16802 Title 45 PUBLIC WELFARE Chapter IV-Social and Rehabilita RULES AND REGULATIONS effectuate the provisions of section 601 tion Service (Rehabilitation Pro- 401 The State vocational rehabilitation VOCATIONAL REHABILITATION PROGRAMS AND ACTIVITIES Revision of Parts 401, 402, 403, 404, 405 and 406, and Addition of Parts 408, and 409 of Chapter IV Notice of proposed rule-making for excalonal rehabilitation programs and activities was published in the PEDAL ENTER of January 30, 1969 (34 PR. 100 The views of interested persons were requested received, and considered, and in the light thereof, certain changes the proposed regulations were made. Accordingly. Chapter IV of Title 45 of the Code of Federal Regulations is amended to include new regulations to mement the Vocational RehabilitaSon Amendments of 1967 (Public Law 99-00 and the Vocational Rehabilita Amendments of 1968 (Public Law 96-291 Some changes are also made in erating regulations to reflect the cur A organization of the Social and Rebabilitation Service as well as its progrum activities and emphases. Part 40: a revised, covers only grants made to State vocational rehabilitation agrim under the State plans for vocathal rehabilitation services. Included is the program authorized by section I d of the Social Security Act, as ad and by section 336 of Public Law 89# which provides for payment from the social security trust funds for vocaSeal rehabilitation services furnished Do Bocial security disability beneficiaries. Part 402 covers the newly-authorized Vocational Evaluation and Work Adjustment programs for the disadvantaged under State evaluation and work adjustment planUR program 402 The State evaluation and work ad- 408 Special projects in vocational reha 401.51 bilitation 401.52 404 Project grants and assistance for re- 401 53 401.54 401.55 401.56 401.57 401 58 401.59 Terms. 401.60 Subpart B-State Plans for Vocational 401.61 401.02 Subpart C-Financing of State Rehabilitation Programs Vocational 409 Vending stand program for the blind PART 401-THE STATE VOCATIONAL Sec. 401.1 Subpart A-Definitions cilities FEDERAL FINANCIAL PARTICIPATION Effect of State rules. Vocational rehabilitation services to Small business enterprises for the severely handicapped Establishment of rehabilitation fa Construction of rehabilitation fa 401.3 cilities third-party funds for vocational 401.75 Pacilities and services for groups of handicapped individuals. Administration. Purchase of goods, facilities, or services from other agencies of the State. Insurance and taxes. Cost of space. State and local funds. Shared funding and administration of joint projects. ALLOTMENT AND PATMENT Payments from allotments. Nondiscrimination in employment 401.85 Allotment of Federal funds for vo cational rehabilitation services. 401.86 40187 Method of computing and making payments. 401 88 401 89 Eligibility other assistance for rehabilitation facili- STATE PLAN CONTENT: CASEWORK PRACTICE Extended evaluation to determine Processing referrals and applion tions Order of selection for services. Effect of payments. Refunds Determining to which fiscal year an expenditure is chargeable. Subpart D-Payment of Costs of Vocational Rehabilitation Services to Disability Beneficiaries from the Social Security Trust Funds 401.39 401.40 Recording of onse data. STATE PLAN CONTENT: SERVICES 401.41 Scope of agency program. 401.42 Standards for facilities and person 401 131 nel. 401.48 Project activities. FEDERAL REGISTER, VOL. 34, NO. 200-FRIDAY, OCTOBER 17, 1969 Application procedure. sheltered employment; and home in- (1) (1) "Handicapped individual" means any individual who has a physical or mental disability and a substantial Methods of computing and making handicap to employment, which is of payments. 401.137 Project amendments. 401.138 AUTHORITY: The provisions of this Part 401 Issued under sec. 7(b). 68 Stat. 658, 29 US.C. 37(b); and sec. 205, 49 Stat. 624, sec. 1102, 49 Stat 647, sec. 222 (d), 79 Stat. 408, as amended, 42 USC 405. 1302 422(d). Interpret and apply the Vocational Rehabilitation Act, as amended, 29 USC. ch. 4, and sec 222(d), Social Security Act, 42 US.C. 422 (d) Unless otherwise indicated in the regulation in this part, the terms below are defined as follows: (a) "Act" means the Vocational Rehabilitation Act, as amended (29 US.C. ch. 4). (b) "Administrator" means the Administrator of the Social and Rehabilitation Service in the Department of Health, Education, and Welfare. (c) "Blind" means persons who are blind within the meaning of the law relating to vocational rehabilitation in each State. (d) "Construction of a rehabilitation facility" means (1) the construction of new buildings, the acquisition of existing buildings, or the expansion of existing buildings, which are to be utilized for rehabilitation facility purposes; (2) the acquisition of initial equipment of such new, newly acquired, or newly expanded buildings; or (3) the initial staffing of such a rehabilitation facility for a period not to exceed 4 years and 3 months. (e) "Eligible" or "eligibility," when used in relation to an individual's qualification for vocational rehabilitation services, refers to a certification that (1) a physical or mental disability is present; (2) a substantial handicap to employment