[Federal Register Volume 85, Number 40 (Friday, February 28, 2020)]
[Rules and Regulations]
[Pages 11848-11857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03208]
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DEPARTMENT OF EDUCATION
34 CFR Part 361
[Docket ID ED-2019-OSERS-0140]
State Vocational Rehabilitation Services Program
AGENCY: Office of Special Education and Rehabilitative Services, U.S.
Department of Education.
ACTION: Policy interpretation; request for comments.
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SUMMARY: The U.S. Department of Education (Department) issues this
interpretation to clarify current policy and announce a change in
policy regarding the use of Federal vocational rehabilitation (VR)
funds reserved for pre-employment transition services.
DATES: This policy is effective February 28, 2020. We must receive your
comments on or before March 30, 2020.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments submitted by fax or by email or those submitted after
the comment period. To ensure that we do not receive duplicate copies,
please submit your comments only once. In addition, please include the
Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``How to use Regulations.gov.''
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about this notice of interpretation,
address them to Carol Dobak, U.S. Department of Education, 400 Maryland
Avenue SW, Room 5153, Potomac Center Plaza, Washington, DC 20202-5108.
Privacy Note:
The Department's policy for comments received from members of
the public is to make these submissions available for public viewing
in their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to
include in their comments only information that they wish to make
publicly available.
FOR FURTHER INFORMATION CONTACT: Carol Dobak, U.S. Department of
Education, 400 Maryland Avenue SW, Room 5153, Potomac Center Plaza,
Washington, DC 20202-5108. Telephone: (202) 245-7325. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments on this notice of interpretation.
We will consider these comments in determining whether to take any
future action.
See ADDRESSES for instructions on how to submit comments.
During and after the comment period, you may inspect all public
comments about this interpretation by accessing Regulations.gov. You
may also inspect the comments in person in Room 3W104, 400 Maryland
Avenue SW, Washington, DC, between the hours of 8:30 a.m. and 4:00
p.m., Eastern time, Monday through Friday of each week except Federal
holidays. If you want to schedule time to inspect comments, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Record: On request, we will provide an appropriate accommodation or
auxiliary aid to an individual with a disability who needs assistance
to review the comments or other documents in the public record for this
notice. If you want to schedule an appointment for this type of aid,
please contact the person listed under FOR FURTHER INFORMATION CONTACT.
The Department published a request for comments in the Federal
Register on June 22, 2017, inviting the public to provide comments on
identifying regulations and guidance for repeal, replacement, or
modification. After extending the closing date from August 21, 2017 to
September 20, 2017, the Rehabilitation Services Administration, within
the Office of Special Education and Rehabilitative Services, received
847 comments from the public. Of those comments, and others received
since September 2017, approximately 30 included questions, suggestions,
and implementation concerns regarding the statutory provision requiring
States to provide pre-employment transition services.
The Rehabilitation Act of 1973, as amended by title IV of the
Workforce Innovation and Opportunity Act (Rehabilitation Act), requires
States to reserve at least 15 percent of their VR program allotments to
provide, or arrange for the provision of, pre-employment transition
services to all students with disabilities in need of such services who
are eligible or potentially eligible for the VR program. In response to
the many questions and comments about the allowable use of the reserved
funds for auxiliary aids and services and other VR services listed in
the Rehabilitation Act, the Department issues this notice of
interpretation to: (1) Clarify current policy regarding the use of
Federal VR funds reserved for the provision of pre-employment
transition services to pay for auxiliary aids and services needed by
all students with disabilities in order to access or participate in
required pre-employment transition services under section 113(b) of the
Rehabilitation Act, and (2) announce a change in policy with respect to
additional VR services needed by eligible students with disabilities
that may be paid for with Federal VR grant funds reserved for the
provision of pre-employment transition services and the circumstances
under which those funds may be used to pay for those additional VR
services.
