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6358 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulationscost of vocational rehabilitationservices; and(3) If comparable services or benefitsexist under any other program, but arenot available to the individual at thetime needed to satisfy the rehabilitationobjectives in the individual’s IWRP, theState unit shall provide vocationalrehabilitation services until thosecomparable services and benefitsbecome available.(b) The following services are exemptfrom a determination of the availabilityof comparable services and benefitsunder paragraph (a) of this section:(1) Assessment for determiningeligibility and priority for services.(2) Assessment for determiningvocational rehabilitation needs.(3) Vocational rehabilitationcounseling, guidance, and referralservices.(4) Vocational and other trainingservices, such as personal andvocational adjustment training, books(including alternative format booksaccessible by computer and tapedbooks), tools, and other trainingmaterials in accordance with§ 361.48(a)(6).(5) Placement services.(6) Rehabilitation technology.(7) Post-employment servicesconsisting of the services listed underparagraphs (b) (1) through (6) of thissection.(c) The requirements of paragraph (a)of this section also do not apply if—(1) The determination of theavailability of comparable services andbenefits under any other program woulddelay the provision of vocationalrehabilitation services to any individualwho is determined to be at extrememedical risk, based on medical evidenceprovided by an appropriate qualifiedmedical professional; or(2) An immediate job placementwould be lost due to a delay in theprovision of comparable services andbenefits.(Authority: Sec. 101(a)(8) of the Act; 29U.S.C. 721(a)(8))§ 361.54 Participation of individuals incost of services based on financial need.(a) No Federal requirement. There isno Federal requirement that thefinancial need of individuals beconsidered in the provision ofvocational rehabilitation services.(b) State unit requirements. (1) TheState unit may choose to consider thefinancial need of eligible individuals orindividuals who are receiving servicesduring an extended evaluation forpurposes of determining the extent oftheir participation in the costs ofvocational rehabilitation services, otherthan those services identified inparagraph (b)(3) of this section.(2) If the State unit chooses toconsider financial need—(i) It shall maintain written policiescovering the determination of financialneed;(ii) The State plan must specify thetypes of vocational rehabilitationservices for which the unit hasestablished a financial needs test;(iii) The policies must be applieduniformly to all individuals in similarcircumstances;(iv) The policies may require differentlevels of need for different geographicregions in the State, but must be applieduniformly to all individuals within eachgeographic region; and(v) The policies must ensure that thelevel of an individual’s participation inthe cost of vocational rehabilitationservices is—(A) Reasonable;(B) Based on the individual’s financialneed, including consideration of anydisability-related expenses paid by theindividual; and(C) Not so high as to effectively denythe individual a necessary service.(3) The State plan must assure that nofinancial needs test is applied and nofinancial participation is required as acondition for furnishing the followingvocational rehabilitation services:(i) Assessment for determiningeligibility and priority for services,except those non-assessment servicesthat are provided during an extendedevaluation for an individual with asevere disability under § 361.42(d).(ii) Assessment for determiningvocational rehabilitation needs.(iii) Vocational rehabilitationcounseling, guidance, and referralservices.(iv) Placement services.(Approved by the <strong>Office</strong> of Management andBudget under control number 1820–0500.)(Authority: Sec. 12(c) of the Act; 29 U.S.C.711(c))§ 361.55 Review of extended employmentin community rehabilitation programs orother employment under section 14(c) ofthe Fair Labor Standards Act.The State plan must assure that theState unit—(a) Reviews and re-evaluates at leastannually the status of each individualdetermined by the State unit to haveachieved an employment outcome in anextended employment setting in acommunity rehabilitation program orother employment setting in which theindividual is compensated inaccordance with section 14(c) of the FairLabor Standards Act. This review or reevaluationmust include input from theindividual or, in an appropriate case,the individual’s representative todetermine the interests, priorities, andneeds of the individual for employmentin, or training for, competitiveemployment in an integrated setting inthe labor market;(b) Makes maximum effort, includingthe identification of vocationalrehabilitation services, reasonableaccommodations, and other supportservices, to enable the eligibleindividual to benefit from training in, orto be placed in employment in, anintegrated setting; and(c) Provides services designed topromote movement from extendedemployment to integrated employment,including supported employment,independent living, and communityparticipation.(Authority: Sec. 101(a)(16) of the Act; 29U.S.C. 721(a)(16))§ 361.56 Individuals determined to haveachieved an employment outcome.The State plan must assure that anindividual is determined to haveachieved an employment outcome onlyif the following requirements are met:(a) The provision of services underthe individual’s IWRP has contributedto the achievement of the employmentoutcome.(b) The employment outcome isconsistent with the individual’sstrengths, resources, priorities,concerns, abilities, capabilities,interests, and informed choice.(c) The employment outcome is in themost integrated setting possible,consistent with the individual’sinformed choice.(d) The individual has maintained theemployment outcome for a period of atleast 90 days.(e) At the end of the appropriateperiod under paragraph (d) of thissection, the individual and therehabilitation counselor or coordinatorconsider the employment outcome to besatisfactory and agree that theindividual is performing well on the job.(Authority: Secs. 12(c), 101(a)(6), and106(a)(2) of the Act; 29 U.S.C. 711(c),721(a)(6), and 726(a)(2))§ 361.57 Review of rehabilitationcounselor or coordinator determinations.The State plan must containprocedures, including standards ofreview under paragraph (b)(7) of thissection, established by the director ofthe designated State unit to ensure thatany applicant or eligible individual whois dissatisfied with any determinationsmade by a rehabilitation counselor orcoordinator concerning the furnishingor denial of services may request, or, if