exists; and (3) vocational rehabilitation services may reasonably be expected to render the individual fit to engage in a gainful occupation. (1) Establishment of a rehabilitation facility" means (1) the expansion, remodeling, or alteration of existing buildings, necessary to adapt or to increase the effectiveness of such buildings for rehabilitation facility purposes; (2) the acquisition of initial equipment for such purposes; or (3) the initial staffing of a rehabilitation facility, for a period not to exceed 4 years and 3 months. (g) "Family members" or "members of the family" means any relative by blood or marriage of a handicapped individual and other individuals living in the same household with whom the handicapped individual has a close interpersonal relationship. (h) "Gainful occupation" includes eployment in the competitive labor market; practice of a profession; selfemployment; homemaking; farm or family work (including work for which payment is in kind rather than in cash); such a nature that vocational rehabilitation services (paragraph (z) (1) of this section) may reasonably be expected to render him fit to engage in a gainful occupation, including a gainful occupation which is more consistent with his capacities and abilities. (2) "Handicapped individual" also means any individual who has a physical or mental disability and a substantial handicap to employment for whom vocational rehabilitation services (paragraph (z) (2) of this section) are necessary for the purpose of extended evaluation to determine rehabilitation potential. (1) "Local rehabilitation agency" means the public agency of a political subdivision of a State which has sole responsibility for administering the Vocational rehabilitation program in the locality, under the supervision of the State agency. (k) "Maintenance" means payments to cover the handicapped individual's basic living expenses, such as food, shelter, clothing, health maintenance, and other subsistence expenses essential to determination of the individual's rehabilitation potential or to achievement of his vocational rehabilitation objective. (1) "Management services and supervision" for small business enterprises includes inspection, quality control, consultation, accounting, regulating. inservice training. and other related services provided on a systematic basis to support and improve small business enterprises operated by blind or other severely handicapped persons under a State agency's small business enterprise program Management services and supervision" does not include those services or costs which pertain to the operation of the individual business enterprise, such as employment of substitute workers, rent, advertising and other operating costs. (m) "Nonprofit," when used with respect to a rehabilitation facility means a rehabilitation facility which is owned and operated by a corporation or association, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual, and the income of which is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1954. (n) "Occupational license" means any license, permit, or other written authority required by a State, city, or other governmental unit to be obtained in order to enter an occupation. (o) "Physical or mental disability" means a physical or mental condition which materially limits, contributes to limiting or, if not corrected, will probably result in limiting an individual's activities or functioning. It includes behavioral disorders characterized by a pattern of deviant social behavior or impaired ability to carry out normal re 16803 lationships with family and community which may result from vocational, educational, cultural, social, environmental, or other factors. (p) "Physical restoration services" means those services which are necessary to correct or substantially modify within a reasonable period of time a physical or mental condition which is stable or slowly progressive, and includes: (1) Medical or surgical treatment by general practitioners or medical specialists; (2) psychiatric treatment, (3) dentistry; (4) nursing sevices; (5) hospitalization (either Lapatient or outpatient care) and clinic services; (6) convalescent, nursing or rest home care (7) drugs and supplies; (8) prosthetle devices and orthotic devices essential to obtaining or retaining employment; (9) eye glasses and visual services, as prescribed by a physician skilled in the diseases of the eye or by an optometrist (10) physical therapy; (11) occupational therapy; (12) speech or hearing therapy. (13) psychological services; (14) treatand ment of medical complications emergencies, either acute or chronic, which are associated with or arise out of the provision of physical restoration services, or are inherent in the condition under treatment; and (15) other medical or medically related rehabilitation services. The provision that the condition is stable or slowly progressive does not apply when physical restoration services are provided under extended evaluation in order to determine the rehabilitation potential. (q) "Regional Commissioner" means the Regional Commissioner of the Social and Rehabilitation Service. (r) "Rehabilitation facility" means a facility which is operated for the primary purpose of providing vocational