81_FR_74890 81 FR 74682 - Independent Living Services and Centers for Independent Living

81 FR 74682 - Independent Living Services and Centers for Independent Living

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living

Federal Register Volume 81, Issue 208 (October 27, 2016)

Page Range74682-74700
FR Document2016-25918

This rule implements the Rehabilitation Act as amended by the Workforce Innovation and Opportunity Act, which established an Independent Living Administration within the Administration for Community Living (ACL) of the Department of Health and Human Services (HHS). The rule helps implement changes to the administration of Independent Living Services and the Centers for Independent Living made under the current law in alignment with ACL and HHS policies and practices.

Federal Register, Volume 81 Issue 208 (Thursday, October 27, 2016)
[Federal Register Volume 81, Number 208 (Thursday, October 27, 2016)]
[Rules and Regulations]
[Pages 74682-74700]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-25918]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Community Living

45 CFR Part 1329

RIN 0985-AA10


Independent Living Services and Centers for Independent Living

AGENCY: Independent Living Administration, Administration for Community 
Living, HHS.

ACTION: Final rule.

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SUMMARY: This rule implements the Rehabilitation Act as amended by the 
Workforce Innovation and Opportunity Act, which established an 
Independent Living Administration within the Administration for 
Community Living (ACL) of the Department of Health and Human Services 
(HHS). The rule helps implement changes to the administration of 
Independent Living Services and the Centers for Independent Living made 
under the current law in alignment with ACL and HHS policies and 
practices.

DATES: These final regulations are effective November 28, 2016.

FOR FURTHER INFORMATION CONTACT: Molly Burgdorf, Administration for 
Community Living, telephone (202) 795-7317 (Voice). This is not a toll-
free number. This document will be made available in alternative 
formats upon request. Written correspondence can be sent to the 
Administration for Community Living, U.S. Department of Health and 
Human Services, 330 C St. SW., Washington, DC 20201.

SUPPLEMENTARY INFORMATION:

I. Discussion of Final Rule

    The federal Independent Living (IL) program seeks to empower and 
enable individuals with disabilities, particularly individuals with 
significant disabilities, to exercise full choice and control over 
their lives and to live independently in their communities. For over 40 
years, these aims have been advanced through two federal programs: 
Independent Living Services (ILS) and Centers for Independent Living 
(referred to as CILs or Centers). The Workforce Innovation and 
Opportunity Act (WIOA) transferred these Independent Living programs to 
the Administration for Community Living (ACL) and created a new 
Independent Living Administration within the agency, adding section 
701A of the Rehabilitation Act, 29 U.S.C. 796-1. As part of the 
transfer, the Administrator of ACL (Administrator) drafted a Notice of 
Proposed Rule Making (NPRM) that was published on November 16, 2015,to 
implement changes made by WIOA in accordance with Section 12 of the 
Rehabilitation Act, as amended, 29 U.S.C. 709(e), and section 491(f) of 
WIOA, 42 U.S.C. 3515e(f).
    ACL received over 100 comments to the NPRM, most of them expressing 
their support for the provisions in the proposed rule. ACL has read and 
considered each of the comments received. We respond here to the most-
commonly-received comments and to those that we believe require further 
discussion. We have indicated changes made between the NPRM and final 
rule.
    Several comments raised issues that are specific to the commenter. 
Responding to such comments is beyond the scope of the final 
regulation. Nevertheless, we encourage commenters with individualized 
questions to contact the technical and training support center or the 
ILA specialist for their State for assistance with their questions. We 
also made a number of technical changes in the preamble, for example, 
to reflect that the term ``704 Reporting Instruments'' will no longer 
be used for data collection going forward, and to clarify potentially 
confusing references to the ``State.''

Subpart A--General Provisions

    ACL received numerous comments expressing concern about the person-
centered planning language in the NPRM preamble, including the 
statement that person centered planning and consumer control ``are not 
interchangeable terms.''
    ACL affirms that consumer control is a guiding principle in IL. To 
clarify, the NPRM did not intend to conflate person-centeredness and 
consumer control or other key terms in the IL purpose. The proposed 
regulatory language did not include person-centeredness; the language 
was included in the preamble to the NPRM to both highlight this 
requirement in the home and community-based services and supports 
(HCBS) settings context, and offer an opportunity to IL programs and 
stakeholders to help shape person-centered planning and self-direction 
principles in HHS-funded programs and practices that serve people with 
significant disabilities, as they increasingly are embedded in the work 
we do at ACL and across HHS. This language applies in the HCBS settings 
context and does not limit consumer control or anything centers do with 
Title VII funding.
    One commenter suggested that Centers should not be penalized for 
hiring individuals who do not have significant disabilities when 
candidates who have significant disabilities do not apply, or if those 
who do apply are not qualified, and the CIL therefore fails to meet the 
requirement that the majority of staff are individuals with 
disabilities. The majority hiring requirement is beyond the scope of 
this rule; however, the ongoing requirement that a Center ensure that 
the majority of the staff, and individuals in decision-making positions 
are individuals with disabilities is consistent with the consumer 
directed, self-help, and self-advocacy principles in the IL Philosophy.
Definitions (Sec.  1329.4)
New IL Core Services Definitions
    WIOA added a new fifth requirement to the Independent Living Core 
Services, which includes services that--
     Facilitate the transition of individuals with significant 
disabilities from nursing homes and other institutions to home and 
community-based residences, with the requisite supports and services;
     Provide assistance to individuals with significant 
disabilities who are at risk of entering institutions so that the 
individuals may remain in the community; and
     Facilitate the transition of youth who are individuals 
with significant disabilities, who were eligible for individualized 
education programs under section 614(d) of the Individuals with 
Disabilities Education Act (20 U.S.C. 1414(d)), and who have completed 
their secondary education or otherwise left school, to postsecondary 
life.


[[Page 74683]]


(Sec. 7(17)(E) of the Act, 29 U.S.C. 705(17)(E)).

    ACL received many comments expressing concern about being able to 
effectively provide the new IL core services without the allocation of 
additional funding. We cannot address concerns about funding levels for 
IL programs in the final regulation. We also wish to clarify that funds 
for transition services allocated to other agencies are based under 
separate statutory authorities and appropriations.
    ACL will support programs in accomplishing and reporting IL 
services. To add value and help enhance the work CILs are already doing 
in this area, ACL offers technical assistance for state and community-
based aging and disability organizations (CBOs) through national 
partners as well as through learning collaboratives of networks of 
community-based aging and disability organizations, including Centers 
for Independent Living. ACL looks forward to engaging more of the IL 
community in these efforts to support and improve business acumen, 
which has enabled CBOs to garner funding through public-private 
partnerships, contracts with health-care providers and payers, and 
grants from private foundations. ACL's business acumen efforts are one 
way that CILs may enhance their resource development activities. We 
will also work to identify opportunities to collaborate and leverage 
resources for the core IL services, including the new fifth core 
services, across ACL, HHS, and other federal agencies.
    The NPRM sought public comment on whether to include a definition 
of ``institution'' and the suitability of applying Medicare and 
Medicaid definitions of that term in defining the new core independent 
living services.
    We received comments indicating that the Medicare/Medicaid 
definitions are not sufficiently broad to encompass the range of 
entities included in the term ``institution.'' We received numerous 
comments recommending various terms and entities that should be 
included in a definition of ``institution,'' as well as comments 
stating that including a regulatory definition was not necessary or 
could be unnecessarily limiting and could impede effective provision of 
services. As some commenters recommended, a broad, non-prescriptive 
approach allows CILs the most flexibility to determine the types of 
transition services they can offer with the best chance of success for 
individuals receiving the services based on available local resources.
    Some commenters recommended a very broad definition of institution, 
including ``any congregate living arrangement of any size in which 
residents with disabilities are not in control of their own lives,'' a 
parental/guardian controlled home, or ``any situation in which a person 
with a disability is not free to control all aspects of his or her 
life.'' ACL did not incorporate this approach, as we concluded that the 
suggested categories were vague and overbroad. For instance, these 
examples are not limited to adults, and minors are not given authority 
to control all aspects of their lives, including moving from a home 
where the person lives with a parent or guardian. Other commenters 
suggested narrowing the definition and excluding certain settings such 
as correctional facilities.
    ACL has not included a specific definition of the term institution 
here, so that the categories will be sufficiently broad and allow 
flexibility to CILs. Without specifically defining the term, we 
identify the following examples of entities that fall within the 
category of ``institution,'' which includes but is not limited to: 
Hospitals, nursing facilities and skilled nursing facilities, 
Intermediate Care Facilities for Individuals with Intellectual 
Disabilities, and criminal justice facilities, juvenile detention 
facilities, etc.
    In the NPRM, we also requested comment on the need for and proposed 
content of definitions for ``home and community-based residences'' and 
individuals who are ``at risk'' of institutionalization in the new 
independent living core services. We received several comments 
requesting that we define ``home and community-based residences'' for 
the purposes of the fifth core services. Some commenters suggested we 
refer to Medicaid definitions, including the definitions used in the 
``Money Follows the Person'' demonstration program and the rule related 
to Medicaid-funded home and community-based services published on 
January 16, 2014. Many commenters suggested a definition that would 
include any residence ``with fewer than 4 people non-related in which a 
person with a disability is free to control all aspects of his or her 
life.'' Other commenters recommended against including size or 
configuration of living arrangements in the definition, explaining, 
``When maximum number of people in a setting or their familial 
relationship to each other is prescribed, it does not permit those 
groups of totally self-directing individuals who choose to share an 
apartment or house and share attendant services, for example, to be 
included in the service count. The regulations should not preclude 
serving those individuals who, of their own volition, have chosen forms 
of co-housing, cooperatives, or Naturally Occurring Retirement 
Communities (NORCs).''
    As some commenters recommended, ACL considered language in Medicaid 
regulations that define home and community-based settings for certain 
Medicaid programs. ACL encourages IL programs to consult the language 
in the rule defining HCBS settings for Medicaid waivers under section 
1915(c) of the Social Security Act at 42 CFR 441.301(c)(4), for state 
plan HCBS at 42 CFR 441.710(a)(1) and (2) or for Community First Choice 
services at 42 CFR 441.530(a)(1) and (2). These CMS regulations provide 
details on the qualities of home and community-based settings, as 
compared with those that have the qualities of an institutional 
setting. However, we did not import the definition from the CMS HCBS 
rules into this rule. ACL seeks to encourage CILs to assist the 
broadest range of individuals as they transition from an institutional 
to a community-based setting. The Medicaid rules apply to Medicaid 
beneficiaries receiving home and community-based services under 
specific statutory provisions, and while the language is instructive to 
determine qualities integral to a home and community-based setting, IL 
serves a broader range of people and addresses a wider range of 
situations than those covered under the Medicaid rules. For example, 
the needs of the individual in 42 CFR 441.301(c)(4) are determined ``as 
indicated in their person-centered service plan.''
    As some commenters recommended, to preserve wide latitude and to 
support consumer control, we have chosen not to include a definition 
for ``home and community-based residences'' in the final rule.
    We received comments recommending that the individual should 
determine whether or not he or she is at-risk through self-disclosure. 
We received comments that emphasized the importance of the intake and 
goal setting processes for facilitating informed consumer choice 
related to self-identification. If a consumer feels he or she is at 
risk of institutionalization, and self-identifies as being at risk as 
part of the intake or goal-setting process, then he or she should be 
treated as being at risk. CILs in these situations conduct discussions 
around the person's circumstances, possibilities and risks but the 
designation ultimately must be informed by consumer choice. We have 
incorporated that recommendation in

[[Page 74684]]

the regulatory text as part of the definition of the independent living 
core services.
    Some commenters recommended adding a definition of ``transition 
process.'' Since the term ``transition'' is not included in the second 
prong of the fifth core IL services, and the term ``transition'' has a 
different meaning in the third prong, we incorporated the recommended 
definition into the first prong regarding the transition of individuals 
with significant disabilities from nursing homes and other institutions 
to home and community-based residences.
    WIOA defines youth with a disability to mean ``an individual with a 
disability who is not younger than 14 years of age; and is not older 
than 24 years of age.'' In the NPRM, ACL defined the category of 
``youth with a significant disability'' by combining the definition of 
``individual with significant disability'' in section 7(21), 29 U.S.C. 
705(21) and ``youth with a disability'' in section 7(42) of the Act, 29 
U.S.C. 705(42).
    A commenter expressed concern that the rule uses the term ``youth 
with a significant disability,'' (emphasis added) as ``[t]his is 
different than the Independent Living philosophy which is cross 
disability.'' The language is based on WIOA language in the definition 
of independent living core services, 29 U.S.C. 705(17)(E), which covers 
services to ``facilitate the transition of youth who are individuals 
with significant disabilities . . .'' As a cross-disability agency, ACL 
is sensitive to this concern, but does not have the authority to change 
statutory language through the rulemaking process.
    A commenter recommended removing the ``completed their secondary 
education'' provision from this regulation. Other commenters suggested 
the definition was overbroad and should be pared back. We received 
comments that individuals who have reached the age of 18 but are still 
receiving services in accordance with an individual's education program 
developed under the Individuals with Disabilities Education Act (IDEA) 
should not be considered to have ``completed their secondary 
education.'' Because Sec. 7(17)(E)(iii) of the Act, 29 U.S.C. 
705(17)(E)(iii), uses the term ``completed their secondary education,'' 
ACL does not have the authority to remove this phrase from the 
definition of IL core services regarding youth transition. However, we 
are removing from regulatory language: ``has reached age 18, even if he 
or she is still receiving services in accordance with an individualized 
education program developed under the IDEA.'' In agreement with 
comments received, we have added to the definition of independent 
living core services that individuals who have reached the age of 18 
and are still receiving services in accordance with an Individualized 
Education Program (IEP) under IDEA have not ``completed their secondary 
education.''
    Some commenters also questioned the link to eligibility under IDEA/
eligibility for an IEP, or recommended a definition of ``students with 
disabilities'' be defined broadly, such as those receiving services 
under of Section 504 of the Rehabilitation Act (under 504 plans). 
Commenters also requested that the youth transition prong be extended 
to the youngest possible age, for example before vocational 
rehabilitation (VR) begins to provide services in the State. In WIOA, 
Congress established the prong of the new IL service to ``(iii) 
facilitate the transition of youth who are individuals with significant 
disabilities, who were eligible for individualized education programs 
under section 614(d) of the Individuals with Disabilities Education Act 
(20 U.S.C. 1414(d)), and who have completed their secondary education 
or otherwise left school, to postsecondary life.'' 29 U.S.C. 
705(17)(E)(iii). This requirement, defined in the statute, focuses on 
providing independent living services to youth who are transitioning to 
postsecondary life after they have left school. ACL does not have the 
authority to redefine this category through the rulemaking process.
    We acknowledge the importance of transition services for youth 
prior to post-secondary life in order to prepare youth for a successful 
transition to post-secondary life. However, we also want to emphasize 
that some youth transition activities not covered under the fifth core 
services may be included within the other four core services, Sec. 7 
(17)(A-D) of the Act, 29 U.S.C. 705(17)(A-D), as well as within the 
Independent Living Services in Sec. 7(18), 29 U.S.C. 705(18), and CILs 
should continue to report their work in these areas accordingly.
    A commenter raised concerns that broad definitions around the youth 
transition component of the fifth core service could prompt school 
districts to shift responsibility for youth transition to the CILs. 
While we appreciate the concern, how school districts fulfill their 
responsibilities to students with disabilities is beyond the scope of 
this rule. We acknowledge, however, that Centers often participate as 
one of several entities, including schools, with an important role in 
supporting and facilitating youth transitions. As a promising practice, 
ACL recommends continuing successful collaboration, coordination, and 
leveraging of resources.
    Commenters noted that they are already pursing transition work with 
youth that falls outside of the proposed parameters of the fifth core 
services. Programs may and are encouraged to continue to engage in such 
activities, which can be captured and credited under the other core IL 
services or general independent living services under Sec. 7(18), 29 
U.S.C. 705(18).
    Finally, in response to the NPRM, ACL received questions as to 
whether there are minimum levels which must be achieved in order to 
have met the requirements of each component of the new fifth core IL 
services. Each CIL must demonstrate activity under all three prongs of 
the definition, but the minimum levels are not further defined here. 
See the Regulatory Impact Analysis for further discussion. The revised 
data collection system will contain more information when published.

Definitions of Other Terms in Sec.  1329.4

Administrative Support Services
    ACL received comments recommending additional changes to this 
definition, including a request for additional clarity on the 
``services and supports'' provided by the DSE. Others expressed support 
for a broad definition, with flexibility for the DSE. In order to 
preserve flexibility, we made no changes to the definition in the 
proposed rule.
Advocacy
    ACL received a number of comments on the proposed definition. Some 
commenters expressed a concern about a perceived lack of inclusion of 
``systems change'' in the definition, and requested that the language 
in the rule ``revert back to the original language for advocacy that 
includes both self and systems change.'' We note that the proposed 
definition of ``advocacy,'' identical to the prior definition from the 
Department of Education regulation 34 CFR 364.4, includes ``systems 
advocacy.'' Many commenters recommend that the activities described in 
Sec.  1329.10(b)(5) be included in the definition, as they are part of 
systems advocacy. The final rule retains the proposed definition for 
``advocacy.'' The activities described in Sec.  1329.10(b)(5) are 
already required as authorized uses of funds for independent living 
services and including them in the definition of advocacy would be 
redundant. ACL will consider providing further guidance and will 
continue to offer training and

[[Page 74685]]

technical assistance to provide additional clarity on this issue.
Center for Independent Living
    Many commenters expressed support for the proposed definition from 
the NPRM, though several commenters raised questions about 
accountability for CILs that are not recipients of Part C or Part B 
funding. A few commenters recommended the definition be limited to CILs 
that receive Part B or Part C funding. The final rule retains the 
proposed definition of CILs. With respect to compliance and oversight 
issues, the SILCs, pursuant to their duty under Section 705(c)(1)(B) to 
monitor, review, and evaluate implementation of the SPIL, will make the 
determination that entities counted as CILs eligible to sign the SPIL 
comply with the standards in Sections 725 (b) and the assurances in 
Section 725(c). The SPIL must identify 1) the eligible CILs and 2) how 
they were determined to meet the required standards and assurances. We 
will consider including corresponding assurances with some standards of 
evidence of documentation in the indicators of minimum compliance for 
the SILCs.
    We received requests for clarification regarding the phrase 
``regardless of age or income.'' This phrase is based directly on the 
statutory definition, Sec. 702(2) of the Act, 29 U.S.C. 796a(2). The 
phrase means that an agency, in addition to meeting all of the other 
requirements, may not categorically exclude individuals with 
significant disabilities on the basis of age or income. This does not 
preclude prioritizing services by urgency of need, nor does it preclude 
practical distinctions such as age-based legal restrictions.
    We also received questions regarding the use of fee-for-service 
models for the delivery of services. The final rule does not address 
the use of fee-for-service models, though we encourage CILs to consider 
how to ensure that any application of such a model is accomplished in a 
way that is consistent with IL values.
Consumer Control
    In the NPRM we proposed to add the statutory definition of consumer 
control at Section 702(3) of the Act, 29 U.S.C. 796a(3). Commenters 
requested that the definition also include individual consumer control. 
ACL acknowledges the importance of an individual being able to make his 
or her own choices and set his or her own goals, including deciding 
with whom and how to achieve them, and allowing for the dignity of 
risk, which is a critical component of growth and true independence. 
The definition of ``consumer control'' is amended in the final rule to 
include: ``Consumer control, with respect to an individual, means that 
the individual with a disability asserts control over his or her 
personal life choices, and in addition, has control over his or her 
independent living plan (ILP), making informed choices about content, 
goals and implementation.''
    Some commenters also suggested that the definition include the 
requirement that a majority of staff, management and Board positions 
are filled by persons with disabilities. ACL did not make that change, 
as the composition requirements (for the SILC) and assurances (for the 
CILs) at issue are established separately in the statute.
Personal Assistance Services
    The NPRM proposed that personal assistance services mean ``a range 
of services, paid or unpaid, provided by one or more persons, designed 
to assist an individual with a 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 services 
must be designed to increase the individual's control in life and 
ability to perform everyday activities on or off the job and include 
but are not limited to: Getting up and ready for work or going out into 
the community (including bathing and dressing), cooking, cleaning or 
running errands.'' Commenters indicated that the purpose of personal 
assistance services is not merely to enable a person with a disability 
to get a job, but to perform a myriad of social functions. Commenters 
also raised the point that the concept of personal assistance services 
should be updated to reflect ``the possibilities available today.'' 
Commenters requested additional examples of personal assistance 
services, to help illustrate that such services may support a variety 
of interdependent social functions, such as parenting, engaging in 
civic activities, practicing the individual's preferred religion, 
engaging in a relationship with partner(s) of the individual's choice, 
and more. The final rule incorporates the recommended language. Thus, 
personal assistance services means ``a range of services, paid or 
unpaid, provided by one or more persons, designed to assist an 
individual with a disability to perform daily living activities that 
the individual would typically perform if the individual did not have a 
disability. These services must be designed to increase the 
individual's control in life and ability to perform everyday activities 
including but not limited to: Getting up and ready for work or going 
out into the community (including bathing and dressing), cooking, 
cleaning or running errands, and engaging in social relationships 
including parenting.''
Service Provider
    ACL received comments indicating that the DSE should not be 
included in the definition of ``service provider.'' The commenters 
explained that DSEs should not provide direct services because the DSE 
``is not consumer controlled and does not provide peer support, systems 
advocacy, etc.,'' among other justifications. After consideration of 
the comments on this provision, ACL agrees with the concerns expressed, 
and added the clarification that a DSE is eligible to receive funds to 
provide independent living services only where so specified in the 
SPIL. We have added a corresponding clarification to the preamble 
language in Sec.  1329.17.
Unserved and Underserved
    ACL received numerous comments about the definition of unserved and 
underserved populations. A commenter expressed concerns about the 
elimination of ``sensory impairments'' from the definition. Others 
recommended that the definition should include older people with 
disabilities, or populations with certain types of disabilities, 
including individuals who are low vision, blind, deafblind or deaf, and 
people with traumatic brain injuries (TBI), and post-traumatic stress 
disorder (PTSD). Another commenter asked about other groups, including 
people with limited English proficiency. One commenter expressed a 
concern about a lack of services for black veterans. Others requested a 
definition for ``disadvantaged individuals.''
    ACL notes that the proposed definition includes ``populations such 
as . . .'' and lists a number of possible categories. As stated in the 
NPRM, ``We recognize that unserved and underserved groups or 
populations will vary by service area. For example, in some service 
areas unserved and underserved groups may include people with 
disabilities from the gay, lesbian, bisexual and transgender 
communities.'' The categories included in the definition are examples, 
and not an all-inclusive list. We are not including a definition of 
disadvantaged individuals, as that definition may vary by individuals 
and by community.
    Commenters expressed support for the proposed definition of ``youth 
with a significant disability.''

[[Page 74686]]

    ACL made technical changes to the definitions of ``Center for 
independent living'' and ``Independent living core services'' to 
improve clarity.
Indicators of Minimum Compliance (Sec.  1329.5)
    Commenters requested that the final rule include SILC standards and 
indicators. The statute requires that ACL develop and publish in the 
Federal Register SILC indicators of minimum compliance. As was stated 
in the NPRM, the SILC indicators of minimum compliance are currently 
under development, a process which includes consideration of informal 
stakeholder input. ACL presented the current draft SILC standards of 
minimum compliance at the SILC Congress in January of 2016, and the 
final version will be published in the Federal Register with an 
opportunity for public comment. ACL will continue to collect 
information on CIL compliance indicators based on the statutory 
standards and assurances through the data collection process. We made 
technical changes to the regulatory text of Sec.  1329.5 to clarify the 
current requirements.
    ACL also clarifies that the indicators of minimum compliance and 
data collection instruments are living documents. ACL will periodically 
engage stakeholders to make refinements and improvements.
    Regarding comments expressing concern about the lack of a 
sufficient notice and opportunity for ``substantive public comment,'' 
ACL is committed to continued engagement with stakeholders as we 
develop and publish the required indicators. We also note that the 
Federal Register is the recognized means for notifying the public and 
offering an opportunity to submit comments. Multiple commenters 
requested diverse compliance measures be developed to address specific 
needs for indicators. ACL appreciates this input and will consider 
these suggestions through the established processes.
    Commenters also recommended establishing a rotation for CIL 
reviews. As indicated in the NPRM, the statute eliminated the 
requirement that compliance reviews be conducted on a random basis. ACL 
is actively reviewing options for review criteria, including how CILs 
will be selected for review.
    Commenters expressed concerns about ``targeting'' CILs and 
requesting a neutral process. We decline to incorporate the comment 
that some CILs should not be reviewed more frequently than others. On-
site compliance reviews are no longer required to be conducted on a 
random basis and there may be legitimate reasons why a CIL may require 
more frequent evaluation. ACL agrees that clear, unbiased, and 
legitimate criteria must be established and consistently followed.
    Some commenters expressed concern about the lack of capacity at the 
state and federal levels to conduct the required reviews of CILs. 
Section 711(c), 29 U.S.C. 796d-1(c) includes a requirement that the 
Administrator (rather than the DSE) shall annually conduct onsite 
compliance reviews of at least 15 percent of the centers for 
independent living that receive funds under Section 722 of the Act, 29 
U.S.C. 796f-1 and at least one-third of the designated state units that 
receive funding under Section 723 of the Act. ACL is actively 
evaluating the review processes, to optimize our capacity to conduct 
the required oversight.
Reporting (Sec.  1329.6)
    A commenter objected to proposed Sec.  1329.6(b), stating that the 
requirement that the DSE in each state ``submit a report in a manner 
and at a time described by the Administrator, consistent with section 
704(c)(4) of the Act,'' exceeds statutory authority since the 
referenced statute, Section 704(c)(4), only requires the designated 
state entity to ``submit such additional information or provide such 
assurances as the Administrator may require.'' This commenter noted 
that CILs are explicitly required by statute to ``submit such reports 
with respect to such records as the Administrator determines to be 
appropriate.'' We appreciate the comment, but find that requiring a 
report is fully consistent with and authorized by the statutory 
requirement that the DSE submit such additional information or provide 
assurances that the Administrator may require. We received a comment 
concerning readability and accessibility of forms, materials, and 
links. We appreciate the comment and agree that the instructions, and 
any forms, links, and needed materials must be user-friendly and easily 
accessible. We continue to strive to meet this standard.
Enforcement and Appeals Procedures (Sec.  1329.7)
    Regarding the proposed enforcement and appeals procedures in the 
rule, commenters asked questions about onsite compliance reviews and 
expressed concern about the lack of peer review. To clarify, the 
enforcement and appeals procedures proposed in Sec.  1329.7 are 
separate from a request for technical assistance and separate and in 
addition to the compliance review set forth in Section 706(c)(1). 
Section 706(c)(2)(C), 29 U.S.C. 796d-1(c)(2)(C), requires that, for the 
compliance review, the Administrator must ``. . . ensure that at least 
one of member of a team conducting such a review shall be an individual 
who (i) is not a government employee; and (2) has experience in the 
operation of centers for independent living.'' The proposed regulatory 
text in Sec.  1329.7 does not address or propose changes to the onsite 
compliance review process, including the qualifications of employees 
and others conducting reviews. Instead, Sec.  1329.7 establishes the 
enforcement and appeals process that arises when a grantee receives 
notice of an action that would trigger the additional review process 
available through 45 CFR part 16. These determinations, set forth in 
appendix A, C.a.(1)-(4) are: Disallowance, termination for failure to 
comply with the terms of an award, denial of a noncompeting 
continuation award for failure to comply with the terms of a previous 
award, and voiding (a decision that an award is invalid because it was 
not authorized by statute or regulation or because it was fraudulently 
obtained).
    For example, if after an onsite compliance review, the Director 
determines it necessary to terminate funds because of the grantee's 
failure to comply with the terms of the award, Sec.  1329.7 provides 
the affected CIL or State with the opportunity to seek additional 
review of that decision, consistent with HHS policies and practices. We 
added clarifying language regarding the onsite compliance review 
process as some commenters recommended. We also made technical changes 
to more accurately reflect established HHS processes and incorporate 
correct citations.
    Several commenters interpreted Sec.  1329.7 to mean that ACL would 
immediately terminate funding under certain circumstances, and pointed 
out that WIOA stipulates 90 day notice before Title VII Part C funding 
can be terminated. The NPRM did not propose to move more quickly than 
the 90 day time frame. The process that was outlined for enforcement 
and appeals is designed precisely to afford due process for those CILs 
for which expiration of the 90 day time frame and possible loss of 
funding is imminent. Since nothing in the regulation changes the 
statutory deadlines, no changes to the regulatory text are required.
    With regard to Sec.  1329.7(b), one commenter questioned whether 
the Administrator has the authority to terminate Title VII B funding. 
We refer the commenter to 45 CFR part 75, Uniform Administrative 
Requirements,

[[Page 74687]]

Cost Principles, and Audit Requirements for HHS Awards, which is 
included in Sec.  1329.3, applicability of other regulations. For more 
information regarding remedies for non-compliance and termination, 
please see 45 CFR 75.371 and 75.372, which, address these issues. We 
also remind stakeholders that Section 704(a)(1) requires the submission 
of a SPIL which is approved by the Administrator in order to be 
eligible for funding. Thus, the Administrator has the authority to 
withhold or terminate funding if a SPIL is not submitted in accordance 
with the requirements of Section 704, or if the Administrator does not 
approve a SPIL that is submitted.
    ACL thanks commenters for embracing the opportunity to work with 
ACL on developing sub-regulatory guidance to provide additional detail 
in this area.
    Commenters state that the time frame for notice should be clear and 
specific. The regulation describes that written notice shall be 
provided ``within a timely manner.'' In the absence of a recommendation 
for a specific length of time, we retain the language of the proposed 
rule, with the clarification that the standard is a reasonable 
determination of a ``timely manner.'' We will consider whether to 
designate a specific time period in any sub-regulatory guidance that we 
develop.