Background
The amendments to the Rehabilitation Act made by title IV of the
Workforce Innovation and Opportunity Act (WIOA) place heightened
emphasis on the provision of services to students and youth with
disabilities to ensure that they have meaningful opportunities to
receive the training and other services they need to achieve employment
outcomes in competitive integrated employment. The Rehabilitation Act,
as amended by WIOA, expands not only the population of students with
disabilities who may receive services under the VR program but also the
kinds of services the designated State units
[[Page 11849]]
(DSUs) may provide to these students with disabilities who are
transitioning from school to postsecondary education and employment.
Most notably, section 110(d)(1) of the Rehabilitation Act and 34
CFR 361.65(a)(3)(i) require States to reserve at least 15 percent of
their Federal VR grant for the provision of pre-employment transition
services. Section 113(a) of the Rehabilitation Act and 34 CFR 361.48(a)
require DSUs for the VR program to use the reserved funds to provide,
or arrange for the provision of, pre-employment transition services to
all students with disabilities in need of such services who are
eligible or potentially eligible for services under the VR program.
Section 113(b) of the Rehabilitation Act and 34 CFR 361.48(a)(2)
list the five required pre-employment transition services that DSUs, in
collaboration with local educational agencies (LEAs), must make
available to students with disabilities in need of these services.
These services are--
Job exploration counseling;
Work-based learning experiences, which may include in-
school or after school opportunities, or experience outside the
traditional school setting (including internships), that are provided
in an integrated environment to the maximum extent possible;
Counseling on opportunities for enrollment in
comprehensive transition or postsecondary educational programs at
institutions of higher education;
Workplace readiness training to develop social skills and
independent living; and
Instruction in self-advocacy, which may include peer
mentoring.
Pre-employment transition services represent the earliest set of
services available for students with disabilities under the VR program,
are short-term in nature, and are designed to help students identify
career interests.
For purposes of this notice of interpretation, the Department
focuses its discussion on these five required pre-employment transition
services because these are the only pre-employment transition services
that DSUs provide directly to students with disabilities as defined in
section 7(37) of the Rehabilitation Act and 34 CFR 361.5(c)(51).\1\
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\1\ Section 113(c) of the Rehabilitation Act describes services
that are systemic in nature, i.e., strategies the DSUs use in
delivering pre-employment transition services, and section 113(d)
describes the coordination activities for ensuring that students
with disabilities receive the pre-employment transition services
they need. This notice of interpretation does not address the pre-
employment transition services described in section 113(c) and (d)
of the Rehabilitation Act because they are not applicable to this
interpretation (see also 34 CFR 361.48(a)(3) and (4)).
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Since implementation of the pre-employment transition services
requirements, the Department has continued to receive comments from
DSUs and other stakeholders regarding: (1)The need for further
clarification about the extent to which funds reserved for the
provision of pre-employment transition services may be used to pay for
auxiliary aids and services; and (2) the ability of States to reserve
and expend at least 15 percent of their VR grant allotments on the
provision of pre-employment transition services under the Department's
general interpretation of the statutory requirements related to the
allowable use of funds. Specifically, DSUs and stakeholders have asked
if funds reserved for pre-employment transition services may be used to
cover the costs of auxiliary aids and services provided directly to
students with disabilities as well as other VR services, such as
transportation, tuition for postsecondary education, rehabilitation
technology, and job coaching. The Department addresses these concerns
in this notice of interpretation.
Policy Interpretation Clarification--Use of Reserved Funds for
Providing Auxiliary Aids and Services to All Students With Disabilities
Receiving Pre-Employment Transition Services
Subsequent to the publication of the State Vocational
Rehabilitation Services program; State Supported Employment Services
program; and Limitations on Use of Subminimum Wage regulations in the
Federal Register on August 19, 2016 (81 FR 55630) (August 2016
regulations), it has been the Department's policy interpretation that
DSUs may use funds reserved for the provision of pre-employment
transition services to pay for auxiliary aids and services for students
with disabilities with sensory and communicative disorders who need
such aids and services in order to access or participate in pre-
employment transition services under section 113(b) of the
Rehabilitation Act and 34 CFR 361.48(a)(2) (Rehabilitation Services
Administration email to DSUs dated December 28, 2016: https://www2.ed.gov/policy/speced/guid/rsa/supporting/dear-director-letter-auxiliary-aids-and-services-12-28-2016.pdf). The Department made clear
that DSUs may use the funds reserved under section 110(d)(1) of the
Rehabilitation Act and 34 CFR 361.65(a)(3)(i) to pay for any auxiliary
aids and services needed by any student with a disability with a
sensory or communicative disorder who needs those services to access
pre-employment transition services, regardless of whether the student
has applied or been determined eligible for the VR program.
