing a petition for review with the
U.S. Court of Appeals for the circuit in which the State is located, in 
accordance with section 107(d) of the Act.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c) and 796d-1(a))

 

Sec. 364.13  Under what circumstances may funds be withheld,
reduced,           limited, or terminated?

 

    (a) When withheld, reduced, limited, or terminated. Payments to
a State under chapter 1 of title VII of the Act may be withheld,
reduced, limited, or terminated as provided by section 107(c) of the Act if
the Secretary finds that--

    (1) The State plan has been so changed that it no longer
conforms with the requirements of section 704 of the Act; or

    (2) In the administration of the State plan, there is a failure
to comply substantially with any provision of the plan.

    (b) Informal resolution. If the Secretary intends to withhold, 
reduce, limit, or terminate payment of funds to a State under title
VII of the Act as provided by section 107(c) of the Act, the Secretary 
attempts to resolve disputed issues informally with State
officials.

    (c) Notice of formal hearing. If, after reasonable effort has
been made to resolve the dispute informally, no resolution has been
reached, the Secretary provides written notice to the DSU and SILC of the 
intention to withhold, reduce, limit, or terminate payment of funds
under title VII of the Act and of the opportunity for a hearing.

    (d) Hearing. If the DSU requests a hearing, the Secretary
designates an administrative law judge (ALJ) in the Office of Administrative
Law Judges to conduct a hearing in accordance with the provisions of 34
CFR part 81, subpart A.

    (e) Initial decision. The ALJ issues an initial decision in 
accordance with 34 CFR 81.41.

    (f) Petition for review of an initial decision. The DSU may
seek the Secretary's review of an ALJ's initial decision in accordance with
34 CFR 81.42.

    (g) Review by the Secretary. The Secretary reviews an ALJ's
initial decision in accordance with 34 CFR 81.43.

 

[[Page 344]]

 

    (h) Final decision of the Department. The ALJ's initial
decision becomes the final decision of the Department in accordance with 34
CFR 81.44.

    (i) Judicial review. A State may appeal the Secretary's final 
decision to withhold, reduce, limit, or terminate payment of funds
to a State under title VII of the Act by filing a petition for review
with the U.S. Court of Appeals for the circuit in which the State is
located,in accordance with section 107(d) of the Act.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 727(c)-(d) and 796d-1(a))

 

            Subpart C--What Are the State Plan Requirements?

 

Sec. 364.20  What are the general requirements for a State plan?

 

    (a) Form and content. The State plan must contain, in the form 
prescribed by the Secretary, the information required by this part
and any other information requested by the Secretary.

    (b) Duration. (1) The State plan must cover a three-year period
and must be amended whenever necessary to reflect any material change
in State law, organization, policy, or agency operations that affects
the administration of the State plan.

    (2) The Secretary may require a State to submit an interim
State plan for a period of less than three years following a
reauthorization of the Act and prior to the effective date of final regulations.

    (c) Joint development-single agency. The State plan must be 
jointly--

    (1) Developed by the DSU and the SILC; and

    (2) Signed by the--

    (i) Director of the DSU (Director); and

    (ii) Chairperson of the SILC, acting on behalf of and at the 
direction of the SILC.

    (d) Joint development-separate agency for individuals who are
blind. If a separate State agency is authorized by State law as the sole
State agency with authority to administer or supervise the administration
of that part of the State plan relating to the vocational
rehabilitation of individuals who are blind, the State plan must be jointly--

    (1) Developed by the DSU, the SILC, and the separate State
agency authorized to provide VR services for individuals who are blind;
and

    (2) Signed by the--

    (i) Director;

    (ii) Director of the separate State agency authorized to
provide VR services for individuals who are blind; and

    (iii) Chairperson of the SILC, acting on behalf of and at the 
direction of the SILC.

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

    (e) The State plan must assure that, as appropriate, the DSU
and SILC actively consult in the development of the State plan with the
Director of the CAP authorized under section 112 of the Act.

    (f) Periodic review and revision. The State plan must provide
for the review and revision of the plan, at least once every three
years, to ensure the existence of appropriate planning, financial support and
coordination, and other assistance to appropriately address, on a 
statewide and comprehensive basis, the needs in the State for--

    (1) Providing State IL services;

    (2) Developing and supporting a statewide network of centers;
and

    (3) Working relationships between--

    (i) Programs providing IL services and supporting or
establishing centers; and

    (ii) The VR program established under title I of the Act, and
other programs providing services for individuals with disabilities.

