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6312 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulationsdefinition of the term ‘‘establishment,development, or improvement of apublic or nonprofit communityrehabilitation program’’ that wouldreduce over a four-year period Federalfinancial support of staffing costsassociated with operating a communityrehabilitation program. Some of thesecommenters also opposed theprohibition in the definition of Federalsupport for ongoing operating expensesof a community rehabilitation program.The commenters were concerned thatthese provisions would make it difficultor impossible to develop newcommunity rehabilitation programs.Discussion: The definition elaborateson the statutory definition of the term‘‘establishment of a communityrehabilitation program’’ under section7(6) of the Act by incorporating all ofthe types of expenditures for which aDSU can receive Federal financialsupport. The limitations on staffingcosts in the proposed definition arebased on the authorization in section7(6) of the Act for the Secretary toinclude as part of the costs ofestablishment any additional staffingcosts that the Secretary considersappropriate. The limitations are similarto those previously proposed in the1991 NPRM. Specifically, the proposedregulations established a limitation onstaffing costs by providing, after the first12 months of staffing assistance, for anannual decrease in the percentage ofstaffing costs (from 100 percent to 45percent) for which Federal financialparticipation (FFP) is available. Thislimitation, like the staffing costrequirements proposed in the 1991NPRM, is influenced by and in partbased on the conclusions of a 1979General Accounting <strong>Office</strong> (GAO) report(HRD–79–84). The GAO Report toCongress recommended amending theAct to provide for a gradual reductionof Federal funding for staffing costs inthe establishment authority. Legislativechange is unnecessary to accomplishthis purpose because section 7(6) of theAct vests the Secretary with theauthority to determine what staffingcosts are appropriate for Federalfinancial participation. The Secretarybelieves that the GAO recommendationis still relevant and needs to beimplemented. The limitation on staffingcosts is intended, in part, to ensure thatfacilities bear an increasing share of theresponsibility for running communityrehabilitation programs, whilepreserving VR funds needed to supportnecessary development or expansion ofcommunity rehabilitation facilities.More generally, the limitation onstaffing costs is intended to preserve theamount of funds available to the DSUfor providing VR services to eligibleindividuals.The final regulations also authorizeFederal support for other costs neededto establish, develop, or improve acommunity rehabilitation program aslong as these costs are not ongoingoperational expenses of the program.The Secretary believes that thisprohibition is consistent with the Act,which limits Federal financial supportto costs associated with setting up,renovating, converting, or otherwiseimproving community rehabilitationprograms.The Secretary also notes that recentaudits of State agencies have indicated,in some cases, that VR funds have beenused under the authority forestablishing community rehabilitationprograms for purposes other thanproviding services under the VRprogram. In response, the Secretarybelieves the proposed definition shouldbe amended to ensure that Federalsupport for the establishment,development, or improvement of apublic or nonprofit communityrehabilitation program is provided onlyif the purpose of the expenditures is toprovide services to applicants andeligible individuals under the VRprogram.Changes: The Secretary has amended§ 361.5(b)(16) to ensure that costsassociated with the establishment,development, or improvement of apublic or nonprofit communityrehabilitation program must benecessary to the provision of VRservices to applicants and eligibleindividuals. Changes to this definitionand to the State plan requirements in§ 361.33(b) of the regulations areintended to address the violationsidentified in recent audits of Stateagencies.• Extended EmploymentComments: Several commentersrequested that the definition of‘‘extended employment’’ in theproposed regulations be broadened toinclude placements in integratedsettings. Other commenters sought toexpand the proposed definition toinclude employment with profitmakingorganizations. Finally, somecommenters requested that theregulations exclude extendedemployment from the scope of potentialemployment outcomes under theprogram.Discussion: Section 101(a)(16) of theAct requires DSUs to annually reviewand reevaluate the status of eachindividual in extended employment todetermine the individual’s readiness forcompetitive employment in anintegrated setting. This statutoryrequirement indicates that extendedemployment is limited to placements innon-integrated settings. The lack ofintegration in extended employmentplacements is a key factor indifferentiating between extendedemployment and competitiveemployment outcomes.The Secretary does not believe thatextended employment includes workperformed on behalf of profitmakingorganizations. Extended employment,according to section 101(a)(16) of theAct, means work performed incommunity rehabilitation programs,including workshops, or in other nonintegratedemployment settings inwhich individuals are compensatedpursuant to the FLSA. The Secretarybelieves that employment in private,profitmaking organizations should beviewed as competitive employment inwhich individuals shall earn at least theminimum wage and work in integratedsettings. Incorporating placements inprofitmaking organizations into thedefinition of extended employmentwould expand the scope of potentialextended employment placements andwould be contrary to the statutorypolicy that promotes movement fromextended employment to competitiveemployment, the optimal employmentoutcome under the program.Nevertheless, the final regulations willcontinue to recognize extendedemployment as a possible employmentoutcome under the program consistentwith 101(a)(16) of the Act.Changes: None.• Impartial Hearing <strong>Office</strong>rComments: One commenter requestedthat the regulations prohibit a memberof a State Rehabilitation AdvisoryCouncil from serving as an impartialhearing officer for any DSU within thatState.Discussion: The definition of‘‘impartial hearing officer’’ in theproposed regulations specified that amember of a DSU’s State RehabilitationAdvisory Council (Council) could notserve as an impartial hearing officer forthat same DSU. The proposeddefinition, however, did allow amember of a DSU’s Council to serve asan impartial hearing officer in casesinvolving another DSU within the sameState. For example, a member of theCouncil for a State unit servingindividuals who are blind was notprecluded under the proposedregulations, solely on the basis of thatmembership, from serving as animpartial hearing officer in casesinvolving the State unit that serves