Subpart B--Independent Living Services

Authorized Use of Funds for Independent Living Services (Sec.  1329.10)
    Commenters requested a change to Sec.  1329.10(a) to more 
accurately reflect the language and intention of the statute. 
Commenters were correct in stating that the Administrator reserves the 
funds under Section 711A for SILC training and technical assistance, 
before the State receives funding under this part. ACL incorporated the 
requested change, and revised Sec.  1329.10 to include the correction.
DSE Eligibility and Application (Sec.  1329.11)
    Regarding Sec.  1329.11, commenters recommended including language 
that ``[a]ny designated State entity (DSE) identified in the SPIL and 
agreed to by the State is eligible to apply for assistance under this 
part in accordance with Section 704 of the Act, 29 U.S.C. 796c.''
    We decline to make these changes, because, as explained in the FAQs 
that accompanied the DSE Guidance document,\1\ the DSE is a 
governmental State entity that carries out the functions described in 
the statute in Section 704(c) of the Act, 29 U.S.C. 796c(c). ``If the 
DSE does not carry out those functions, the State is legally 
responsible.''
---------------------------------------------------------------------------

    \1\ Guidance: ILA PI-15-01 Selection of the Designated State 
Entity (DSE), rev. Oct. 28, 2015; available at http://www.acl.gov/Programs/AoD/ILA/Index.aspx#dse.
---------------------------------------------------------------------------

    However, in response to these comments, and with the understanding 
that the State plan shall ``designate'' the ``designated State entity'' 
as the agency that, on behalf of the State, shall accomplish the listed 
responsibilities in the law and comply with the specified funding 
limits (and acknowledging that the chairperson of the Statewide 
Independent Living Council and the directors of the CILs in the State, 
after receiving public input from individuals with disabilities and 
other stakeholders throughout the State, develop the State plan) ACL 
modified the proposed definition to clarify the reference to a DSE 
``identified by the State and included in the signed SPIL . . .''
    Commenters also requested that ACL identify the body that is 
responsible to submit the SPIL. Section 1329.17(b)(4) indicates that 
the SPIL ``must be submitted . . . in the time frame and manner 
prescribed by the Administrator.'' For developing the FY 2017-2019 
State Plan for Independent Living (SPIL), ACL refers stakeholders to 
the State Plan for Independent Living (SPIL) instructions, issued on 
February 19, 2016, which specify that the Statewide Independent Living 
Council shall submit the State Plan for Independent Living (SPIL).
Role of the Designated State Entity (Sec.  1329.12)
    Commenters requested additional language to clarify the role of the 
DSE and the allocation of funds in accordance with the approved SPIL. 
ACL incorporated suggested language to make clear in Sec.  
1329.12(a)(2) the DSE's role to provide administrative support services 
for a program under Part B, as directed by the approved SPIL, and for 
relevant CILs under Part C. We also revised the language in Sec.  
1329.12(b) to state that the DSE must also carry out its other 
responsibilities under the Act, including, but not limited to--
     Allocating funds for the delivery of IL services under 
Part B of the Act as directed by the SPIL; and
     Allocating the necessary and sufficient resources needed 
by the SILC to fulfill its statutory duties and authorities under 
section 705(c), consistent with the approved State Plan.
    While the regulatory text in the new Sec.  1329.12(b)(i) focuses on 
the delivery of IL services, Sec. 713(b) of the Act identifies six (6) 
additional activities that remain authorized uses of funding under this 
Section, and are encompassed in the ``including, but not limited to'' 
language in Sec.  1329.12(b).
    Some commenters were concerned that the 5% was not sufficient given 
the scope of the administrative responsibilities of the DSE, and that 
some entities may choose not to serve as a DSE. The 5% is a statutory 
cap and therefore not subject to change in this regulation.
    For the sake of consistency we made formatting changes to Sec.  
1329.12(b).
Allotment of Federal Funds for State Independent Living (IL) Services 
(Sec.  1329.13)
    Many commenters requested that the proposed regulatory language of 
Sec.  1329.13(c) be deleted or amended to permit only a single DSE. A 
few commenters expressed support for a second DSE and stressed the 
importance of certain programs that have been funded by State agencies 
for the blind. Upon consideration of the comments in the context of the 
language in WIOA, we agree that it is consistent with the statute to 
permit only one DSE. Accordingly, in addition to revising the 
regulatory text in Sec.  1329.13(c) to permit only a single DSE, Sec.  
1329.17(e) is deleted.
    Nineteen (19) States have been operating with more than one body 
taking on these responsibilities. One body in those States provides 
services to the general disability population and the other provides 
services to individuals who are blind. Under the language we are 
finalizing, the SPIL must identify one DSE in the State, and that DSE 
will sign the SPIL as discussed above. Specific funding to address the 
needs of consumers in the State who are blind may be allocated through 
the SPIL process.
    Regarding proposed Sec.  1329.13(d), commenters also requested that 
ACL not reserve funds to directly provide training and technical 
assistance to SILCs, and others recommended an increase in funding to 
the current technical assistance provider. ACL retained the language 
from the proposed rule, which is required by section 711A of the Act 
(29 U.S.C. 796e-0).
    Commenters also recommended that the SILCs be involved in the 
process for determining the type of training and technical assistance 
that is offered and how the funding is utilized. We did not add 
additional regulatory language, as the Act requires in Sec. 711A(b) 
that the Administrator conduct surveys of SILCs regarding training and 
technical

[[Page 74688]]

assistance needs in order to determine funding priorities for such 
training and technical assistance.
Establishment of a SILC (Sec.  1329.14)
    Commenters expressed support for the proposed language in the NPRM. 
Some commenters also requested ``direction or guidance on what 
constitutes `autonomous.' '' ACL did not make changes to the language 
of the proposed rule. To better understand what autonomous means, we 
refer commenters to pertinent statutory provisions at Sec. 705 of the 
Act, 29 U.S.C. 796d, including Sec. 705(a) and (b) on the 
establishment, composition and appointments to the SILC. These include 
the requirement at Sec. 705(a) providing that ``The Council shall not 
be established as an entity within a State agency,'' and the conflict 
of interest policy at Sec. 705(e)(3), precluding staff and other 
personnel of the SILC from being assigned duties by the DSE or other 
agencies of the state that would create a conflict. We also note that 
the Council and voting members of the Council are to be comprised of 
members meeting the qualifications under Sec. 705(b)(4), including 
state-wide representation, a broad range of individuals with 
disabilities from diverse backgrounds, knowledge about centers for 
independent living and independent living services, and a majority of 
whom are individuals with disabilities per 29 U.S.C. 705(20)(B) and not 
employed by any State agency or center for independent living. We will 
continue to consult with stakeholders on the need for additional 
guidance, including providing more detail about the SILC standards and 
indicators that are under development.
    Many commenters indicated they could not identify any relevant CIL-
Tribal relationships that met the definition under Section 705 of the 
Act. However, other commenters indicated that there are currently 83 
American Indian Vocational Rehabilitation Services (AIVRS) programs 
located on Federal and State Reservations providing IL-complementary 
services to American Indians/Alaska Natives (AI/ANs) with disabilities. 
Some commenters also expressed support for the effort to ensure that 
American Indians are part of SILC leadership. As a promising practice, 
we recommend that in each State where there are Federal and State-
recognized Tribal Governments, the SILC include a Tribal Representative 
on the SILC, and conduct outreach to the AIVRS program(s) in the State, 
as available, or other relevant organizations to foster Tribal 
participation on the SILC.
Duties of the SILC (Sec.  1329.15)
    Commenters clarified that the SILC resource plan is an integral 
part of the three-year SPIL. We acknowledge that this is the correct 
interpretation. Since the language incorrectly describing the resource 
plan as ``separate from the SPIL'' was preamble language attempting to 
clarify the new requirement regarding the allocation of funds for this 
plan as distinct from the SPIL, no changes to the regulatory text are 
needed.
    Regarding Sec.  1329.15(c)(2) on Innovations and Expansion (I&E) 
funds, commenters recommended revised language consistent with Section 
101(a)(18) of the Act to make clear that resources for SILCs include 
I&E funds consistent with the statute. ACL made the requested change to 
the regulatory text. ACL will work with the Department of Education and 
stakeholders to develop appropriate guidance on this matter.
    Commenters expressed support for the proposed language in Sec.  
1329.15(c)(4) and we have included it without change.
    Commenters requested additional detail on what constitutes 
``necessary and sufficient'' funds to carry out the functions of the 
SILC for the purpose of the SILC resource plan. Other commenters 
indicated that additional information was not needed. In the interest 
of clarity, ACL adopted the recommended additions to Sec.  
1329.15(c)(6), with a final category for other appropriate costs. A 
description of the SILC's resource plan must be included in the State 
plan.
    The plan should include:

 Staff/personnel
 Operating expenses
 Council compensation and expenses
 Meeting expenses, including public hearing expenses, such as 
meeting space, alternate formats, interpreters, and other 
accommodations
 Resources to attend and/or secure training for staff and 
Council members
 Other costs as appropriate.

    A commenter asked ``how will it be determined that the funding 
within the 30% cap for resource planning to carry out SILC functions 
has been well spent.'' As discussed, the resource plan is agreed to as 
part of the SPIL. As noted above, ACL has added some additional 
required elements to the regulatory language. It will be up to the 
entities in the State to determine how the funds are spent, as 
reflected in the resource plan and the SPIL.
    To minimize potential confusion, we removed duplicative 
requirements from Sec.  1329.15(d).
Authorities of the SILC (Sec.  1329.16)
    Commenters requested some additional terms be defined in the final 
rule, such as ``in conjunction with.'' ACL chose not to include several 
of these requested definitions, with the understanding that these words 
and phrases are given their plain meaning.
    A commenter raised concerns about whether the prohibition against 
providing services directly or ``managing'' services would preclude 
SILCs from securing funding to allow CILs to accomplish specific goals. 
We clarify here our interpretation that securing funding is distinct 
from ``managing'' services. Rather, a practice such as applying for and 
receiving grant funding in these circumstances is a legitimate exercise 
of SILCs' newly statutorily authorized resource development authority.
    We received several comments regarding SILCs that were pertinent to 
a particular state. Individual state concerns are beyond the scope of 
the regulations. However, we suggest that SILCs that raised such 
concerns consult with the SILC technical assistance and training center 
and their respective ILA specialist.
    Regarding Sec.  1329.16(b)(3), commenters stated that the proposed 
regulation ``fails to provide a reference to the statute or regulation 
that prohibits lobbying . . .'' along with other listed perceived 
omissions. For information on the relevant prohibition, please consult 
45 CFR part 93--New Restrictions on Lobbying, which was included in 
Sec.  1329.3(i), along with the other provisions on applicability of 
other regulations, that was included in the proposed rule and retained 
in the final rule.
General Requirements for a State Plan (Sec.  1329.17)
    Commenters expressed support for the SPIL development and approval 
process in the NPRM, as required under the changes implemented by WIOA. 
Some commenters discussed the ways successful collaboration is already 
underway, that the new SPIL development process will result in a better 
State Plan; and ultimately have a positive impact for people with 
disabilities. We appreciate this information.
    As discussed in Sec.  1329.4 regarding the definition of ``service 
provider,'' ACL has added a clarification that the DSE may provide IL 
services directly only when so specified in the SPIL. The

[[Page 74689]]

DSE's role as a service provider, where applicable, must be explicitly 
identified as part of the description of how and to whom funds will be 
dispersed under Sec.  1329.17(a).
    In discussing the new requirements of the SPIL in the summary in 
the preamble, with respect to a phrase describing collaboration between 
CILs and other entities performing similar work, ACL received a comment 
requesting that we define ``similar work.'' That term refers to the 
requirement in the statute in Sec. 704(a)(3)(c) that the SPIL address 
working relationships and collaboration between centers for independent 
living and:
     Entities carrying out programs that provide independent 
living services, including those serving older individuals;
     other community-based organizations that provide or 
coordinate the provision of housing, transportation, employment, 
information and referral assistance, services, and supports for 
individuals with significant disabilities; and
     entities carrying out other programs providing services 
for individuals with disabilities.
    The term ``similar work'' is not in the regulatory text, and we did 
not add a definition because the statutory language provides sufficient 
clarity.
    Some commenters requested clarification that Sec.  
1329.17(d)(2)(ii) specify that the signature by the director of the DSE 
signifies agreement to execute the responsibilities of the DSE 
identified in section 704(c) of the Act. ACL incorporated this 
clarification in the final rule.
    Regarding Sec.  1329.17(d)(2), a commenter made the point that 
Centers with service areas (and grants) within multiple states should 
have sign off authority for each SPIL that affects them, where they 
meet the other applicable requirements. ACL agrees, and we have added 
language to so clarify in Sec.  1329.17(d)(2)(iii). ACL also received 
many comments supporting our analysis that the number of CILs be based 
on the number of ``legal entities,'' not the number of grants, and we 
retain that provision from the proposed rule.
    As a technical correction, we renumbered new Sec.  1329.17(e)-(h). 
Regarding proposed Sec.  1329.17(g)(2), commenters indicated that the 
proposed language is not consistent with section 704(a)(2)(A) of the 
Act, which requires that public input be received prior to development 
of the State plan. The proposed provision included an option to provide 
a preliminary draft State plan for comment at the public meetings as an 
option for meeting the requirement for public input. ACL agrees that 
this language, adapted from the previous regulations in 34 CFR 
364.20(g), does not reflect the requirement of the statute that the 
State plan be developed ``after receiving public input from individuals 
with disabilities and other stakeholders throughout the State,'' and we 
have modified the regulatory text of Sec.  1329.17(f)(1) (formerly 
proposed Sec.  1329.17(g)(2)) accordingly. This means that the public 
input requirement may be satisfied by a public meeting to get input 
prior to development of the SPIL, and then an opportunity for public 
comment before the SPIL is submitted, for instance through another 
public meeting where a preliminary draft is provided in advance, or by 
offering some other meaningful and accessible opportunity for the 
public to comment prior to SPIL submission. ACL also made technical 
changes to renumber the section.
Continuation Awards to Entities Eligible for Assistance Under the CIL 
Program (Sec.  1329.21)
    Regarding Sec.  1329.21(g), commenters suggested that the SILCs and 
the CILs, rather than the DSE and SILC, must jointly agree on the order 
of priorities. ACL agrees that SILCs and CILs, rather than the DSE, 
must agree to priorities as set forth in the SPIL as it is jointly 
developed, after receiving public input from individuals with 
significant disabilities and other stakeholders. Section 1329.21, 
however, addresses priority for funding centers in States that receive 
funding under Section 723 of the Act, 29 U.S.C. 796f-2. Currently, only 
two States, Massachusetts and Minnesota, qualify as Section 723 States. 
Under Section 723(e), priorities for funding centers are set by the 
designated State unit \2\ and the SILC. ACL therefore has determined to 
keep the language as proposed in accordance with the statutory language 
in Section 723(e).
---------------------------------------------------------------------------

    \2\ We note that WIOA did not change the term ``designated State 
unit'' in Section 723 to designated State entity, as in other 
sections throughout this Subpart of the Rehabilitation Act. ACL has 
determined to refer to the body as the designated State entity in 
the rule for consistency purposes.
---------------------------------------------------------------------------

Competitive Awards to New Centers for Independent Living (Sec.  
1329.22)
    This section establishes the process for competitive awards to new 
Centers for Independent Living in unserved or underserved regions. We 
received comments requesting the authority to modify existing Part C 
Center service areas if the majority of the Center Directors, the SILC 
Chair, and the Center/s in question agree. While ACL is sensitive to 
the issue raised, we are not addressing that issue in this final 
regulation. We will take under advisement the need to address service 
area adjustments in the future. We made a technical correction to Sec.  
1329.22(b), to read ``location'' rather than ``allocation,'' and 
technical change in Sec.  1329.22(c) to clarify that ``bordering'' 
means ``contiguous.''
Compliance Reviews (Sec.  1329.23)
    ACL received the comment that, regarding ``guidance or guidelines 
as determined by the Administrator,'' ``[i]t is unclear if the guidance 
will include additional requirements and if the public will have an 
opportunity to comment on this guidance and guidelines.'' ACL may issue 
guidance consistent with statutory requirements, and the content and 
process may vary depending on the information conveyed.
    A commenter proposed that ACL consider alternative entities to 
conduct federal reviews of the CILs and suggested longer time periods 
between reviews of a single CIL. WIOA establishes the requirement that 
the Administrator must conduct annual compliance reviews of CILs and 
DSEs in in 29 U.S.C. 796d-1(c)(1), so ACL does not have the authority 
to alter the requirements established in the statute in this 
regulation. However, as noted above, ACL is actively evaluating the 
review processes, to optimize our capacity to conduct the required 
oversight, incorporating alternative approaches where permitted and 
appropriate.
Training and Technical Assistance to Centers for Independent Living 
(Sec.  1329.24)
    Commenters pointed out that WIOA does not authorize ACL to retain 
funds for the direct provision of training and technical assistance to 
CILs. We agree that this is the correct interpretation. Since the 
inconsistent language was included only in the preamble text, no 
changes have been made to the regulatory text.

II. Impact Analysis

A. Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in Executive Order 12866. The Department has determined that this 
rule is consistent with these priorities and principles. The rule 
implements the Workforce

[[Page 74690]]

Innovation and Opportunity Act of 2014. Executive Order 12866 
encourages agencies, as appropriate, to provide the public with 
meaningful participation in the regulatory process. In developing the 
final rule, we considered input we received from the public, including 
stakeholders.

B. Regulatory Flexibility Analysis

    The Secretary certifies under 5 U.S.C. 605(b), the Regulatory 
Flexibility Act (Pub. L. 96-354), that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
The small entities that would be affected by these proposed regulations 
are States and Centers receiving Federal funds under these programs. 
However, the regulations would not have a significant economic impact 
on States or Centers affected because the regulations would not impose 
excessive regulatory burdens or require unnecessary Federal 
supervision. The final regulations implement statutory changes that 
impose new requirements to ensure the proper expenditure of program 
funds.
    The ILS Program provides formula grants to States for the purpose 
of funding a number of activities, directly and/or through grant or 
contractual arrangements. To be eligible for financial assistance, 
States are required to establish a designated State entity, State 
Independent Living Council and to submit an approvable three-year State 
Plan for Independent Living (SPIL) jointly developed by the chairperson 
of the SILC and the directors of the CILs in the State, after receiving 
public input, and signed by the chairperson of the SILC acting on 
behalf of and at the direction of the Council; not less than 51 percent 
of the directors of the CILs in the State, and the director of the 
designated State entity (DSE). The signature requirement of not less 
than 51 percent of CIL directors is a new requirement under WIOA. While 
this requirement does increase the amount of time a State may need to 
prepare an approvable SPIL, the statute provides no flexibility in 
implementing the new requirement. We are not able to estimate the 
amount of additional time the 51 percent signatory requirement will add 
to the SPIL development and approval process at the State level given 
that this is a new requirement. We solicited comments from affected 
States on this issue, but beyond a few comments touching on general 
difficulty, did not receive any comments that clarify the amount of 
additional time required to meet the 51 percent signatory requirement.
    The CIL program provides grants to consumer-controlled, community-
based, cross disability, nonresidential, private nonprofit agencies for 
the provision of IL services to individuals with significant 
disabilities. WIOA expanded the previous definition of core IL 
services, specified in Section 7(17) of the Act, to include an 
additional, fifth category of core services. Specifically, Centers 
funded by the program must now provide services that facilitate 
transition from nursing homes and other institutions to the community, 
provide assistance to those at risk of entering institutions, and 
facilitate transition of youth to postsecondary life. Currently there 
are 354 CILs that receive federal funding under this program.
    WIOA did not include any additional funding for the provision of 
this new fifth core service, necessitating that CILs would reallocate 
existing grant money to ensure the appropriate provision of all 
services required under Title VII of the Rehabilitation Act. Many 
commenters requested additional funding to carry out program 
responsibilities under the law. A number of commenters recommended that 
``ACL should seek to obtain additional funding for the 5th Core 
Transition Service.'' Commenters also stated that ``HHS should make 
CILs the mandatory receiver of all funding for transition services.''
    Funding issues are beyond the scope of this rule. However, it might 
be useful to note that some resources currently funded by HHS related 
to transition services reside in other agencies within the Department 
and ACL lacks the authority to direct how these transition funds are 
disbursed.
    With those facts in mind, we recommend that interested CILs note 
that ACL offers technical assistance for state and community-based 
aging and disability organizations through national partners as well as 
through learning collaboratives of networks of community-based aging 
and disability organizations, including Centers for Independent Living. 
These networks assist many CILs with leveraging their Federal funds and 
conducting resource development, and with building their business 
capacity for generating sustainable revenue streams for programs and 
services. ACL looks forward to engaging more of the IL community in 
these efforts. ACL will actively endeavor to identify further funding 
opportunities for CILs fifth core services transition work and will 
strive to raise awareness about CILs unique statutory mandate and 
successes with our sister agencies across HHS and the broader federal 
community.
    ACL stated in the NPRM that, since successful transition is a 
process that requires sustained efforts and supports over a long-term 
period, and the CILs were aware of the changes under the law before 
officially tracking these efforts as core services, we do not currently 
have a clear picture of the impact of the changes under WIOA on the 
programs. In developing the NPRM we therefore applied the closest 
applicable data to the estimates in the analysis. For purposes of the 
analysis, we looked at three specific categories of data currently 
captured in the 704 Annual Performance Report that we believe most 
accurately match the three components of the fifth core services.\3\ We 
believe that the ``Relocation from a Nursing Home or Institution'' 
category most closely matches the first component of the new fifth core 
services: Facilitate transitions from nursing homes and other 
institutions to the community. We believe that the ``Community-Based 
Living'' category matches the second component of the new fifth core 
service: Provide assistance to those at risk of entering institutions. 
We believe the ``Youth/Transition Services'' category captures some 
relevant information for the third component of the new fifth core 
service: Facilitate transition of youth to postsecondary life. For FY 
2014, 281 CILs reported nursing home transition goals established for 
at least one consumer, 343 CILS reported community-based living goals 
established for at least one consumer, and 224 CILs reported youth 
transition services provided to at least one consumer under the 
``Youth/Transition Services'' category of the 704 Annual Performance 
Report.
---------------------------------------------------------------------------

    \3\ The current 704 Report was not designed to incorporate the 
fifth core services, so current data roughly corresponds with the 
categories.

[[Page 74691]]



------------------------------------------------------------------------
                                  704 Annual
       5th Core service          performance     Percentage   Number of
                               report category   of CILs *       CILS
------------------------------------------------------------------------
Facilitate Transitions from    Relocation from           83          281
 Nursing Homes and Other        a Nursing Home
 Institutions to the            or Institution.
 Community.
Provide Assistance to Those    Community-Based           99          343
 at Risk of Entering            Living.
 Institutions.
Facilitate Transition of       Youth/                    66          224
 Youth to Postsecondary Life.   Transition
                                Services.
------------------------------------------------------------------------
* Percentage of CILs reporting a goal set for at least one consumer. The
  Youth/Transition Services sub-category represents the percentage of
  CILs reporting service provision to at least one consumer.

    Based on this analysis, we believe that many CILs currently have 
staff capable of providing the new fifth core services. However, due to 
the lack of additional funding, compliance with this statutory change 
may require CILs to re-examine their individual budgets, staffing 
plans, and consumer needs in order to reallocate funding to ensure the 
appropriate provision of services as required by the Rehabilitation 
Act. We estimated that this analysis will require approximately 10-15 
hours of time for each CIL director. We proposed to use the upper end 
of the time estimate (15 hours) for purposes of estimating the total 
impact of this statutory requirement. Therefore, we estimated the 
amount of compliance analysis time for CIL directors to total 5,310 
hours.
    To estimate the average hourly wage for a CIL director, we examined 
data compiled by the IL Net (a collaborative project of Independent 
Living Research Utilization (ILRU), the National Council on Independent 
Living (NCIL), and the Association of Programs for Rural Independent 
Living (APRIL)) and Bureau of Labor Statistics (BLS) data. According to 
a 2003 National Survey of Salaries and Work Experience of Center for 
Independent Living Directors, compiled by IL Net, the most common 
annual salary range for CIL directors in 2002 was between $41,000 and 
$45,000. This equates to an average hourly salary range of $19.71 to 
$21.63. The Bureau of Labor Statistics (BLS) provided more recent 
salary information.
    According to 2012 BLS data, the average hourly wage for a social 
and community manager (a BLS occupational classification for managers 
who coordinate and supervise social service programs) was $28.83. We 
proposed using the more recent BLS data to calculate the total 
estimated impact of this statutory requirement. In order to estimate 
the benefits and overhead associated with this hourly wage, we assume 
that these costs equal 100 percent of pre-tax wages, for a total hourly 
cost of $57.66. Therefore, we estimated the total dollar impact of this 
additional CIL director time to be $306,174.60.
    As noted previously, we have interpreted recent 704 Reports as 
indicating that many CILs currently have staff capable of providing the 
new fifth core services. We received comments that some CILs which 
currently provide fifth core services do so using other sources of 
funding, including Medicaid dollars and contracts with managed care 
organizations. However, as shown in the table above, a substantial 
number of CILs do not yet provide the newly required services and 
therefore would potentially incur costs in order to comply with this 
rule.\4\ We received several comments confirming that some CILs do not 
yet provide the new fifth core services, and doing so may impose a 
burden upon such CILs, particularly a diminution of services provided 
in other areas. These commenters were not able to give us a more 
detailed estimate of calculating the burden other than to ask for a 
substantial increase in funding for CILs. As noted above, increasing 
funding for CILs is beyond the scope of this regulation.
---------------------------------------------------------------------------

    \4\ Costs of new actions are included in a regulatory impact 
analysis even when budgets or grant amounts do not change. If CILs 
are reallocating grant funds to these newly required services, then 
they are doing some other worthwhile activity to a lesser extent, 
and the value of that alternative activity represents the 
opportunity cost of the new requirements.
---------------------------------------------------------------------------

    We also received questions as to whether there are minimum levels 
which must be achieved in order to have met the requirements of each 
component of the new fifth core IL services; the responses to these 
questions relate to and may impact the burden analysis. Each CIL must 
demonstrate activity under all three prongs of the definition, but the 
minimum levels are not further defined in this regulation. The revised 
data collection system will contain more information when it is 
published. We note that we do not establish a minimum number of 
services, beyond that there must be some service (at least one 
activity) accomplished and reported in each category and sub-category, 
for any of the core services, and we do not intend to establish a 
minimum number for the new fifth core services. The amount of services 
provided will depend on the needs of the individuals seeking services, 
the social dynamics of the community served by each CIL, and the 
approach each CIL takes to address the needs of individuals under the 
fifth core service. In addressing the comments related to burden, we 
also note that CILs can fulfill their obligation to provide fifth core 
services in a number of ways that may reduce the burden associated with 
the service. For example, services that CILs already provide may count 
towards this category rather than other core services.
    Nevertheless, we recognize that the addition of the fifth core 
services may place more of a burden on CIL directors to re-examine 
their individual budgets, staffing and strategic plans, and consumer 
needs in order to reallocate funding to ensure the appropriate 
provision of services as required by the Rehabilitation Act. We 
therefore are increasing our initial estimate of 15 hours of time for 
each CIL director to 30 hours of time to account for the additional 
burden. In the final rule we estimate the amount of compliance analysis 
time for CIL directors to total 10,620 hours. We received several 
comments with different estimates. However, the comments did not 
provide sufficient detail or explain how the estimates were calculated. 
They did not include a breakdown of the costs of wages, benefits and 
overhead; nor did they include an estimate of the hours used in the 
calculation. Thus, we continue to assume that the costs of wages, 
benefits and overhead to be a total hourly cost of $57.66, and use that 
figure in determining the dollar impact based on an increased number of 
hours, as discussed above. We increase our estimate in the final rule 
of the total dollar impact of this additional CIL director time to be 
$612,349.20.
    WIOA continues to require annual onsite compliance reviews of at 
least 15 percent of CILs that receive funding under section 722 of the 
Act and at least one-third of designated state units that receive funds 
under section 723 of the Act. The only change made by WIOA was to 
eliminate the requirement that CILs subject to compliance reviews be 
selected randomly. ACL is not proposing any changes to the compliance 
review process in this regulation. We do not anticipate any

[[Page 74692]]

additional burden on grantees as a result of the compliance and review 
process, including the development of additional corrective action 
plans in response to such reviews.
    While the final rule establishes a new appeals process for States, 
we anticipate that the process will be utilized infrequently based on 
past experience of the Independent Living Services programs. The 
process is designed to provide additional protection against the 
termination of funding. We received no specific comments on the burden 
analysis. Therefore, we do not expect that funds will be terminated 
more or less frequently.
    The allocation of 1.8 to 2 percent of Part B funds to training and 
technical assistance for SILCs is a new requirement under WIOA. We have 
limited available data regarding the impact on programs of this 
provision and requested comment on this aspect of the analysis. We 
received no comments related to burden analysis for this provision.
    The 5 percent administrative cap on the DSE is a new statutory 
requirement under WIOA, as is the 30 percent ceiling on the SILC 
resource plan (unless the SPIL specifies that a greater percentage of 
funds is needed for to carry out the functions of the SILC). The rule 
makes final the NPRM's narrow interpretation of the 5 percent 
administrative cap, limiting its application to ``Part B'' funds only, 
rather than applying the 5 percent cap on administrative funds 
allocated to the DSE to all federal funds supporting the Independent 
Living Services. Additional funding sources include Social Security 
reimbursements, Vocational Rehabilitation program funds, and other 
public or private funds.
    The rule avoids a broader application of the cap in an attempt to 
avoid creating too great a disincentive to State agencies to serve as 
DSEs, given the more limited role of the DSEs in decision-making (as 
they no longer have a statutory role in the development of the SPIL). 
Our intent is to effectuate the limitation as required under the law, 
while helping ensure retention of DSEs for the Part B programs. Some 
commenters indicated that the 5 percent administrative cap on the DSE 
may result in reduced funding for independent living services; they did 
not discuss the specific burden associated with implementation of this 
statutory requirement.