    (g) Public hearings. (1) The State plan must assure that the
DSU and SILC conduct public meetings to provide all segments of the public,
including interested groups, organizations, and individuals, an 
opportunity to comment on the State plan prior to its submission to
the Secretary and on any revisions to the approved State plan. The DSU
and SILC may meet the public participation requirement by holding the
public meetings before a preliminary draft State plan is prepared or by 
providing a preliminary draft State plan for comment at the public 
meetings.

 

[[Page 345]]

 

    (2) The State plan must assure that the DSU and SILC establish
and maintain a written description of procedures for conducting public 
meetings in accordance with the following requirements:

    (i) The DSU and SILC shall provide appropriate and sufficient
notice of the public meetings. Appropriate and sufficient notice means
notice provided at least 30 days prior to the public meeting through
various media available to the general public, such as newspapers and
public service announcements, and through specific contacts with
appropriate constituency groups and organizations identified by the DSU and
SILC.

    (ii) The DSU and SILC shall make reasonable accommodation to 
individuals with disabilities who rely on alternative modes of 
communication in the conduct of the public meetings, including
providing sign language interpreters and audio-loops.

    (iii) The DSU and SILC shall provide the notices of the public 
meetings, any written material provided prior to or at the public 
meetings, and the approved State plan in accessible formats for 
individuals who rely on alternative modes of communication.

    (h) The State plan must assure that, at the public meetings to 
develop the State plan, the DSU and SILC identify those provisions
in the State plan that are State-imposed requirements. For purposes of
this section, a State-imposed requirement includes any State law,
regulation,rule, or policy relating to the DSU's administration or operation
of IL programs under title VII of the Act, including any rule or policy 
implementing any Federal law, regulation, or guideline, that is
beyond what would be required to comply with the regulations in 34 CFR
parts 364, 365, 366, and 367.

    (i) The State plan also must address how the specific
requirements in Secs. 364.21 through 364.43 and in Secs. 364.56 and 364.59 will
be met.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c) and 796c (a) and (m)(6))

 

Sec. 364.21  What are the requirements for the Statewide
Independent           Living Council (SILC)?

 

    (a) Establishment. (1) To be eligible to receive assistance
under chapter 1 of title VII of the Act, each State shall establish a
SILC that meets the requirements of section 705 of the Act.

    (2) The SILC may not be established as an entity within a State
agency, including the designated State agency or DSU. The SILC
shall be independent of the DSU and all other State agencies.

    (b) Appointment and composition--(1) Appointment. Members of
the SILC must be appointed by the Governor or the appropriate entity
within the State responsible, in accordance with State law, for making 
appointments.

    (2) Composition. (i) The SILC must include--

    (A) At least one director of a center chosen by the directors
of centers within the State; and

    (B) As ex officio, non voting members, a representative from the
DSU and representatives from other State agencies that provide services
to individuals with disabilities.

    (ii) The SILC may include--

    (A) Other representatives from centers;

    (B) Parents and legal guardians of individuals with
disabilities;

    (C) Advocates of and for individuals with disabilities;

    (D) Representatives from private businesses;

    (E) Representatives from organizations that provide services
for individuals with disabilities; and

    (F) Other appropriate individuals.

    (iii) A majority of the members of the SILC must be individuals
with disabilities, as defined in Sec. 364.4(b), and not employed by any
State agency or center.

    (c) Qualifications. The SILC must be composed of members--

    (1) Who provide statewide representation;

    (2) Who represent a broad range of individuals with
disabilities; 

and

    (3) Who are knowledgeable about centers and IL services.

    (d) Voting members. A majority of the voting members of the
SILC must be individuals with disabilities, as defined

 

[[Page 346]]

 

in Sec. 364.4(b), and not employed by any State agency or center.

    (e) Chairperson--(1) In general. Except as provided in
paragraph (e)(2) of this section, the SILC shall select a chairperson from
among the voting membership of the SILC.

    (2) Designation by Governor. In States in which the Governor
does not have veto power pursuant to State law, the Governor shall
designate a voting member of the SILC to serve as the chairperson of the SILC
or shall require the SILC to so designate a voting member.

    (f) Terms of appointment. Each member of the SILC shall serve
for term of three years, except that--

    (1) A member appointed to fill a vacancy occurring prior to the
expiration of the term for which a predecessor was appointed must
be appointed for the remainder of that term;

    (2) The terms of service of the members initially appointed
must be (as specified by the appointing authority) for the fewer number of
years as will provide for the expiration of terms on a staggered basis;
and

    (3) No member of the SILC may serve for more than two
consecutive full terms.