As public entities, defined in section 12131 of the Americans with
Disabilities Act (ADA), and as recipients of Federal funds, DSUs must
ensure that no qualified individual with a disability is excluded from
participation in or denied the benefits of services, programs, or
activities on the basis of the individual's disability (section 12132
of the ADA and section 504(a) of the Rehabilitation Act). Because
section 113(a) of the Rehabilitation Act and 34 CFR 361.48(a) make
clear that pre-employment transition services must be provided to all
students with disabilities who need them, this means that both eligible
and potentially eligible students with disabilities meet the essential
eligibility requirements \2\ for pre-employment transition services
under the VR program in accordance with section 113(a) of the
Rehabilitation Act and thus are considered qualified individuals with
disabilities for purposes of title II of the ADA and section 504 of the
Rehabilitation Act (28 CFR 35.104; 34 CFR 104.3(l)(4)). Therefore, if
any student with a disability requires an auxiliary aid or service to
access or participate in any of the pre-employment transition services
specified in section 113(b) of the Rehabilitation Act and 34 CFR
361.48(a)(2), the DSU must pay for such costs if no other public entity
is required to provide such aids or services.\3\
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\2\ It is important to note that potentially eligible students
with disabilities are eligible to receive pre-employment transition
services pursuant to section 113(a) of the Rehabilitation Act. As
such, they are considered qualified individuals under the ADA for
the receipt of pre-employment transition services. It should not be
construed that these students with disabilities have satisfied the
eligibility requirements of section 102(a) of the Rehabilitation Act
for all other VR services provided under section 103 of the
Rehabilitation Act.
\3\ Please see 34 CFR 361.53(a) for the related assurance that
DSUs must include in the VR services portion of the Unified or
Combined State Plan. See also Section 101(a)(8)(A)(i) of the
Rehabilitation Act. Because DSUs must conduct a search for
comparable services and benefits only when providing VR services to
eligible individuals, they need not conduct such a search when
providing pre-employment transition services and auxiliary aids and
services to students with disabilities who have not applied or been
determined eligible for VR services, but they would be required to
do so for those students with disabilities who have been determined
eligible under the VR program pursuant to section 102(a)(1) of the
Rehabilitation Act. In addition, rehabilitation technology,
including telecommunications, sensory, and other technological aids
and devices, among other VR services, are exempt under Section
101(a)(8)(A)(i) and 34 CFR 361.53(b)(5) from the determination of
comparable services and benefits. Therefore, DSUs need not conduct a
search for comparable services and benefits when providing auxiliary
aids and services to either eligible or potentially eligible
students with disabilities to the extent that these aids and
services constitute ``rehabilitation technology'' as defined in
Section 7(32) of the Rehabilitation Act and 34 CFR 361.5(c)(45), and
are necessary for the student with a disability to participate in
pre-employment transition services under section 113 of the
Rehabilitation Act.
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[[Page 11850]]
The ADA's title II implementing regulations define ``auxiliary aids
and services'' in 28 CFR 35.104. For purposes of the Department's
policy interpretation, auxiliary aids and services ensure equal access
to information, materials, services, and activities available to
students with disabilities participating in pre-employment transition
services. As such, expenditures incurred for the purchase or
acquisition of auxiliary aids and services, including, for example,
interpreter and reader services under section 103(a)(10) of the
Rehabilitation Act and 34 CFR 361.48(b)(10) and (11), for students with
disabilities needing such aids or services to access or participate in
pre-employment transition services specified in section 113(b) of the
Rehabilitation Act and 34 CFR 361.48(a)(2) constitute an allowable pre-
employment transition services cost. This is true for both potentially
eligible and eligible students with disabilities.