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6359appropriate, may request through theindividual’s representative, a timelyreview of those determinations. Theprocedures established by the directorof the State unit must be in accordancewith the following provisions:(a) Informal resolution. The State unitmay establish an informal process toresolve a request for review withoutconducting a formal hearing. However,a State’s informal process must beconducted and concluded within thetime period established under paragraph(b)(1) of this section for holding a formalhearing. If informal resolution is notsuccessful, a formal hearing must beconducted by the end of this sameperiod, unless the parties agree to aspecific extension of time.(b) Formal hearing procedures. Exceptas provided in paragraph (d) of thissection, the State unit shall establishformal review procedures that providethat—(1) A hearing by an impartial hearingofficer, selected in accordance withparagraph (c) of this section, must beheld within 45 days of an individual’srequest for review, unless informalresolution is achieved prior to the 45thday or the parties agree to a specificextension of time;(2) The State unit may not institute asuspension, reduction, or termination ofservices being provided under an IWRPpending a final determination of theformal hearing under this paragraph orinformal resolution under paragraph (a)of this section, unless the individual or,in an appropriate case, the individual’srepresentative so requests or the agencyhas evidence that the services have beenobtained through misrepresentation,fraud, collusion, or criminal conduct onthe part of the individual;(3) The individual or, if appropriate,the individual’s representative must beafforded an opportunity to presentadditional evidence, information, andwitnesses to the impartial hearingofficer, to be represented by counsel orother appropriate advocate, and toexamine all witnesses and otherrelevant sources of information andevidence;(4) The impartial hearing officer shallmake a decision based on the provisionsof the approved State plan, the Act,Federal vocational rehabilitationregulations, and State regulations andpolicies that are consistent with Federalrequirements and shall provide to theindividual or, if appropriate, theindividual’s representative and to thedirector of the designated State unit afull written report of the findings andgrounds for the decision within 30 daysof the completion of the hearing;(5) If the director of the designatedState unit decides to review the decisionof the impartial hearing officer, thedirector shall notify in writing theindividual or, if appropriate, theindividual’s representative of that intentwithin 20 days of the mailing of theimpartial hearing officer’s decision;(6) If the director of the designatedState unit fails to provide the noticerequired by paragraph (b)(5) of thissection, the impartial hearing officer’sdecision becomes a final decision;(7) The decision of the director of thedesignated State unit to review anyimpartial hearing officer’s decision mustbe based on standards of reviewcontained in written State unit policy;(8) If the director of the designatedState unit decides to review the decisionof the impartial hearing officer, thedirector shall provide the individual or,if appropriate, the individual’srepresentative an opportunity to submitadditional evidence and informationrelevant to the final decision;(9) The director may not overturn ormodify a decision, or part of a decision,of an impartial hearing officer thatsupports the position of the individualunless the director concludes, based onclear and convincing evidence, that thedecision of the impartial hearing officeris clearly erroneous because it iscontrary to the approved State plan, theAct, Federal vocational rehabilitationregulations, or State regulations orpolicies that are consistent with Federalrequirements;(10) Within 30 days of providingnotice of intent to review the impartialhearing officer’s decision, the director ofthe designated State unit shall make afinal decision and provide a full reportin writing of the decision, including thefindings and the statutory, regulatory, orpolicy grounds for the decision, to theindividual or, if appropriate, theindividual’s representative;(11) The director of the designatedState unit may not delegateresponsibility to make any finaldecision to any other officer oremployee of the designated State unit;and(12) Except for the time limitationsestablished in paragraphs (b)(1) and(b)(5) of this section, each State’s reviewprocedures may provide for reasonabletime extensions for good cause shown atthe request of a party or at the requestof both parties.(c) Selection of impartial hearingofficers. Except as provided inparagraph (d) of this section, theimpartial hearing officer for a particularcase must be selected—(1) From among the pool of personsqualified to be an impartial hearingofficer, as defined in § 361.5(b)(22), whoare identified by the State unit, if theState unit is an independentcommission, or jointly by the designatedState unit and those members of theState Rehabilitation Advisory Councildesignated in section 102(d)(2)(C) of theAct, if the State has a Council; and(2)(i) On a random basis; or(ii) By agreement between the directorof the designated State unit and theindividual or, if appropriate, theindividual’s representative.(d) State fair hearing board. Theprovisions of paragraphs (b) and (c) ofthis section are not applicable if theState has a fair hearing board that wasestablished before January 1, 1985, thatis authorized under State law to reviewrehabilitation counselor or coordinatordeterminations and to carry out theresponsibilities of the director of thedesignated State unit under this section.(e) Informing affected individuals.The State unit shall inform, throughappropriate modes of communication,all applicants and eligible individualsof—(1) Their right to review under thissection, including the names andaddresses of individuals with whomappeals may be filed; and(2) The manner in which an impartialhearing officer will be selectedconsistent with the requirements ofparagraph (c) of this section.(f) Data collection. The director of thedesignated State unit shall collect andsubmit, at a minimum, the followingdata to the Secretary for inclusion eachyear in the annual report to Congressunder section 13 of the Act:(1) The number of appeals toimpartial hearing officers and the Statedirector, including the type ofcomplaints and the issues involved.(2) The number of decisions by theState director reversing in whole or inpart a decision of the impartial hearingofficer.(3) The number of decisions affirmingthe position of the dissatisfiedindividual assisted through the clientassistance program, when thatassistance is known to the State unit.(Approved by the <strong>Office</strong> of Management andBudget under control number 1820–0500.)(Authority: Secs. 102(b) and 102(d) of theAct; 29 U.S.C. 722(b) and 722(d))Subpart C—Financing of StateVocational Rehabilitation Programs§ 361.60 Matching requirements.(a) Federal share—(1) General. Exceptas provided in paragraphs (a)(2) and(a)(3) of this section, the Federal sharefor expenditures made by the State unitunder the State plan, including
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