rehabilitation services to or gainful employment for handicapped individuals, or for providing evaluation and work adjustment services for disadvantaged individuals under Part 402 of this chapter, and which provides singly or in combination one of more of the following services for handicapped individuals: (1) Comprehensive rehabilitation services which include, under one management, medical, psychological, social, and vocational services (2) testing, fitting, or training in the use of prosthetic and orthotic devices, (3) prevocational conditioning or recrea. tional therapy; (4) physical and occupational therapy; (5) speech and hearing therapy; (6) psychological and social services; (7) evaluation; (8) personal and work adjustment; (9) vocational training in combination with other rehabilitation services). (10) evaluation or control of special disabilities; and (11) transitional or long-term employment for the severely handicapped who cannot be readily absorbed in the competitive labor market: Provided. That all medical and related health services must be prescribed by, or under the formal supervision of, persons licensed to practace medicine or surgery in the State (s) "Secretary" means the Secretary of Health, Education, and Welfare (t) "Small business enterprise" means a small business operated by blind or FEDERAL REGISTER, VOL 34, NO. 200-FRIDAY, OCTOBER 17, 1969 1604 cther severely handicapped persons unde the management and supervision of Brate agency of its nominee Such besar trude only those selling. geocessing. servicing. al and other activities which Puitable and practical for the most at Tation of the skills and aptlof bird or other severely handiCa jed persons and provide substantial employment or self-employment Jerufate with the time devoted by theperator or operators to the business, tent of establishing the business and other factors of an economic nature. all State means the several States, the Dut-et of Columbia, the Virgin Iwards Perto Rico, and Quam T State agency" or "State vocatheral rehabilitation agency" means the Kie State agency designated to admin Rupervise local administration the State plan for vocational rehatall in services The term includes Le State agency for the blind. If desig nated as the sole State agency with repect to that part of the plan relating the vocational rehabilitation of the Mint w: "State plan" means the State for Vocational rehabilitation I Substantial handicap to employmeni" means that a physical or mental CaMilty in the light of attendant medIra paye Sagioni, Vocational, educacultural social or environmental factors trupedes an individual's occupataon performance, by preventing his obretaining or preparing for a gainful sccupation consistent with his Capacities and abilities. "Vical services" means visual training and the examination and services recessary for the prescription and provisory of eyeglasses contact lenses, xpic 'crises telescopic lenses, Other special visual aids, as prebed by a physician skilled in diseases of the eve or by an optometrist. 2 1) Vocational rehabilitation Ces means any goods and services tomary to render a handicapped indito engage in a gainful occupaBr, including 1 evaluation, including and related services, (11) ng and guidance: (1) physical services (V) training, inGling personal and vocational adjustbooks and training materials Los vi maintenance, Tplacement ) followup services, Mment. Initial stocks and B. Laking equipment and instocks and supplies for vending *་ management services and espervision provided by the State agency & facit on of vending stands or Leber e test and initial stocks and les for small businesses enterprises, strated wider the supervision of the Ba's agericy by the severely handira vet x1 transportation; (xi) occupascal cerises: xil reader services fe the band, xiv) interpreter services far the dea!. IV) services to members f a handicapped individual's family when such services wt contribute substantially to the rehabilitation of the RULES AND REGULATIONS ment and training services for new em- (2) "Vocational rehabilitation serv- (3) "Vocational rehabilitation serv- (4) The term also covers the provision of other facilities and services which promise to contribute substantially to the rehabilitation of a group of individuals but which are not related directly to the rehabilitation plan of any one handicapped individual. (aa) "Workshop" means a rehabilita- Subpart B-State Plans for Voca- ments. (a) Purpose. A basic condition to the certification of Federal funds to a State for vocational rehabilitation services is a State plan found to meet Federal requirements This plan shall constitute a description of the State's vocational rehabilitation program. The State plan shall meet the requirements as to content hereinafter stated. It shall provide for financial participation by the State, and shall provide that it will be in effect in all political subdivisions of the State except as specifically provided in 11 401.9 and 401 10. The Administrator shall apof the act and of this part Upon desigprove any plan meeting the requirements nation of a new State agency (see 1401 5), a new State plan must be submitted (b) Form The general form and content of the State plans are set forth in the State