Because auxiliary aids and services necessary for students with
disabilities to access or participate in pre-employment transition
services are an allowable cost, DSUs may use funds reserved for
providing pre-employment transition services to pay for those auxiliary
aids and services for any student with a disability who needs them,
regardless of whether they have applied and been determined eligible
for VR services. For example, for a student who is deaf, DSUs could
purchase interpreter services or video-based telecommunication products
to ensure access to information and activities related to job
exploration counseling or other pre-employment transition services. As
another example, DSUs could purchase screen reader software programs to
enable a student who is blind to access information on a computer
during a work-based learning experience. DSUs could purchase the screen
reader software for the student's personal laptop or for a laptop that
would be available for other students needing the device. In these
instances, it is important to note that the screen reader software for
individuals who are blind or visually impaired, not the computer on
which it is installed, meets the definition of ``auxiliary aids and
services'' for purposes of the ADA and section 504 of the
Rehabilitation Act and, as such, could be paid with funds reserved for
the provision of pre-employment transition services. The Department
addresses computers and other rehabilitation technology in a later
discussion pertaining to section 103(a)(14) of the Rehabilitation Act
and 34 CFR 361.48(b)(17).
On the other hand, personal devices and services do not meet the
definition of auxiliary aids and services under the ADA or section 504
of the Rehabilitation Act. Personal devices and services include
individually prescribed devices, such as prescription eyeglasses or
hearing aids, readers for personal use or study, or services of a
personal nature (28 CFR 35.135 and 34 CFR 104.44(d)(2)). If a student
with a disability requires personal devices or services or individually
prescribed assistive technology, the VR agency must determine whether
the student meets the eligibility criteria of section 102(a) of the
Rehabilitation Act and, if so, develop an IPE in partnership with the
student pursuant to section 102(b) of the Rehabilitation Act for the
provision of those additional services (see also 34 CFR 361.42(a)(1)
and 361.45). DSUs must use funds reserved under section110(d)(1) of the
Rehabilitation Act and 34 CFR 361.65(a)(3)(i) to pay for only pre-
employment transition services under section 113(b) and 34 CFR
361.48(a)(2), auxiliary aids and services needed by any student with a
disability to access or participate in those services, or other VR
services necessary for an eligible student to receive pre-employment
transition services as discussed elsewhere in this notice of
interpretation. DSUs must pay for any other additional VR services
using non-reserved VR funds.
Policy Interpretation--Use of Reserved Funds for Providing Certain
Other VR Services for Eligible Students With Disabilities Receiving
Pre-Employment Transition Services
As explained here for purposes of this policy interpretation, which
is separate and distinct from the policy clarification just described
regarding auxiliary aids and services, DSUs may use the funds reserved
under section 110(d)(1) of the Rehabilitation Act and 34 CFR
361.65(a)(3)(i) to pay for those pre-employment transition services
needed by eligible students with disabilities, plus any other VR
service needed by those eligible students to benefit from pre-
employment transition services in accordance with an approved IPE. With
respect to those students with disabilities who have not yet been
determined eligible for the VR program (i.e., potentially eligible
students with disabilities), DSUs may use the funds reserved under
section 110(d)(1) of the Rehabilitation Act and 34 CFR 361.65(a)(3)(i)
only to pay for those pre-employment transition services set forth in
section 113 and 34 CFR 361.48(a), as well as for auxiliary aids and
services needed to access or participate in pre-employment transition
services, as described in Department guidance issued to date.
Since the addition of the five required pre-employment transition
services, the VR program can be characterized as providing a continuum
of services, with pre-employment transition services being most
beneficial to students with disabilities in the early stages of
employment exploration. The Secretary is committed to ensuring that
students with disabilities are held to high expectations and have the
resources and supports needed to prepare them for success in
postsecondary education or careers. Therefore, we believe that these
services should be provided to the broadest population of students with
disabilities to ensure that as many students with disabilities as
possible are able to receive the services they need to prepare for
postschool activities, including postsecondary education and
employment. To that end, pre-employment transition services represent
the earliest set of services available for students with disabilities
under the VR program. These are short-term services designed to help
students identify career interests.