    (g) Duties. The SILC shall--

    (1) Jointly develop and sign (in conjunction with the DSU) the
State plan required by section 704 of the Act and Sec. 364.20;

    (2) Monitor, review, and evaluate the implementation of the
State plan;

    (3) Coordinate activities with the State Rehabilitation
Advisory Council established under section 105 of the Act and councils that 
address the needs of specific disability populations and issues
under other Federal law;

    (4) Ensure that all regularly scheduled meetings of the SILC
are open to the public and sufficient advance notice is provided; and

    (5) Submit to the Secretary all periodic reports as the
Secretary may reasonably request and keep all records, and afford access to
all records, as the Secretary finds necessary to verify the periodic 
reports.

    (h) Hearings. The SILC is authorized to hold any hearings and
forums that the SILC determines to be necessary to carry out its duties.

    (i) Resource plan. (1) The SILC shall prepare, in conjunction
with the DSU, a resource plan for the provision of resources, including
staff and personnel, made available under parts B and C of chapter 1 of
title VII of the Act, part C of title I of the Act, and from other public
and private sources that may be necessary to carry out the functions of
the SILC under this part.

    (2) The SILC's resource plan must, to the maximum extent
possible, rely on the use of resources in existence during the period of 
implementation of the State plan.

    (3) No conditions or requirements may be included in the SILC's
resource plan that may compromise the independence of the SILC.

    (4) The SILC is responsible for the proper expenditure of funds
and use of resources that it receives under the resource plan.

    (5) A description of the SILC's resource plan required by
paragraph (i)(1) of this section must be included in the State plan.

    (j) Staff. (1) The SILC shall, consistent with State law,
supervise and evaluate its staff and other personnel as may be necessary to
carry out its functions under this section.

    (2) While assisting the SILC in carrying out its duties, staff
and other personnel made available to the SILC by the DSU may not be 
assigned duties by the designated State agency or DSU, or any other
agency or office of the State, that would create a conflict of
interest.

    (k) Reimbursement and compensation. The SILC may use the
resources described in paragraph (i) of this section to reimburse members of
the SILC for reasonable and necessary expenses of attending SILC
meetings and performing SILC duties (including child care and personal
assistance services) and to pay compensation to a member of the SILC, if the
member's not employed or must forfeit wages from other employment, for
each day the member is engaged in performing SILC duties.

    (l) Conflict of interest. The code of conduct provisions in 34
CFR 74.162 and the conflict of interest provisions in 34 CFR 75.524 and
75.525 apply to members

 

[[Page 347]]

 

of the SILC. For purposes of this paragraph and 34 CFR 74.162,
75.524, and 75.525, a SILC is not considered a government, governmental
entity, or governmental recipient.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.22  What is the State's responsibility for administration
of           the programs authorized by chapter 1 of title VII?

 

    (a) General. The State plan must identify the DSU as the entity
that, on behalf of the State, shall--

    (1) Receive, account for, and disburse funds received by the
State under part B of chapter 1 and section 723 of title VII of the Act
(and 34 CFR parts 365 and 366, as applicable) based on the plan;

    (2) Provide, as applicable, administrative support services for
the SILS and CIL programs under part B of chapter 1 and section 723 of
title VII of the Act, respectively, and 34 CFR parts 365 and 366, 
respectively;

    (3) Keep records and afford access to these records as the
Secretary finds to be necessary with respect to the SILS and CIL programs;
and

    (4) Submit additional information or provide assurances as the 
Secretary may require with respect to the SILS and CIL programs.

    (b) Provision of administrative support services. The State
plan must describe the administrative support services to be provided by
the DSU under paragraph (a)(2) of this section.

    (c) Designation of State unit for individuals who are blind.
The State plan may designate a State agency or the organizational unit
of a State agency that is authorized under State law to provide VR
services to individuals who are blind under a State VR plan as the DSU to 
administer that part of the State IL plan under which IL services
are provided to individuals who are blind. However, a State agency 
designated pursuant to this paragraph may not submit a separate
State plan.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.23  What are the staffing requirements?

 

    (a) General staffing requirement. The State plan must assure
that the staff of the service provider includes personnel who are
specialists in the development and provision of IL services and in the
development and support of centers.

    (b) Alternative communication needs staffing. The State plan
must also assure that, to the maximum extent feasible, the service
provider makes available personnel able to communicate--

    (1) With individuals with significant disabilities who rely on 
alternative modes of communication, such as manual communication, 
nonverbal communication devices, Braille, or audio tapes, and who
apply for or receive IL services under title VII of the Act; and

    (2) In the native languages of individuals with significant 
disabilities whose English proficiency is limited and who apply for
or receive IL services under title VII of the Act.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c) and 796c(a)(1))

 

Sec. 364.24  What assurances are required for staff development?