Plan Guide which is distributed to all State agencies administering vocational rehabilitation programs. (c) Amendment. The plan shall provide that it will be amended whenever necessary to reflect a material change in ization, policy, or agency operations and any applicable phase of State law, organthat such amendments will be submitted to the Social and Rehabilitation Service before it is put into effect, or within a reasonable time thereafter. (d) Separate part relating to rehabili tation of the blind. If, as hereinafter provided for, a State agency for the blind administers or supervises the adminislating to the rehabilitation of the blind, tration of that part of the State plan resuch part of the State plan shall meet all ment, and content prescribed by the act requirements as to submission, amendand this part, as though it were a separate State plan. § 401.3 Approval of State plans and amendments. Both the original plan and all amendments thereto shall be submitted to the Regional Commissioner. (a) New or substantially revised plans New or substantially revised plans are approved by the Administrator. (b) Plan amendments. An amendment to a plan is approved by the Regional Commissioner. If an amendment is approved, the Regional Commissioner incorporates it into the approved State plan and advises the State. If the Regional Commissioner considers an amendment not to be approvable and is unable to secure necessary changes by the State, he submits the amendment to the central office of the Social and Rehabilitation Service for appropriate action. § 401.4 Withholding of funds. (a) When withheld When after reasonable notice and opportunity for hearing to the State agency it is found that (1) the plan has been so changed that it no longer complies with the requirements of section 5(a) of the act, or (2) in the administration of the plan there is a failure to comply substantially with any such provisions, further payments under section 2 or 3 may be withheld or limited as provided by section 5 c) of the act The State agency is notified of the action taken. (b) Judicial review. The decision to withhold payments described in parapealed to the US district court for the graph (a) of this section may be apdistrict in which the capital of the State is located. The court will review the action on the record in accordance with the provisions of the Administrative Procedure Act. (e) Informal discussions Hearings deonable effort has been made by the scribed in paragraph (a) of this section are generally not called until after reas FEDERAL REGISTER, VOL. 34, NO 200-FRIDAY OCTOBER 17, 1969 Social and Rehabilitation Service to resolve the questions involved by conference and discussion with State officials. Formal notification of the date and place of a hearing does not foreclose further negotiations with State officials. § 401.5 State agency for administration. (a) Designation of sole State agency. The State plan shall designate a sole State agency to administer the State plan for vocational rehabilitation services in the State or to supervise its administration in a political subdivision of the State by a sole local agency of such political subdivision. This agency shall be one of the agencies specified in paragraph (b) of this section, except that the State agency for the blind, as specified in paragraph (c) of this section, may be designated as the sole State agency with respect to that part of the program relating to the vocational rehabilitation of the blind. (b) Designated State agency. The designated State agency, except for a designated State agency for the blind as specified in paragraph (c) of this section, shall be: (1) A State agency primarily concerned with vocational rehabilitation, or vocational and other rehabilitation, of disabled individuals; such agency must be an independent State commission, board, or other agency whose major function is vocational rehabilitation, or Vocational and other rehabilitation, of disabled individuals, with authority, subject to the supervision which derives from the office of the Governor, to define the scope of the program within the provisions of State and Federal law, and to direct its administration without external administrative controls; (2) The State agency administering or supervising the administration of education or vocational education in the State; or (3) A State agency which includes at least two other major organizational units each of which administers one or more of the State's major programs of public education, public health, public welfare, or labor (c) Designated State agency for the blind Where the State commission for the blind, or other agency which provides assistance or services to the adult blind, is authorized under State law to administer or supervise the administration of vocational rehabilitation services to the blind, such commission or agency may be designated as the sole State agency to administer the part of the plan under which vocational rehabilitation services are provided for the blind or to supervise the administration of such part in a political subdivision of the State by a sole local agency of such political subdivision. (d) Authority The State plan shall set forth the authority under State law for the administration or