Transition services represent the next set of services on the
continuum of VR services available to eligible individuals. Transition
services, for eligible students \4\ with disabilities, provide for
further development and pursuit of career interests with postsecondary
education, vocational training, job search, job placement, job
retention, job follow-up, and job follow-along services (section
103(a)(4), (5), and (15) of the Rehabilitation Act and 34 CFR
361.48(b)(6), (12), and (18)).
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\4\ Although DSUs may provide transition and other VR services
to youth with disabilities, as defined at section 7(42) of the
Rehabilitation Act and 34 CFR 361.5(c)(58), the discussion in this
notice of interpretation focuses solely on students with
disabilities because pre-employment transition services are only
available to those individuals who meet the definition of a
``student with a disability'' at section 7(37) of the Rehabilitation
Act and 34 CFR 361.5(c)(51).
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Employment-related services to eligible individuals are next in the
continuum of services. These services typically are provided once
eligible
[[Page 11851]]
students have identified their career interests, have further developed
and pursued their career interests through postsecondary education and
vocational training offered through transition services, and are
pursuing specific employment outcomes. Employment-related services are
identified in section 103(a) of the Rehabilitation Act and 34 CFR
361.48(b) and are intended to assist the eligible individual with a
disability in preparing for, securing, retaining, advancing in, or
regaining an employment outcome that is consistent with the
individual's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice.
While a continuum of services across pre-employment transition
services for students with disabilities, and transition services and
employment-related services for eligible individuals who have IPEs,
exists under the VR program, the five required pre-employment
transition services are the only services available to potentially
eligible students with disabilities.
In the preamble to the Department's August 2016 regulations, the
Department made clear that the term ``potentially eligible'' students
with disabilities, for purposes of receiving pre-employment transition
services, includes all students with disabilities (81 FR 55630, 55631,
and 55690-55691). Students with disabilities do not need to apply and
be determined eligible for the VR program to receive pre-employment
transition services. However, these students may not receive any VR
services other than pre-employment transition services until they
apply, and are determined eligible, for VR services, and have an
approved IPE (81 FR 55629 at 55691). On the other hand, eligible
students with disabilities, that is, those students who have applied
and been determined eligible for the VR program, are able to receive
any VR services, including pre-employment transition services,
necessary to assist them in achieving their employment outcome, so long
as those services are identified on their IPEs in accordance with
section 103(a) of the Rehabilitation Act (81 FR 55691).
On May 21, 2014, the Congress of the United States released
``Statement of the Managers to Accompany the Workforce Innovation and
Opportunity Act.'' In its statement, Congress made clear that the title
IV ``. . . amendments established a framework to ensure every young
person with a disability, regardless of their level of disability, has
the opportunity to experience competitive, integrated employment. The
pre-employment transition services will provide young people with
disabilities with the opportunity to develop their skills and to use
supports, available through State VR programs to experience competitive
integrated employment as they leave school and enter the workforce.''
The intent of Congress makes clear that the ``framework'' for VR
services includes pre-employment transition services for all students
with disabilities and other services and supports for eligible students
with disabilities with an approved IPE to develop their skills and
experience success when they enter the workforce.
Section 110(d)(1) of the Rehabilitation Act and 34 CFR
361.65(a)(3)(i) require each State to reserve at least 15 percent of
its Federal VR grant for the provision of pre-employment transition
services to students with disabilities. With this statutory provision,
coupled with the ``Statement of the Managers to Accompany the Workforce
Innovation and Opportunity Act,'' the Department interprets this
requirement as meaning that DSUs may use these reserved funds to pay
for other VR services under section 103(a) of the Rehabilitation Act
and 34 CFR 361.48(b), in accordance with an approved IPE, that are
necessary for an eligible student with a disability to participate in
pre-employment transition services identified in section 113(b) of the
Rehabilitation Act. This means that, for eligible students with
disabilities, DSUs may use the reserved funds to pay for the pre-
employment transition services and any other VR services necessary for
the eligible student to benefit from those pre-employment transition
services in accordance with an approved IPE consistent with the
requirements of section 103(a) of the Rehabilitation Act. However, for
those students with disabilities who have not yet applied or been
determined eligible for the VR program (i.e., potentially eligible
students), the DSUs may use the reserved funds to pay only those costs
incurred in providing the pre-employment transition services identified
in section 113 of the Rehabilitation Act and 34 CFR 361.48(a), as well
as auxiliary aids and services needed to access or participate in pre-
employment transition services, as described in guidance issued by the
Department to date.