C. Alternative Approaches

    Although we believe that the approach of the rule best serves the 
purposes of the law, we considered a regulatory scheme requiring an 
alternative treatment of the Part B State matching funds. In the final 
rule, as in the proposed rule, funds used to meet the required 10 
percent State match are treated the same as funds ``received by the 
State'' under Part B.
    To better understand the implications of this decision, consider 
the five percent administrative cap on the DSE's use of Part B funds 
for administrative purposes in Sec.  1329.12(a)(5). For example, the 
proposed regulatory language mandates that WIOA's 5 percent cap on 
funds for DSE administrative expenses applies only to the Part B funds 
allocated to the State and to the State's required 10 percent Part B 
match. It does not apply to other program funds, including, but not 
limited to, payments provided to a State from the Social Security 
Administration for assisting Social Security beneficiaries and 
recipients to achieve employment outcomes, any other federal funds, or 
to other funds allocated by the State for IL purposes. Treating the 
issue in this way makes more Part B funds available for IL services and 
SPIL activities, while retaining sufficient funds to permit the DSE to 
accomplish its responsibilities and oversight requirements for ILS 
program funds under the law. One key advantage of this approach is 
minimizing disruptions to the ILS program from potential DSE decisions 
to relinquish the program due to insufficient resources to fulfill the 
WIOA-related fiscal oversight/administrative support responsibilities. 
For context, on average, 10-15 percent of DSE funding was spent on 
administrative costs prior to WIOA, though this must be considered 
along with the more limited role the DSE now plays under the law as 
amended.
    A narrower interpretation of this provision would be to apply it to 
Part B funds only, without the State match. Not only would this 
approach severely limit the funds available for fulfillment of DSE 
responsibilities under the law, it would also create some potential 
accounting burdens for programs, as State funds provided as a result of 
the ILS program's State matching requirement have traditionally been 
treated similarly to Federal Part B funds. It would also be 
inconsistent with prior accounting practices regarding the 10% State 
match for Part B funding, which existed prior to WIOA.
    The broadest interpretation would include all federal funds 
supporting the ILS program, including Social Security reimbursements 
and funds from the Title I (Vocational Rehabilitation) program in the 
cap, which would broaden the pot of monies allocated for administrative 
costs of the DSE, which on its face seems counter to the change in the 
law capping the available percentage for these purposes at a relatively 
low amount. Commenters supported this approach.
    We also considered alternative approaches regarding implementation 
of the new fifth core services based on comments regarding lack of 
funding to provide the new services. We have chosen not to establish 
minimum number of services to be provided for any of the core services, 
including the fifth core service, and to allow CILs flexibility in 
determining how to meet the requirements of the act. We believe that 
this approach, discussed above, satisfies the requirements of WIOA that 
CILs provide services in all five core service areas. It also gives 
CILs the greatest amount of flexibility to determine how to use their 
limited federal funds to meet the needs of individuals in their service 
area.

D. Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
requires certain actions before an agency can adopt or revise a 
collection of information. Under the PRA, we are required to provide 
notice in the Federal Register and solicit public comment before an 
information collection request is submitted to the Office of Management 
and Budget (OMB) for review and approval. In order to fairly evaluate 
whether an information collection should be approved by OMB, Section 
3506(c)(2)(A) of the PRA requires that we solicit comments on new or 
revised information collections, which in the case of this rule, 
includes the new SPIL development requirements. The law is also 
intended to ensure that stakeholders can fully analyze the impact of 
the rule, which includes the associated reporting burden. We are not 
introducing any new information collections in the final rule however, 
it does revise process requirements. As discussed earlier, WIOA changed 
the requirements regarding SPIL development and who must sign the SPIL.
    This final rule makes no revisions to existing 704 reporting 
requirements, the Section 704 Annual Performance Report (Parts I and 
II). ACL is currently convening workgroups to recommend and implement 
changes regarding data collection. These changes will be subject to the 
public comment process under the PRA before they are finalized.

[[Page 74693]]

1. State Plans for Independent Living (SPIL)
    The SPIL encompasses the activities planned to achieve the 
specified independent living objectives and reflects the commitment to 
comply with all applicable statutory and regulatory requirements during 
the three years covered by the plan. A SPIL has already been approved 
in each State through fiscal year 2016. (State Plan for Independent 
Living and Center for Independent Living Programs, OMB Control Number 
1820-0527.) The law remains unchanged that the SPIL continues to govern 
the provision of IL services.
    Any amendments to the SPIL, reflecting either a change based on the 
WIOA amendments or any material change in State law, organization, 
policy, or agency operations that affect the administration of the 
SPIL, must be developed in accordance with Section 704(a)(2) of the 
Rehabilitation Act, as amended. SPIL amendments must be submitted to 
ACL for approval.
    WIOA changed the content of the SPIL to the extent that the SPIL 
must describe how the independent living services will promote full 
access to community life for individuals with significant disabilities 
and describe strategies for providing independent living services on a 
statewide basis, to the greatest extent possible. The SPIL must also 
include a justification for any funding allocation of Part B funds 
above 30% for the SILC's resource plan.
    We anticipate that such changes may, on average, increase the 
amount of time to develop the SPIL by five (5) hours. There are 57 
SPILs, one for each State, the District of Columbia, and the six 
territories. Assuming the same hourly cost of $57.66 discussed in the 
Regulatory Impact Analysis above, we therefore estimate the cost of the 
changes to be $16,433.1 (57 SPILs x $57.66/hour x 5 hours).We did not 
receive any comments on these calculations.
2. 704 Reporting Requirements
    The Section 704 Annual Performance Report (Parts I and II) are the 
Reporting Instruments used to collect information required by the 
Act,\5\ as amended by WIOA, related to the use of Part B and Part C 
funds. This regulation simply transfers the statutorily required annual 
reporting from the Department of Education Regulations to the 
Department of Health and Human Services (HHS) regulations. No 
additional reporting requirements are being added to the current OMB 
approved 704 report at this time. (Section 704 Annual Performance 
Report (Parts I and II), OMB Control Number 1820-0606).
---------------------------------------------------------------------------

    \5\ See Sections 704(c)(3) and (4), 704(m)(4)(D), 706(d), and 
725(c) of the Act.
---------------------------------------------------------------------------

    Prior to WIOA, an effort was underway to make formal changes to the 
704 Reporting Instruments. The passage of WIOA in July 2014 put those 
efforts on hold until late 2014. ACL is currently convening workgroups 
to recommend and implement changes in data collection, and these 
changes will be subject to the public comment process under the PRA 
before they are finalized. Key steps in ACL's current and projected 
timeline on the process include an external workgroup webinar, held 
April 1, 2015, to share the status of data collection efforts and 
invite feedback on specific issues. It is anticipated that additional 
external stakeholder engagement will occur during summer of 2016. The 
SILC indicators of minimum compliance will also be published in the 
Federal Register as part of this process. It is ACL's goal to publish 
the revised data collection proposals for comment in Federal Register 
in September 2016. According to this projected timeline, in October 
2017, programs will begin collecting information for the FY 18 
reporting period using the new data collection system. In December 
2018, the FY18 704 data collection system reflecting the new reporting 
requirements will be due.
    Updating data collection will require changes to include the new 
fifth core services under WIOA. We make final definitions for some of 
the terms in the fifth core services in this rule, and have made 
changes based on comments received. Assuming revised data collection 
requirements will include reporting on the new fifth core services, we 
estimate that providing the information will take approximately 1 hour 
per data report. Based on the total number of 704 Reports filed 
annually in past years,\6\ we estimate that the total number of 
additional hours to be 412.\7\
---------------------------------------------------------------------------

    \6\ See, 79 FR 23960 (April 29, 2014); information collection 
approved June 4, 2014 through June 30, 2017. http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201404-1820-001.
---------------------------------------------------------------------------

    Assuming the same hourly cost of $57.66 discussed in the regulatory 
impact analysis above, we estimate the cost of the changes to be 
$23,755.92. We received no comments on these estimates. In summary, 
future proposed changes to the Section 704 Annual Performance Report 
(Parts I and II) will be published in the Federal Register with 
opportunity for public comment.
    Section 706 of the Rehabilitation Act continues to require reviews 
of CILs funded under Section 722 and reviews of State entities funded 
under Section 723 of the Rehabilitation Act. Therefore, ACL will 
continue to conduct compliance reviews and make final decisions on any 
proposed corrective actions and/or technical assistance related to 
compliance reviews of a CIL's grants.
    In Section 706(b), 29 U.S.C. 796d-1(b), the Act, as amended by 
WIOA, requires the Administrator to develop and publish in the Federal 
Register new indicators of minimum compliance for Statewide Independent 
Living Councils. The SILC Standards and Indicators of minimum 
compliance are currently under development. ACL shared a draft for 
informal stakeholder review in January 2016 and continues to take 
stakeholder feedback. The CIL indicators of minimum compliance 
(consistent with the standards set forth in Section 725) are awaiting 
the addition of the fifth core services, which requires input in 
response to this proposed rule.
E. Unfunded Mandates Reform Act
    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that a covered agency prepare a budgetary impact statement before 
promulgating a rule that includes any Federal mandate that may result 
in expenditures by State, local, or Tribal governments, in the 
aggregate, or by the private sector, of $100 million, adjusted for 
inflation, or more in any one year.
    If a covered agency must prepare a budgetary impact statement, 
Section 205 further requires that it select the most cost-effective and 
least burdensome alternatives that achieves the objectives of the rule 
and is consistent with the statutory requirements. In addition, Section 
203 requires a plan for informing and advising any small government 
entities that may be significantly or uniquely impacted by a rule.
    ACL has determined that this rulemaking does not result in the 
expenditure by State, local, and Tribal governments in the aggregate, 
or by the private sector of more than $100 million in any one year. The 
total FY 2016 budget for the Independent Living Services and Centers 
for Independent Living programs authorized under Chapter 1, Title VII 
of the Rehabilitation Act of 1973 (Rehabilitation Act or Act), as 
amended by WIOA (Pub. L. 113-128) is $101,183,000. We do not anticipate 
that the rule will impact the majority of the budget for these 
programs.

[[Page 74694]]

F. Congressional Review

    This rule is not a major rule as defined in 5 U.S.C. Section 
804(2).

G. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a policy or 
regulation may affect family well-being. If the agency's conclusion is 
affirmative, then the agency must prepare an impact assessment 
addressing seven criteria specified in the law. These regulations do 
not have an impact on family well-being as defined in the legislation.

H. Executive Order 13132

    Executive Order 13132 on ``federalism'' was signed August 4, 1999. 
The purposes of the Order are to guarantee the division of governmental 
responsibilities between the national government and the States that 
was intended by the Framers of the Constitution, to ensure that the 
principles of federalism established by the Framers guide the executive 
departments and agencies in the formulation and implementation of 
policies, and to further the policies of the Unfunded Mandates Reform 
Act.
    The Department certifies that this rule does not have a substantial 
direct effect on States, on the relationship between the Federal 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. ACL is not 
aware of any specific State laws that would be preempted by the 
adoption of the regulation in subchapter C of 45 CFR part 1329.

List of Subjects in 45 CFR Part 1329

    Centers for independent living, Compliance, Enforcement and 
appeals, Independent living services, Persons with disabilities, 
Reporting.

    Dated: October 18, 2016.
Edwin Walker,
Acting Administrator, Administration for Community Living.

    Approved: October 19, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.


0
For the reasons stated in the preamble, the, Administration for 
Community Living, U.S. Department of Health and Human Services, amends 
45 CFR subchapter C by adding part 1329 to read as follows:

PART 1329--STATE INDEPENDENT LIVING SERVICES AND CENTERS FOR 
INDEPENDENT LIVING

Subpart A--General Provisions

Sec.
1329.1 Programs covered.
1329.2 Purpose.
1329.3 Applicability of other regulations.
1329.4 Definitions.
1329.5 Indicators of minimum compliance.
1329.6 Reporting.
1329.7 Enforcement and appeals procedures.
Subpart B--Independent Living Services
1329.10 Authorized use of funds for Independent Living Services.
1329.11 DSE eligibility and application.
1329.12 Role of the designated State entity.
1329.13 Allotment of Federal funds for State independent living (IL) 
services.
1329.14 Establishment of SILC.
1329.15 Duties of the SILC.
1329.16 Authorities of the SILC.
1329.17 General requirements for a State plan.
Subpart C--Centers for Independent Living Program
1329.20 Centers for Independent Living (CIL) program.
1329.21 Continuation awards to entities eligible for assistance 
under the CIL program.
1329.22 Competitive awards to new Centers for Independent Living.
1329.23 Compliance reviews.
1329.24 Training and technical assistance to Centers for Independent 
Living.

    Authority:  29 U.S.C. 709; 42 U.S.C. 3515e.

Subpart A--General Provisions


Sec.  1329.1  Programs covered.

    This part includes general requirements applicable to the conduct 
of the following programs authorized under title VII, chapter 1 of the 
Rehabilitation Act of 1973, as amended:
    (a) Independent Living Services (ILS), title VII, chapter 1, part B 
(29 U.S.C. 796e to 796e-3).
    (b) The Centers for Independent Living (CIL), title VII, chapter 1, 
part C (29 U.S.C. 796f to 796f-6).


Sec.  1329.2  Purpose.

    The purpose 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, in order to maximize the leadership, 
empowerment, independence, and productivity of individuals with 
disabilities, and to promote the integration and full inclusion of 
individuals with disabilities into the mainstream of American society 
by:
    (a) Providing financial assistance to States for providing, 
expanding, and improving the provision of IL services;
    (b) Providing financial assistance to develop and support statewide 
networks of Centers for Independent Living (Centers or CILs);
    (c) Providing financial assistance to States, with the goal of 
improving the independence of individuals with disabilities, for 
improving working relationships among--
    (1) State Independent Living Services;
    (2) Centers for Independent Living;
    (3) Statewide Independent Living Councils (SILCs or Councils) 
established under section 705 of the Act (29 U.S.C. 796d);
    (4) State vocational rehabilitation (VR) programs receiving 
assistance under Title 1 of the Act (29 U.S.C. 720 et seq.);
    (5) State programs of supported employment services receiving 
assistance under Title VI of the Act (29 U.S.C. 795g et seq.);
    (6) Client assistance programs (CAPs) receiving assistance under 
section 112 of the Act (29 U.S.C. 732);
    (7) Programs funded under other titles of the Act;
    (8) Programs funded under other Federal laws; and
    (9) Programs funded through non-Federal sources with the goal of 
improving the independence of individuals with disabilities.


Sec.  1329.3  Applicability of other regulations.

    Several other regulations apply to all activities under this part. 
These include but are not limited to:
    (a) 45 CFR part 16--Procedures of the Departmental Grant Appeals 
Board.
    (b) 45 CFR part 46--Protection of Human Subjects.
    (c) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards.
    (d) 45 CFR part 80--Nondiscrimination under Programs Receiving 
Federal Assistance through the Department of Health and Human 
Services--Effectuation of title VI of the Civil Rights Act of 1964.
    (e) 45 CFR part 81--Practice and Procedure for Hearings under Part 
80 of this Title.
    (f) 45 CFR part 84--Nondiscrimination on the Basis of Handicap in 
Programs Activities Receiving Federal Financial Assistance.
    (g) 45 CFR part 86--Nondiscrimination on the Basis of Sex in 
Education Programs or Activities Receiving Federal Financial 
Assistance.
    (h) 45 CFR part 91--Nondiscrimination on the Basis of Age in 
Programs or Activities Receiving Federal Financial Assistance from HHS.

[[Page 74695]]

    (i) 45 CFR part 93--New Restrictions on Lobbying.
    (j) 2 CFR part 376--Nonprocurement Debarment and Suspension.
    (k) 2 CFR part 382--Requirements for Drug-Free Workplace (Financial 
Assistance).


Sec.  1329.4  Definitions.

    For the purposes of this part, the following definitions apply:
    Act means the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), 
as amended. Part B refers to part B of chapter 1 of title VII of the 
Act (29 U.S.C. 796e to 796e-3). Part C refers to part C of chapter 1 of 
title VII, of the Act (29 U.S.C. 796f to 796f-6).
    Administrative support services means services and supports 
provided by the designated State entity under Part B, and to Part C 
CILs administered by the State under section 723 of the Act in support 
of the goals, objectives and related activities under an approved State 
Plan for Independent Living (SPIL). Such support includes any costs 
associated with contracts and subgrants including fiscal and 
programmatic oversight, among other services.
    Administrator means the Administrator of the Administration for 
Community Living (ACL) of the Department of Health and Human Services.
    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 
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.
    Center for independent living (``Center'') means a consumer-
controlled, community-based, cross-disability, nonresidential, private 
nonprofit agency for individuals with significant disabilities 
(regardless of age or income) that--
    (1) Is designed and operated within a local community by 
individuals with disabilities;
    (2) Provides an array of IL services as defined in section 7(18) of 
the Act, including, at a minimum, independent living core services as 
defined in this section; and
    (3) Complies with the standards set out in Section 725(b) and 
provides and complies with the assurances in section 725(c) of the Act 
and Sec.  1329.5.
    Completed their secondary education means, with respect to the 
Independent Living Core Services that facilitate the transition of 
youth who are individuals with significant disabilities in section 
7(17)(e)(iii) of the Act, that an eligible youth has received a 
diploma; has received a certificate of completion for high school or 
other equivalent document marking the completion of participation in 
high school; or has exceeded the age of eligibility for services under 
IDEA.
    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, in terms of the management, staffing, 
decision making, operation, and provision of services. Consumer 
control, with respect to an individual, means that the individual with 
a disability asserts control over his or her personal life choices, and 
in addition, has control over his or her independent living plan (ILP), 
making informed choices about content, goals and implementation.
    Cross-disability means, with respect to services provided by a 
Center, that a Center provides services to individuals with all 
different types of significant disabilities, including individuals with 
significant disabilities who are members of unserved or underserved 
populations by programs under Title VII. Eligibility for services shall 
be determined by the Center, and shall not be based on the presence of 
any one or more specific significant disabilities.
    Designated State entity (DSE) is the State agency designated in the 
State Plan for Independent Living (SPIL) that acts on behalf of the 
State to provide the functions described in title VII, chapter 1 of the 
Act.
    Eligible agency means a consumer-controlled, community-based, 
cross-disability, nonresidential, private, nonprofit agency.
    Independent living core services mean, for purposes of services 
that are supported under the ILS or CIL programs--
    (1) Information and referral services;
    (2) Independent Living skills training;
    (3) Peer counseling, including cross-disability peer counseling;
    (4) Individual and systems advocacy;
    (5) Services that:
    (i) Facilitate the transition of individuals with significant 
disabilities from nursing homes and other institutions to home and 
community-based residences, with the requisite supports and services. 
This process may include providing services and supports that a 
consumer identifies are needed to move that person from an 
institutional setting to community based setting, including systems 
advocacy required for the individual to move to a home of his or her 
choosing;
    (ii) Provide assistance to individuals with significant 
disabilities who are at risk of entering institutions so that the 
individuals may remain in the community. A determination of who is at 
risk of entering an institution should include self-identification by 
the individual as part of the intake or goal-setting process; and
    (iii) Facilitate the transition of youth who are individuals with 
significant disabilities, who were eligible for individualized 
education programs under section 614(d) of the Individuals with 
Disabilities Education Act (20 U.S.C. 1414(d)), and who have completed 
their secondary education or otherwise left school, to postsecondary 
life. Individuals who have reached the age of 18 and are still 
receiving services in accordance with an Individualized Education 
Program (IEP) under IDEA have not ``completed their secondary 
education.''
    Independent living service includes the independent living core 
services and such other services as described in section 7(18) of the 
Act.
    Individual with a disability means an individual who--
    (1) Has a physical or mental impairment that substantially limits 
one or more major life activities of such individual;
    (2) Has a record of such an impairment; or
    (3) Is regarded as having such an impairment, as described in 
section 3(3) of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12102(3)).
    Individual with a significant disability means an individual with a 
severe physical or mental impairment whose ability to function 
independently in the

[[Page 74696]]

family or community or whose ability to obtain, maintain, or advance in 
employment is substantially limited and for whom the delivery of 
independent living services will improve the ability to function, 
continue functioning, or move toward functioning independently in the 
family or community or to continue in employment, respectively.
    Majority means more than 50 percent.
    Minority group means American Indian, Alaskan Native, Asian 
American, Black or African American (not of Hispanic origin), Hispanic 
or Latino (including persons of Mexican, Puerto Rican, Cuban, and 
Central or South American origin), and Native Hawaiian or other Pacific 
Islander.
    Nonresidential means, with respect to a Center, that the Center 
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.
    Peer relationships mean relationships involving mutual support and 
assistance among individuals with significant disabilities who are 
actively pursuing IL goals.
    Peer role models mean individuals with significant disabilities 
whose achievements can serve as a positive example for other 
individuals with significant disabilities.
    Personal assistance services mean a range of services, paid or 
unpaid, provided by one or more persons, designed to assist an 
individual with a disability to perform daily living activities that 
the individual would typically perform if the individual did not have a 
disability. These services must be designed to increase the 
individual's control in life and ability to perform everyday activities 
and include but are not limited to: Getting up and ready for work or 
going out into the community (including bathing and dressing), cooking, 
cleaning or running errands, engaging in social relationships including 
parenting.
    Service provider means a Center for Independent Living that 
receives financial assistance under Part B or C of chapter 1 of title 
VII of the Act, or any other entity or individual that provides IL 
services under a grant or contract from the DSE pursuant to Section 
704(f) of the Act. A designated State entity (DSE) may directly provide 
IL services to individuals with significant disabilities only as 
specifically authorized in the SPIL.
    State includes, 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, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands.
    State plan means the State Plan for Independent Living (SPIL) 
required under Section 704 of the Act.
    Unserved and underserved groups or populations include populations 
such as individuals from racial and ethnic minority backgrounds, 
disadvantaged individuals, individuals with limited English 
proficiency, and individuals from underserved geographic areas (rural 
or urban).
    Youth with a significant disability means an individual with a 
significant disability who--
    (1) Is not younger than 14 years of age; and
    (2) Is not older than 24 years of age.


Sec.  1329.5  Indicators of minimum compliance.

    To be eligible to receive funds under this part, a Center must 
comply with the standards in section 725(b) and assurances in section 
725(c) of the Act, with the indicators of minimum compliance, and the 
requirements contained in the terms and conditions of the grant award.


Sec.  1329.6  Reporting.

    (a) A Center must submit a performance report in a manner and at a 
time described by the Administrator, consistent with section 
704(m)(4)(D) of the Act, 29 U.S.C. 796c(m)(4)(D).
    (b) The DSE must submit a report in a manner and at a time 
described by the Administrator, consistent with section 704(c)(4) of 
the Act, 29 U.S.C. 796c(c)(4).
    (c) The Administrator may require such other reports as deemed 
necessary to carry out the responsibilities set forth in section 706 of 
the Act, 29 U.S.C. 796d-1.


Sec.  1329.7  Enforcement and appeals procedures.

    (a) Process for Centers for Independent Living. (1) If the Director 
of the Independent Living Administration (Director) determines that, as 
the result of the Onsite Compliance Review process defined in section 
706(c)(2), or other review activities, any Center receiving funds under 
this part, other than a Center that is provided Part C funding by the 
State under section 723 of the Act, is not in compliance with the 
standards and assurances in section 725 (b) and (c) of the Act and of 
this part, the Director must provide notice to the Center pursuant to 
guidance determined by the Administrator.
    (2) The Director may offer technical assistance to the Center to 
develop a corrective action plan or to take such other steps as are 
necessary to come into compliance with the standards and assurances.
    (3) The Center may request a preliminary appeal to the Director in 
a form and manner determined by the Administrator. The Director shall 
review the appeal request and provide written notice of the 
determination within a timely manner.
    (4) Where there is a determination that falls within 45 CFR part 
16, appendix A, C.a.(1)-(4), the Center may appeal an unfavorable 
decision by the Director to the Administrator within a time and manner 
established by the Administrator. The Administrator shall review the 
appeal request and provide written notice of the determination within a 
timely manner.
    (5) The Administrator may take steps to enforce a corrective action 
plan or to terminate funding if the Administrator determines that the 
Center remains out of compliance.
    (6) Written notice of the determination by the Administrator shall 
constitute a final determination for purposes of 45 CFR part 16. A 
Center that receives such notice of a determination that falls within 
45 CFR part 16, appendix A, C.a.(1)-(4), may appeal to the Departmental 
Appeals Board pursuant to the provisions of 45 CFR part 16.
    (7) A Center that is administered by the State under Section 723 of 
the Act must first exhaust any State process before going through the 
process described in paragraphs (a)(1) through (6) of this section.
    (b) Process for States. (1) If the Director of the Independent 
Living Administration determines that a State is out of compliance with 
sections 704, 705, 713 or other pertinent sections of the Act, the 
Director must provide notice to the State pursuant to guidance 
determined by the Administrator.
    (2) The Director may offer technical assistance to the State to 
develop a corrective action plan or to take such other steps as are 
necessary to ensure that the State comes in to compliance.
    (3) Where there is a determination that falls within 45 CFR part 
16, appendix A, C.a.(1)-(4), the State may seek an appeal consistent 
with the steps set forth in paragraphs (a)(3) and (4) of this section.

[[Page 74697]]

    (4) The Administrator may take steps to enforce statutory or 
regulatory requirements or to terminate funding if the Administrator 
determines that the State remains out of compliance.
    (5) Written notice of the determination by the Administrator shall 
constitute a final determination for purposes of 45 CFR part 16 with 
regard to the types of determinations set forth in 45 CFR part 16, 
appendix A, C.a.(1)-(4). A State that receives such notice may appeal 
to the Departmental Appeals Board pursuant to the provisions of 45 CFR 
part 16.

Subpart B--Independent Living Services


Sec.  1329.10  Authorized use of funds for Independent Living Services.

    (a) The State:
    (1) May use funds received under this part to support the SILC 
resource plan described in section 705(e) of the Act but may not use 
more than 30 percent of the funds unless an approved SPIL so specifies 
pursuant to Sec.  1329.15(c);
    (2) May retain funds under section 704(c)(5) of the Act; and
    (3) Shall distribute the remainder of the funds received under this 
part in a manner consistent with the approved State plan for the 
activities described in paragraph (b) of this section.
    (b) The State may use the remainder of the funds described in 
paragraph (a)(3) of this section to--
    (1) Provide to individuals with significant disabilities the 
independent living (IL) services required by section 704(e) of the Act, 
particularly those in unserved areas of the State;
    (2) Demonstrate ways to expand and improve IL services;
    (3) Support the operation of Centers for Independent Living 
(Centers) that are in compliance with the standards and assurances in 
section 725 (b) and (c) of the Act;
    (4) Support activities to increase the capacities of public or 
nonprofit agencies and organizations and other entities to develop 
comprehensive approaches or systems for providing IL services;
    (5) Conduct studies and analyses, gather information, develop model 
policies and procedures, and present information, approaches, 
strategies, findings, conclusions, and recommendations to Federal, 
State, and local policy makers in order to enhance IL services for 
individuals with significant disabilities;
    (6) Train individuals with disabilities and individuals providing 
services to individuals with disabilities, and other persons regarding 
the IL philosophy; and
    (7) Provide outreach to populations that are unserved or 
underserved by programs under title VII of the Act, including minority 
groups and urban and rural populations.


Sec.  1329.11  DSE eligibility and application.

    (a) Any designated State entity (DSE) identified by the State and 
included in the signed SPIL pursuant to section 704(c) is eligible to 
apply for assistance under this part in accordance with section 704 of 
the Act, 29 U.S.C. 796c.
    (b) To receive financial assistance under Parts B and C of chapter 
1 of title VII, a State shall submit to the Administrator and obtain 
approval of a State plan that meets the requirements of section 704 of 
the Act, 29 U.S.C. 796c.
    (c) Allotments to states are determined in accordance with section 
711 of the Act, 29 U.S.C. 796e.