supervision of the administration of the program by the State agency, and the legal basis for administration by local rehabilitation agencies, if applicable. In this connection, copies of all laws and interpretations thereof by appropriate State off RULES AND REGULATIONS cials, directly pertinent to the administration or supervision of the vocational rehabilitation program, shall be submitted as a part of the plan. (e) Responsibility for administration. The State plan shall provide that all decisions affecting eligibility for vocational rehabilitation services, including the acceptability for extended evaluation and the nature and scope of vocational rehabilitation services to be provided, will be made by the State agency through its organizational unit, or by a local rehabilitation agency under its supervision, and that this responsibility will not be delegated to any other agency or individual. § 401.6 Organization for administration. (a) Organization. The State plan shall describe the organizational structure of the State agency, including descriptions of organizational units, the functions assigned to each, and the relationships among units in the vocational rehabilitation program. Such descriptions shall be accompanied by organizational charts reflecting (1) the relationship of the State agency to the Governor and his office and to other agencies administering major programs of public education, public health, public welfare, or labor of parallel stature within the State government, and (2) the internal structure of the State agency. The organizational structure shall provide for all the vocational rehabilitation functions for which the State agency is responsible, for clear lines of administrative and supervisory authority, and shall be suited to the size of the vocational rehabilitation program and the geographic areas in which the program must operate. The State plan shall also describe methods of administration which will provide for the coordination and integration of activities, adequate controls over operations, channels for the development and interpretation of policies and standards, and effective supervision of staff under the vocational rehabilitation program. The organizational structure and the methods of administration shall facilitate program operations, and shall ensure the provision of all necessary vocational rehabilitation services available under the State plan to rehabilitation clients, including services necessary to determine rehabilitation potential. (b) Organizational unit Where the designated State agency is of the type specified in 401.5(b) (2) or (3), or 401.5(c), the State plan shall provide that the agency (or each agency, where two such agencies are designated) shall include a Vocational rehabilitation organizational unit which: (1) Is primarily concerned with vocational rehabilitation, or vocational and other rehabilitation, of disabled individuals, and is responsible for the administration of such State agency's vocational rehabilitation program, which must include the determination of eligibility for and the provision of services under the State plan; (2) has a full-time administrator in accordance with 401.7; and (3) has a staff employed on such re 16805 habilitation work of such organizational unit all or substantially all of whom are employed full time on such work. (e) Location of organizational unit. (1) The State plan shall provide that the organizational unit, specified in paragraph (b) of this section, shall be located at an organizational level and shall have an organizational status within the State agency comparable to that of other major organizational units of such agency or, in the case of an agency described in 401.5(b)(2), the unit shall be so located and have such status, or the administrator of such unit shall be the executive officer of such State agency In evaluating the comparability of the organizational level and the organizational status of the unit, the Administrator will give consideration to such factors as the directness of the reporting line from the administrator of the organizational unit for vocational rehabilitation to the chief officer of the designated State agency; the title, stat and grade of the administrator of the organizational unit for vocational rehabilitation as compared with those of the heads of other organizational units of the State agency; the extent to which the administrator of the organizational unit for vocational rehabilitation can determine the scope and policies of the vocational rehabilitation program; and the kind and degree of authority delegated to the administrator of the organizational unit for the administration of the vocational rehabilitation program (2) In the case of a State which has not designated a separate State agency for the blind as provided for in 1 401 5. such State may, if it so desires, assign responsibility for the part of the plan under which vocational rehabilitation services are provided for the blind to one organizational unit of the State agency and assign responsibility for the rest of the plan to another organizational unit of such agency, with the provision of paragraphs (b) and (c)(1) of this section applying separately to each of such units. § 401.7 State administrator. The