 

    The State plan must assure that the service provider
establishes and maintains a program of staff development for all classes of
positions involved in providing IL services and, if appropriate, in
administering the CIL program. The staff development program must emphasize
improving the skills of staff directly responsible for the provision of IL 
services, including knowledge of and practice in the IL philosophy.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c) and 796c(a)(1))

 

Sec. 364.25  What are the requirements for a statewide network of 
          centers for independent living?

 

    (a) The State plan must include a design for the establishment
of a statewide network of centers that comply with the standards and 
assurances in section 725 (b) and (c) of the Act and subparts F and
G of34 CFR part 366.

    (b) The design required by paragraph (a) of this section must 
identify [[Page 348]]

 

unserved and underserved areas and must provide an order of
priority for serving these areas.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.26  What are the requirements for cooperation,
coordination,           and working relationships?

 

    (a) The State plan must include steps that will be taken to
maximize the cooperation, coordination, and working relationships among--

    (1) The SILS program, the SILC, and centers; and
    (2) The DSU, other State agencies represented on the SILC,
other councils that address the needs of specific disability populations
and issues, and other public and private entities determined to be 
appropriate by the SILC.

    (b) The State plan must identify the entities to which the DSU
and the SILC will relate in carrying out the requirements of paragraph
(a) of this section.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.27  What are the requirements for coordinating Independent
          Living (IL) services?

 

    The State plan must describe how IL services funded under
chapter 1 of title VII of the Act will be coordinated with, and complement,
other services, to avoid unnecessary duplication with other Federal,
State, and local programs, including the OIB program authorized by chapter
2 of title VII of the Act, that provide IL- or VR-related services. This
description must include those services provided by State and local
agencies administering the special education, vocational education,
developmental disabilities services, public health, mental health, 
housing, transportation, and veterans' programs, and the programs 
authorized under titles XVIII through XX of the Social Security Act

within the State.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c(j) and 752(i)(2)(C))

 

Sec. 364.28  What requirements relate to IL services for older 
          individuals who are blind?

 

    The State plan must include an assurance that the DSU will seek
to incorporate into and describe in the State plan any new methods or 
approaches for the provision to older individuals who are blind of
IL services that are developed under a project funded under chapter 2
of title VII of the Act and that the DSU determines to be effective.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c), 796c(j), and 796k(h))

 

Sec. 364.29  What are the requirements for coordinating Federal and
          State sources of funding?

 

    (a) The State plan must describe efforts to coordinate Federal
and State funding for centers and IL services.

    (b) The State plan must identify the amounts, sources, and
purposes of the funding to be coordinated under paragraph (a) of this
section, including the amount of State funds earmarked for the general
operation of centers.

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

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.30  What notice must be given about the Client Assistance 
          Program (CAP)?

 

    The State plan must include satisfactory assurances that all
service providers will use formats that are accessible to notify
individuals seeking or receiving IL services under chapter 1 of title VII
about--

    (a) The availability of the CAP authorized by section 112 of
the Act;

    (b) The purposes of the services provided under the CAP; and

    (c) How to contact the CAP.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 718a and 796c(m)(1))

 

[[Page 349]]

 

Sec. 364.31  What are the affirmative action requirements?

 

    The State plan must include satisfactory assurances that all 
recipients of financial assistance under parts B and C of chapter
1 of title VII of the Act will take affirmative action to employ and
advance in employment qualified individuals with significant disabilities
on the same terms and conditions required with respect to the employment
of individuals with disabilities under section 503 of the Act.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c(m)(2))

 

Sec. 364.32  What are the requirements for outreach?

 

    (a) With respect to IL services and centers funded under
chapter 1 of title VII of the Act, the State plan must include steps to be
taken regarding outreach to populations in the State that are unserved or
underserved by programs under title VII, including minority groups
and urban and rural populations.

    (b) The State plan must identify the populations to be
designated for targeted outreach efforts under paragraph (a) of this section
and the geographic areas (i.e., communities) in which they reside.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.33  What is required to meet minority needs?

 

    The State plan must demonstrate how the State will address the
needs of individuals with significant disabilities from minority group 
backgrounds.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c), 718b(b), and 796c(l))

 

Sec. 364.34  What are the fiscal and accounting requirements?

 

    In addition to complying with applicable EDGAR fiscal and
accounting requirements, the State plan must include satisfactory assurances
that all recipients of financial assistance under parts B and C of
chapter 1 of title VII of the Act will adopt those fiscal control and fund 
accounting procedures as may be necessary to ensure the proper 
disbursement of and accounting for those funds.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c(m)(3))

 

Sec. 364.35  What records must be maintained?