Sec.  1329.12  Role of the designated State entity.

    (a) A DSE that applies for and receives assistance must:
    (1) Receive, account for, and disburse funds received by the State 
under Part B and Part C in a State under section 723 of the Act based 
on the State plan;
    (2) Provide administrative support services for a program under 
Part B, as directed by the approved State plan, and for CILs under Part 
C when administered by the State under section 723 of the Act, 29 
U.S.C. 796f-2;
    (3) Keep such records and afford such access to such records as the 
Administrator finds to be necessary with respect to the programs;
    (4) Submit such additional information or provide such assurances 
as the Administrator may require with respect to the programs; and
    (5) Retain not more than 5 percent of the funds received by the 
State for any fiscal year under Part B, for the performance of the 
services outlined in paragraphs (a)(1) through (4) of this section. For 
purposes of these regulations, the 5 percent cap on funds for 
administrative expenses applies only to the Part B funds allocated to 
the State and to the State's required 10 percent Part B match. It does 
not apply to other program income funds, including, but not limited to, 
payments provided to a State from the Social Security Administration 
for assisting Social Security beneficiaries and recipients to achieve 
employment outcomes, any other federal funds, or to other funds 
allocated by the State for IL purposes.
    (b) The DSE must also carry out its other responsibilities under 
the Act, including, but not limited to:
    (1) Allocating funds for the delivery of IL services under Part B 
of the Act as directed by the SPIL; and
    (2) Allocating the necessary and sufficient resources needed by the 
SILC to fulfill its statutory duties and authorities under section 
705(c), consistent with the approved State Plan.
    (c) Fiscal and accounting requirements: The DSE must adopt fiscal 
control and fund accounting procedures as may be necessary to ensure 
the proper disbursement of and accounting for federal funds provided to 
CILs, SILCs, and/or other services providers under the ILS program. The 
DSE must comply with all applicable federal and State laws and 
regulations, including those in 45 CFR part 75.


Sec.  1329.13  Allotment of Federal funds for State independent living 
(IL) services.

    (a) The allotment of Federal funds for State IL services for each 
State is computed in accordance with the requirements of section 
711(a)(1) of the Act.
    (b) Notwithstanding paragraph (a) of this section, the allotment of 
Federal funds for Guam, American Samoa, the United States Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands is 
computed in accordance with section 711(a)(2) of the Act.
    (c) The Administrator shall reserve between 1.8 percent and 2 
percent of appropriated funds to provide, either directly or through 
grants, contracts, or cooperative agreements, training and technical 
assistance to SILCs. Training and technical assistance funds shall be 
administered in accordance with section 711A of the Act.


Sec.  1329.14  Establishment of a SILC.

    (a) To be eligible to receive assistance under this part, each 
State shall establish and maintain a SILC that meets the requirements 
of section 705 of the Act, including composition and appointment of 
members.
    (b) The SILC shall not be established as an entity within a State 
agency, including the DSE. The SILC shall be independent of and 
autonomous from the DSE and all other State agencies.


Sec.  1329.15  Duties of the SILC.

    (a) The duties of the SILC are those set forth in section 705(c), 
(d), and (e) of the Act.
    (1) The SILC shall develop the SPIL in accordance with guidelines 
developed by the Administrator;
    (2) The SILC shall monitor, review and evaluate the implementation 
of the SPIL on a regular basis as determined by the SILC and set forth 
in the SPIL;
    (3) The SILC shall meet regularly, and ensure that such meetings 
are open to

[[Page 74698]]

the public and sufficient advance notice of such meetings is provided;
    (4) The SILC shall submit to the Administrator such periodic 
reports as the Administrator may reasonably request, and keep such 
records, and afford such access to such records, as the Administrator 
finds necessary to verify the information in such reports; and
    (5) The SILC shall, as appropriate, coordinate activities with 
other entities in the State that provide services similar to or 
complementary to independent living services, such as entities that 
facilitate the provision of or provide long-term community-based 
services and supports.
    (b) In carrying out the duties under this section, the SILC may 
provide contact information for the nearest appropriate CIL. Sharing of 
such information shall not constitute the direct provision of 
independent living services as defined in section 705(c)(3) of the Act.
    (c) The SILC, in conjunction with the DSE, shall prepare a plan for 
the provision of resources, including staff and personnel that are 
necessary and sufficient to carry out the functions of the SILC.
    (1) The resource plan amount shall be commensurate, to the extent 
possible, with the estimated costs related to SILC fulfilment of its 
duties and authorities consistent with the approved State Plan.
    (2) Available resources include: Innovation and Expansion (I&E) 
funds authorized by 29 U.S.C. 721(a)(18); Independent Living Part B 
funds; State matching funds; other public funds (such as Social 
Security reimbursement funds); and private sources.
    (3) In accordance with Sec.  1329.10(a)(1), no more than 30 percent 
of the State's allocation of Part B and Part B State matching funds may 
be used to fund the resource plan, unless the approved SPIL provides 
that more than 30 percent is needed and justifies the greater 
percentage.
    (4) No conditions or requirements may be included in the SILC's 
resource plan that may compromise the independence of the SILC.
    (5) The SILC is responsible for the proper expenditure of funds and 
use of resources that it receives under the resource plan.
    (6) A description of the SILC's resource plan must be included in 
the State plan. The plan should include:
    (i) Staff/personnel;
    (ii) Operating expenses;
    (iii) Council compensation and expenses;
    (iv) Meeting expenses, including public hearing expenses, such as 
meeting space, alternate formats, interpreters, and other 
accommodations;
    (v) Resources to attend and/or secure training for staff and 
Council members; and
    (vi) Other costs as appropriate.
    (d) The SILC shall carry out the activities in paragraph (a), to 
better serve individuals with significant disabilities and help achieve 
the purpose of section 701 of the Act.
    (e) 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.


Sec.  1329.16  Authorities of the SILC.

    (a) The SILC may conduct the following discretionary activities, as 
authorized and described in the approved State Plan:
    (1) Work with Centers for Independent Living to coordinate services 
with public and private entities to improve services provided to 
individuals with disabilities;
    (2) Conduct resource development activities to support the 
activities described in the approved SPIL and/or to support the 
provision of independent living services by Centers for Independent 
Living; and
    (3) Perform such other functions, consistent with the purpose of 
this part and comparable to other functions described in section 705(c) 
of the Act, as the Council determines to be appropriate and authorized 
in the approved SPIL.
    (b) In undertaking the foregoing duties and authorities, the SILC 
shall:
    (1) Coordinate with the CILs in order to avoid conflicting or 
overlapping activities within the CILs' established service areas;
    (2) Not engage in activities that constitute the direct provision 
of IL services to individuals, including the IL core services; and
    (3) Comply with Federal prohibitions against lobbying.


Sec.  1329.17  General requirements for a State plan.

    (a) The State may use funds received under Part B to support the 
Independent Living Services program and to meet its obligations under 
the Act, including the section 704(e) requirements that apply to the 
provision of independent living services. The State plan must stipulate 
that the State will provide IL services, directly and/or through grants 
and contracts, with Federal, State or other funds, and must describe 
how and to whom those funds will be disbursed for this purpose.
    (b) In order to receive financial assistance under this part, a 
State shall submit to the Administrator a State plan for independent 
living.
    (1) The State plan must contain, in the form prescribed by the 
Administrator, the information set forth in section 704 of the Act, 
including designation of an Agency to serve as the designated State 
entity, and such other information requested by the Administrator.
    (2) The State plan must contain the assurances set forth in section 
704(m) of the Act.
    (3) The State plan must be signed in accordance with the provisions 
of this section.
    (4) The State plan must be submitted 90 days before the completion 
date of the proceeding plan, and otherwise in the time frame and manner 
prescribed by the Administrator.
    (5) The State plan must be approved by the Administrator.
    (c) The State plan must cover a period of not more than three years 
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.
    (d) The State plan must be jointly--
    (1) Developed by the chairperson of the SILC, and the directors of 
the CILs, after receiving public input from individuals with 
disabilities and other stakeholders throughout the State; and
    (2) Signed by the--
    (i) Chairperson of the SILC, acting on behalf of and at the 
direction of the SILC;
    (ii) The director of the DSE, signifying agreement to execute the 
responsibilities of the DSE identified in section 704(c) of the Act; 
and
    (iii) Not less than 51 percent of the directors of the CILs in the 
State. For purposes of this provision, if a legal entity that 
constitutes the ``CIL'' has multiple Part C grants considered as 
separate Centers for all other purposes, for SPIL signature purposes, 
it is only considered as one Center. CILs with service areas in more 
than one State that meet the other applicable requirements are eligible 
to participate in SPIL development and sign the SPIL in each of the 
relevant States.
    (e) The State plan must provide for the review and revision of the 
plan, not less than once every three years, to ensure the existence of 
appropriate planning, financial support and coordination, and other 
assistance to meet the requirements of section 704(a) of the Act.
    (f) The public, including people with disabilities and other 
stakeholders throughout the State, must have an opportunity to comment 
on the State plan prior to its submission to the

[[Page 74699]]

Administrator and on any revisions to the approved State plan. Meeting 
this standard for public input from individuals with disabilities 
requires providing reasonable modifications in policies, practices, or 
procedures; effective communication and appropriate auxiliary aids and 
services for individuals with disabilities, which may include the 
provision of qualified interpreters and information in alternate 
formats, free of charge.
    (1) The requirement for public input in this section may be met by 
holding public meetings before a preliminary draft State plan is 
prepared and by providing a preliminary draft State plan for comment 
prior to submission.
    (2) To meet the public input standard of this section, a public 
meeting requires:
    (i) Accessible, appropriate and sufficient notice provided at least 
30 days prior to the public meeting through various media available to 
the general public, such as Web sites, newspapers and public service 
announcements, and through specific contacts with appropriate 
constituency groups.
    (ii) All notices, including notices published on a Web site, and 
other written materials provided at or prior to public meetings must be 
available upon request in accessible formats.
    (g) The State plan must identify those provisions 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 DSE'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 this part.
    (h) The State plan must address how the specific requirements in 
the Act and in paragraph (f) of this section will be met.

Subpart C--Centers for Independent Living Program


Sec.  1329.20  Centers for Independent Living (CIL) program.

    State allotments of Part C, funds shall be based on section 721(c) 
of the Act, and distributed to Centers within the State in accordance 
with the order of priorities in sections 722(e) and 723(e) of the Act.


Sec.  1329.21  Continuation awards to entities eligible for assistance 
under the CIL program.

    (a) In any State in which the Administrator has approved the State 
plan required by section 704 of the Act, an eligible agency funded 
under Part C in fiscal year 2015 may receive a continuation award in FY 
2016 or a succeeding fiscal year if the Center has--
    (1) Complied during the previous project year with the standards 
and assurances in section 725 of the Act and the terms and conditions 
of its grant; and
    (2) Submitted an approvable annual performance report demonstrating 
that the Center meets the indicators of minimum compliance referenced 
in in Sec.  1329.5.
    (b) If an eligible agency administers more than one Part C grant, 
each of the Center grants must meet the requirements of paragraph (a) 
of this section to receive a continuation award.
    (c) A designated State entity (DSE) that operated a Center in 
accordance with section 724(a) of the Act in fiscal year (FY) 2015 is 
eligible to continue receiving assistance under this part in FY 2016 or 
a succeeding fiscal year if, for the fiscal year for which assistance 
is sought--
    (1) No nonprofit private agency submits and obtains approval of an 
acceptable application under section 722 or 723 of the Act to operate a 
Center for that fiscal year before a date specified by the 
Administrator; or
    (2) After funding all applications so submitted and approved, the 
Administrator determines that funds remain available to provide that 
assistance.
    (d) A Center operated by the DSE under section 724(a) of the Act 
must comply with paragraphs (a), (b), and (c) of this section to 
receive continuation funding, except for the requirement that the 
Center be a private nonprofit agency.
    (e) A designated State entity that administered Part C funds and 
awarded grants directly to Centers within the State under section 723 
of the Act in fiscal year (FY) 2015 is eligible to continue receiving 
assistance under section 723 in FY 2016 or a succeeding fiscal year if 
the Administrator determines that the amount of State funding earmarked 
by the State to support the general operation of Centers during the 
preceding fiscal year equaled or exceeded the amount of federal funds 
allotted to the State under section 721(c) of the Act for that fiscal 
year.
    (f) A DSE may apply to administer Part C funds under section 723 in 
the time and in the manner that the Administrator may require, 
consistent with section 723(a)(1)(A) of the Act.
    (g) Grants awarded by the DSE under section 723 of the Act are 
subject to the requirements of paragraphs (a) and (b) of this section 
and the order of priorities in section 723(e) of the Act, unless the 
DSE and the SILC jointly agree on another order of priorities.


Sec.  1329.22  Competitive awards to new Centers for Independent 
Living.

    (a) Subject to the availability of funds and in accordance with the 
order of priorities in section 722(e) of the Act and the State Plan's 
design for the statewide network of Centers, an eligible agency may 
receive Part C funding as a new Center for Independent Living in a 
State, if the eligible agency:
    (1) Submits to the Administrator an application at the time and 
manner required in the funding opportunity announcement (FOA) issued by 
the Administrator which contains the information and meets the 
selection criteria established by the Administrator in accordance with 
section 722(d) of the Act;
    (2) Proposes to serve a geographic area that has been designated as 
a priority unserved or underserved in the State Plan for Independent 
Living and that is not served by an existing Part C-funded Center; and
    (3) Is determined by the Administrator to be the most qualified 
applicant to serve the designated priority area consistent with the 
State plan setting forth the design of the State for establishing a 
statewide network of Centers for independent living.
    (b) An existing Part C-funded Center may apply to serve the 
designated unserved or underserved areas if it proposes the 
establishment of a separate and complete Center (except that the 
governing board of the existing center may serve as the governing board 
of the new Center) at a different geographic location, consistent with 
the requirements in the FOA.
    (c) An eligible agency located in a bordering, contiguous State may 
be eligible for a new CIL award if the Administrator determines, based 
on the submitted application, that the agency:
    (1) Is the most qualified applicant meeting the requirements in 
paragraphs (a) and (b) of this section; and
    (2) Has the expertise and resources necessary to serve individuals 
with significant disabilities who reside in the bordering, contiguous 
State, in accordance with the requirements of the Act and these 
regulations.
    (d) If there are insufficient funds under the State's allotment to 
fund a new Center, the Administrator may--
    (1) Use the excess funds in the State to assist existing Centers 
consistent with the State plan; or
    (2) Reallot these funds in accordance with section 721(d) of the 
Act.

[[Page 74700]]

Sec.  1329.23  Compliance reviews.

    (a) Centers receiving Part C funding shall be subject to periodic 
reviews, including on-site reviews, in accordance with sections 706(c), 
722(g), and 723(g) of the Act and guidance set forth by the 
Administrator, to verify compliance with the standards and assurances 
in section 725(b) and (c) of the Act and the grant terms and 
conditions. The Administrator shall annually conduct reviews of at 
least 15 percent of the Centers.
    (b) A copy of each review under this section shall be provided, in 
the case of section 723(g), by the director of the DSE to the 
Administrator and to the SILC, and in the case of section 722(g), by 
the Administrator to the SILC and the DSE.


Sec.  1329.24  Training and technical assistance to Centers for 
Independent Living.

    The Administrator shall reserve between 1.8% and 2% of appropriated 
funds to provide training and technical assistance to Centers through 
grants, contracts or cooperative agreements, consistent with section 
721(b) of the Act. The training and technical assistance funds shall be 
administered in accordance with section 721(b) of the Act.
[FR Doc. 2016-25918 Filed 10-26-16; 8:45 am]
 BILLING CODE 4150-04-P



                                                74682            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                to open for emergencies and there is no                 SUPPLEMENTARY INFORMATION:                            NPRM did not intend to conflate
                                                immediate alternate route for vessels to                                                                      person-centeredness and consumer
                                                                                                        I. Discussion of Final Rule
                                                pass. The Coast Guard will also inform                                                                        control or other key terms in the IL
                                                the users of the waterway through our                      The federal Independent Living (IL)                purpose. The proposed regulatory
                                                Local and Broadcast Notices to Mariners                 program seeks to empower and enable                   language did not include person-
                                                of the change in operating schedule for                 individuals with disabilities,                        centeredness; the language was
                                                the bridge so that vessel operators can                 particularly individuals with significant             included in the preamble to the NPRM
                                                arrange their transits to minimize any                  disabilities, to exercise full choice and             to both highlight this requirement in the
                                                impact caused by the temporary                          control over their lives and to live                  home and community-based services
                                                deviation.                                              independently in their communities.                   and supports (HCBS) settings context,
                                                   In accordance with 33 CFR 117.35(e),                 For over 40 years, these aims have been               and offer an opportunity to IL programs
                                                the drawbridge must return to its regular               advanced through two federal programs:                and stakeholders to help shape person-
                                                operating schedule immediately at the                   Independent Living Services (ILS) and                 centered planning and self-direction
                                                end of the effective period of this                     Centers for Independent Living (referred              principles in HHS-funded programs and
                                                temporary deviation. This deviation                     to as CILs or Centers). The Workforce                 practices that serve people with
                                                from the operating regulations is                       Innovation and Opportunity Act                        significant disabilities, as they
                                                authorized under 33 CFR 117.35.                         (WIOA) transferred these Independent                  increasingly are embedded in the work
                                                                                                        Living programs to the Administration                 we do at ACL and across HHS. This
                                                  Dated: October 24, 2016.
                                                                                                        for Community Living (ACL) and                        language applies in the HCBS settings
                                                D.H. Sulouff,                                           created a new Independent Living
                                                District Bridge Chief, Eleventh Coast Guard
                                                                                                                                                              context and does not limit consumer
                                                                                                        Administration within the agency,                     control or anything centers do with Title
                                                District.                                               adding section 701A of the
                                                [FR Doc. 2016–26015 Filed 10–26–16; 8:45 am]
                                                                                                                                                              VII funding.
                                                                                                        Rehabilitation Act, 29 U.S.C. 796–1. As                 One commenter suggested that
                                                BILLING CODE 9110–04–P                                  part of the transfer, the Administrator of            Centers should not be penalized for
                                                                                                        ACL (Administrator) drafted a Notice of               hiring individuals who do not have
                                                                                                        Proposed Rule Making (NPRM) that was                  significant disabilities when candidates
                                                DEPARTMENT OF HEALTH AND                                published on November 16, 2015,to                     who have significant disabilities do not
                                                HUMAN SERVICES                                          implement changes made by WIOA in                     apply, or if those who do apply are not
                                                                                                        accordance with Section 12 of the                     qualified, and the CIL therefore fails to
                                                Administration for Community Living                     Rehabilitation Act, as amended, 29                    meet the requirement that the majority
                                                                                                        U.S.C. 709(e), and section 491(f) of                  of staff are individuals with disabilities.
                                                45 CFR Part 1329                                        WIOA, 42 U.S.C. 3515e(f).                             The majority hiring requirement is
                                                RIN 0985–AA10                                              ACL received over 100 comments to                  beyond the scope of this rule; however,
                                                                                                        the NPRM, most of them expressing                     the ongoing requirement that a Center
                                                Independent Living Services and                         their support for the provisions in the               ensure that the majority of the staff, and
                                                Centers for Independent Living                          proposed rule. ACL has read and                       individuals in decision-making
                                                                                                        considered each of the comments                       positions are individuals with
                                                AGENCY:  Independent Living                             received. We respond here to the most-
                                                Administration, Administration for                                                                            disabilities is consistent with the
                                                                                                        commonly-received comments and to                     consumer directed, self-help, and self-
                                                Community Living, HHS.                                  those that we believe require further
                                                ACTION: Final rule.                                                                                           advocacy principles in the IL
                                                                                                        discussion. We have indicated changes                 Philosophy.
                                                SUMMARY:   This rule implements the                     made between the NPRM and final rule.
                                                                                                           Several comments raised issues that                Definitions (§ 1329.4)
                                                Rehabilitation Act as amended by the
                                                                                                        are specific to the commenter.                        New IL Core Services Definitions
                                                Workforce Innovation and Opportunity
                                                                                                        Responding to such comments is
                                                Act, which established an Independent                                                                            WIOA added a new fifth requirement
                                                                                                        beyond the scope of the final regulation.
                                                Living Administration within the                                                                              to the Independent Living Core
                                                                                                        Nevertheless, we encourage commenters
                                                Administration for Community Living                                                                           Services, which includes services that—
                                                                                                        with individualized questions to contact
                                                (ACL) of the Department of Health and                                                                            • Facilitate the transition of
                                                                                                        the technical and training support
                                                Human Services (HHS). The rule helps                                                                          individuals with significant disabilities
                                                                                                        center or the ILA specialist for their
                                                implement changes to the                                                                                      from nursing homes and other
                                                                                                        State for assistance with their questions.
                                                administration of Independent Living                                                                          institutions to home and community-
                                                                                                        We also made a number of technical
                                                Services and the Centers for                                                                                  based residences, with the requisite
                                                                                                        changes in the preamble, for example, to
                                                Independent Living made under the                                                                             supports and services;
                                                                                                        reflect that the term ‘‘704 Reporting
                                                current law in alignment with ACL and                                                                            • Provide assistance to individuals
                                                                                                        Instruments’’ will no longer be used for
                                                HHS policies and practices.                                                                                   with significant disabilities who are at
                                                                                                        data collection going forward, and to
                                                DATES: These final regulations are                                                                            risk of entering institutions so that the
                                                                                                        clarify potentially confusing references
                                                effective November 28, 2016.                            to the ‘‘State.’’                                     individuals may remain in the
                                                FOR FURTHER INFORMATION CONTACT:                                                                              community; and
                                                Molly Burgdorf, Administration for                      Subpart A—General Provisions                             • Facilitate the transition of youth
                                                Community Living, telephone (202)                         ACL received numerous comments                      who are individuals with significant
                                                795–7317 (Voice). This is not a toll-free               expressing concern about the person-                  disabilities, who were eligible for
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                                                number. This document will be made                      centered planning language in the                     individualized education programs
                                                available in alternative formats upon                   NPRM preamble, including the                          under section 614(d) of the Individuals
                                                request. Written correspondence can be                  statement that person centered planning               with Disabilities Education Act (20
                                                sent to the Administration for                          and consumer control ‘‘are not                        U.S.C. 1414(d)), and who have
                                                Community Living, U.S. Department of                    interchangeable terms.’’                              completed their secondary education or
                                                Health and Human Services, 330 C St.                      ACL affirms that consumer control is                otherwise left school, to postsecondary
                                                SW., Washington, DC 20201.                              a guiding principle in IL. To clarify, the            life.


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                       74683

                                                (Sec. 7(17)(E) of the Act, 29 U.S.C.                    including ‘‘any congregate living                     regulations should not preclude serving
                                                705(17)(E)).                                            arrangement of any size in which                      those individuals who, of their own
                                                   ACL received many comments                           residents with disabilities are not in                volition, have chosen forms of co-
                                                expressing concern about being able to                  control of their own lives,’’ a parental/             housing, cooperatives, or Naturally
                                                effectively provide the new IL core                     guardian controlled home, or ‘‘any                    Occurring Retirement Communities
                                                services without the allocation of                      situation in which a person with a                    (NORCs).’’
                                                                                                        disability is not free to control all                    As some commenters recommended,
                                                additional funding. We cannot address
                                                                                                        aspects of his or her life.’’ ACL did not             ACL considered language in Medicaid
                                                concerns about funding levels for IL
                                                                                                        incorporate this approach, as we                      regulations that define home and
                                                programs in the final regulation. We
                                                                                                        concluded that the suggested categories               community-based settings for certain
                                                also wish to clarify that funds for
                                                                                                        were vague and overbroad. For instance,               Medicaid programs. ACL encourages IL
                                                transition services allocated to other
                                                                                                        these examples are not limited to adults,             programs to consult the language in the
                                                agencies are based under separate                                                                             rule defining HCBS settings for
                                                                                                        and minors are not given authority to
                                                statutory authorities and appropriations.                                                                     Medicaid waivers under section 1915(c)
                                                                                                        control all aspects of their lives,
                                                   ACL will support programs in
                                                                                                        including moving from a home where                    of the Social Security Act at 42 CFR
                                                accomplishing and reporting IL services.
                                                                                                        the person lives with a parent or                     441.301(c)(4), for state plan HCBS at 42
                                                To add value and help enhance the                                                                             CFR 441.710(a)(1) and (2) or for
                                                                                                        guardian. Other commenters suggested
                                                work CILs are already doing in this area,                                                                     Community First Choice services at 42
                                                                                                        narrowing the definition and excluding
                                                ACL offers technical assistance for state                                                                     CFR 441.530(a)(1) and (2). These CMS
                                                                                                        certain settings such as correctional
                                                and community-based aging and                                                                                 regulations provide details on the
                                                                                                        facilities.
                                                disability organizations (CBOs) through                    ACL has not included a specific                    qualities of home and community-based
                                                national partners as well as through                    definition of the term institution here,              settings, as compared with those that
                                                learning collaboratives of networks of                  so that the categories will be sufficiently           have the qualities of an institutional
                                                community-based aging and disability                    broad and allow flexibility to CILs.                  setting. However, we did not import the
                                                organizations, including Centers for                    Without specifically defining the term,               definition from the CMS HCBS rules
                                                Independent Living. ACL looks forward                   we identify the following examples of                 into this rule. ACL seeks to encourage
                                                to engaging more of the IL community                    entities that fall within the category of             CILs to assist the broadest range of
                                                in these efforts to support and improve                 ‘‘institution,’’ which includes but is not            individuals as they transition from an
                                                business acumen, which has enabled                      limited to: Hospitals, nursing facilities             institutional to a community-based
                                                CBOs to garner funding through public-                  and skilled nursing facilities,                       setting. The Medicaid rules apply to
                                                private partnerships, contracts with                    Intermediate Care Facilities for                      Medicaid beneficiaries receiving home
                                                health-care providers and payers, and                   Individuals with Intellectual                         and community-based services under
                                                grants from private foundations. ACL’s                  Disabilities, and criminal justice                    specific statutory provisions, and while
                                                business acumen efforts are one way                     facilities, juvenile detention facilities,            the language is instructive to determine
                                                that CILs may enhance their resource                    etc.                                                  qualities integral to a home and
                                                development activities. We will also                       In the NPRM, we also requested                     community-based setting, IL serves a
                                                work to identify opportunities to                       comment on the need for and proposed                  broader range of people and addresses a
                                                collaborate and leverage resources for                  content of definitions for ‘‘home and                 wider range of situations than those
                                                the core IL services, including the new                 community-based residences’’ and                      covered under the Medicaid rules. For
                                                fifth core services, across ACL, HHS,                   individuals who are ‘‘at risk’’ of                    example, the needs of the individual in
                                                and other federal agencies.                             institutionalization in the new                       42 CFR 441.301(c)(4) are determined ‘‘as
                                                   The NPRM sought public comment on                    independent living core services. We                  indicated in their person-centered
                                                whether to include a definition of                      received several comments requesting                  service plan.’’
                                                ‘‘institution’’ and the suitability of                  that we define ‘‘home and community-                     As some commenters recommended,
                                                applying Medicare and Medicaid                          based residences’’ for the purposes of                to preserve wide latitude and to support
                                                definitions of that term in defining the                the fifth core services. Some                         consumer control, we have chosen not
                                                new core independent living services.                   commenters suggested we refer to                      to include a definition for ‘‘home and
                                                   We received comments indicating that                 Medicaid definitions, including the                   community-based residences’’ in the
                                                the Medicare/Medicaid definitions are                   definitions used in the ‘‘Money Follows               final rule.
                                                not sufficiently broad to encompass the                 the Person’’ demonstration program and                   We received comments
                                                range of entities included in the term                  the rule related to Medicaid-funded                   recommending that the individual
                                                ‘‘institution.’’ We received numerous                   home and community-based services                     should determine whether or not he or
                                                comments recommending various terms                     published on January 16, 2014. Many                   she is at-risk through self-disclosure. We
                                                and entities that should be included in                 commenters suggested a definition that                received comments that emphasized the
                                                a definition of ‘‘institution,’’ as well as             would include any residence ‘‘with                    importance of the intake and goal
                                                comments stating that including a                       fewer than 4 people non-related in                    setting processes for facilitating
                                                regulatory definition was not necessary                 which a person with a disability is free              informed consumer choice related to
                                                or could be unnecessarily limiting and                  to control all aspects of his or her life.’’          self-identification. If a consumer feels
                                                could impede effective provision of                     Other commenters recommended                          he or she is at risk of
                                                services. As some commenters                            against including size or configuration               institutionalization, and self-identifies
                                                recommended, a broad, non-prescriptive                  of living arrangements in the definition,             as being at risk as part of the intake or
                                                approach allows CILs the most                           explaining, ‘‘When maximum number of                  goal-setting process, then he or she
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                                                flexibility to determine the types of                   people in a setting or their familial                 should be treated as being at risk. CILs
                                                transition services they can offer with                 relationship to each other is prescribed,             in these situations conduct discussions
                                                the best chance of success for                          it does not permit those groups of totally            around the person’s circumstances,
                                                individuals receiving the services based                self-directing individuals who choose to              possibilities and risks but the
                                                on available local resources.                           share an apartment or house and share                 designation ultimately must be
                                                   Some commenters recommended a                        attendant services, for example, to be                informed by consumer choice. We have
                                                very broad definition of institution,                   included in the service count. The                    incorporated that recommendation in


