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6330 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulationspolicies that ensure that each individualreceives, through appropriate modes ofcommunication, information concerningthe availability and scope of informedchoice, the manner in which informedchoice may be exercised, and, consistentwith section 12(e)(2)(F) of the Act, theavailability of support services forindividuals with cognitive or otherdisabilities who require assistance inexercising informed choice. In addition,the Secretary has clarified in paragraph(b) that the DSU shall provide theindividual, or assist the individual inacquiring, information regardingconsumer satisfaction with relevantservices to the extent that thatinformation is available.§ 361.53 Availability of ComparableServices and BenefitsComments: Several commentersrequested clarification of the proposedrequirement that comparable servicesand benefits must be available within areasonable period of time. Othercommenters sought clarification ofproposed paragraph (b) of this section,which identifies those services forwhich a DSU is not required todetermine whether comparable servicesand benefits are available. Somecommenters recommended that theregulations direct DSUs to provide theservices specified in paragraph (b) in allinstances. Other commenters askedwhether a DSU, although not required,has the discretion to search for and usecomparable services and benefits inconnection with the provision of theservices identified in paragraph (b).Discussion: The proposed regulationsrequired DSUs to use comparableservices and benefits for all non-exemptservices if available to the eligibleindividual within a reasonable period oftime so that the intermediaterehabilitation objectives in theindividual’s IWRP can be met. Theproposed regulations were intended torequire DSUs to determine whatconstitutes a reasonable period of timeon a case-by-case basis according to theservices and rehabilitation objectivesidentified in each individual’s IWRP.However, in light of the confusionexpressed by commenters about boththis section of the regulations and theproposed definition of ‘‘comparableservices and benefits, the Secretarybelieves that requiring comparableservices and benefits to be available atthe time that the service is needed toaccomplish the rehabilitation objectivesin the individual’s IWRP represents aclearer standard for DSUs to follow.The proposed regulations also wereintended to exempt specific servicesfrom the comparable services andbenefits requirement consistent withsection 101(a)(8) of the Act. The statuterequires DSUs to provide certainservices (e.g., rehabilitation technology)as mandatory services withoutdetermining the availability ofcomparable services and benefits as isrequired for the remaining VR services.The Secretary agrees that the statementin proposed paragraph (b) of this sectionthat a comparable services and benefitsdetermination ‘‘is not required’’ prior tothe provision of the services identifiedin section 101(a)(8) of the statute isunclear and that the final regulationsshould clarify that the exemptedservices are not subject to a priorcomparable services and benefitsdetermination, i.e., the DSU has theaffirmative responsibility to providethese services without determining theavailability of alternative fundingsources. Nevertheless, the Secretaryagrees that, if an exempted service suchas an assistive technology device isknown to be readily available from analternative source at the time the serviceis needed to accomplish a rehabilitationobjective in the individual’s IWRP, it isprudent for the DSU to use thosesources in order to conserve fundsprovided under this program. TheSecretary notes, however, that projectssupported by the Technology-RelatedAssistance for Individuals withDisabilities Act of 1988 (Tech Act) arenot alternative sources to the VRprogram for purposes of providingrehabilitation technology. Tech Actprojects are designed to assist States indeveloping and implementing effectivesystems for securing from otherprograms technology-related assistancefor individuals with disabilities. Theseprojects do not provide actual assistivetechnology devices or services toindividuals.Changes: The Secretary has revisedparagraph (a)(2) of § 361.53 to requireDSUs to use comparable services andbenefits that are available to theindividual at the time the services areneeded to achieve the rehabilitationobjectives in the individual’s IWRP.This change is consistent with thechanges made to the proposeddefinition of ‘‘comparable services andbenefits’’ discussed previously in thepreamble analysis of comments under§ 361.5(b). In addition, the Secretary hasrevised this section to clarify that theservices listed in paragraph (b) areexempt from a determination of theavailability of comparable services andbenefits.§ 361.54 Participation of Individuals inCost of Services Based on FinancialNeedComments: None.Discussion: The Secretary believes itis necessary to clarify that State policiesgoverning individual participationlevels in the cost of VR services musttake into consideration the disabilityrelatedexpenses born by an individualwhen determining the individual’sfinancial need. Although the Secretarypresumes that DSUs already considerthe individual’s disability-relatedexpenses when determining financialneed, the Secretary seeks to emphasizethe importance of disability-relatedexpenses given the significant impactthat they may have on an individual’sability to contribute to the cost of VRservices.Changes: The Secretary has revised§ 361.54 by requiring in paragraph(b)(2)(v)(C) that an individual’sdisability-related expenses beconsidered in determining the extent towhich an individual shall contributetoward the cost of VR services.§ 361.55 Review of extendedemployment in communityrehabilitation programs or otheremployment under section 14(c) of theFair Labor Standards ActComments: Some commentersrequested that DSUs be permitted tolimit the number of annual reviews ofindividuals in extended employmentthat DSUs are required to conduct. Inaddition, some commenters requestedthat the regulations specify that theannual review requirement in thissection applies to individuals insupported employment who earn lessthan the minimum wage.Discussion: Section 101(a)(16) of theAct requires DSUs to review annuallythe status of each eligible individual inextended employment in order todetermine the individual’s needs andinterests related to competitiveemployment. The Act does not providefor any exceptions to this annual reviewrequirement. Thus, the Secretaryinterprets section 101(a)(16) of the Actto prohibit DSUs from discontinuingannual reviews of individuals whoremain in extended employment forextensive periods. This positionrepresents a modification to the policyin the RSA Manual, which hadpermitted States to place limitations onthe number of annual reviews of thosein extended employment. Given theexpanded scope of competitiveemployment, supported employment,and other integrated employmentopportunities that may become available