 

    In addition to complying with applicable EDGAR recordkeeping 
requirements, the State plan must include satisfactory assurances
that all recipients of financial assistance under parts B and C of
chapter 1 of title VII of the Act will maintain--

    (a) Records that fully disclose and document--

    (1) The amount and disposition by the recipient of that
financial assistance;

    (2) The total cost of the project or undertaking in connection
with which the financial assistance is given or used;

    (3) The amount of that portion of the cost of the project or 
undertaking supplied by other sources; and

    (4) Compliance with the requirements of chapter 1 of title VII
of the Act and this part; and

    (b) Other records that the Secretary determines to be
appropriate to facilitate an effective audit.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c(m)(4))

 

Sec. 364.36  What are the reporting requirements?
     With respect to the records that are required by Sec. 364.35,
the State plan must include satisfactory assurances that all recipients
of financial assistance under parts B and C of chapter 1 of title VII
of the Act will submit reports that the Secretary determines to be 
appropriate.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c(m)(4)(D))

 

[[Page 350]]

 

Sec. 364.37  What access to records must be provided?

 

    For the purpose of conducting audits, examinations, and
compliance reviews, the State plan must include satisfactory assurances that
all recipients of financial assistance under parts B and C of chapter
1 and chapter 2 of title VII of the Act will provide access to the
Secretary and the Comptroller General, or any of their duly authorized 
representatives, to--

    (a) The records maintained under Sec. 364.35;

    (b) Any other books, documents, papers, and records of the 
recipients that are pertinent to the financial assistance received
under chapter 1 of title VII of the Act; and

    (c) All individual case records or files or consumer service
records of individuals served under 34 CFR part 365, 366, or 367, including
names, addresses, photographs, and records of evaluation included
in those individual case records or files or consumer service records.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c) and 796c(m)(4)(c) and (5))

 

Sec. 364.38  What methods of evaluation must the State plan
include?

 

    The State plan must establish a method for the periodic
evaluation of the effectiveness of the plan in meeting the objectives
established in Sec. 364.42, including evaluation of satisfaction by individuals
with significant disabilities who have participated in the program.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.39  What requirements apply to the administration of
grants           under the Centers for Independent Living program?

 

    In States in which State funding for centers equals or exceeds
the amount of funds allotted to the State under part C of title VII of
the Act, as determined pursuant to 34 CFR 366.29 and 366.31, and in
which the State elects to administer the CIL program as provided in
section 723 of the Act, the State plan must include policies, practices,
and procedures, including the order of priorities that the State may 
establish pursuant to 34 CFR 366.34(a), that are consistent with
section723 of the Act to govern the awarding of grants to centers and the 
oversight of these centers.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 796c (g) and (h), 796f-1(d), and 796f-2(d))

 

Sec. 364.40  Who is eligible to receive IL services?

 

    The State plan must assure that--

    (a) Any individual with a significant disability, as defined in
Sec. 364.4(b), is eligible for IL services under the SILS and CIL 
programs authorized under chapter 1 of title VII of the Act;

    (b) Any individual may seek information about IL services under
these programs and request referral to other services and programs
for individuals with significant disabilities, as appropriate; and

    (c) The determination of an individual's eligibility for IL
services under the SILS and CIL programs meets the requirements of Sec.
364.51.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 706(15)(B) and 796b)

 

Sec. 364.41  What assurances must be included regarding
eligibility?

 

    (a) The State plan must assure that the service provider
applies eligibility requirements without regard to age, color, creed,
gender, national origin, race, religion, or type of significant disability
of the individual applying for IL services.

    (b) The State plan must assure that the service provider does
not impose any State or local residence requirement that excludes under
the plan any individual who is present in the State and who is
otherwise eligible for IL services from receiving IL services.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

(Authority: 29 U.S.C. 711(c) and 796c(a)(1))

 

Sec. 364.42  What objectives and information must be included in
the           State plan?

 

    (a) The State plan must specifically describe--

 

[[Page 351]]

 

    (1) The objectives to be achieved;

    (2) The financial plan for the use of Federal and non-Federal
funds to meet these objectives. The financial plan must identify the
source and amounts of other Federal and non-Federal funds to be used to
meet these objectives; and

    (3) How funds received under sections 711, 721, and 752 of the
Act will further these objectives.

    (b) The objectives required by paragraph (a) of this section
must address--

    (1) The overall goals and mission of the State's IL programs
and services;

    (2) The various priorities for the types of services and
populations to be served; and

    (3) The types of services to be provided.

    (c) In developing the objectives required by paragraph (a) of
this section, the DSU and the SILC shall consider, and incorporate if 
appropriate, the priorities and objectives established by centers 
pursuant to section 725(c)(4) of the Act.