Although section 113 of the Rehabilitation Act is unique in that it
permits VR agencies to provide pre-employment transition services to
students with disabilities who have not yet been determined eligible
for the VR program, section 103(a) of the Rehabilitation Act does not
contain the same flexibility. Section 103(a) of the Rehabilitation Act
makes clear that all VR services provided under that section are
provided under an approved IPE that is developed when an individual
with a disability has applied and been determined eligible for the VR
program in accordance with section 102 of the Rehabilitation Act (see
also 34 CFR 361.42 and 361.48(b)).
Section 102(b)(4)(A) of the Rehabilitation Act and 34 CFR
361.46(a)(1) make clear that the IPE for a student with a disability
need only contain a ``description of the student's projected postschool
employment outcome,'' as opposed to a description of a specific
employment outcome. Despite this flexibility available to States, the
Department has observed through monitoring that these IPEs for students
with disabilities are underutilized. Because DSUs can develop initial
IPEs for eligible students with disabilities that are more general in
nature, DSUs are able to provide additional supports and services to
eligible students as necessary for students to benefit from pre-
employment transition services and activities and explore their career
interests and, subsequently, refine the IPEs, through the amendment
process under section 102(b)(3)(E) of the Rehabilitation Act and 34 CFR
361.45(a)(6), to include a specific employment goal and the VR services
necessary to achieve that goal, as appropriate. Eligible students with
disabilities are able to access any other VR services needed to
participate in pre-employment transition services (as discussed in more
detail below) or other VR services that are unrelated to pre-employment
transition services, none of which would be available to them without
approved IPEs.
This policy interpretation applies only to those students with
disabilities who have been determined eligible for services under the
VR program and who have an approved IPE. We recognize that some
eligible students with disabilities may need certain VR services under
section 103(a) of the Rehabilitation Act and 34 CFR 361.48(b) to fully
benefit from pre-employment transition services under section 113(b)
and 34 CFR 361.48(a)(2). Receiving other VR services and supports,
along with the pre-employment transition services, enables eligible
students with a disability to develop the skills to experience
competitive, integrated employment as they leave school and enter the
workforce. Therefore, the Department believes that allowing the funds
reserved under section 110(d)(1) and 34 CFR 361.65(a)(3)(i) to be used
to
[[Page 11852]]
pay for other VR services needed by eligible students with disabilities
who have IPEs to benefit from pre-employment transition services is
consistent with the ``Statement of the Managers to Accompany the
Workforce Innovation and Opportunity Act'' and with the statutory
purpose for the reservation of these funds.
This interpretation regarding the use of the reserved funds for
certain other VR services that are necessary for an eligible student
with a disability to benefit from pre-employment transition services
also is consistent with the Office of Management and Budget's Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards (Uniform Guidance), codified at 2 CFR part 200.
Specifically, 2 CFR 200.403(a) requires that costs paid from a Federal
award must be allowable, meaning that they must be necessary,
reasonable, and allocable to the award. Costs are reasonable if, in
their nature and amount, they do not exceed that which would be
incurred by a prudent person under the circumstances that existed at
the time the decision was made to incur the cost (2 CFR 200.404). A
cost is allocable to a Federal cost objective if the services are
assignable to that cost objective in accordance with relative benefits
received (2 CFR 200.405(a)). These fiscal requirements not only apply
to costs incurred under the VR grant as a whole, but also to those
costs incurred with the funds reserved under section 110(d)(1) of the
Rehabilitation Act and 34 CFR 361.65(a)(3)(i). In other words, costs
incurred with these reserved funds must be--
Necessary for the provision or receipt of pre-
employment transition services;
Reasonable, that is, those that a prudent person would
agree are necessary for the provision or receipt of pre-employment
transition services; and
Allocable, that is, those that benefit the provision or
receipt of pre-employment transition services.