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6331to individuals in extended employmentin future years, the Secretary believesthat discontinuing annual reviewswould be inconsistent with theemphasis that the statute places oncompetitive and integrated employment.In addition to conducting reviews ofindividuals in extended employment,section 101(a)(16) of the Act requiresDSUs to review annually the job statusof individuals employed in ‘‘otheremployment settings’’ in which theindividual is compensated undersection 14(c) of the FLSA. This reviewrequirement applies to any eligibleindividual employed in an integratedsetting who earns below the minimumwage, including individuals insupported employment settings who areunable to earn the minimum wage at thetime of transition to extended services.In each case, the DSU is required toreview the individual’s employmentstatus and determine his or her needsand interests in becoming competitivelyemployed.Changes: None.§ 361.56 Individuals determined tohave achieved an employment outcomeComments: Several commentersresponded to the Secretary’s request inthe NPRM for comments on thepotential effect of the proposed timestandard for maintaining a jobplacement in order to achieve anemployment outcome. Many of thecommenters questioned the proposedstandard—the duration of theemployers’s probationary period or 90days if the employer does not have anestablished probationary period—bystating that reliance on employerprobationary periods would be tooburdensome for DSUs to administer orwould not ensure job stability ininstances in which the probationaryperiod is very short (e.g., two weeks).Some commenters supported theproposed standard, while otherssuggested that the regulatory timeperiod be 90 days or the employer’sprobationary period, whichever islonger. However, a large majority of thecommenters recommended that theregulations establish a uniform timeperiod applicable to all job placements.Some commenters suggested retainingthe 60-day time period required underthe current regulations, whereas othercommenters recommended that thecurrent standard be increased to 90 or180 days.Discussion: The requirement in theproposed regulations that an individualmaintain a job placement for theemployer’s probationary period or, if theemployer does not have a probationaryperiod, for at least 90 days was intendedto better reflect whether an individualhas successfully achieved anemployment outcome. Like many of thecommenters on the proposedregulations, the Secretary believes thatthe 60-day standard under the currentregulations is too short a period todetermine whether the individual willbe able to successfully maintain the jobplacement over time. The proposedregulations were designed both tostrengthen the existing standard and tobase the decision that an individual hasachieved an employment outcome, inpart, on the individual’s ability tosatisfy the requirements imposed by theemployer on any employee. If theemployer did not have a probationaryperiod in place, the 90-day period wasconsidered an adequate safeguard toensure that the individual is performingwell and is likely to maintain theemployment outcome.Nevertheless, the Secretaryunderstands the concerns of manycommenters that the proposed standardmay cause DSUs to avoid placingindividuals with employers who havelengthy probationary periods, therebyshrinking the pool of potential jobplacements, or may be inconsistent withthe informed choice of an individualwho seeks to cease contact with theDSU prior to the end of the relevantprobationary period. In addition, it isclear that most commenters prefer afixed time period that applies equally toeach individual who receives VRservices. At the same time, however, theSecretary recognizes that in someinstances 90 days may be too short aperiod to ensure job stability. For thesereasons, the final regulations contain auniform, minimum 90-day standard thatapplies to all individuals who obtainemployment under the VR program.This uniform standard, the Secretaryexpects, enables DSU staff to conservetime and work more efficiently thanwould be possible under an individualemployer-based standard and alsoaffords DSUs the flexibility to increasethe 90-day minimum time periodwhenever circumstances warrant. Forexample, a DSU may decide to extendthe period to conform to an employer’slonger probationary period if at the endof 90 days it is uncertain whether theindividual will be able to successfullysatisfy the probationary period withoutDSU support. Similarly, a DSU shouldextend the job-retention period ifrequested by the individual. TheSecretary also emphasizes thatparagraph (e) precludes DSUs fromceasing contact with an individual whoobtains employment unless at the end ofthe appropriate retention period (90days or longer), the individual and therehabilitation counselor or coordinatorconsider the employment outcomesatisfactory and agree that theindividual is performing well on the job.Additional safeguards that werespecified in the proposed regulationsalso are retained in the final regulations,including the requirement that theemployment outcome be consistent withthe strengths, resources, priorities,concerns, abilities, capabilities,interests, and informed choice of theindividual and that the employmentoutcome be located in the mostintegrated setting possible.Changes: The Secretary has revised§ 361.56 to require in all instances thatan individual shall maintainemployment for a period of at least 90days in order to be considered to haveachieved an employment outcome.§ 361.57 Review of rehabilitationcounselor and coordinatordeterminationsComments: One commenter requestedthat the prohibition in paragraph (b)(2)of this section against suspendingservices being provided under an IWRPpending resolution of a dispute bebroadened to cover assessment services.Another commenter stated that thisprohibition should apply to any serviceidentified in an IWRP, including thoseservices that the individual has yet toreceive.Two commenters stated that Statepolicies used as a basis for an impartialhearing officer’s decision underparagraph (b)(4) of this section, or for aDSU director’s decision underparagraph (b)(9) of this section, must beconsistent with Federal requirements.Other commenters recommended thatparagraph (b)(7) of this section identifyspecific Federal standards of review fordetermining whether a DSU can reviewthe decision of a hearing officer. Inaddition, one commenter stated that,anytime the DSU director reverses thedecision of an impartial hearing officer,the director should be required toinform the individual of the statutory,regulatory, or policy basis for thereversal.Several commenters opposed theremoval of the current regulatorytimelines governing key stages of thereview process. These commentersasserted that the timelines in the currentregulations represent essentialprotections for individuals withdisabilities and are critical to thetimeliness of appeal procedures. Thesecommenters also stated that the currenttimelines are reasonable, do not posesignificant difficulties for DSUs, and arenecessary to ensure that issues related to
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