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6313individuals with disabilities other thanindividuals with visual disabilities. TheSecretary believes that prohibitingmembers of a Council from serving asimpartial hearing officers in casesinvolving any DSU within the Statewould be unduly restrictive. TheSecretary also believes that otherimpartiality requirements in thedefinition that apply to all impartialhearing officers, including those whoare members of Councils for other DSUs(e.g., the individual has no personal,professional, or financial conflict ofinterest) will sufficiently ensure theabsence of potential conflicts betweenthe hearing officer and the parties to thedispute.Changes: None.• MaintenanceComments: Some commentersrequested that the definition of‘‘maintenance’’ in the proposedregulations be expanded to includeexpenses other than living expenses(e.g., food, shelter, and clothing). As anexample, the commenters stated thatmaintenance should be authorized tosupport costs incurred by eligibleindividuals who take part in enrichmentactivities as part of a training programin a higher education institution.Several other commentersrecommended deletion of the fourthexample in the note following theproposed definition, which stated thatmaintenance could be used to pay forfood, shelter, and clothing for homelessor recently deinstitutionalizedindividuals until other financialassistance is secured. These commentersasserted that these costs should besupported by welfare or other publicassistance agencies rather than DSUs.Discussion: The Secretary agrees thatmaintenance may include costs otherthan standard living expenses (i.e., food,shelter, and clothing) as long as theexpenses are in excess of the normalexpenses incurred by an eligibleindividual or an individual receivingextended evaluation services. Limitingmaintenance to additional costsincurred by individuals receivingservices under an IWRP or under awritten plan for providing extendedevaluation services is consistent withsection 103(a)(5) of the Act, whichrestricts the provision of maintenance to‘‘additional costs while participating inrehabilitation.’The Secretary also agrees that thefourth example of permissiblemaintenance expenses in the proposedregulations was inadvisable. PermittingDSUs to support the full costs of ahomeless or deinstitutionalizedindividual’s subsistence under themaintenance authority, until otherfinancial assistance becomes available,is inconsistent with the policy oflimiting maintenance costs to those inexcess of the individual’s normalexpenses. In addition, the Secretaryagrees that welfare and other socialservice agencies are better equipped tosupport the everyday living expenses ofthe homeless or deinstitutionalized.However, a DSU could choose toprovide short-term emergency financialassistance to those individuals under§ 361.48(a)(20) as ‘‘other’’ services thatthe DSU determines are necessary forthe individual to achieve anemployment outcome.Changes: The Secretary has deletedthe term ‘‘living’’ from § 361.5(b)(31) ofthe proposed regulations to clarify thatmaintenance may include expensesother than living expenses. In addition,the Secretary has deleted the fourthexample in the note following theproposed definition of maintenance andreplaced it with an example of apermissible maintenance cost thatwould not constitute a living expense.• Ongoing Support ServicesComments: Some commentersrecommended that the Secretary place atime limit on the provision of ongoingsupport services furnished by extendedservices providers. The commentersstated that the regulations should permitongoing support services to ‘‘fade’’ oncethey are no longer needed to maintainan individual in supportedemployment.Discussion: It is RSA’s longstandingpolicy that individuals with the mostsevere disabilities who are placed insupported employment should requireongoing support services throughout thecourse of their placement. The need forongoing support services provides acritical distinction (i.e., the provision ofongoing supports) between supportedemployment and other kinds ofemployment outcomes. The Secretarybelieves that if an individual insupported employment no longerrequires ongoing support services thatindividual is no longer an appropriatecandidate for supported employment.Changes: None.• Personal Assistance ServicesComments: Some commentersrequested that the definition of‘‘personal assistance services’’ in theproposed regulations be amended tomore closely track the statutorydefinition of that term in section 7(11)of the Act. The commenters stated thatrevision to the proposed definition isneeded to clarify that personalassistance services need not be providedon the job site.Discussion: The Secretary agrees thatpersonal assistance services may beprovided off the job site as long as theyare necessary to assist an individualwith a disability to perform daily livingfunctions and achieve an employmentoutcome and are provided while theindividual is participating in a programof VR services. The Secretary believesthe proposed definition clearlyauthorized personal assistance servicesneeded by an individual to performeveryday activities off the job but,nevertheless, agrees that furtherclarification may be helpful.Changes: The Secretary has amended§ 361.5(b)(34) of the proposedregulations to track the language insection 7(11) of the Act authorizingpersonal assistance services needed toincrease the individual’s control in lifeand ability to perform everydayactivities on or off the job.• Physical and Mental RestorationServicesComments: Some commentersrequested that the regulatory definitionof ‘‘physical and mental restorationservices’’ specifically includepsychological services provided byqualified personnel under Statelicensure laws.Discussion: The Secretary agrees thatpsychological services are a form ofmental restoration services.Psychological services, however, aresubsumed within the broader term‘‘mental health services’’ in paragraph(xiii) of the definition and need not beidentified separately. Moreover, section103(a)(4) of the Act authorizes services,including psychological services, thatare needed to diagnose and treat mentalor emotional disorders only if thoseservices are provided by qualifiedpersonnel in accordance with Statelicensure laws. This requirement, whichwas included in the proposeddefinition, is reflected in paragraph (ii)of the definition in the final regulations.Changes: None.• Physical or Mental ImpairmentComments: Some commentersrequested clarification of therequirement in the proposed regulationsthat a physical or mental impairmentwill probably result in materiallylimiting mental or physical functioningif it is not treated. One commenterstated that the definition should belimited to conditions that cause presentfunctional limitations so as not tounnecessarily expand the pool ofeligible individuals.
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