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Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6325following this section of the proposedregulations, which had identified sixpotential applications of the fourtheligibility criterion (an individualrequires VR services), should beremoved from the final regulations inlight of the confusion expressed bycommenters and in recognition of thefact that eligibility determinations arehighly individualized. The commenters’confusion, the Secretary believes, stemsfrom the possibility that the applicationof the fourth eligibility criterion mayresult in different outcomes forindividuals with disabilities who faceapparently similar circumstances. Byremoving these examples, the Secretaryseeks to avoid causing similar confusionon the part of individual counselorscharged with making individualeligibility determinations. Because theexamples used elsewhere in theregulations (e.g., permissible expensesunder the definitions of ‘‘maintenance’’and ‘‘transportation’’) arestraightforward applications of clearissues and do not create similarconfusion among commenters, theSecretary believes that those examplesshould be retained in the finalregulations.Changes: The Secretary has amended§ 361.42(a)(2) of this section to requirea ‘‘demonstration,’’ based on clear andconvincing evidence, that an individualis incapable of benefitting from VRservices in order for the DSU toovercome the presumption that anindividual can benefit from VR services.A technical change also has been madeto paragraph (a)(1)(iii) to identify moreaccurately the third eligibility criterionas a ‘‘presumption’’ of benefit, not a‘‘determination’’ of benefit. In addition,the Secretary has removed from the finalregulations the examples that hadfollowed this section in the proposedregulations of how an individual may ormay not meet the final eligibilitycriterion.§ 361.43 Procedures for ineligibilitydeterminationComments: Several commentersstated that DSUs should be required, inall instances, to inform individuals inwriting of the DSU’s ineligibilitydetermination. These commenters wereconcerned that the proposed regulationsauthorized DSUs to inform individualsof ineligibility determinations throughan appropriate mode of communicationwithout a written record.In addition, several commentersindicated that it is unduly burdensometo require DSUs to review allineligibility determinations within 12months. These commenters stated thatthe review of ineligibilitydeterminations should be limited tothose determinations that are based ona finding that the individual isincapable of achieving an employmentoutcome. Other commenters asked thatthe regulations specify additional basesfor not reviewing ineligibilitydeterminations (e.g., that theindividual’s disability is rapidlyprogressive or terminal).Discussion: The proposed regulationsincorrectly indicated that DSUs have theoption of providing ineligibility noticesin writing or through an appropriatemode of communication. The Secretaryagrees that, at a minimum, notice of anineligibility determination and otherrequired information should beprovided to the individual in writingand supplemented, as necessary, byother appropriate modes ofcommunication in accordance with theindividual’s informed choice.The Secretary agrees with thesuggestion to modify the requirementsin paragraph (d) of this sectiongoverning the review of ineligibilitydeterminations in light of the viewsexpressed by public commenters. Theproposed regulations required DSUs toreview all ineligibility determinations atleast once within 12 months and toreview annually thereafter if requestedby the individual determinations basedon a finding that the individual cannotachieve an employment outcome. Inorder to reduce the process burden andassociated costs on DSUs, however, theSecretary believes that DSUs should berequired to review within 12 months,and annually thereafter if requested bythe individual, only those ineligibilitydeterminations that are based on afinding that the individual is incapableof achieving an employment outcome.Moreover, an additional exception tothis review requirement, which isauthorized under the currentregulations, should be permitted forsituations in which the individual’smedical condition is rapidly progressiveor terminal. The Secretary believes thisnarrower interpretation of the reviewrequirements is supported by sections101(a)(9)(D) and 102(c) of the Act andnotes that this position is consistentwith the current regulations in 34 CFR361.35(d). The Secretary also notes thatthe requirements of this section applyboth to ineligibility determinationsfollowing an extended evaluation and toineligibility determinations made afteran individual has begun to receiveservices under an IWRP.Changes: The Secretary has revised§ 361.43 to specify that notice ofineligibility determinations must beprovided in writing and must besupplemented, as necessary, by otherappropriate modes of communicationconsistent with the individual’sinformed choice. For example, a DSUcould meet these requirements byproviding an ineligibility notice inbraille or large print form to anapplicant who has a visual impairment.In addition, the Secretary has revisedthis section to require DSUs to reviewonly ineligibility determinations that arebased on a finding that the individual isincapable of achieving an employmentoutcome. The final regulations alsoclarify that this review of ineligibilitydeterminations need not be conducted ifthe individual’s medical condition israpidly progressive or terminal.§ 361.44 Closure without eligibilitydeterminationComments: One commenter requestedthat this section be amended to statethat a DSU ‘‘shall not close’’ (rather than‘‘may not close’’) an applicant’s caseprior to making an eligibilitydetermination in order to clarify that theprohibition under this section ismandatory.Discussion: The Secretary emphasizesthat State units are prohibited fromclosing an applicant’s record of servicesprior to making an eligibilitydetermination unless certaincircumstances are evident (e.g., theapplicant declines to participate in theassessment, and the DSU has made areasonable number of attempts toencourage the applicant’s participation).The Secretary interprets the phrase‘‘may not close’’ to signify a mandatoryprohibition.Changes: None.§ 361.45 Development of theindividualized written rehabilitationprogramComments: Several commentersstated that the regulations should bestrengthened to ensure that the eligibleindividual’s employment goal isconsistent with that individual’sinformed choice. In addition, somecommenters opposed requiring DSUs todevelop timelines for the promptdevelopment of IWRPs, whereas othercommenters supported the timelinerequirement as a necessary protectionfor eligible individuals. Commentersalso stated that the DSU should not berequired to revise an individual’s IWRPto reflect minor changes to services thatare already identified in the IWRP.Discussion: The Secretary agrees thatthe informed choice of the individual,as well as the individual’s strengths,priorities, concerns, abilities,capabilities, and interests, should beconsidered in determining theindividual’s employment goal. Addition