State plan shall provide that there shall be a State administrator or other named official who shall direct the State agency specified in 401.5(b)(1) of the organizational unit specified in 1 401.6 (b), and who shall be required to devote his full time and efforts to the vocational rehabilitation program, or the vocational and other rehabilitation of disabled individuals, with the following exception: Upon the request of a State agency, the Administrator may approve arrangements whereby the State administrator is also responsible for the direction of other programs primarily concerned with handicapped persons, if he finds in view of all the circumstanices in the particular case that such arrangements will not impair the effective administration of the State plan § 4018 Local administration. The State plan may provide for administration of the plan through a sole local rehabilitation agency of a political FEDERAL REGISTER, VOL. 34, NO. 200-FRIDAY, OCTOBER 17, 1969 16806 BÍNĚ VÝUKO of the State, under the | 401.9 Shared funding and administraon of joint projects. If the State plan so provides the State ROCCO SAY request the Administrator tate the State agency to share tinting and administrative responsit bir an identifiable joint project #anther agency or agencies of the Rate in order to provide services to *««I«And individuals The Adminisphut Buả đúprove a request for a joint Wuch it has been determined will me effectively accomplish the purposes of the act Upen approval of a request, Ce Admistrator may waive the sole Rate Agency provision of 401 5(a) Except in cases of cooperative programs third-party funds for vocarehabilitation services under 14. ar.1 the provision of 401 2(a) the State plan be in effect in all p ca subdivisions of the State The Bite plan shall further provide that wat project shall be based on a wr "en agreement which (a) Describes the nature and scope of the joint project, the services to be provided to handica, „mi I 144als, and the respective tum od mac participating agency both a the provision of services and in the tratix of such services, and in aware of the costs to be assumed by RULES AND REGULATIONS as the Administrator may from time to If the State agency desires to carry (5) provides for periodic evaluation of the cooperative program; and (6) provides that the State agency and the cooperating agency will furnish such other information and reports as the Administrator may require (b) The State plan shall assure that services provided in such a cooperative program are vocational rehabilitation services (1) which are not services to which the handicapped individual would be entitled if he were not an applicant or client of the State agency and (2) which represent new services or new patterns of services of the cooperating agency. Standards of personnel admin istration. activities which will be carried out for of the program in the particular out such activities 401.11 Cooperative programs utilizing (a) The State plan shall provide that when the State's share of the cost of a (a) The State plan shall set forth the State agency's standards of personnel administration applicable to its own employees and those of local rehabilitation agencies operating under its supervision The State plan shall specify that rates of compensation and minimum qualifcations will be established for each class of position which are commensurate with the duties and responsibilities of that class; and shall set forth the pollcies of the State agency with respect to the selection, appointment, promotion, career development, and tenure of qualified personnel, including its policies against discrimination on the basis of sex, race, creed, color, or national origia (b) The State plan shall provide for the maintenance of such written personnel policies, records, and other information as are necessary to permit an evaluation of the operations of the system of personnel administration in relation to the standards of the State agency (c) Where personnel administration is conducted under a State merit system approved by the Department of Health Education, and Welfare (or a constituent unit thereof) as meeting the "Standards for a Merit System of Personnel Administration." Part 70 of this title, the State plan may make reference to such fact, and the information required above with respect to "Standards of personnel administration" need not be submitted, except that the responsibility for the appointment of personnel shall be described (d) The Administrator shall exercise no authority with respect to the selection, method of selection, tenure of office, or compensation of any individual employed in accordance with the provisions of the approved State plan § 101.13 Medical consultation. The State plan shall provide for and describe the arrangements made to secure adequate medical consultation and to assure the availability of medical consultative services of high quality on all medical aspects of the vocational rehabilitation program, as needed in all State, district, or local offices of the agency. $ 401.14 State agency facility staff. The State plan shall provide for adequate staff to carry out the functions of FEDERAL REGISTER, VOL. 34, NO. 200-FRIDAY, OCTOBER 17, 1969 79 885 0 72 pt. 1 - 13 |