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                                                74684            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                the regulatory text as part of the                      have added to the definition of                       continuing successful collaboration,
                                                definition of the independent living                    independent living core services that                 coordination, and leveraging of
                                                core services.                                          individuals who have reached the age of               resources.
                                                   Some commenters recommended                          18 and are still receiving services in                  Commenters noted that they are
                                                adding a definition of ‘‘transition                     accordance with an Individualized                     already pursing transition work with
                                                process.’’ Since the term ‘‘transition’’ is             Education Program (IEP) under IDEA                    youth that falls outside of the proposed
                                                not included in the second prong of the                 have not ‘‘completed their secondary                  parameters of the fifth core services.
                                                fifth core IL services, and the term                    education.’’                                          Programs may and are encouraged to
                                                ‘‘transition’’ has a different meaning in                  Some commenters also questioned the                continue to engage in such activities,
                                                the third prong, we incorporated the                    link to eligibility under IDEA/eligibility            which can be captured and credited
                                                recommended definition into the first                   for an IEP, or recommended a definition               under the other core IL services or
                                                prong regarding the transition of                       of ‘‘students with disabilities’’ be                  general independent living services
                                                individuals with significant disabilities               defined broadly, such as those receiving              under Sec. 7(18), 29 U.S.C. 705(18).
                                                from nursing homes and other                            services under of Section 504 of the                    Finally, in response to the NPRM,
                                                institutions to home and community-                     Rehabilitation Act (under 504 plans).                 ACL received questions as to whether
                                                based residences.                                       Commenters also requested that the                    there are minimum levels which must
                                                   WIOA defines youth with a disability                 youth transition prong be extended to                 be achieved in order to have met the
                                                to mean ‘‘an individual with a disability               the youngest possible age, for example                requirements of each component of the
                                                who is not younger than 14 years of age;                before vocational rehabilitation (VR)                 new fifth core IL services. Each CIL
                                                and is not older than 24 years of age.’’                begins to provide services in the State.              must demonstrate activity under all
                                                In the NPRM, ACL defined the category                   In WIOA, Congress established the                     three prongs of the definition, but the
                                                of ‘‘youth with a significant disability’’              prong of the new IL service to ‘‘(iii)                minimum levels are not further defined
                                                by combining the definition of                          facilitate the transition of youth who are            here. See the Regulatory Impact
                                                ‘‘individual with significant disability’’              individuals with significant disabilities,            Analysis for further discussion. The
                                                in section 7(21), 29 U.S.C. 705(21) and                 who were eligible for individualized                  revised data collection system will
                                                ‘‘youth with a disability’’ in section                  education programs under section                      contain more information when
                                                7(42) of the Act, 29 U.S.C. 705(42).                    614(d) of the Individuals with                        published.
                                                   A commenter expressed concern that                   Disabilities Education Act (20 U.S.C.
                                                the rule uses the term ‘‘youth with a                   1414(d)), and who have completed their                Definitions of Other Terms in § 1329.4
                                                significant disability,’’ (emphasis added)              secondary education or otherwise left                 Administrative Support Services
                                                as ‘‘[t]his is different than the                       school, to postsecondary life.’’ 29 U.S.C.
                                                Independent Living philosophy which                     705(17)(E)(iii). This requirement,                      ACL received comments
                                                is cross disability.’’ The language is                  defined in the statute, focuses on                    recommending additional changes to
                                                based on WIOA language in the                           providing independent living services to              this definition, including a request for
                                                definition of independent living core                   youth who are transitioning to                        additional clarity on the ‘‘services and
                                                services, 29 U.S.C. 705(17)(E), which                   postsecondary life after they have left               supports’’ provided by the DSE. Others
                                                covers services to ‘‘facilitate the                     school. ACL does not have the authority               expressed support for a broad
                                                transition of youth who are individuals                 to redefine this category through the                 definition, with flexibility for the DSE.
                                                with significant disabilities . . .’’ As a              rulemaking process.                                   In order to preserve flexibility, we made
                                                cross-disability agency, ACL is sensitive                  We acknowledge the importance of                   no changes to the definition in the
                                                to this concern, but does not have the                  transition services for youth prior to                proposed rule.
                                                authority to change statutory language                  post-secondary life in order to prepare               Advocacy
                                                through the rulemaking process.                         youth for a successful transition to post-
                                                   A commenter recommended removing                     secondary life. However, we also want                    ACL received a number of comments
                                                the ‘‘completed their secondary                         to emphasize that some youth transition               on the proposed definition. Some
                                                education’’ provision from this                         activities not covered under the fifth                commenters expressed a concern about
                                                regulation. Other commenters suggested                  core services may be included within                  a perceived lack of inclusion of
                                                the definition was overbroad and should                 the other four core services, Sec. 7                  ‘‘systems change’’ in the definition, and
                                                be pared back. We received comments                     (17)(A–D) of the Act, 29 U.S.C.                       requested that the language in the rule
                                                that individuals who have reached the                   705(17)(A–D), as well as within the                   ‘‘revert back to the original language for
                                                age of 18 but are still receiving services              Independent Living Services in Sec.                   advocacy that includes both self and
                                                in accordance with an individual’s                      7(18), 29 U.S.C. 705(18), and CILs                    systems change.’’ We note that the
                                                education program developed under the                   should continue to report their work in               proposed definition of ‘‘advocacy,’’
                                                Individuals with Disabilities Education                 these areas accordingly.                              identical to the prior definition from the
                                                Act (IDEA) should not be considered to                     A commenter raised concerns that                   Department of Education regulation 34
                                                have ‘‘completed their secondary                        broad definitions around the youth                    CFR 364.4, includes ‘‘systems
                                                education.’’ Because Sec. 7(17)(E)(iii) of              transition component of the fifth core                advocacy.’’ Many commenters
                                                the Act, 29 U.S.C. 705(17)(E)(iii), uses                service could prompt school districts to              recommend that the activities described
                                                the term ‘‘completed their secondary                    shift responsibility for youth transition             in § 1329.10(b)(5) be included in the
                                                education,’’ ACL does not have the                      to the CILs. While we appreciate the                  definition, as they are part of systems
                                                authority to remove this phrase from the                concern, how school districts fulfill                 advocacy. The final rule retains the
                                                definition of IL core services regarding                their responsibilities to students with               proposed definition for ‘‘advocacy.’’ The
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                                                youth transition. However, we are                       disabilities is beyond the scope of this              activities described in § 1329.10(b)(5)
                                                removing from regulatory language:                      rule. We acknowledge, however, that                   are already required as authorized uses
                                                ‘‘has reached age 18, even if he or she                 Centers often participate as one of                   of funds for independent living services
                                                is still receiving services in accordance               several entities, including schools, with             and including them in the definition of
                                                with an individualized education                        an important role in supporting and                   advocacy would be redundant. ACL will
                                                program developed under the IDEA.’’ In                  facilitating youth transitions. As a                  consider providing further guidance and
                                                agreement with comments received, we                    promising practice, ACL recommends                    will continue to offer training and


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                        74685

                                                technical assistance to provide                         component of growth and true                          perform everyday activities including
                                                additional clarity on this issue.                       independence. The definition of                       but not limited to: Getting up and ready
                                                                                                        ‘‘consumer control’’ is amended in the                for work or going out into the
                                                Center for Independent Living
                                                                                                        final rule to include: ‘‘Consumer                     community (including bathing and
                                                   Many commenters expressed support                    control, with respect to an individual,               dressing), cooking, cleaning or running
                                                for the proposed definition from the                    means that the individual with a                      errands, and engaging in social
                                                NPRM, though several commenters                         disability asserts control over his or her            relationships including parenting.’’
                                                raised questions about accountability for               personal life choices, and in addition,
                                                CILs that are not recipients of Part C or               has control over his or her independent               Service Provider
                                                Part B funding. A few commenters                        living plan (ILP), making informed                       ACL received comments indicating
                                                recommended the definition be limited                   choices about content, goals and                      that the DSE should not be included in
                                                to CILs that receive Part B or Part C                   implementation.’’                                     the definition of ‘‘service provider.’’ The
                                                funding. The final rule retains the                        Some commenters also suggested that                commenters explained that DSEs should
                                                proposed definition of CILs. With                       the definition include the requirement                not provide direct services because the
                                                respect to compliance and oversight                     that a majority of staff, management and              DSE ‘‘is not consumer controlled and
                                                issues, the SILCs, pursuant to their duty               Board positions are filled by persons                 does not provide peer support, systems
                                                under Section 705(c)(1)(B) to monitor,                  with disabilities. ACL did not make that              advocacy, etc.,’’ among other
                                                review, and evaluate implementation of                  change, as the composition                            justifications. After consideration of the
                                                the SPIL, will make the determination                   requirements (for the SILC) and                       comments on this provision, ACL agrees
                                                that entities counted as CILs eligible to               assurances (for the CILs) at issue are                with the concerns expressed, and added
                                                sign the SPIL comply with the standards                 established separately in the statute.                the clarification that a DSE is eligible to
                                                in Sections 725 (b) and the assurances                                                                        receive funds to provide independent
                                                in Section 725(c). The SPIL must                        Personal Assistance Services
                                                                                                                                                              living services only where so specified
                                                identify 1) the eligible CILs and 2) how                   The NPRM proposed that personal
                                                                                                                                                              in the SPIL. We have added a
                                                they were determined to meet the                        assistance services mean ‘‘a range of
                                                                                                                                                              corresponding clarification to the
                                                required standards and assurances. We                   services, paid or unpaid, provided by
                                                                                                                                                              preamble language in § 1329.17.
                                                will consider including corresponding                   one or more persons, designed to assist
                                                assurances with some standards of                       an individual with a disability to                    Unserved and Underserved
                                                evidence of documentation in the                        perform daily living activities on or off
                                                                                                                                                                 ACL received numerous comments
                                                indicators of minimum compliance for                    the job that the individual would
                                                                                                                                                              about the definition of unserved and
                                                the SILCs.                                              typically perform if the individual did
                                                                                                                                                              underserved populations. A commenter
                                                   We received requests for clarification               not have a disability. These services
                                                                                                        must be designed to increase the                      expressed concerns about the
                                                regarding the phrase ‘‘regardless of age
                                                                                                        individual’s control in life and ability to           elimination of ‘‘sensory impairments’’
                                                or income.’’ This phrase is based
                                                                                                        perform everyday activities on or off the             from the definition. Others
                                                directly on the statutory definition, Sec.
                                                                                                        job and include but are not limited to:               recommended that the definition should
                                                702(2) of the Act, 29 U.S.C. 796a(2). The
                                                                                                        Getting up and ready for work or going                include older people with disabilities,
                                                phrase means that an agency, in
                                                                                                        out into the community (including                     or populations with certain types of
                                                addition to meeting all of the other
                                                                                                        bathing and dressing), cooking, cleaning              disabilities, including individuals who
                                                requirements, may not categorically
                                                                                                        or running errands.’’ Commenters                      are low vision, blind, deafblind or deaf,
                                                exclude individuals with significant
                                                                                                        indicated that the purpose of personal                and people with traumatic brain injuries
                                                disabilities on the basis of age or
                                                                                                        assistance services is not merely to                  (TBI), and post-traumatic stress disorder
                                                income. This does not preclude
                                                                                                        enable a person with a disability to get              (PTSD). Another commenter asked
                                                prioritizing services by urgency of need,
                                                                                                        a job, but to perform a myriad of social              about other groups, including people
                                                nor does it preclude practical
                                                                                                        functions. Commenters also raised the                 with limited English proficiency. One
                                                distinctions such as age-based legal
                                                                                                        point that the concept of personal                    commenter expressed a concern about a
                                                restrictions.
                                                   We also received questions regarding                 assistance services should be updated to              lack of services for black veterans.
                                                the use of fee-for-service models for the               reflect ‘‘the possibilities available                 Others requested a definition for
                                                delivery of services. The final rule does               today.’’ Commenters requested                         ‘‘disadvantaged individuals.’’
                                                not address the use of fee-for-service                  additional examples of personal                          ACL notes that the proposed
                                                models, though we encourage CILs to                     assistance services, to help illustrate               definition includes ‘‘populations such
                                                consider how to ensure that any                         that such services may support a variety              as . . .’’ and lists a number of possible
                                                application of such a model is                          of interdependent social functions, such              categories. As stated in the NPRM, ‘‘We
                                                accomplished in a way that is consistent                as parenting, engaging in civic activities,           recognize that unserved and
                                                with IL values.                                         practicing the individual’s preferred                 underserved groups or populations will
                                                                                                        religion, engaging in a relationship with             vary by service area. For example, in
                                                Consumer Control                                        partner(s) of the individual’s choice,                some service areas unserved and
                                                   In the NPRM we proposed to add the                   and more. The final rule incorporates                 underserved groups may include people
                                                statutory definition of consumer control                the recommended language. Thus,                       with disabilities from the gay, lesbian,
                                                at Section 702(3) of the Act, 29 U.S.C.                 personal assistance services means ‘‘a                bisexual and transgender communities.’’
                                                796a(3). Commenters requested that the                  range of services, paid or unpaid,                    The categories included in the
                                                definition also include individual                      provided by one or more persons,                      definition are examples, and not an all-
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                                                consumer control. ACL acknowledges                      designed to assist an individual with a               inclusive list. We are not including a
                                                the importance of an individual being                   disability to perform daily living                    definition of disadvantaged individuals,
                                                able to make his or her own choices and                 activities that the individual would                  as that definition may vary by
                                                set his or her own goals, including                     typically perform if the individual did               individuals and by community.
                                                deciding with whom and how to                           not have a disability. These services                    Commenters expressed support for
                                                achieve them, and allowing for the                      must be designed to increase the                      the proposed definition of ‘‘youth with
                                                dignity of risk, which is a critical                    individual’s control in life and ability to           a significant disability.’’


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                                                74686            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                   ACL made technical changes to the                    legitimate reasons why a CIL may                      706(c)(2)(C), 29 U.S.C. 796d–1(c)(2)(C),
                                                definitions of ‘‘Center for independent                 require more frequent evaluation. ACL                 requires that, for the compliance review,
                                                living’’ and ‘‘Independent living core                  agrees that clear, unbiased, and                      the Administrator must ‘‘. . . ensure
                                                services’’ to improve clarity.                          legitimate criteria must be established               that at least one of member of a team
                                                                                                        and consistently followed.                            conducting such a review shall be an
                                                Indicators of Minimum Compliance                           Some commenters expressed concern                  individual who (i) is not a government
                                                (§ 1329.5)                                              about the lack of capacity at the state               employee; and (2) has experience in the
                                                   Commenters requested that the final                  and federal levels to conduct the                     operation of centers for independent
                                                rule include SILC standards and                         required reviews of CILs. Section 711(c),             living.’’ The proposed regulatory text in
                                                indicators. The statute requires that ACL               29 U.S.C. 796d–1(c) includes a                        § 1329.7 does not address or propose
                                                develop and publish in the Federal                      requirement that the Administrator                    changes to the onsite compliance review
                                                Register SILC indicators of minimum                     (rather than the DSE) shall annually                  process, including the qualifications of
                                                compliance. As was stated in the NPRM,                  conduct onsite compliance reviews of at               employees and others conducting
                                                the SILC indicators of minimum                          least 15 percent of the centers for                   reviews. Instead, § 1329.7 establishes
                                                compliance are currently under                          independent living that receive funds                 the enforcement and appeals process
                                                development, a process which includes                   under Section 722 of the Act, 29 U.S.C.               that arises when a grantee receives
                                                consideration of informal stakeholder                   796f–1 and at least one-third of the                  notice of an action that would trigger
                                                input. ACL presented the current draft                  designated state units that receive                   the additional review process available
                                                SILC standards of minimum compliance                    funding under Section 723 of the Act.                 through 45 CFR part 16. These
                                                at the SILC Congress in January of 2016,                ACL is actively evaluating the review                 determinations, set forth in appendix A,
                                                and the final version will be published                 processes, to optimize our capacity to                C.a.(1)–(4) are: Disallowance,
                                                in the Federal Register with an                         conduct the required oversight.                       termination for failure to comply with
                                                opportunity for public comment. ACL                                                                           the terms of an award, denial of a
                                                will continue to collect information on                 Reporting (§ 1329.6)
                                                                                                                                                              noncompeting continuation award for
                                                CIL compliance indicators based on the                     A commenter objected to proposed                   failure to comply with the terms of a
                                                statutory standards and assurances                      § 1329.6(b), stating that the requirement             previous award, and voiding (a decision
                                                through the data collection process. We                 that the DSE in each state ‘‘submit a                 that an award is invalid because it was
                                                made technical changes to the                           report in a manner and at a time                      not authorized by statute or regulation
                                                regulatory text of § 1329.5 to clarify the              described by the Administrator,                       or because it was fraudulently
                                                current requirements.                                   consistent with section 704(c)(4) of the              obtained).
                                                   ACL also clarifies that the indicators               Act,’’ exceeds statutory authority since                 For example, if after an onsite
                                                of minimum compliance and data                          the referenced statute, Section 704(c)(4),            compliance review, the Director
                                                collection instruments are living                       only requires the designated state entity             determines it necessary to terminate
                                                documents. ACL will periodically                        to ‘‘submit such additional information               funds because of the grantee’s failure to
                                                engage stakeholders to make                             or provide such assurances as the                     comply with the terms of the award,
                                                refinements and improvements.                           Administrator may require.’’ This                     § 1329.7 provides the affected CIL or
                                                   Regarding comments expressing                        commenter noted that CILs are                         State with the opportunity to seek
                                                concern about the lack of a sufficient                  explicitly required by statute to ‘‘submit            additional review of that decision,
                                                notice and opportunity for ‘‘substantive                such reports with respect to such                     consistent with HHS policies and
                                                public comment,’’ ACL is committed to                   records as the Administrator determines               practices. We added clarifying language
                                                continued engagement with                               to be appropriate.’’ We appreciate the                regarding the onsite compliance review
                                                stakeholders as we develop and publish                  comment, but find that requiring a                    process as some commenters
                                                the required indicators. We also note                   report is fully consistent with and                   recommended. We also made technical
                                                that the Federal Register is the                        authorized by the statutory requirement               changes to more accurately reflect
                                                recognized means for notifying the                      that the DSE submit such additional                   established HHS processes and
                                                public and offering an opportunity to                   information or provide assurances that                incorporate correct citations.
                                                submit comments. Multiple commenters                    the Administrator may require. We                        Several commenters interpreted
                                                requested diverse compliance measures                   received a comment concerning                         § 1329.7 to mean that ACL would
                                                be developed to address specific needs                  readability and accessibility of forms,               immediately terminate funding under
                                                for indicators. ACL appreciates this                    materials, and links. We appreciate the               certain circumstances, and pointed out
                                                input and will consider these                           comment and agree that the                            that WIOA stipulates 90 day notice
                                                suggestions through the established                     instructions, and any forms, links, and               before Title VII Part C funding can be
                                                processes.                                              needed materials must be user-friendly                terminated. The NPRM did not propose
                                                   Commenters also recommended                          and easily accessible. We continue to                 to move more quickly than the 90 day
                                                establishing a rotation for CIL reviews.                strive to meet this standard.                         time frame. The process that was
                                                As indicated in the NPRM, the statute                                                                         outlined for enforcement and appeals is
                                                eliminated the requirement that                         Enforcement and Appeals Procedures                    designed precisely to afford due process
                                                compliance reviews be conducted on a                    (§ 1329.7)                                            for those CILs for which expiration of
                                                random basis. ACL is actively reviewing                    Regarding the proposed enforcement                 the 90 day time frame and possible loss
                                                options for review criteria, including                  and appeals procedures in the rule,                   of funding is imminent. Since nothing
                                                how CILs will be selected for review.                   commenters asked questions about                      in the regulation changes the statutory
                                                   Commenters expressed concerns                        onsite compliance reviews and                         deadlines, no changes to the regulatory
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                                                about ‘‘targeting’’ CILs and requesting a               expressed concern about the lack of peer              text are required.
                                                neutral process. We decline to                          review. To clarify, the enforcement and                  With regard to § 1329.7(b), one
                                                incorporate the comment that some CILs                  appeals procedures proposed in                        commenter questioned whether the
                                                should not be reviewed more frequently                  § 1329.7 are separate from a request for              Administrator has the authority to
                                                than others. On-site compliance reviews                 technical assistance and separate and in              terminate Title VII B funding. We refer
                                                are no longer required to be conducted                  addition to the compliance review set                 the commenter to 45 CFR part 75,
                                                on a random basis and there may be                      forth in Section 706(c)(1). Section                   Uniform Administrative Requirements,


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                      74687

                                                Cost Principles, and Audit                              State entity that carries out the                     IL services, Sec. 713(b) of the Act
                                                Requirements for HHS Awards, which is                   functions described in the statute in                 identifies six (6) additional activities
                                                included in § 1329.3, applicability of                  Section 704(c) of the Act, 29 U.S.C.                  that remain authorized uses of funding
                                                other regulations. For more information                 796c(c). ‘‘If the DSE does not carry out              under this Section, and are
                                                regarding remedies for non-compliance                   those functions, the State is legally                 encompassed in the ‘‘including, but not
                                                and termination, please see 45 CFR                      responsible.’’                                        limited to’’ language in § 1329.12(b).
                                                75.371 and 75.372, which, address these                    However, in response to these                        Some commenters were concerned
                                                issues. We also remind stakeholders that                comments, and with the understanding                  that the 5% was not sufficient given the
                                                Section 704(a)(1) requires the                          that the State plan shall ‘‘designate’’ the           scope of the administrative
                                                submission of a SPIL which is approved                  ‘‘designated State entity’’ as the agency             responsibilities of the DSE, and that
                                                by the Administrator in order to be                     that, on behalf of the State, shall                   some entities may choose not to serve as
                                                eligible for funding. Thus, the                         accomplish the listed responsibilities in             a DSE. The 5% is a statutory cap and
                                                Administrator has the authority to                      the law and comply with the specified                 therefore not subject to change in this
                                                withhold or terminate funding if a SPIL                 funding limits (and acknowledging that                regulation.
                                                is not submitted in accordance with the                 the chairperson of the Statewide                        For the sake of consistency we made
                                                requirements of Section 704, or if the                  Independent Living Council and the                    formatting changes to § 1329.12(b).
                                                Administrator does not approve a SPIL                   directors of the CILs in the State, after             Allotment of Federal Funds for State
                                                that is submitted.                                      receiving public input from individuals               Independent Living (IL) Services
                                                   ACL thanks commenters for                            with disabilities and other stakeholders              (§ 1329.13)
                                                embracing the opportunity to work with                  throughout the State, develop the State
                                                ACL on developing sub-regulatory                        plan) ACL modified the proposed                          Many commenters requested that the
                                                guidance to provide additional detail in                definition to clarify the reference to a              proposed regulatory language of
                                                this area.                                                                                                    § 1329.13(c) be deleted or amended to
                                                                                                        DSE ‘‘identified by the State and
                                                   Commenters state that the time frame                                                                       permit only a single DSE. A few
                                                                                                        included in the signed SPIL . . .’’
                                                for notice should be clear and specific.                   Commenters also requested that ACL                 commenters expressed support for a
                                                The regulation describes that written                   identify the body that is responsible to              second DSE and stressed the importance
                                                notice shall be provided ‘‘within a                     submit the SPIL. Section 1329.17(b)(4)                of certain programs that have been
                                                timely manner.’’ In the absence of a                    indicates that the SPIL ‘‘must be                     funded by State agencies for the blind.
                                                recommendation for a specific length of                 submitted . . . in the time frame and                 Upon consideration of the comments in
                                                time, we retain the language of the                     manner prescribed by the                              the context of the language in WIOA, we
                                                proposed rule, with the clarification that              Administrator.’’ For developing the FY                agree that it is consistent with the
                                                the standard is a reasonable                            2017–2019 State Plan for Independent                  statute to permit only one DSE.
                                                determination of a ‘‘timely manner.’’ We                Living (SPIL), ACL refers stakeholders                Accordingly, in addition to revising the
                                                will consider whether to designate a                    to the State Plan for Independent Living              regulatory text in § 1329.13(c) to permit
                                                specific time period in any sub-                        (SPIL) instructions, issued on February               only a single DSE, § 1329.17(e) is
                                                regulatory guidance that we develop.                    19, 2016, which specify that the                      deleted.
                                                                                                                                                                 Nineteen (19) States have been
                                                Subpart B—Independent Living Services                   Statewide Independent Living Council
                                                                                                                                                              operating with more than one body
                                                                                                        shall submit the State Plan for
                                                Authorized Use of Funds for                                                                                   taking on these responsibilities. One
                                                                                                        Independent Living (SPIL).
                                                Independent Living Services (§ 1329.10)                                                                       body in those States provides services to
                                                   Commenters requested a change to                     Role of the Designated State Entity                   the general disability population and
                                                § 1329.10(a) to more accurately reflect                 (§ 1329.12)                                           the other provides services to
                                                the language and intention of the                          Commenters requested additional                    individuals who are blind. Under the
                                                statute. Commenters were correct in                     language to clarify the role of the DSE               language we are finalizing, the SPIL
                                                stating that the Administrator reserves                 and the allocation of funds in                        must identify one DSE in the State, and
                                                the funds under Section 711A for SILC                   accordance with the approved SPIL.                    that DSE will sign the SPIL as discussed
                                                training and technical assistance, before               ACL incorporated suggested language to                above. Specific funding to address the
                                                the State receives funding under this                   make clear in § 1329.12(a)(2) the DSE’s               needs of consumers in the State who are
                                                part. ACL incorporated the requested                    role to provide administrative support                blind may be allocated through the SPIL
                                                change, and revised § 1329.10 to include                services for a program under Part B, as               process.
                                                                                                        directed by the approved SPIL, and for                   Regarding proposed § 1329.13(d),
                                                the correction.
                                                                                                        relevant CILs under Part C. We also                   commenters also requested that ACL not
                                                DSE Eligibility and Application                         revised the language in § 1329.12(b) to               reserve funds to directly provide
                                                (§ 1329.11)                                             state that the DSE must also carry out its            training and technical assistance to
                                                   Regarding § 1329.11, commenters                      other responsibilities under the Act,                 SILCs, and others recommended an
                                                recommended including language that                     including, but not limited to—                        increase in funding to the current
                                                ‘‘[a]ny designated State entity (DSE)                      • Allocating funds for the delivery of             technical assistance provider. ACL
                                                identified in the SPIL and agreed to by                 IL services under Part B of the Act as                retained the language from the proposed
                                                the State is eligible to apply for                      directed by the SPIL; and                             rule, which is required by section 711A
                                                assistance under this part in accordance                   • Allocating the necessary and                     of the Act (29 U.S.C. 796e–0).
                                                with Section 704 of the Act, 29 U.S.C.                  sufficient resources needed by the SILC                  Commenters also recommended that
                                                796c.’’                                                 to fulfill its statutory duties and                   the SILCs be involved in the process for
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                                                   We decline to make these changes,                    authorities under section 705(c),                     determining the type of training and
                                                because, as explained in the FAQs that                  consistent with the approved State Plan.              technical assistance that is offered and
                                                accompanied the DSE Guidance                               While the regulatory text in the new               how the funding is utilized. We did not
                                                document,1 the DSE is a governmental                    § 1329.12(b)(i) focuses on the delivery of            add additional regulatory language, as
                                                                                                                                                              the Act requires in Sec. 711A(b) that the
                                                  1 Guidance: ILA PI–15–01 Selection of the             available at http://www.acl.gov/Programs/AoD/ILA/     Administrator conduct surveys of SILCs
                                                Designated State Entity (DSE), rev. Oct. 28, 2015;      Index.aspx#dse.                                       regarding training and technical