    (d) The State plan must establish time frames for the
achievement of the objectives required by paragraph (a) of this section.

    (e) The State plan must explain how the objectives required by 
paragraph (a) of this section are consistent with and further the 
purpose of chapter 1 of title VII of the Act, as stated in section
701 of the Act and Sec. 364.2.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.43  What requirements apply to the provision of State IL           services?

 

    (a) The State plan must describe the extent and scope of IL
services to be provided under title VII of the Act to meet the objectives
stated in Sec. 364.42.

    (b) The State plan must provide that the State directly, or
through grants or contracts, will provide IL services with Federal, State,
or other funds.

    (c) Unless the individual signs a waiver stating that an IL
plan is unnecessary, IL services provided to individuals with significant 
disabilities must be in accordance with an IL plan that meets the 
requirements of Sec. 364.52 and that is mutually agreed upon by--

    (1) An appropriate staff member of the service provider; and

    (2) The individual.

    (d) If the State provides the IL services that it is required
to provide by paragraph (b) of this section through grants or
contracts with third parties, the State plan must describe these
arrangements.

    (e) If the State contracts with or awards a grant to a center
for the general operation of the center, the State shall delegate to
the center the determination of an individual's eligibility for
services from that center. If the State contracts with or awards a grant to
a third party to provide specific IL services, the State may choose
to delegate to the IL service provider the determination of
eligibility for these services and the development of an IL plan for individuals
who receive these services.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

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

 

Sec. 364.50  What requirements apply to the processing of referrals
and           applications?

 

    The service provider shall apply the standards and procedures 
established by the DSU pursuant to 34 CFR 365.30 to ensure
expeditious and equitable handling of referrals and applications for IL
services from individuals with significant disabilities.

 

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

 

Sec. 364.51  What requirements apply to determinations of
eligibility or          ineligibility?

 

    (a) Eligibility. (1) Before or at the same time as an applicant
for IL services may begin receiving IL services funded under this part,
the service provider shall determine the applicant's eligibility and 
maintain documentation that the applicant has met the basic
requirements specified in Sec. 364.40.

    (2) The documentation must be dated and signed by an
appropriate staff member of the service provider.

 

[[Page 352]]

 

    (b) Ineligibility. (1) If a determination is made that an
applicant for IL services is not an individual with a significant disability,
the service provider shall provide documentation of the ineligibility 
determination that is dated and signed by an appropriate staff
member.

    (2)(i) The service provider may determine an applicant to be 
ineligible for IL services only after full consultation with the 
applicant or, if the applicant chooses, the applicant's parent, 
guardian, or other legally authorized advocate or representative,
or after providing a clear opportunity for this consultation.

    (ii) The service provider shall notify the applicant in writing
of the action taken and inform the applicant or, if the applicant
chooses, the applicant's parent, guardian, or other legally authorized
advocate or representative, of the applicant's rights and the means by which
the applicant may appeal the action taken. (Cross-reference: See 
Sec. 364.58(a).)

    (iii) The service provider shall provide a detailed explanation
of the availability and purposes of the CAP established within the
State under section 112 of the Act, including information on how to
contact the program.

    (iv) If appropriate, the service provider shall refer the
applicant to other agencies and facilities, including the State's VR program
under34 CFR part 361.

    (c) Review of ineligibility determination. (1) If an applicant
for IL services has been found ineligible, the service provider shall
review the applicant's ineligibility at least once within 12 months after
the ineligibility determination has been made and whenever the service 
provider determines that the applicant's status has materially
changed.

    (2) The review need not be conducted in situations where the 
applicant has refused the review, the applicant is no longer
present in the State, or the applicant's whereabouts are unknown.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

Sec. 364.52  What are the requirements for an IL plan?
 
    (a) General. (1) Unless the individual who is to be provided IL
services under this part signs a waiver in accordance with
paragraph (a)(2) of this section, the service provider, in collaboration with
the individual with a significant disability, shall develop and
periodically
review an IL plan for the individual in accordance with the
requirements in Sec. 364.43(c) and paragraphs (b) through (e) of this section.

    (2) The requirements of this section with respect to an IL plan
do not apply if the individual knowingly and voluntarily signs a
waiver stating that an IL plan is unnecessary.

    (3) Subject to paragraph (a)(2) of this section, the service 
provider shall provide each IL service in accordance with the IL
plan.

    (b) Initiation and development of an IL plan. (1) Development
of an individual's IL plan must be initiated after documentation of 
eligibility under Sec. 364.51(a) and must indicate the goals or 
objectives established, the services to be provided, and the
anticipated duration of the service program and each component service.