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                                                74688            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                assistance needs in order to determine                  Duties of the SILC (§ 1329.15)                          To minimize potential confusion, we
                                                funding priorities for such training and                                                                      removed duplicative requirements from
                                                                                                           Commenters clarified that the SILC
                                                technical assistance.                                                                                         § 1329.15(d).
                                                                                                        resource plan is an integral part of the
                                                Establishment of a SILC (§ 1329.14)                     three-year SPIL. We acknowledge that                  Authorities of the SILC (§ 1329.16)
                                                   Commenters expressed support for                     this is the correct interpretation. Since                Commenters requested some
                                                the proposed language in the NPRM.                      the language incorrectly describing the               additional terms be defined in the final
                                                Some commenters also requested                          resource plan as ‘‘separate from the                  rule, such as ‘‘in conjunction with.’’
                                                ‘‘direction or guidance on what                         SPIL’’ was preamble language                          ACL chose not to include several of
                                                constitutes ‘autonomous.’ ’’ ACL did not                attempting to clarify the new                         these requested definitions, with the
                                                make changes to the language of the                     requirement regarding the allocation of               understanding that these words and
                                                proposed rule. To better understand                     funds for this plan as distinct from the              phrases are given their plain meaning.
                                                what autonomous means, we refer                         SPIL, no changes to the regulatory text                  A commenter raised concerns about
                                                commenters to pertinent statutory                       are needed.                                           whether the prohibition against
                                                provisions at Sec. 705 of the Act, 29                      Regarding § 1329.15(c)(2) on                       providing services directly or
                                                U.S.C. 796d, including Sec. 705(a) and                  Innovations and Expansion (I&E) funds,                ‘‘managing’’ services would preclude
                                                (b) on the establishment, composition                   commenters recommended revised                        SILCs from securing funding to allow
                                                and appointments to the SILC. These                     language consistent with Section                      CILs to accomplish specific goals. We
                                                include the requirement at Sec. 705(a)                  101(a)(18) of the Act to make clear that              clarify here our interpretation that
                                                providing that ‘‘The Council shall not be               resources for SILCs include I&E funds                 securing funding is distinct from
                                                established as an entity within a State                 consistent with the statute. ACL made                 ‘‘managing’’ services. Rather, a practice
                                                agency,’’ and the conflict of interest                  the requested change to the regulatory                such as applying for and receiving grant
                                                policy at Sec. 705(e)(3), precluding staff              text. ACL will work with the                          funding in these circumstances is a
                                                and other personnel of the SILC from                    Department of Education and                           legitimate exercise of SILCs’ newly
                                                being assigned duties by the DSE or                     stakeholders to develop appropriate                   statutorily authorized resource
                                                other agencies of the state that would                  guidance on this matter.                              development authority.
                                                create a conflict. We also note that the                   Commenters expressed support for                      We received several comments
                                                Council and voting members of the                       the proposed language in § 1329.15(c)(4)              regarding SILCs that were pertinent to a
                                                Council are to be comprised of members                  and we have included it without                       particular state. Individual state
                                                meeting the qualifications under Sec.                   change.                                               concerns are beyond the scope of the
                                                705(b)(4), including state-wide                            Commenters requested additional                    regulations. However, we suggest that
                                                representation, a broad range of                        detail on what constitutes ‘‘necessary                SILCs that raised such concerns consult
                                                individuals with disabilities from                      and sufficient’’ funds to carry out the               with the SILC technical assistance and
                                                diverse backgrounds, knowledge about                    functions of the SILC for the purpose of              training center and their respective ILA
                                                centers for independent living and                      the SILC resource plan. Other                         specialist.
                                                independent living services, and a                      commenters indicated that additional                     Regarding § 1329.16(b)(3),
                                                majority of whom are individuals with                   information was not needed. In the                    commenters stated that the proposed
                                                disabilities per 29 U.S.C. 705(20)(B) and               interest of clarity, ACL adopted the                  regulation ‘‘fails to provide a reference
                                                not employed by any State agency or                     recommended additions to                              to the statute or regulation that prohibits
                                                center for independent living. We will                  § 1329.15(c)(6), with a final category for            lobbying . . .’’ along with other listed
                                                continue to consult with stakeholders                   other appropriate costs. A description of             perceived omissions. For information on
                                                on the need for additional guidance,                                                                          the relevant prohibition, please consult
                                                                                                        the SILC’s resource plan must be
                                                including providing more detail about                                                                         45 CFR part 93—New Restrictions on
                                                                                                        included in the State plan.
                                                the SILC standards and indicators that                                                                        Lobbying, which was included in
                                                are under development.                                     The plan should include:
                                                                                                                                                              § 1329.3(i), along with the other
                                                   Many commenters indicated they                       • Staff/personnel                                     provisions on applicability of other
                                                could not identify any relevant CIL-                    • Operating expenses                                  regulations, that was included in the
                                                Tribal relationships that met the                       • Council compensation and expenses                   proposed rule and retained in the final
                                                definition under Section 705 of the Act.                • Meeting expenses, including public                  rule.
                                                However, other commenters indicated                        hearing expenses, such as meeting
                                                that there are currently 83 American                                                                          General Requirements for a State Plan
                                                                                                           space, alternate formats, interpreters,            (§ 1329.17)
                                                Indian Vocational Rehabilitation                           and other accommodations
                                                Services (AIVRS) programs located on                                                                             Commenters expressed support for
                                                                                                        • Resources to attend and/or secure
                                                Federal and State Reservations                                                                                the SPIL development and approval
                                                providing IL-complementary services to                     training for staff and Council
                                                                                                                                                              process in the NPRM, as required under
                                                American Indians/Alaska Natives (AI/                       members
                                                                                                                                                              the changes implemented by WIOA.
                                                ANs) with disabilities. Some                            • Other costs as appropriate.                         Some commenters discussed the ways
                                                commenters also expressed support for                      A commenter asked ‘‘how will it be                 successful collaboration is already
                                                the effort to ensure that American                      determined that the funding within the                underway, that the new SPIL
                                                Indians are part of SILC leadership. As                 30% cap for resource planning to carry                development process will result in a
                                                a promising practice, we recommend                      out SILC functions has been well                      better State Plan; and ultimately have a
                                                that in each State where there are                      spent.’’ As discussed, the resource plan              positive impact for people with
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                                                Federal and State-recognized Tribal                     is agreed to as part of the SPIL. As noted            disabilities. We appreciate this
                                                Governments, the SILC include a Tribal                  above, ACL has added some additional                  information.
                                                Representative on the SILC, and                         required elements to the regulatory                      As discussed in § 1329.4 regarding the
                                                conduct outreach to the AIVRS                           language. It will be up to the entities in            definition of ‘‘service provider,’’ ACL
                                                program(s) in the State, as available, or               the State to determine how the funds are              has added a clarification that the DSE
                                                other relevant organizations to foster                  spent, as reflected in the resource plan              may provide IL services directly only
                                                Tribal participation on the SILC.                       and the SPIL.                                         when so specified in the SPIL. The


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                         74689

                                                DSE’s role as a service provider, where                 an option for meeting the requirement                 Directors, the SILC Chair, and the
                                                applicable, must be explicitly identified               for public input. ACL agrees that this                Center/s in question agree. While ACL
                                                as part of the description of how and to                language, adapted from the previous                   is sensitive to the issue raised, we are
                                                whom funds will be dispersed under                      regulations in 34 CFR 364.20(g), does                 not addressing that issue in this final
                                                § 1329.17(a).                                           not reflect the requirement of the statute            regulation. We will take under
                                                  In discussing the new requirements of                 that the State plan be developed ‘‘after              advisement the need to address service
                                                the SPIL in the summary in the                          receiving public input from individuals               area adjustments in the future. We made
                                                preamble, with respect to a phrase                      with disabilities and other stakeholders              a technical correction to § 1329.22(b), to
                                                describing collaboration between CILs                   throughout the State,’’ and we have                   read ‘‘location’’ rather than ‘‘allocation,’’
                                                and other entities performing similar                   modified the regulatory text of                       and technical change in § 1329.22(c) to
                                                work, ACL received a comment                            § 1329.17(f)(1) (formerly proposed                    clarify that ‘‘bordering’’ means
                                                requesting that we define ‘‘similar                     § 1329.17(g)(2)) accordingly. This means              ‘‘contiguous.’’
                                                work.’’ That term refers to the                         that the public input requirement may
                                                requirement in the statute in Sec.                      be satisfied by a public meeting to get               Compliance Reviews (§ 1329.23)
                                                704(a)(3)(c) that the SPIL address                      input prior to development of the SPIL,                  ACL received the comment that,
                                                working relationships and collaboration                 and then an opportunity for public                    regarding ‘‘guidance or guidelines as
                                                between centers for independent living                  comment before the SPIL is submitted,                 determined by the Administrator,’’ ‘‘[i]t
                                                and:                                                    for instance through another public                   is unclear if the guidance will include
                                                  • Entities carrying out programs that                 meeting where a preliminary draft is                  additional requirements and if the
                                                provide independent living services,                    provided in advance, or by offering                   public will have an opportunity to
                                                including those serving older                           some other meaningful and accessible                  comment on this guidance and
                                                individuals;                                            opportunity for the public to comment                 guidelines.’’ ACL may issue guidance
                                                  • other community-based                               prior to SPIL submission. ACL also                    consistent with statutory requirements,
                                                organizations that provide or coordinate                made technical changes to renumber the                and the content and process may vary
                                                the provision of housing, transportation,               section.                                              depending on the information
                                                employment, information and referral                                                                          conveyed.
                                                assistance, services, and supports for                  Continuation Awards to Entities Eligible
                                                                                                        for Assistance Under the CIL Program                     A commenter proposed that ACL
                                                individuals with significant disabilities;                                                                    consider alternative entities to conduct
                                                and                                                     (§ 1329.21)
                                                                                                                                                              federal reviews of the CILs and
                                                  • entities carrying out other programs                   Regarding § 1329.21(g), commenters                 suggested longer time periods between
                                                providing services for individuals with                 suggested that the SILCs and the CILs,                reviews of a single CIL. WIOA
                                                disabilities.                                           rather than the DSE and SILC, must                    establishes the requirement that the
                                                  The term ‘‘similar work’’ is not in the               jointly agree on the order of priorities.             Administrator must conduct annual
                                                regulatory text, and we did not add a                   ACL agrees that SILCs and CILs, rather                compliance reviews of CILs and DSEs in
                                                definition because the statutory                        than the DSE, must agree to priorities as             in 29 U.S.C. 796d–1(c)(1), so ACL does
                                                language provides sufficient clarity.                   set forth in the SPIL as it is jointly                not have the authority to alter the
                                                  Some commenters requested                             developed, after receiving public input               requirements established in the statute
                                                clarification that § 1329.17(d)(2)(ii)                  from individuals with significant                     in this regulation. However, as noted
                                                specify that the signature by the director              disabilities and other stakeholders.                  above, ACL is actively evaluating the
                                                of the DSE signifies agreement to                       Section 1329.21, however, addresses                   review processes, to optimize our
                                                execute the responsibilities of the DSE                 priority for funding centers in States                capacity to conduct the required
                                                identified in section 704(c) of the Act.                that receive funding under Section 723                oversight, incorporating alternative
                                                ACL incorporated this clarification in                  of the Act, 29 U.S.C. 796f–2. Currently,              approaches where permitted and
                                                the final rule.                                         only two States, Massachusetts and
                                                  Regarding § 1329.17(d)(2), a                                                                                appropriate.
                                                                                                        Minnesota, qualify as Section 723
                                                commenter made the point that Centers                   States. Under Section 723(e), priorities              Training and Technical Assistance to
                                                with service areas (and grants) within                  for funding centers are set by the                    Centers for Independent Living
                                                multiple states should have sign off                    designated State unit 2 and the SILC.                 (§ 1329.24)
                                                authority for each SPIL that affects                    ACL therefore has determined to keep                    Commenters pointed out that WIOA
                                                them, where they meet the other                         the language as proposed in accordance                does not authorize ACL to retain funds
                                                applicable requirements. ACL agrees,                    with the statutory language in Section                for the direct provision of training and
                                                and we have added language to so                        723(e).                                               technical assistance to CILs. We agree
                                                clarify in § 1329.17(d)(2)(iii). ACL also
                                                                                                        Competitive Awards to New Centers for                 that this is the correct interpretation.
                                                received many comments supporting
                                                                                                        Independent Living (§ 1329.22)                        Since the inconsistent language was
                                                our analysis that the number of CILs be
                                                                                                                                                              included only in the preamble text, no
                                                based on the number of ‘‘legal entities,’’                This section establishes the process                changes have been made to the
                                                not the number of grants, and we retain                 for competitive awards to new Centers                 regulatory text.
                                                that provision from the proposed rule.                  for Independent Living in unserved or
                                                  As a technical correction, we                         underserved regions. We received                      II. Impact Analysis
                                                renumbered new § 1329.17(e)–(h).                        comments requesting the authority to
                                                Regarding proposed § 1329.17(g)(2),                                                                           A. Executive Order 12866
                                                                                                        modify existing Part C Center service
                                                commenters indicated that the proposed                  areas if the majority of the Center                     Executive Order 12866 requires that
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                                                language is not consistent with section                                                                       regulations be drafted to ensure that
                                                704(a)(2)(A) of the Act, which requires                    2 We note that WIOA did not change the term        they are consistent with the priorities
                                                that public input be received prior to                  ‘‘designated State unit’’ in Section 723 to           and principles set forth in Executive
                                                development of the State plan. The                      designated State entity, as in other sections         Order 12866. The Department has
                                                                                                        throughout this Subpart of the Rehabilitation Act.
                                                proposed provision included an option                   ACL has determined to refer to the body as the
                                                                                                                                                              determined that this rule is consistent
                                                to provide a preliminary draft State plan               designated State entity in the rule for consistency   with these priorities and principles. The
                                                for comment at the public meetings as                   purposes.                                             rule implements the Workforce


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                                                74690            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                Innovation and Opportunity Act of                       issue, but beyond a few comments                      development, and with building their
                                                2014. Executive Order 12866 encourages                  touching on general difficulty, did not               business capacity for generating
                                                agencies, as appropriate, to provide the                receive any comments that clarify the                 sustainable revenue streams for
                                                public with meaningful participation in                 amount of additional time required to                 programs and services. ACL looks
                                                the regulatory process. In developing                   meet the 51 percent signatory                         forward to engaging more of the IL
                                                the final rule, we considered input we                  requirement.                                          community in these efforts. ACL will
                                                received from the public, including                        The CIL program provides grants to                 actively endeavor to identify further
                                                stakeholders.                                           consumer-controlled, community-based,                 funding opportunities for CILs fifth core
                                                                                                        cross disability, nonresidential, private             services transition work and will strive
                                                B. Regulatory Flexibility Analysis                      nonprofit agencies for the provision of               to raise awareness about CILs unique
                                                   The Secretary certifies under 5 U.S.C.               IL services to individuals with                       statutory mandate and successes with
                                                605(b), the Regulatory Flexibility Act                  significant disabilities. WIOA expanded               our sister agencies across HHS and the
                                                (Pub. L. 96–354), that this regulation                  the previous definition of core IL                    broader federal community.
                                                will not have a significant economic                    services, specified in Section 7(17) of                  ACL stated in the NPRM that, since
                                                impact on a substantial number of small                 the Act, to include an additional, fifth              successful transition is a process that
                                                entities. The small entities that would                 category of core services. Specifically,              requires sustained efforts and supports
                                                be affected by these proposed                           Centers funded by the program must                    over a long-term period, and the CILs
                                                regulations are States and Centers                      now provide services that facilitate                  were aware of the changes under the
                                                receiving Federal funds under these                     transition from nursing homes and other               law before officially tracking these
                                                programs. However, the regulations                      institutions to the community, provide                efforts as core services, we do not
                                                would not have a significant economic                   assistance to those at risk of entering               currently have a clear picture of the
                                                impact on States or Centers affected                    institutions, and facilitate transition of            impact of the changes under WIOA on
                                                because the regulations would not                       youth to postsecondary life. Currently                the programs. In developing the NPRM
                                                impose excessive regulatory burdens or                  there are 354 CILs that receive federal               we therefore applied the closest
                                                require unnecessary Federal                             funding under this program.                           applicable data to the estimates in the
                                                supervision. The final regulations                         WIOA did not include any additional                analysis. For purposes of the analysis,
                                                implement statutory changes that                        funding for the provision of this new                 we looked at three specific categories of
                                                impose new requirements to ensure the                   fifth core service, necessitating that CILs           data currently captured in the 704
                                                proper expenditure of program funds.                    would reallocate existing grant money                 Annual Performance Report that we
                                                   The ILS Program provides formula                     to ensure the appropriate provision of                believe most accurately match the three
                                                grants to States for the purpose of                     all services required under Title VII of              components of the fifth core services.3
                                                funding a number of activities, directly                the Rehabilitation Act. Many                          We believe that the ‘‘Relocation from a
                                                and/or through grant or contractual                     commenters requested additional                       Nursing Home or Institution’’ category
                                                arrangements. To be eligible for                        funding to carry out program                          most closely matches the first
                                                financial assistance, States are required               responsibilities under the law. A                     component of the new fifth core
                                                to establish a designated State entity,                 number of commenters recommended                      services: Facilitate transitions from
                                                State Independent Living Council and to                 that ‘‘ACL should seek to obtain                      nursing homes and other institutions to
                                                submit an approvable three-year State                   additional funding for the 5th Core                   the community. We believe that the
                                                Plan for Independent Living (SPIL)                      Transition Service.’’ Commenters also                 ‘‘Community-Based Living’’ category
                                                jointly developed by the chairperson of                 stated that ‘‘HHS should make CILs the                matches the second component of the
                                                the SILC and the directors of the CILs                  mandatory receiver of all funding for                 new fifth core service: Provide
                                                in the State, after receiving public input,             transition services.’’                                assistance to those at risk of entering
                                                and signed by the chairperson of the                       Funding issues are beyond the scope                institutions. We believe the ‘‘Youth/
                                                SILC acting on behalf of and at the                     of this rule. However, it might be useful             Transition Services’’ category captures
                                                direction of the Council; not less than                 to note that some resources currently                 some relevant information for the third
                                                51 percent of the directors of the CILs                 funded by HHS related to transition                   component of the new fifth core service:
                                                in the State, and the director of the                   services reside in other agencies within              Facilitate transition of youth to
                                                designated State entity (DSE). The                      the Department and ACL lacks the                      postsecondary life. For FY 2014, 281
                                                signature requirement of not less than                  authority to direct how these transition              CILs reported nursing home transition
                                                51 percent of CIL directors is a new                    funds are disbursed.                                  goals established for at least one
                                                requirement under WIOA. While this                         With those facts in mind, we                       consumer, 343 CILS reported
                                                requirement does increase the amount                    recommend that interested CILs note                   community-based living goals
                                                of time a State may need to prepare an                  that ACL offers technical assistance for              established for at least one consumer,
                                                approvable SPIL, the statute provides no                state and community-based aging and                   and 224 CILs reported youth transition
                                                flexibility in implementing the new                     disability organizations through                      services provided to at least one
                                                requirement. We are not able to estimate                national partners as well as through                  consumer under the ‘‘Youth/Transition
                                                the amount of additional time the 51                    learning collaboratives of networks of                Services’’ category of the 704 Annual
                                                percent signatory requirement will add                  community-based aging and disability                  Performance Report.
                                                to the SPIL development and approval                    organizations, including Centers for
                                                process at the State level given that this              Independent Living. These networks                      3 The current 704 Report was not designed to
                                                is a new requirement. We solicited                      assist many CILs with leveraging their                incorporate the fifth core services, so current data
                                                comments from affected States on this                   Federal funds and conducting resource
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                                                                                                                                                              roughly corresponds with the categories.




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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                                   74691

                                                                                                                                                                                             Percentage   Number of
                                                                             5th Core service                                        704 Annual performance report category                   of CILs *     CILS

                                                Facilitate Transitions from Nursing Homes and Other Institutions to               Relocation from a Nursing Home or Institu-                         83         281
                                                  the Community.                                                                    tion.
                                                Provide Assistance to Those at Risk of Entering Institutions ............         Community-Based Living ...............................             99         343
                                                Facilitate Transition of Youth to Postsecondary Life ..........................   Youth/Transition Services ..............................           66         224
                                                  * Percentage of CILs reporting a goal set for at least one consumer. The Youth/Transition Services sub-category represents the percentage of
                                                CILs reporting service provision to at least one consumer.


                                                  Based on this analysis, we believe that                indicating that many CILs currently                        the community served by each CIL, and
                                                many CILs currently have staff capable                   have staff capable of providing the new                    the approach each CIL takes to address
                                                of providing the new fifth core services.                fifth core services. We received                           the needs of individuals under the fifth
                                                However, due to the lack of additional                   comments that some CILs which                              core service. In addressing the
                                                funding, compliance with this statutory                  currently provide fifth core services do                   comments related to burden, we also
                                                change may require CILs to re-examine                    so using other sources of funding,                         note that CILs can fulfill their obligation
                                                their individual budgets, staffing plans,                including Medicaid dollars and                             to provide fifth core services in a
                                                and consumer needs in order to                           contracts with managed care                                number of ways that may reduce the
                                                reallocate funding to ensure the                         organizations. However, as shown in the                    burden associated with the service. For
                                                appropriate provision of services as                     table above, a substantial number of                       example, services that CILs already
                                                required by the Rehabilitation Act. We                   CILs do not yet provide the newly                          provide may count towards this
                                                estimated that this analysis will require                required services and therefore would                      category rather than other core services.
                                                approximately 10–15 hours of time for                    potentially incur costs in order to                           Nevertheless, we recognize that the
                                                each CIL director. We proposed to use                    comply with this rule.4 We received                        addition of the fifth core services may
                                                the upper end of the time estimate (15                   several comments confirming that some                      place more of a burden on CIL directors
                                                hours) for purposes of estimating the                    CILs do not yet provide the new fifth                      to re-examine their individual budgets,
                                                total impact of this statutory                           core services, and doing so may impose                     staffing and strategic plans, and
                                                requirement. Therefore, we estimated                     a burden upon such CILs, particularly a                    consumer needs in order to reallocate
                                                the amount of compliance analysis time                   diminution of services provided in other                   funding to ensure the appropriate
                                                for CIL directors to total 5,310 hours.                  areas. These commenters were not able                      provision of services as required by the
                                                  To estimate the average hourly wage                    to give us a more detailed estimate of                     Rehabilitation Act. We therefore are
                                                for a CIL director, we examined data                     calculating the burden other than to ask                   increasing our initial estimate of 15
                                                compiled by the IL Net (a collaborative                  for a substantial increase in funding for                  hours of time for each CIL director to 30
                                                project of Independent Living Research                   CILs. As noted above, increasing                           hours of time to account for the
                                                Utilization (ILRU), the National Council                 funding for CILs is beyond the scope of                    additional burden. In the final rule we
                                                on Independent Living (NCIL), and the                    this regulation.                                           estimate the amount of compliance
                                                Association of Programs for Rural                           We also received questions as to                        analysis time for CIL directors to total
                                                Independent Living (APRIL)) and                          whether there are minimum levels                           10,620 hours. We received several
                                                Bureau of Labor Statistics (BLS) data.                   which must be achieved in order to                         comments with different estimates.
                                                According to a 2003 National Survey of                   have met the requirements of each                          However, the comments did not provide
                                                Salaries and Work Experience of Center                   component of the new fifth core IL                         sufficient detail or explain how the
                                                for Independent Living Directors,                        services; the responses to these                           estimates were calculated. They did not
                                                compiled by IL Net, the most common                      questions relate to and may impact the                     include a breakdown of the costs of
                                                annual salary range for CIL directors in                 burden analysis. Each CIL must                             wages, benefits and overhead; nor did
                                                2002 was between $41,000 and $45,000.                    demonstrate activity under all three                       they include an estimate of the hours
                                                This equates to an average hourly salary                 prongs of the definition, but the                          used in the calculation. Thus, we
                                                range of $19.71 to $21.63. The Bureau                    minimum levels are not further defined                     continue to assume that the costs of
                                                of Labor Statistics (BLS) provided more                  in this regulation. The revised data                       wages, benefits and overhead to be a
                                                recent salary information.                               collection system will contain more                        total hourly cost of $57.66, and use that
                                                  According to 2012 BLS data, the                        information when it is published. We                       figure in determining the dollar impact
                                                average hourly wage for a social and                     note that we do not establish a                            based on an increased number of hours,
                                                community manager (a BLS                                 minimum number of services, beyond                         as discussed above. We increase our
                                                occupational classification for managers                 that there must be some service (at least                  estimate in the final rule of the total
                                                who coordinate and supervise social                      one activity) accomplished and reported                    dollar impact of this additional CIL
                                                service programs) was $28.83. We                         in each category and sub-category, for                     director time to be $612,349.20.
                                                proposed using the more recent BLS                       any of the core services, and we do not                       WIOA continues to require annual
                                                data to calculate the total estimated                    intend to establish a minimum number                       onsite compliance reviews of at least 15
                                                impact of this statutory requirement. In                 for the new fifth core services. The                       percent of CILs that receive funding
                                                order to estimate the benefits and                       amount of services provided will                           under section 722 of the Act and at least
                                                overhead associated with this hourly                     depend on the needs of the individuals                     one-third of designated state units that
                                                wage, we assume that these costs equal                   seeking services, the social dynamics of                   receive funds under section 723 of the
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                                                100 percent of pre-tax wages, for a total                  4 Costs of new actions are included in a regulatory
                                                                                                                                                                    Act. The only change made by WIOA
                                                hourly cost of $57.66. Therefore, we                     impact analysis even when budgets or grant                 was to eliminate the requirement that
                                                estimated the total dollar impact of this                amounts do not change. If CILs are reallocating            CILs subject to compliance reviews be
                                                additional CIL director time to be                       grant funds to these newly required services, then         selected randomly. ACL is not
                                                                                                         they are doing some other worthwhile activity to a         proposing any changes to the
                                                $306,174.60.                                             lesser extent, and the value of that alternative
                                                  As noted previously, we have                           activity represents the opportunity cost of the new        compliance review process in this
                                                interpreted recent 704 Reports as                        requirements.                                              regulation. We do not anticipate any


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                                                74692            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                additional burden on grantees as a result               alternative treatment of the Part B State             administrative costs of the DSE, which
                                                of the compliance and review process,                   matching funds. In the final rule, as in              on its face seems counter to the change
                                                including the development of additional                 the proposed rule, funds used to meet                 in the law capping the available
                                                corrective action plans in response to                  the required 10 percent State match are               percentage for these purposes at a
                                                such reviews.                                           treated the same as funds ‘‘received by               relatively low amount. Commenters
                                                   While the final rule establishes a new               the State’’ under Part B.                             supported this approach.
                                                appeals process for States, we anticipate                  To better understand the implications
                                                that the process will be utilized                       of this decision, consider the five                      We also considered alternative
                                                infrequently based on past experience of                percent administrative cap on the DSE’s               approaches regarding implementation of
                                                the Independent Living Services                         use of Part B funds for administrative                the new fifth core services based on
                                                programs. The process is designed to                    purposes in § 1329.12(a)(5). For                      comments regarding lack of funding to
                                                provide additional protection against                   example, the proposed regulatory                      provide the new services. We have
                                                the termination of funding. We received                 language mandates that WIOA’s 5                       chosen not to establish minimum
                                                no specific comments on the burden                      percent cap on funds for DSE                          number of services to be provided for
                                                analysis. Therefore, we do not expect                   administrative expenses applies only to               any of the core services, including the
                                                that funds will be terminated more or                   the Part B funds allocated to the State               fifth core service, and to allow CILs
                                                less frequently.                                        and to the State’s required 10 percent                flexibility in determining how to meet
                                                   The allocation of 1.8 to 2 percent of                Part B match. It does not apply to other              the requirements of the act. We believe
                                                Part B funds to training and technical                  program funds, including, but not                     that this approach, discussed above,
                                                assistance for SILCs is a new                           limited to, payments provided to a State              satisfies the requirements of WIOA that
                                                requirement under WIOA. We have                         from the Social Security Administration               CILs provide services in all five core
                                                limited available data regarding the                    for assisting Social Security                         service areas. It also gives CILs the
                                                impact on programs of this provision                    beneficiaries and recipients to achieve               greatest amount of flexibility to
                                                and requested comment on this aspect                    employment outcomes, any other                        determine how to use their limited
                                                of the analysis. We received no                         federal funds, or to other funds                      federal funds to meet the needs of
                                                comments related to burden analysis for                 allocated by the State for IL purposes.               individuals in their service area.
                                                this provision.                                         Treating the issue in this way makes
                                                   The 5 percent administrative cap on                  more Part B funds available for IL                    D. Paperwork Reduction Act of 1995
                                                the DSE is a new statutory requirement                  services and SPIL activities, while
                                                under WIOA, as is the 30 percent ceiling                                                                        The Paperwork Reduction Act of 1995
                                                                                                        retaining sufficient funds to permit the
                                                on the SILC resource plan (unless the                                                                         (PRA), 44 U.S.C. 3501 et seq., requires
                                                                                                        DSE to accomplish its responsibilities
                                                SPIL specifies that a greater percentage                and oversight requirements for ILS                    certain actions before an agency can
                                                of funds is needed for to carry out the                 program funds under the law. One key                  adopt or revise a collection of
                                                functions of the SILC). The rule makes                  advantage of this approach is                         information. Under the PRA, we are
                                                final the NPRM’s narrow interpretation                  minimizing disruptions to the ILS                     required to provide notice in the
                                                of the 5 percent administrative cap,                    program from potential DSE decisions to               Federal Register and solicit public
                                                limiting its application to ‘‘Part B’’                  relinquish the program due to                         comment before an information
                                                funds only, rather than applying the 5                  insufficient resources to fulfill the                 collection request is submitted to the
                                                percent cap on administrative funds                     WIOA-related fiscal oversight/                        Office of Management and Budget
                                                allocated to the DSE to all federal funds               administrative support responsibilities.              (OMB) for review and approval. In order
                                                supporting the Independent Living                       For context, on average, 10–15 percent                to fairly evaluate whether an
                                                Services. Additional funding sources                    of DSE funding was spent on                           information collection should be
                                                include Social Security reimbursements,                 administrative costs prior to WIOA,                   approved by OMB, Section
                                                Vocational Rehabilitation program                       though this must be considered along                  3506(c)(2)(A) of the PRA requires that
                                                funds, and other public or private funds.               with the more limited role the DSE now                we solicit comments on new or revised
                                                   The rule avoids a broader application                plays under the law as amended.                       information collections, which in the
                                                of the cap in an attempt to avoid                          A narrower interpretation of this                  case of this rule, includes the new SPIL
                                                creating too great a disincentive to State              provision would be to apply it to Part                development requirements. The law is
                                                agencies to serve as DSEs, given the                    B funds only, without the State match.                also intended to ensure that
                                                more limited role of the DSEs in                        Not only would this approach severely                 stakeholders can fully analyze the
                                                decision-making (as they no longer have                 limit the funds available for fulfillment             impact of the rule, which includes the
                                                a statutory role in the development of                  of DSE responsibilities under the law, it             associated reporting burden. We are not
                                                the SPIL). Our intent is to effectuate the              would also create some potential                      introducing any new information
                                                limitation as required under the law,                   accounting burdens for programs, as                   collections in the final rule however, it
                                                while helping ensure retention of DSEs                  State funds provided as a result of the               does revise process requirements. As
                                                for the Part B programs. Some                           ILS program’s State matching                          discussed earlier, WIOA changed the
                                                commenters indicated that the 5 percent                 requirement have traditionally been                   requirements regarding SPIL
                                                administrative cap on the DSE may                       treated similarly to Federal Part B funds.            development and who must sign the
                                                result in reduced funding for                           It would also be inconsistent with prior              SPIL.
                                                independent living services; they did                   accounting practices regarding the 10%
                                                not discuss the specific burden                         State match for Part B funding, which                   This final rule makes no revisions to
                                                associated with implementation of this                  existed prior to WIOA.                                existing 704 reporting requirements, the
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                                                statutory requirement.                                     The broadest interpretation would                  Section 704 Annual Performance Report
                                                                                                        include all federal funds supporting the              (Parts I and II). ACL is currently
                                                C. Alternative Approaches                               ILS program, including Social Security                convening workgroups to recommend
                                                  Although we believe that the                          reimbursements and funds from the                     and implement changes regarding data
                                                approach of the rule best serves the                    Title I (Vocational Rehabilitation)                   collection. These changes will be
                                                purposes of the law, we considered a                    program in the cap, which would                       subject to the public comment process
                                                regulatory scheme requiring an                          broaden the pot of monies allocated for               under the PRA before they are finalized.