    (2) The IL plan must be developed jointly and signed by the 
appropriate staff member of the service provider and the individual
with a significant disability or, if consistent with State law and the 
individual chooses, the individual's guardian, parent, or other
legally authorized advocate or representative.

    (3) A copy of the IL plan, and any amendments, must be provided
in an accessible format to the individual with a significant
disability or,if consistent with State law and the individual chooses, the 

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

    (c) Review. (1) The IL plan must be reviewed as often as
necessary but at least on an annual basis to determine whether services
should be continued, modified, or discontinued, or whether the individual
should be referred to a program of VR services under 34 CFR part 361 or to
any other program of assistance.

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

 

[[Page 353]]

 

law and the individual chooses, the individual's guardian, parent,
or other legally authorized advocate or representative, must be given
an opportunity to review the IL plan and, if necessary, jointly
redevelop and agree by signature to its terms.

    (d) Coordination with vocational rehabilitation, developmental 
disabilities, and special education programs. The development of
the IL plan and the provision of IL services must be coordinated to the
maximum extent possible with any individualized--

    (1) Written rehabilitation program for VR services for that 
individual;

    (2) Habilitation program for the individual prepared under the 
Developmental Disabilities Assistance and Bill of Rights Act; and

    (3) Education program for the individual prepared under part B
of the Individuals with Disabilities Education Act.

    (e) Termination of services. If the service provider intends to
terminate services to an individual receiving IL services under an
IL plan, the service provider shall follow the procedures in 
Sec. 364.51(b)(2)(ii) through (iv) and (c).

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

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

 

    For each applicant for IL services (other than information and 
referral) and for each individual receiving IL services (other than
information and referral), the service provider shall maintain a 
consumer service record that includes--

    (a) Documentation concerning eligibility or ineligibility for 
services;

    (b) The services requested by the consumer;

    (c) Either the IL plan developed with the consumer or a waiver 
signed by the consumer stating that an IL plan is unnecessary;

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

    (e) The IL goals or objectives--

    (1) Established with the consumer, whether or not in the
consumer's IL plan; and
    (2) Achieved by the consumer.

    (f) A consumer service record may be maintained either 
electronically or in written form, except that the IL plan and
waiver must be in writing.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

 

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

 

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

 

    The service provider may not impose any uniform durational 
limitations on the provision of IL services, except as otherwise 
provided by Federal law or regulation.

 

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

 

Sec. 364.55  What standards shall service providers meet?

 

    In providing IL services to individuals with significant 
disabilities, service providers shall comply with--

    (a) The written standards for IL service providers established
by the DSU pursuant to 34 CFR 365.31; and
    (b) All applicable State or Federal licensure or certification 
requirements.

 

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

 

Sec. 364.56  What are the special requirements pertaining to the 
          protection, use, and release of personal information?

 

    (a) General provisions. The State plan must assure that each
service provider will adopt and implement policies and procedures to
safeguard the confidentiality of all personal information, including
photographs and lists of names. These policies and procedures must assure
that--

    (1) Specific safeguards protect current and stored personal 
information;

    (2) All applicants for, or recipients of, IL services and, as 
appropriate, those individuals' legally authorized representatives,
service providers, cooperating agencies, and interested persons are
informed of the confidentiality of personal information and the 
conditions for gaining access to and releasing this information;

    (3) All applicants or their legally authorized representatives
are informed about the service provider's need to collect personal 
information and the policies governing its use, including--

 

[[Page 354]]

 

    (i) Identification of the authority under which information is 
collected;

    (ii) Explanation of the principal purposes for which the
service provider intends to use or release the information;

    (iii) Explanation of whether providing requested information to
the service provider is mandatory or voluntary and the effects to the 
individual of not providing requested information;

    (iv) Identification of those situations in which the service 
provider requires or does not require informed written consent of
the individual or his or her legally authorized representative before 
information may be released; and

    (v) Identification of other agencies to which information is 
routinely released;

    (4) Persons who are unable to communicate in English or who
rely on alternative modes of communication must be provided an explanation
of service provider policies and procedures affecting personal
information through methods that can be adequately understood by them;

    (5) At least the same protections are provided to individuals
with significant disabilities as provided by State laws and regulations;
and

    (6) Access to records is governed by rules established by the 
service provider and any fees charged for copies of records are 
reasonable and cover only extraordinary costs of duplication or
making extensive searches.

    (b) Service provider use. All personal information in the
possession of the service provider may be used only for the purposes directly 
connected with the provision of IL services and the administration
of the IL program under which IL services are provided. Information 
containing identifiable personal information may not be shared with
advisory or other bodies that do not have official responsibility
for the provision of IL services or the administration of the IL
program under which IL services are provided. In the provision of IL
services or the administration of the IL program under which IL services are 
provided, the service provider may obtain personal information from
other service providers and cooperating agencies under assurances
that the information may not be further divulged, except as provided
under paragraphs (c), (d), and (e) of this section.