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                        74693

                                                1. State Plans for Independent Living                    being added to the current OMB                          Section 706 of the Rehabilitation Act
                                                (SPIL)                                                   approved 704 report at this time.                     continues to require reviews of CILs
                                                   The SPIL encompasses the activities                   (Section 704 Annual Performance                       funded under Section 722 and reviews
                                                planned to achieve the specified                         Report (Parts I and II), OMB Control                  of State entities funded under Section
                                                independent living objectives and                        Number 1820–0606).                                    723 of the Rehabilitation Act. Therefore,
                                                reflects the commitment to comply with                      Prior to WIOA, an effort was                       ACL will continue to conduct
                                                all applicable statutory and regulatory                  underway to make formal changes to the                compliance reviews and make final
                                                requirements during the three years                      704 Reporting Instruments. The passage                decisions on any proposed corrective
                                                covered by the plan. A SPIL has already                  of WIOA in July 2014 put those efforts                actions and/or technical assistance
                                                been approved in each State through                      on hold until late 2014. ACL is currently             related to compliance reviews of a CIL’s
                                                fiscal year 2016. (State Plan for                        convening workgroups to recommend                     grants.
                                                Independent Living and Center for                        and implement changes in data                           In Section 706(b), 29 U.S.C. 796d–
                                                Independent Living Programs, OMB                         collection, and these changes will be                 1(b), the Act, as amended by WIOA,
                                                Control Number 1820–0527.) The law                       subject to the public comment process                 requires the Administrator to develop
                                                remains unchanged that the SPIL                          under the PRA before they are finalized.              and publish in the Federal Register new
                                                continues to govern the provision of IL                  Key steps in ACL’s current and                        indicators of minimum compliance for
                                                services.                                                projected timeline on the process                     Statewide Independent Living Councils.
                                                   Any amendments to the SPIL,                           include an external workgroup webinar,                The SILC Standards and Indicators of
                                                reflecting either a change based on the                  held April 1, 2015, to share the status               minimum compliance are currently
                                                WIOA amendments or any material                          of data collection efforts and invite                 under development. ACL shared a draft
                                                change in State law, organization,                       feedback on specific issues. It is                    for informal stakeholder review in
                                                policy, or agency operations that affect                 anticipated that additional external                  January 2016 and continues to take
                                                the administration of the SPIL, must be                  stakeholder engagement will occur                     stakeholder feedback. The CIL
                                                developed in accordance with Section                     during summer of 2016. The SILC                       indicators of minimum compliance
                                                704(a)(2) of the Rehabilitation Act, as                  indicators of minimum compliance will                 (consistent with the standards set forth
                                                amended. SPIL amendments must be                         also be published in the Federal                      in Section 725) are awaiting the
                                                submitted to ACL for approval.                           Register as part of this process. It is               addition of the fifth core services, which
                                                   WIOA changed the content of the                       ACL’s goal to publish the revised data                requires input in response to this
                                                SPIL to the extent that the SPIL must                    collection proposals for comment in                   proposed rule.
                                                describe how the independent living                      Federal Register in September 2016.
                                                services will promote full access to                                                                           E. Unfunded Mandates Reform Act
                                                                                                         According to this projected timeline, in
                                                community life for individuals with                      October 2017, programs will begin                        Section 202 of the Unfunded
                                                significant disabilities and describe                    collecting information for the FY 18                  Mandates Reform Act of 1995 requires
                                                strategies for providing independent                     reporting period using the new data                   that a covered agency prepare a
                                                living services on a statewide basis, to                 collection system. In December 2018,                  budgetary impact statement before
                                                the greatest extent possible. The SPIL                   the FY18 704 data collection system                   promulgating a rule that includes any
                                                must also include a justification for any                reflecting the new reporting                          Federal mandate that may result in
                                                funding allocation of Part B funds above                 requirements will be due.                             expenditures by State, local, or Tribal
                                                30% for the SILC’s resource plan.                                                                              governments, in the aggregate, or by the
                                                   We anticipate that such changes may,                     Updating data collection will require
                                                                                                         changes to include the new fifth core                 private sector, of $100 million, adjusted
                                                on average, increase the amount of time                                                                        for inflation, or more in any one year.
                                                to develop the SPIL by five (5) hours.                   services under WIOA. We make final
                                                                                                         definitions for some of the terms in the                 If a covered agency must prepare a
                                                There are 57 SPILs, one for each State,                                                                        budgetary impact statement, Section 205
                                                the District of Columbia, and the six                    fifth core services in this rule, and have
                                                                                                         made changes based on comments                        further requires that it select the most
                                                territories. Assuming the same hourly                                                                          cost-effective and least burdensome
                                                cost of $57.66 discussed in the                          received. Assuming revised data
                                                                                                         collection requirements will include                  alternatives that achieves the objectives
                                                Regulatory Impact Analysis above, we
                                                                                                         reporting on the new fifth core services,             of the rule and is consistent with the
                                                therefore estimate the cost of the
                                                                                                                                                               statutory requirements. In addition,
                                                changes to be $16,433.1 (57 SPILs ×                      we estimate that providing the
                                                                                                                                                               Section 203 requires a plan for
                                                $57.66/hour × 5 hours).We did not                        information will take approximately 1
                                                                                                         hour per data report. Based on the total              informing and advising any small
                                                receive any comments on these
                                                                                                         number of 704 Reports filed annually in               government entities that may be
                                                calculations.
                                                                                                         past years,6 we estimate that the total               significantly or uniquely impacted by a
                                                2. 704 Reporting Requirements                            number of additional hours to be 412.7                rule.
                                                   The Section 704 Annual Performance                                                                             ACL has determined that this
                                                                                                            Assuming the same hourly cost of
                                                Report (Parts I and II) are the Reporting                                                                      rulemaking does not result in the
                                                                                                         $57.66 discussed in the regulatory
                                                Instruments used to collect information                                                                        expenditure by State, local, and Tribal
                                                                                                         impact analysis above, we estimate the
                                                required by the Act,5 as amended by                                                                            governments in the aggregate, or by the
                                                                                                         cost of the changes to be $23,755.92. We
                                                WIOA, related to the use of Part B and                                                                         private sector of more than $100 million
                                                                                                         received no comments on these
                                                Part C funds. This regulation simply                                                                           in any one year. The total FY 2016
                                                                                                         estimates. In summary, future proposed
                                                transfers the statutorily required annual                                                                      budget for the Independent Living
                                                                                                         changes to the Section 704 Annual
                                                reporting from the Department of                                                                               Services and Centers for Independent
                                                                                                         Performance Report (Parts I and II) will
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                                                Education Regulations to the                                                                                   Living programs authorized under
                                                                                                         be published in the Federal Register
                                                Department of Health and Human                                                                                 Chapter 1, Title VII of the Rehabilitation
                                                                                                         with opportunity for public comment.
                                                Services (HHS) regulations. No                                                                                 Act of 1973 (Rehabilitation Act or Act),
                                                additional reporting requirements are                      6 See, 79 FR 23960 (April 29, 2014); information
                                                                                                                                                               as amended by WIOA (Pub. L. 113–128)
                                                                                                         collection approved June 4, 2014 through June 30,
                                                                                                                                                               is $101,183,000. We do not anticipate
                                                  5 See Sections 704(c)(3) and (4), 704(m)(4)(D),        2017. http://www.reginfo.gov/public/do/               that the rule will impact the majority of
                                                706(d), and 725(c) of the Act.                           PRAViewICR?ref_nbr=201404-1820-001.                   the budget for these programs.


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                                                74694            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                F. Congressional Review                                 PART 1329—STATE INDEPENDENT                             (a) Providing financial assistance to
                                                                                                        LIVING SERVICES AND CENTERS FOR                       States for providing, expanding, and
                                                  This rule is not a major rule as                      INDEPENDENT LIVING                                    improving the provision of IL services;
                                                defined in 5 U.S.C. Section 804(2).                                                                             (b) Providing financial assistance to
                                                G. Assessment of Federal Regulations                    Subpart A—General Provisions                          develop and support statewide networks
                                                and Policies on Families                                                                                      of Centers for Independent Living
                                                                                                        Sec.
                                                                                                                                                              (Centers or CILs);
                                                                                                        1329.1 Programs covered.
                                                   Section 654 of the Treasury and                                                                              (c) Providing financial assistance to
                                                                                                        1329.2 Purpose.
                                                General Government Appropriations                       1329.3 Applicability of other regulations.            States, with the goal of improving the
                                                Act of 1999 requires Federal agencies to                1329.4 Definitions.                                   independence of individuals with
                                                determine whether a policy or                           1329.5 Indicators of minimum compliance.              disabilities, for improving working
                                                regulation may affect family well-being.                1329.6 Reporting.                                     relationships among—
                                                If the agency’s conclusion is affirmative,              1329.7 Enforcement and appeals                          (1) State Independent Living Services;
                                                then the agency must prepare an impact                       procedures.                                        (2) Centers for Independent Living;
                                                assessment addressing seven criteria                                                                            (3) Statewide Independent Living
                                                                                                        Subpart B—Independent Living Services
                                                specified in the law. These regulations                                                                       Councils (SILCs or Councils) established
                                                                                                        1329.10 Authorized use of funds for                   under section 705 of the Act (29 U.S.C.
                                                do not have an impact on family well-                       Independent Living Services.
                                                being as defined in the legislation.                                                                          796d);
                                                                                                        1329.11 DSE eligibility and application.
                                                                                                                                                                (4) State vocational rehabilitation (VR)
                                                                                                        1329.12 Role of the designated State entity.
                                                H. Executive Order 13132                                1329.13 Allotment of Federal funds for                programs receiving assistance under
                                                                                                            State independent living (IL) services.           Title 1 of the Act (29 U.S.C. 720 et seq.);
                                                   Executive Order 13132 on                             1329.14 Establishment of SILC.                          (5) State programs of supported
                                                ‘‘federalism’’ was signed August 4,                     1329.15 Duties of the SILC.                           employment services receiving
                                                1999. The purposes of the Order are to                  1329.16 Authorities of the SILC.                      assistance under Title VI of the Act (29
                                                guarantee the division of governmental                  1329.17 General requirements for a State              U.S.C. 795g et seq.);
                                                responsibilities between the national                       plan.                                               (6) Client assistance programs (CAPs)
                                                government and the States that was                      Subpart C—Centers for Independent Living              receiving assistance under section 112
                                                intended by the Framers of the                          Program                                               of the Act (29 U.S.C. 732);
                                                Constitution, to ensure that the                                                                                (7) Programs funded under other titles
                                                                                                        1329.20 Centers for Independent Living
                                                principles of federalism established by                     (CIL) program.
                                                                                                                                                              of the Act;
                                                the Framers guide the executive                         1329.21 Continuation awards to entities
                                                                                                                                                                (8) Programs funded under other
                                                departments and agencies in the                             eligible for assistance under the CIL             Federal laws; and
                                                formulation and implementation of                           program.                                            (9) Programs funded through non-
                                                policies, and to further the policies of                1329.22 Competitive awards to new Centers             Federal sources with the goal of
                                                the Unfunded Mandates Reform Act.                           for Independent Living.                           improving the independence of
                                                                                                        1329.23 Compliance reviews.                           individuals with disabilities.
                                                   The Department certifies that this rule              1329.24 Training and technical assistance
                                                does not have a substantial direct effect                   to Centers for Independent Living.                § 1329.3   Applicability of other regulations.
                                                on States, on the relationship between                                                                          Several other regulations apply to all
                                                                                                          Authority: 29 U.S.C. 709; 42 U.S.C. 3515e.
                                                the Federal government and the States,                                                                        activities under this part. These include
                                                or on the distribution of power and                     Subpart A—General Provisions                          but are not limited to:
                                                responsibilities among the various                                                                              (a) 45 CFR part 16—Procedures of the
                                                levels of government. ACL is not aware                  § 1329.1    Programs covered.                         Departmental Grant Appeals Board.
                                                of any specific State laws that would be                   This part includes general                           (b) 45 CFR part 46—Protection of
                                                preempted by the adoption of the                        requirements applicable to the conduct                Human Subjects.
                                                regulation in subchapter C of 45 CFR                    of the following programs authorized                    (c) 45 CFR part 75—Uniform
                                                part 1329.                                              under title VII, chapter 1 of the                     Administrative Requirements, Cost
                                                                                                        Rehabilitation Act of 1973, as amended:               Principles, and Audit Requirements for
                                                List of Subjects in 45 CFR Part 1329                                                                          HHS Awards.
                                                                                                           (a) Independent Living Services (ILS),               (d) 45 CFR part 80—
                                                  Centers for independent living,                       title VII, chapter 1, part B (29 U.S.C.
                                                Compliance, Enforcement and appeals,                                                                          Nondiscrimination under Programs
                                                                                                        796e to 796e–3).                                      Receiving Federal Assistance through
                                                Independent living services, Persons                       (b) The Centers for Independent
                                                with disabilities, Reporting.                                                                                 the Department of Health and Human
                                                                                                        Living (CIL), title VII, chapter 1, part C            Services—Effectuation of title VI of the
                                                  Dated: October 18, 2016.                              (29 U.S.C. 796f to 796f–6).                           Civil Rights Act of 1964.
                                                Edwin Walker,
                                                                                                        § 1329.2    Purpose.
                                                                                                                                                                (e) 45 CFR part 81—Practice and
                                                Acting Administrator, Administration for                                                                      Procedure for Hearings under Part 80 of
                                                Community Living.                                          The purpose of title VII of the Act is             this Title.
                                                                                                        to promote a philosophy of independent                  (f) 45 CFR part 84—
                                                  Approved: October 19, 2016.                           living (IL), including a philosophy of                Nondiscrimination on the Basis of
                                                Sylvia M. Burwell,                                      consumer control, peer support, self-                 Handicap in Programs Activities
                                                Secretary, Department of Health and Human               help, self-determination, equal access,               Receiving Federal Financial Assistance.
                                                Services.                                               and individual and system advocacy, in                  (g) 45 CFR part 86—
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                                                                                                        order to maximize the leadership,                     Nondiscrimination on the Basis of Sex
                                                ■ For the reasons stated in the preamble,               empowerment, independence, and                        in Education Programs or Activities
                                                the, Administration for Community                       productivity of individuals with                      Receiving Federal Financial Assistance.
                                                Living, U.S. Department of Health and                   disabilities, and to promote the                        (h) 45 CFR part 91—
                                                Human Services, amends 45 CFR                           integration and full inclusion of                     Nondiscrimination on the Basis of Age
                                                subchapter C by adding part 1329 to                     individuals with disabilities into the                in Programs or Activities Receiving
                                                read as follows:                                        mainstream of American society by:                    Federal Financial Assistance from HHS.


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                        74695

                                                  (i) 45 CFR part 93—New Restrictions                      Center for independent living                      disability, nonresidential, private,
                                                on Lobbying.                                            (‘‘Center’’) means a consumer-                        nonprofit agency.
                                                  (j) 2 CFR part 376—Nonprocurement                     controlled, community-based, cross-                      Independent living core services
                                                Debarment and Suspension.                               disability, nonresidential, private                   mean, for purposes of services that are
                                                  (k) 2 CFR part 382—Requirements for                   nonprofit agency for individuals with                 supported under the ILS or CIL
                                                Drug-Free Workplace (Financial                          significant disabilities (regardless of age           programs—
                                                Assistance).                                            or income) that—                                         (1) Information and referral services;
                                                                                                           (1) Is designed and operated within a                 (2) Independent Living skills training;
                                                § 1329.4   Definitions.                                                                                          (3) Peer counseling, including cross-
                                                                                                        local community by individuals with
                                                   For the purposes of this part, the                   disabilities;                                         disability peer counseling;
                                                following definitions apply:                               (2) Provides an array of IL services as               (4) Individual and systems advocacy;
                                                   Act means the Rehabilitation Act of                  defined in section 7(18) of the Act,                     (5) Services that:
                                                1973 (29 U.S.C. 701 et seq.), as                        including, at a minimum, independent                     (i) Facilitate the transition of
                                                amended. Part B refers to part B of                     living core services as defined in this               individuals with significant disabilities
                                                chapter 1 of title VII of the Act (29                   section; and                                          from nursing homes and other
                                                U.S.C. 796e to 796e–3). Part C refers to                   (3) Complies with the standards set                institutions to home and community-
                                                part C of chapter 1 of title VII, of the Act            out in Section 725(b) and provides and                based residences, with the requisite
                                                (29 U.S.C. 796f to 796f–6).                             complies with the assurances in section               supports and services. This process may
                                                   Administrative support services                      725(c) of the Act and § 1329.5.                       include providing services and supports
                                                means services and supports provided                       Completed their secondary education                that a consumer identifies are needed to
                                                by the designated State entity under Part               means, with respect to the Independent                move that person from an institutional
                                                B, and to Part C CILs administered by                   Living Core Services that facilitate the              setting to community based setting,
                                                the State under section 723 of the Act                  transition of youth who are individuals               including systems advocacy required for
                                                in support of the goals, objectives and                 with significant disabilities in section              the individual to move to a home of his
                                                related activities under an approved                    7(17)(e)(iii) of the Act, that an eligible            or her choosing;
                                                State Plan for Independent Living                       youth has received a diploma; has                        (ii) Provide assistance to individuals
                                                (SPIL). Such support includes any costs                 received a certificate of completion for              with significant disabilities who are at
                                                associated with contracts and subgrants                 high school or other equivalent                       risk of entering institutions so that the
                                                including fiscal and programmatic                       document marking the completion of                    individuals may remain in the
                                                oversight, among other services.                        participation in high school; or has                  community. A determination of who is
                                                   Administrator means the                              exceeded the age of eligibility for                   at risk of entering an institution should
                                                Administrator of the Administration for                 services under IDEA.                                  include self-identification by the
                                                Community Living (ACL) of the                              Consumer control means, with respect               individual as part of the intake or goal-
                                                Department of Health and Human                          to a Center or eligible agency, that the              setting process; and
                                                Services.                                               Center or eligible agency vests power                    (iii) Facilitate the transition of youth
                                                   Advocacy means pleading an
                                                                                                        and authority in individuals with                     who are individuals with significant
                                                individual’s cause or speaking or
                                                                                                        disabilities, including individuals who               disabilities, who were eligible for
                                                writing in support of an individual. To
                                                                                                        are or have been recipients of IL                     individualized education programs
                                                the extent permitted by State law or the
                                                                                                        services, in terms of the management,                 under section 614(d) of the Individuals
                                                rules of the agency before which an
                                                                                                        staffing, decision making, operation,                 with Disabilities Education Act (20
                                                individual is appearing, a non-lawyer
                                                                                                        and provision of services. Consumer                   U.S.C. 1414(d)), and who have
                                                may engage in advocacy on behalf of
                                                                                                        control, with respect to an individual,               completed their secondary education or
                                                another individual. Advocacy may—
                                                   (1) Involve representing an                          means that the individual with a                      otherwise left school, to postsecondary
                                                individual—                                             disability asserts control over his or her            life. Individuals who have reached the
                                                   (i) Before private entities or                       personal life choices, and in addition,               age of 18 and are still receiving services
                                                organizations, government agencies                      has control over his or her independent               in accordance with an Individualized
                                                (whether State, local, or Federal), or in               living plan (ILP), making informed                    Education Program (IEP) under IDEA
                                                a court of law (whether State or                        choices about content, goals and                      have not ‘‘completed their secondary
                                                Federal); or                                            implementation.                                       education.’’
                                                   (ii) In negotiations or mediation, in                   Cross-disability means, with respect                  Independent living service includes
                                                formal or informal administrative                       to services provided by a Center, that a              the independent living core services and
                                                proceedings before government agencies                  Center provides services to individuals               such other services as described in
                                                (whether State, local, or Federal), or in               with all different types of significant               section 7(18) of the Act.
                                                legal proceedings in a court of law; and                disabilities, including individuals with                 Individual with a disability means an
                                                   (2) Be on behalf of—                                 significant disabilities who are members              individual who—
                                                   (i) A single individual, in which case               of unserved or underserved populations                   (1) Has a physical or mental
                                                it is individual advocacy;                              by programs under Title VII. Eligibility              impairment that substantially limits one
                                                   (ii) A group or class of individuals, in             for services shall be determined by the               or more major life activities of such
                                                which case it is systems advocacy; or                   Center, and shall not be based on the                 individual;
                                                   (iii) Oneself, in which case it is self              presence of any one or more specific                     (2) Has a record of such an
                                                advocacy.                                               significant disabilities.                             impairment; or
                                                   Attendant care means a personal                         Designated State entity (DSE) is the                  (3) Is regarded as having such an
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                                                assistance service provided to an                       State agency designated in the State                  impairment, as described in section 3(3)
                                                individual with significant disabilities                Plan for Independent Living (SPIL) that               of the Americans with Disabilities Act
                                                in performing a variety of tasks required               acts on behalf of the State to provide the            of 1990 (42 U.S.C. 12102(3)).
                                                to meet essential personal needs in areas               functions described in title VII, chapter                Individual with a significant disability
                                                such as bathing, communicating,                         1 of the Act.                                         means an individual with a severe
                                                cooking, dressing, eating, homemaking,                     Eligible agency means a consumer-                  physical or mental impairment whose
                                                toileting, and transportation.                          controlled, community-based, cross-                   ability to function independently in the


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                                                74696            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                family or community or whose ability to                 disabilities only as specifically                     standards and assurances in section 725
                                                obtain, maintain, or advance in                         authorized in the SPIL.                               (b) and (c) of the Act and of this part,
                                                employment is substantially limited and                    State includes, in addition to each of             the Director must provide notice to the
                                                for whom the delivery of independent                    the several States of the United States,              Center pursuant to guidance determined
                                                living services will improve the ability                the District of Columbia, the                         by the Administrator.
                                                to function, continue functioning, or                   Commonwealth of Puerto Rico, the                         (2) The Director may offer technical
                                                move toward functioning independently                   United States Virgin Islands, Guam,                   assistance to the Center to develop a
                                                in the family or community or to                        American Samoa, and the                               corrective action plan or to take such
                                                continue in employment, respectively.                   Commonwealth of the Northern Mariana                  other steps as are necessary to come into
                                                   Majority means more than 50 percent.                 Islands.                                              compliance with the standards and
                                                   Minority group means American                           State plan means the State Plan for                assurances.
                                                Indian, Alaskan Native, Asian                           Independent Living (SPIL) required                       (3) The Center may request a
                                                American, Black or African American                     under Section 704 of the Act.                         preliminary appeal to the Director in a
                                                (not of Hispanic origin), Hispanic or                      Unserved and underserved groups or                 form and manner determined by the
                                                Latino (including persons of Mexican,                   populations include populations such                  Administrator. The Director shall
                                                Puerto Rican, Cuban, and Central or                     as individuals from racial and ethnic                 review the appeal request and provide
                                                South American origin), and Native                      minority backgrounds, disadvantaged                   written notice of the determination
                                                Hawaiian or other Pacific Islander.                     individuals, individuals with limited                 within a timely manner.
                                                   Nonresidential means, with respect to                English proficiency, and individuals                     (4) Where there is a determination
                                                a Center, that the Center does not                      from underserved geographic areas                     that falls within 45 CFR part 16,
                                                operate or manage housing or shelter for                (rural or urban).                                     appendix A, C.a.(1)–(4), the Center may
                                                individuals as an IL service on either a                   Youth with a significant disability                appeal an unfavorable decision by the
                                                temporary or long-term basis unless the                 means an individual with a significant                Director to the Administrator within a
                                                housing or shelter is—                                  disability who—                                       time and manner established by the
                                                   (1) Incidental to the overall operation                 (1) Is not younger than 14 years of age;           Administrator. The Administrator shall
                                                of the Center;                                          and                                                   review the appeal request and provide
                                                   (2) Necessary so that the individual                    (2) Is not older than 24 years of age.             written notice of the determination
                                                may receive an IL service; and                                                                                within a timely manner.
                                                                                                        § 1329.5 Indicators of minimum
                                                   (3) Limited to a period not to exceed                compliance.
                                                                                                                                                                 (5) The Administrator may take steps
                                                eight weeks during any six-month                                                                              to enforce a corrective action plan or to
                                                period.                                                   To be eligible to receive funds under               terminate funding if the Administrator
                                                   Peer relationships mean relationships                this part, a Center must comply with the              determines that the Center remains out
                                                involving mutual support and assistance                 standards in section 725(b) and                       of compliance.
                                                among individuals with significant                      assurances in section 725(c) of the Act,                 (6) Written notice of the
                                                disabilities who are actively pursuing IL               with the indicators of minimum                        determination by the Administrator
                                                goals.                                                  compliance, and the requirements                      shall constitute a final determination for
                                                                                                        contained in the terms and conditions of              purposes of 45 CFR part 16. A Center
                                                   Peer role models mean individuals
                                                                                                        the grant award.                                      that receives such notice of a
                                                with significant disabilities whose
                                                achievements can serve as a positive                    § 1329.6    Reporting.                                determination that falls within 45 CFR
                                                example for other individuals with                         (a) A Center must submit a                         part 16, appendix A, C.a.(1)–(4), may
                                                significant disabilities.                               performance report in a manner and at                 appeal to the Departmental Appeals
                                                   Personal assistance services mean a                  a time described by the Administrator,                Board pursuant to the provisions of 45
                                                range of services, paid or unpaid,                      consistent with section 704(m)(4)(D) of               CFR part 16.
                                                provided by one or more persons,                        the Act, 29 U.S.C. 796c(m)(4)(D).                        (7) A Center that is administered by
                                                designed to assist an individual with a                    (b) The DSE must submit a report in                the State under Section 723 of the Act
                                                disability to perform daily living                      a manner and at a time described by the               must first exhaust any State process
                                                activities that the individual would                    Administrator, consistent with section                before going through the process
                                                typically perform if the individual did                 704(c)(4) of the Act, 29 U.S.C.                       described in paragraphs (a)(1) through
                                                not have a disability. These services                   796c(c)(4).                                           (6) of this section.
                                                must be designed to increase the                           (c) The Administrator may require                     (b) Process for States. (1) If the
                                                individual’s control in life and ability to             such other reports as deemed necessary                Director of the Independent Living
                                                perform everyday activities and include                 to carry out the responsibilities set forth           Administration determines that a State
                                                but are not limited to: Getting up and                  in section 706 of the Act, 29 U.S.C.                  is out of compliance with sections 704,
                                                ready for work or going out into the                    796d–1.                                               705, 713 or other pertinent sections of
                                                community (including bathing and                                                                              the Act, the Director must provide
                                                dressing), cooking, cleaning or running                 § 1329.7 Enforcement and appeals                      notice to the State pursuant to guidance
                                                errands, engaging in social relationships               procedures.                                           determined by the Administrator.
                                                including parenting.                                      (a) Process for Centers for                            (2) The Director may offer technical
                                                   Service provider means a Center for                  Independent Living. (1) If the Director of            assistance to the State to develop a
                                                Independent Living that receives                        the Independent Living Administration                 corrective action plan or to take such
                                                financial assistance under Part B or C of               (Director) determines that, as the result             other steps as are necessary to ensure
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                                                chapter 1 of title VII of the Act, or any               of the Onsite Compliance Review                       that the State comes in to compliance.
                                                other entity or individual that provides                process defined in section 706(c)(2), or                 (3) Where there is a determination
                                                IL services under a grant or contract                   other review activities, any Center                   that falls within 45 CFR part 16,
                                                from the DSE pursuant to Section 704(f)                 receiving funds under this part, other                appendix A, C.a.(1)–(4), the State may
                                                of the Act. A designated State entity                   than a Center that is provided Part C                 seek an appeal consistent with the steps
                                                (DSE) may directly provide IL services                  funding by the State under section 723                set forth in paragraphs (a)(3) and (4) of
                                                to individuals with significant                         of the Act, is not in compliance with the             this section.


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                            74697

                                                  (4) The Administrator may take steps                    (7) Provide outreach to populations                    (1) Allocating funds for the delivery of
                                                to enforce statutory or regulatory                      that are unserved or underserved by                   IL services under Part B of the Act as
                                                requirements or to terminate funding if                 programs under title VII of the Act,                  directed by the SPIL; and
                                                the Administrator determines that the                   including minority groups and urban                      (2) Allocating the necessary and
                                                State remains out of compliance.                        and rural populations.                                sufficient resources needed by the SILC
                                                  (5) Written notice of the                                                                                   to fulfill its statutory duties and
                                                determination by the Administrator                      § 1329.11    DSE eligibility and application.         authorities under section 705(c),
                                                shall constitute a final determination for                (a) Any designated State entity (DSE)               consistent with the approved State Plan.
                                                purposes of 45 CFR part 16 with regard                  identified by the State and included in                  (c) Fiscal and accounting
                                                to the types of determinations set forth                the signed SPIL pursuant to section                   requirements: The DSE must adopt
                                                in 45 CFR part 16, appendix A, C.a.(1)–                 704(c) is eligible to apply for assistance            fiscal control and fund accounting
                                                (4). A State that receives such notice                  under this part in accordance with                    procedures as may be necessary to
                                                may appeal to the Departmental                          section 704 of the Act, 29 U.S.C. 796c.               ensure the proper disbursement of and
                                                Appeals Board pursuant to the                             (b) To receive financial assistance                 accounting for federal funds provided to
                                                provisions of 45 CFR part 16.                           under Parts B and C of chapter 1 of title             CILs, SILCs, and/or other services
                                                                                                        VII, a State shall submit to the                      providers under the ILS program. The
                                                Subpart B—Independent Living                            Administrator and obtain approval of a                DSE must comply with all applicable
                                                Services                                                State plan that meets the requirements                federal and State laws and regulations,
                                                                                                        of section 704 of the Act, 29 U.S.C.                  including those in 45 CFR part 75.
                                                § 1329.10 Authorized use of funds for
                                                Independent Living Services.                            796c.                                                 § 1329.13 Allotment of Federal funds for
                                                   (a) The State:                                         (c) Allotments to states are                        State independent living (IL) services.
                                                   (1) May use funds received under this                determined in accordance with section                    (a) The allotment of Federal funds for
                                                part to support the SILC resource plan                  711 of the Act, 29 U.S.C. 796e.                       State IL services for each State is
                                                described in section 705(e) of the Act                                                                        computed in accordance with the
                                                                                                        § 1329.12    Role of the designated State
                                                but may not use more than 30 percent                                                                          requirements of section 711(a)(1) of the
                                                                                                        entity.
                                                of the funds unless an approved SPIL so                                                                       Act.
                                                specifies pursuant to § 1329.15(c);                        (a) A DSE that applies for and receives               (b) Notwithstanding paragraph (a) of
                                                   (2) May retain funds under section                   assistance must:                                      this section, the allotment of Federal
                                                704(c)(5) of the Act; and                                  (1) Receive, account for, and disburse             funds for Guam, American Samoa, the
                                                   (3) Shall distribute the remainder of                funds received by the State under Part                United States Virgin Islands, and the
                                                the funds received under this part in a                 B and Part C in a State under section                 Commonwealth of the Northern Mariana
                                                manner consistent with the approved                     723 of the Act based on the State plan;               Islands is computed in accordance with
                                                State plan for the activities described in                 (2) Provide administrative support                 section 711(a)(2) of the Act.
                                                paragraph (b) of this section.                          services for a program under Part B, as                  (c) The Administrator shall reserve
                                                   (b) The State may use the remainder                  directed by the approved State plan, and              between 1.8 percent and 2 percent of
                                                of the funds described in paragraph                     for CILs under Part C when                            appropriated funds to provide, either
                                                (a)(3) of this section to—                              administered by the State under section               directly or through grants, contracts, or
                                                   (1) Provide to individuals with                      723 of the Act, 29 U.S.C. 796f–2;                     cooperative agreements, training and
                                                significant disabilities the independent                   (3) Keep such records and afford such              technical assistance to SILCs. Training
                                                living (IL) services required by section                access to such records as the                         and technical assistance funds shall be
                                                704(e) of the Act, particularly those in                Administrator finds to be necessary                   administered in accordance with section
                                                unserved areas of the State;                            with respect to the programs;
                                                   (2) Demonstrate ways to expand and                                                                         711A of the Act.
                                                                                                           (4) Submit such additional
                                                improve IL services;                                                                                          § 1329.14   Establishment of a SILC.
                                                   (3) Support the operation of Centers                 information or provide such assurances
                                                                                                        as the Administrator may require with                   (a) To be eligible to receive assistance
                                                for Independent Living (Centers) that                                                                         under this part, each State shall
                                                are in compliance with the standards                    respect to the programs; and
                                                                                                           (5) Retain not more than 5 percent of              establish and maintain a SILC that
                                                and assurances in section 725 (b) and (c)                                                                     meets the requirements of section 705 of
                                                of the Act;                                             the funds received by the State for any
                                                                                                        fiscal year under Part B, for the                     the Act, including composition and
                                                   (4) Support activities to increase the
                                                                                                        performance of the services outlined in               appointment of members.
                                                capacities of public or nonprofit                                                                               (b) The SILC shall not be established
                                                agencies and organizations and other                    paragraphs (a)(1) through (4) of this
                                                                                                        section. For purposes of these                        as an entity within a State agency,
                                                entities to develop comprehensive                                                                             including the DSE. The SILC shall be
                                                approaches or systems for providing IL                  regulations, the 5 percent cap on funds
                                                                                                        for administrative expenses applies only              independent of and autonomous from
                                                services;                                                                                                     the DSE and all other State agencies.
                                                   (5) Conduct studies and analyses,                    to the Part B funds allocated to the State
                                                gather information, develop model                       and to the State’s required 10 percent                § 1329.15   Duties of the SILC.
                                                policies and procedures, and present                    Part B match. It does not apply to other                (a) The duties of the SILC are those set
                                                information, approaches, strategies,                    program income funds, including, but                  forth in section 705(c), (d), and (e) of the
                                                findings, conclusions, and                              not limited to, payments provided to a                Act.
                                                recommendations to Federal, State, and                  State from the Social Security                          (1) The SILC shall develop the SPIL
                                                local policy makers in order to enhance                 Administration for assisting Social                   in accordance with guidelines
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                                                IL services for individuals with                        Security beneficiaries and recipients to              developed by the Administrator;
                                                significant disabilities;                               achieve employment outcomes, any                        (2) The SILC shall monitor, review
                                                   (6) Train individuals with disabilities              other federal funds, or to other funds                and evaluate the implementation of the
                                                and individuals providing services to                   allocated by the State for IL purposes.               SPIL on a regular basis as determined by
                                                individuals with disabilities, and other                   (b) The DSE must also carry out its                the SILC and set forth in the SPIL;
                                                persons regarding the IL philosophy;                    other responsibilities under the Act,                   (3) The SILC shall meet regularly, and
                                                and                                                     including, but not limited to:                        ensure that such meetings are open to


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                                                74698            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                the public and sufficient advance notice                meeting space, alternate formats,                     submit to the Administrator a State plan
                                                of such meetings is provided;                           interpreters, and other accommodations;               for independent living.
                                                   (4) The SILC shall submit to the                        (v) Resources to attend and/or secure                 (1) The State plan must contain, in the
                                                Administrator such periodic reports as                  training for staff and Council members;               form prescribed by the Administrator,
                                                the Administrator may reasonably                        and                                                   the information set forth in section 704
                                                request, and keep such records, and                        (vi) Other costs as appropriate.                   of the Act, including designation of an
                                                afford such access to such records, as                     (d) The SILC shall carry out the                   Agency to serve as the designated State
                                                the Administrator finds necessary to                    activities in paragraph (a), to better                entity, and such other information
                                                verify the information in such reports;                 serve individuals with significant                    requested by the Administrator.
                                                and                                                     disabilities and help achieve the                        (2) The State plan must contain the
                                                   (5) The SILC shall, as appropriate,                  purpose of section 701 of the Act.                    assurances set forth in section 704(m) of
                                                coordinate activities with other entities                  (e) The SILC shall, consistent with                the Act.
                                                in the State that provide services similar              State law, supervise and evaluate its                    (3) The State plan must be signed in
                                                to or complementary to independent                      staff and other personnel as may be                   accordance with the provisions of this
                                                living services, such as entities that                  necessary to carry out its functions                  section.
                                                facilitate the provision of or provide                  under this section.                                      (4) The State plan must be submitted
                                                long-term community-based services                      § 1329.16    Authorities of the SILC.                 90 days before the completion date of
                                                and supports.                                                                                                 the proceeding plan, and otherwise in
                                                                                                           (a) The SILC may conduct the
                                                   (b) In carrying out the duties under                                                                       the time frame and manner prescribed
                                                                                                        following discretionary activities, as
                                                this section, the SILC may provide                                                                            by the Administrator.
                                                                                                        authorized and described in the                          (5) The State plan must be approved
                                                contact information for the nearest                     approved State Plan:
                                                appropriate CIL. Sharing of such                                                                              by the Administrator.
                                                                                                           (1) Work with Centers for
                                                information shall not constitute the                                                                             (c) The State plan must cover a period
                                                                                                        Independent Living to coordinate
                                                direct provision of independent living                                                                        of not more than three years and must
                                                                                                        services with public and private entities
                                                services as defined in section 705(c)(3)                                                                      be amended whenever necessary to
                                                                                                        to improve services provided to
                                                of the Act.                                                                                                   reflect any material change in State law,
                                                                                                        individuals with disabilities;
                                                   (c) The SILC, in conjunction with the                   (2) Conduct resource development                   organization, policy, or agency
                                                DSE, shall prepare a plan for the                       activities to support the activities                  operations that affects the
                                                provision of resources, including staff                 described in the approved SPIL and/or                 administration of the State plan.
                                                and personnel that are necessary and                                                                             (d) The State plan must be jointly—
                                                                                                        to support the provision of independent                  (1) Developed by the chairperson of
                                                sufficient to carry out the functions of                living services by Centers for
                                                the SILC.                                                                                                     the SILC, and the directors of the CILs,
                                                                                                        Independent Living; and                               after receiving public input from
                                                   (1) The resource plan amount shall be                   (3) Perform such other functions,
                                                commensurate, to the extent possible,                                                                         individuals with disabilities and other
                                                                                                        consistent with the purpose of this part
                                                with the estimated costs related to SILC                                                                      stakeholders throughout the State; and
                                                                                                        and comparable to other functions
                                                fulfilment of its duties and authorities                                                                         (2) Signed by the—
                                                                                                        described in section 705(c) of the Act,                  (i) Chairperson of the SILC, acting on
                                                consistent with the approved State Plan.                as the Council determines to be
                                                   (2) Available resources include:                                                                           behalf of and at the direction of the
                                                                                                        appropriate and authorized in the                     SILC;
                                                Innovation and Expansion (I&E) funds                    approved SPIL.
                                                authorized by 29 U.S.C. 721(a)(18);                                                                              (ii) The director of the DSE, signifying
                                                                                                           (b) In undertaking the foregoing duties            agreement to execute the
                                                Independent Living Part B funds; State                  and authorities, the SILC shall:
                                                matching funds; other public funds                                                                            responsibilities of the DSE identified in
                                                                                                           (1) Coordinate with the CILs in order
                                                (such as Social Security reimbursement                                                                        section 704(c) of the Act; and
                                                                                                        to avoid conflicting or overlapping
                                                funds); and private sources.                                                                                     (iii) Not less than 51 percent of the
                                                                                                        activities within the CILs’ established
                                                   (3) In accordance with § 1329.10(a)(1),                                                                    directors of the CILs in the State. For
                                                                                                        service areas;
                                                no more than 30 percent of the State’s                                                                        purposes of this provision, if a legal
                                                                                                           (2) Not engage in activities that
                                                allocation of Part B and Part B State                                                                         entity that constitutes the ‘‘CIL’’ has
                                                                                                        constitute the direct provision of IL
                                                matching funds may be used to fund the                                                                        multiple Part C grants considered as
                                                                                                        services to individuals, including the IL
                                                resource plan, unless the approved SPIL                                                                       separate Centers for all other purposes,
                                                                                                        core services; and
                                                provides that more than 30 percent is                      (3) Comply with Federal prohibitions               for SPIL signature purposes, it is only
                                                needed and justifies the greater                        against lobbying.                                     considered as one Center. CILs with
                                                percentage.                                                                                                   service areas in more than one State that
                                                   (4) No conditions or requirements                    § 1329.17    General requirements for a State         meet the other applicable requirements
                                                may be included in the SILC’s resource                  plan.                                                 are eligible to participate in SPIL
                                                plan that may compromise the                              (a) The State may use funds received                development and sign the SPIL in each
                                                independence of the SILC.                               under Part B to support the Independent               of the relevant States.
                                                   (5) The SILC is responsible for the                  Living Services program and to meet its                  (e) The State plan must provide for
                                                proper expenditure of funds and use of                  obligations under the Act, including the              the review and revision of the plan, not
                                                resources that it receives under the                    section 704(e) requirements that apply                less than once every three years, to
                                                resource plan.                                          to the provision of independent living                ensure the existence of appropriate
                                                   (6) A description of the SILC’s                      services. The State plan must stipulate               planning, financial support and
                                                resource plan must be included in the                   that the State will provide IL services,              coordination, and other assistance to
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                                                State plan. The plan should include:                    directly and/or through grants and                    meet the requirements of section 704(a)
                                                   (i) Staff/personnel;                                 contracts, with Federal, State or other               of the Act.
                                                   (ii) Operating expenses;                             funds, and must describe how and to                      (f) The public, including people with
                                                   (iii) Council compensation and                       whom those funds will be disbursed for                disabilities and other stakeholders
                                                expenses;                                               this purpose.                                         throughout the State, must have an
                                                   (iv) Meeting expenses, including                       (b) In order to receive financial                   opportunity to comment on the State
                                                public hearing expenses, such as                        assistance under this part, a State shall             plan prior to its submission to the


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                        74699

                                                Administrator and on any revisions to                   an eligible agency funded under Part C                in section 723(e) of the Act, unless the
                                                the approved State plan. Meeting this                   in fiscal year 2015 may receive a                     DSE and the SILC jointly agree on
                                                standard for public input from                          continuation award in FY 2016 or a                    another order of priorities.
                                                individuals with disabilities requires                  succeeding fiscal year if the Center
                                                providing reasonable modifications in                   has—                                                  § 1329.22 Competitive awards to new
                                                                                                                                                              Centers for Independent Living.
                                                policies, practices, or procedures;                        (1) Complied during the previous
                                                effective communication and                             project year with the standards and                      (a) Subject to the availability of funds
                                                appropriate auxiliary aids and services                 assurances in section 725 of the Act and              and in accordance with the order of
                                                for individuals with disabilities, which                the terms and conditions of its grant;                priorities in section 722(e) of the Act
                                                may include the provision of qualified                  and                                                   and the State Plan’s design for the
                                                interpreters and information in alternate                  (2) Submitted an approvable annual                 statewide network of Centers, an eligible
                                                formats, free of charge.                                performance report demonstrating that                 agency may receive Part C funding as a
                                                   (1) The requirement for public input                 the Center meets the indicators of                    new Center for Independent Living in a
                                                in this section may be met by holding                   minimum compliance referenced in in                   State, if the eligible agency:
                                                public meetings before a preliminary                    § 1329.5.                                                (1) Submits to the Administrator an
                                                draft State plan is prepared and by                        (b) If an eligible agency administers              application at the time and manner
                                                providing a preliminary draft State plan                more than one Part C grant, each of the               required in the funding opportunity
                                                for comment prior to submission.                        Center grants must meet the                           announcement (FOA) issued by the
                                                   (2) To meet the public input standard                requirements of paragraph (a) of this                 Administrator which contains the
                                                of this section, a public meeting                       section to receive a continuation award.              information and meets the selection
                                                requires:                                                  (c) A designated State entity (DSE)                criteria established by the Administrator
                                                   (i) Accessible, appropriate and                      that operated a Center in accordance                  in accordance with section 722(d) of the
                                                sufficient notice provided at least 30                  with section 724(a) of the Act in fiscal              Act;
                                                days prior to the public meeting through                year (FY) 2015 is eligible to continue                   (2) Proposes to serve a geographic area
                                                various media available to the general                  receiving assistance under this part in               that has been designated as a priority
                                                public, such as Web sites, newspapers                   FY 2016 or a succeeding fiscal year if,               unserved or underserved in the State
                                                and public service announcements, and                   for the fiscal year for which assistance              Plan for Independent Living and that is
                                                through specific contacts with                          is sought—                                            not served by an existing Part C-funded
                                                appropriate constituency groups.                           (1) No nonprofit private agency                    Center; and
                                                   (ii) All notices, including notices                  submits and obtains approval of an                       (3) Is determined by the
                                                published on a Web site, and other                      acceptable application under section                  Administrator to be the most qualified
                                                written materials provided at or prior to               722 or 723 of the Act to operate a Center             applicant to serve the designated
                                                public meetings must be available upon                  for that fiscal year before a date                    priority area consistent with the State
                                                request in accessible formats.                          specified by the Administrator; or                    plan setting forth the design of the State
                                                   (g) The State plan must identify those                  (2) After funding all applications so              for establishing a statewide network of
                                                provisions that are State-imposed                       submitted and approved, the                           Centers for independent living.
                                                requirements. For purposes of this                      Administrator determines that funds
                                                section, a State-imposed requirement                                                                             (b) An existing Part C-funded Center
                                                                                                        remain available to provide that                      may apply to serve the designated
                                                includes any State law, regulation, rule,               assistance.
                                                or policy relating to the DSE’s                                                                               unserved or underserved areas if it
                                                                                                           (d) A Center operated by the DSE
                                                administration or operation of IL                                                                             proposes the establishment of a separate
                                                                                                        under section 724(a) of the Act must
                                                programs under Title VII of the Act,                                                                          and complete Center (except that the
                                                                                                        comply with paragraphs (a), (b), and (c)
                                                including any rule or policy                                                                                  governing board of the existing center
                                                                                                        of this section to receive continuation
                                                implementing any Federal law,                                                                                 may serve as the governing board of the
                                                                                                        funding, except for the requirement that
                                                regulation, or guideline that is beyond                                                                       new Center) at a different geographic
                                                                                                        the Center be a private nonprofit agency.
                                                what would be required to comply with                      (e) A designated State entity that                 location, consistent with the
                                                the regulations in this part.                           administered Part C funds and awarded                 requirements in the FOA.
                                                   (h) The State plan must address how                  grants directly to Centers within the                    (c) An eligible agency located in a
                                                the specific requirements in the Act and                State under section 723 of the Act in                 bordering, contiguous State may be
                                                in paragraph (f) of this section will be                fiscal year (FY) 2015 is eligible to                  eligible for a new CIL award if the
                                                met.                                                    continue receiving assistance under                   Administrator determines, based on the
                                                                                                        section 723 in FY 2016 or a succeeding                submitted application, that the agency:
                                                Subpart C—Centers for Independent                       fiscal year if the Administrator                         (1) Is the most qualified applicant
                                                Living Program                                          determines that the amount of State                   meeting the requirements in paragraphs
                                                                                                        funding earmarked by the State to                     (a) and (b) of this section; and
                                                § 1329.20 Centers for Independent Living                                                                         (2) Has the expertise and resources
                                                (CIL) program.                                          support the general operation of Centers
                                                                                                        during the preceding fiscal year equaled              necessary to serve individuals with
                                                  State allotments of Part C, funds shall                                                                     significant disabilities who reside in the
                                                be based on section 721(c) of the Act,                  or exceeded the amount of federal funds
                                                                                                        allotted to the State under section 721(c)            bordering, contiguous State, in
                                                and distributed to Centers within the                                                                         accordance with the requirements of the
                                                State in accordance with the order of                   of the Act for that fiscal year.
                                                                                                           (f) A DSE may apply to administer                  Act and these regulations.
                                                priorities in sections 722(e) and 723(e)                                                                         (d) If there are insufficient funds
                                                of the Act.                                             Part C funds under section 723 in the
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                                                                                                        time and in the manner that the                       under the State’s allotment to fund a
                                                § 1329.21 Continuation awards to entities               Administrator may require, consistent                 new Center, the Administrator may—
                                                eligible for assistance under the CIL                   with section 723(a)(1)(A) of the Act.                    (1) Use the excess funds in the State
                                                program.                                                   (g) Grants awarded by the DSE under                to assist existing Centers consistent with
                                                  (a) In any State in which the                         section 723 of the Act are subject to the             the State plan; or
                                                Administrator has approved the State                    requirements of paragraphs (a) and (b) of                (2) Reallot these funds in accordance
                                                plan required by section 704 of the Act,                this section and the order of priorities              with section 721(d) of the Act.


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                                                74700            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                § 1329.23   Compliance reviews.                         that will require IT programming, the                 FOR FURTHER INFORMATION CONTACT:     Ms.
                                                  (a) Centers receiving Part C funding                  current approved versions of the forms                Christine A. Hydock, Chief, Medical
                                                shall be subject to periodic reviews,                   should be programmed as soon as                       Programs Division, Office of Policy,
                                                including on-site reviews, in accordance                practicable. FMCSA published sample                   Federal Motor Carrier Safety
                                                with sections 706(c), 722(g), and 723(g)                versions of the forms in October and                  Administration, 1200 New Jersey
                                                of the Act and guidance set forth by the                November 2015 prior to posting fillable               Avenue SE., Washington, DC 20590;
                                                Administrator, to verify compliance                     Portable Document Format (PDF)                        telephone (202) 366–4001;
                                                with the standards and assurances in                    versions in December 2015. Based on                   fmcsamedical@dot.gov. If you have
                                                section 725(b) and (c) of the Act and the               the fact that the October and November                questions about viewing or submitting
                                                grant terms and conditions. The                         2015 forms contain minor differences                  material to the docket, contact Docket
                                                Administrator shall annually conduct                    yet collect the same information as the               Services, telephone (202) 366–9826.
                                                reviews of at least 15 percent of the                   fillable PDF version, FMCSA                           SUPPLEMENTARY INFORMATION:
                                                Centers.                                                determined the October and November
                                                  (b) A copy of each review under this                  versions are acceptable. In addition,                 I. Background
                                                section shall be provided, in the case of               MEs are also allowed to continue to use                  On April 23, 2015, FMCSA published
                                                section 723(g), by the director of the                  the versions of the MER Form, MCSA–                   a final rule adopting regulations to
                                                DSE to the Administrator and to the                     5875, that include the Privacy Act                    facilitate the electronic transmission of
                                                SILC, and in the case of section 722(g),                Statement on page one until stocks are                MEC information from FMCSA’s
                                                by the Administrator to the SILC and                    depleted. For MEs in an office where                  National Registry system to SDLAs for
                                                the DSE.                                                these forms have been programmed into                 holders of Commercial Driver’s Licenses
                                                                                                        an electronic system that will require IT             (CDL) and Commercial Learner’s
                                                § 1329.24 Training and technical                        programming, the current approved
                                                assistance to Centers for Independent                                                                         Permits (CLP). The final rule also
                                                Living.
                                                                                                        versions of the forms should be                       requires the use of the prescribed MER
                                                                                                        programmed as soon as practicable. The                Form, MCSA–5875, in place of the MER
                                                  The Administrator shall reserve                       versions of the forms currently posted
                                                between 1.8% and 2% of appropriated                                                                           and the prescribed MEC, Form MCSA–
                                                                                                        by FMCSA include nonsubstantive                       5876, in place of the MEC. Medical
                                                funds to provide training and technical                 changes that were approved by the
                                                assistance to Centers through grants,                                                                         Examiner’s Certification Integration (80
                                                                                                        Office of Management and Budget                       FR 22790, April 23, 2015). On August 5,
                                                contracts or cooperative agreements,                    (OMB) on April 7, 2016 and September
                                                consistent with section 721(b) of the                                                                         2015, FMCSA received approval from
                                                                                                        6, 2016, and no longer include the                    OMB, for use of the MER Form, MCSA–
                                                Act. The training and technical                         Privacy Act Statement or a revision date
                                                assistance funds shall be administered                                                                        5875, and MEC, Form MCSA–5876, in a
                                                                                                        in the top left corner. State Driver’s                fillable Adobe AcrobatTM format.
                                                in accordance with section 721(b) of the                Licensing Agencies (SDLAs) should not
                                                Act.                                                                                                             FMCSA published sample versions of
                                                                                                        accept versions of the MEC that have                  the MER Form, MCSA–5875, and MEC,
                                                [FR Doc. 2016–25918 Filed 10–26–16; 8:45 am]
                                                                                                        not been approved by OMB, and do not                  Form MCSA–5876, with October and
                                                BILLING CODE 4150–04–P
                                                                                                        display both the FMCSA form number                    November, 2015 revision dates on the
                                                                                                        (MCSA–5876) and the OMB expiration                    National Registry Web site with the
                                                                                                        date of August 31, 2018.                              intent and purpose of educating MEs
                                                DEPARTMENT OF TRANSPORTATION
                                                                                                        DATES:This decision is in effect on                   regarding the use of new categories on
                                                Federal Motor Carrier Safety                            October 27, 2016.                                     the forms and assisting MEs in
                                                Administration                                                                                                programming electronic medical records
                                                                                                        ADDRESSES:    You may search background
                                                                                                                                                              prior to the Agency’s posting of the
                                                                                                        documents or comments to the docket
                                                49 CFR Part 391                                                                                               fillable Adobe AcrobatTM versions. At
                                                                                                        for this rule, identified by docket
                                                                                                                                                              that time, at least one company that
                                                [Docket No. FMCSA–2012–0178]                            number FMCSA–2012–0178, by visiting
                                                                                                                                                              produces regulatory compliance
                                                                                                        the:
                                                                                                                                                              publications and forms began printing
                                                Physical Qualifications and                               • Federal eRulemaking Portal: http://               and selling the MER Form, MCSA–5875,
                                                Examinations: Medical Examination                       www.regulations.gov. Follow the online                and MEC, Form MCSA–5876, with
                                                Report and Medical Examiner’s                           instructions for reviewing documents                  October and November, 2015 revision
                                                Certificate Forms                                       and comments. Regulations.gov is                      dates. On December 14, 2015, FMCSA
                                                AGENCY: Federal Motor Carrier Safety                    available electronically 24 hours each                posted the fillable Adobe AcrobatTM
                                                Administration (FMCSA), DOT.                            day, 365 days a year; or                              versions of the MER Form, MCSA–5875,
                                                                                                           • DOT Docket Management Facility                   and MEC, Form MCSA–5876, with
                                                ACTION: Notice of decision on use of
                                                                                                        (M–30): U.S. Department of                            December 2015 revision dates on the
                                                Medical Examination Report and
                                                                                                        Transportation (DOT), 1200 New Jersey                 FMCSA and National Registry Web
                                                Medical Examiner’s Certificate Forms.
                                                                                                        Avenue SE., West Building, Ground                     sites. Based on the fact that the October
                                                SUMMARY:   FMCSA announces its                          Floor, Room 12–140, Washington, DC                    and November, 2015 forms contain
                                                decision to allow certified Medical                     20590–0001.                                           minor differences yet collect the same
                                                Examiners (MEs) to use the Medical                         Privacy Act: In accordance with 5                  information as the fillable Adobe
                                                Examination Report (MER) Form,                          U.S.C. 553(c), DOT solicits comments                  AcrobatTM versions posted by FMCSA
                                                MCSA–5875, and Medical Examiner’s                       from the public to better inform its                  on December 14, 2015, FMCSA made
jstallworth on DSK7TPTVN1PROD with RULES




                                                Certificate (MEC), Form MCSA–5876,                      rulemaking process. DOT posts these                   the decision to allow MEs to use any
                                                with October, November, and December,                   comments, without edit, including any                 previously purchased existing stock of
                                                2015 revision dates that are located in                 personal information the commenter                    the MER Form, MCSA–5875, and MEC,
                                                the top left corner of the forms until                  provides, to www.regulations.gov, as                  Form MCSA–5876, with October or
                                                existing stocks are depleted. For MEs in                described in the system of records                    November, 2015 revision dates until
                                                an office where these forms have been                   notice (DOT/ALL–14 FDMS), which can                   stocks are depleted. For MEs in an office
                                                programmed into an electronic system                    be reviewed at www.dot.gov/privacy.                   where these forms have been


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Document Created: 2016-10-27 01:52:16
Document Modified: 2016-10-27 01:52:16
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThese final regulations are effective November 28, 2016.
ContactMolly Burgdorf, Administration for Community Living, telephone (202) 795-7317 (Voice). This is not a toll- free number. This document will be made available in alternative formats upon request. Written correspondence can be sent to the Administration for Community Living, U.S. Department of Health and Human Services, 330 C St. SW., Washington, DC 20201.
FR Citation81 FR 74682 
RIN Number0985-AA10
CFR AssociatedCenters for Independent Living; Compliance; Enforcement and Appeals; Independent Living Services; Persons with Disabilities and Reporting

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