    (c) Release to recipients of IL services. (1) Except as
provided in paragraphs (c)(2) and (c)(3) of this section, if requested in
writing by a recipient of IL services, the service provider shall release all 
information in that individual's record of services to the
individual or the individual's legally authorized representative in a timely
manner.

    (2) Medical, psychological, or other information that the
service provider determines may be harmful to the individual may not be
released directly to the individual, but must be provided through a
qualified medical or psychological professional or the individual's legally 
authorized representative.

    (3) If personal information has been obtained from another
agency or organization, it may be released only by, or under the conditions 
established by, the other agency or organization.

    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or
individual engaged in audit, evaluation, or research activities only for
purposes directly connected with the administration of an IL program, or for
purposes that would significantly improve the quality of life for 
individuals with significant disabilities and only if the
organization, agency, or individual assures that--

    (1) The information will be used only for the purposes for
which it is being provided;

    (2) The information will be released only to persons officially
connected with the audit, evaluation, or research;

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

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

    (5) The final product will not reveal any personally
identifying information without the informed written consent of the involved 
individual or the individual's legally authorized representative.

    (e) Release to other programs or authorities. (1) Upon
receiving the informed written consent of the individual or, if appropriate, the 
individual's legally authorized representative,

 

[[Page 355]]

 

the service provider may release personal information to another
agency or organization for the latter's program purposes only to the
extent that the information may be released to the involved individual and
only to the extent that the other agency or organization demonstrates
that the information requested is necessary for the proper
administration of its program.

    (2) Medical or psychological information may be released
pursuant to paragraph (e)(1) of this section if the other agency or
organization assures the service provider that the information will be used only
for the purpose for which it is being provided and will not be further 
released to the individual.

    (3) The service provider shall release personal information if 
required by Federal laws or regulations.

    (4) The service provider shall release personal information in 
response to investigations in connection with law enforcement,
fraud, or abuse, unless expressly prohibited by Federal or State laws or 
regulations, and in response to judicial order.

    (5) The service provider also may release personal information
to protect the individual or others if the individual poses a threat
to his or her safety or to the safety of others.

 

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

 

Sec. 364.57  What functions and responsibilities may the State
delegate?

 

    A DSU may carry out the functions and responsibilities
described in Secs. 364.50, 364.51 (subject to 364.43(d)), 364.52, 364.53, and
364.56 or, except as otherwise provided, may delegate these functions and 
responsibilities to the appropriate service provider with which the
DSU subgrants or contracts to provide IL services.

 

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

 

Sec. 364.58  What appeal procedures must be available to consumers?
Each service provider shall--

    (a) Establish policies and procedures that an individual may
use to obtain review of decisions made by the service provider concerning
the individual's request for IL services or the provision of IL
services to the individual; and

    (b) Use formats that are accessible to inform each individual
who seeks or is receiving IL services from the service provider about
the procedures required by paragraph (a) of this section.

 

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

 

Sec. 364.59  May an individual's ability to pay be considered in 
          determining his or her participation in the costs of IL 
          services?

 

    (a) No Federal requirement or prohibition. (1) A State is
neither required to allow nor prohibited from allowing service providers to
charge consumers for the cost of IL services.

    (2) If a State allows service providers to charge consumers for
the cost of IL services, a State is neither required to allow nor
prohibited from allowing service providers to consider the ability of
individual consumers to pay for the cost of IL services in determining how
much a particular consumer must contribute to the costs of a particular IL
service.

    (b) State plan requirements. If a State chooses to allow
service providers to charge consumers for the cost of IL services or if a
State chooses to allow service providers to consider the ability of
individual consumers to pay for the cost of IL services, the State plan must--

    (1) Specify the types of IL services for which costs may be
charged and for which a financial need test may be applied; and

    (2) Assure that any consideration of financial need is applied 
uniformly so that all individuals who are eligible for IL services
are treated equally.

    (c) Financial need. Consistent with paragraph (b) of this
section, a service provider may choose to charge consumers for the cost of IL 
services or may choose to consider the financial need of an
individual who is eligible for IL services.

    (d) Written policies and documentation. If the service provider
chooses to consider financial need--

    (1) It shall maintain written policies covering the specific
types of IL services for which a financial need test will be applied; and

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

 

[[Page 356]]

 

services, including the individual's financial need.

 

(Approved by the Office of Management and Budget under control
number 

1820-0527)

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

 
  


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