Under the Department's interpretation, the reserved funds may be
used for costs associated with providing certain VR services to
eligible students with disabilities, in accordance with approved IPEs,
who need those services to benefit from pre-employment transition
services, as well as the costs associated with the pre-employment
transition services themselves. As such, these costs would be
reasonable, necessary, and allocable to the funds reserved under
section 110(d)(1) of the Rehabilitation Act and 34 CFR 361.65(a)(3)(i).
If eligible students with disabilities need additional VR services that
are not within the scope of pre-employment transition services and,
thus, this interpretation, DSUs may still provide those services in
accordance with the terms of the approved IPE. However, DSUs must
provide those additional VR services with other VR funds that were not
reserved under section 110(d)(1) of the Rehabilitation Act and 34 CFR
361.65(a)(3)(i).
In an effort to explain the application of this interpretation to
the services outlined in section 103(a) of the Rehabilitation Act and
34 CFR 361.48(b), we discuss each of those VR services in light of
whether they are within the nature, scope, and purpose of any of the
pre-employment transition services available under section 113(b) and
34 CFR 361.48(a)(2) (i.e., are necessary, reasonable, and allocable)
and, thus, may be paid with the funds reserved under section 110(d)(1)
of the Rehabilitation Act and 34 CFR 361.65(a)(3)(i) if needed by an
eligible student with a disability to benefit from pre-employment
transition services. In so doing, we also explain that certain VR
services outlined in section 103(a) of the Rehabilitation Act and 34
CFR 361.48(b) fall outside the nature, scope, and purpose of pre-
employment transition services and, thus, those services are not
reasonable or necessary for an eligible student with a disability to
benefit from pre-employment transition services under section 113(b) of
the Rehabilitation Act and 34 CFR 361.48(a)(2). Therefore, the costs
for such services are not allocable to the provision of pre-employment
transition services and may not be paid with the funds reserved under
section 110(d)(1) and 34 CFR 361.65(a)(3)(i) for that purpose. Nothing
in this interpretation affects the DSU's responsibility to search for
comparable services and benefits, when required by section 101(a)(8) of
the Rehabilitation Act and 34 CFR 361.53, before providing any of the
VR services discussed herein.
Through this interpretation, the following VR services in section
103(a) of the Rehabilitation Act and 34 CFR 361.48(b) fall within the
nature, scope, and purpose of pre-employment transition services when
needed by an eligible student with a disability, in accordance with an
approved IPE, to benefit from one or more of the pre-employment
transition services described in section 113(b) of the Rehabilitation
Act and 34 CFR 361.48(a)(2). As such, costs incurred in providing these
other VR services are allocable to the funds reserved under section
110(d)(1) of the Rehabilitation Act and 34 CFR 361.65(a)(3)(i). As
discussed here, the examples of when DSUs may use the reserved funds to
pay for additional services in section 103(a) of the Rehabilitation Act
and 34 CFR 361.48(b), consistent with both the statutory purpose for
these reserved funds and fiscal requirements of the Uniform Guidance,
provide DSUs with significantly greater flexibility in delivering pre-
employment transition services to eligible students with disabilities
than has been allowed under Department guidance issued to date, thereby
increasing the availability of pre-employment transition services to
these students.
To the extent that a portion of the costs incurred for the
additional VR services fall outside the nature, scope, and purpose of
pre-employment transition services, DSUs must pay that portion with
other VR program funds.
Assessment Services
Section 103(a)(1) and 34 CFR 361.48(b)(2) permit DSUs to provide
assessment services to eligible individuals to determine VR needs.
These services are generally provided in the very early stages of the
VR process with an eligible individual with a disability and, thus, are
consistent with the nature, scope, and purpose of pre-employment
transition services. As stated in the preamble to the August 2016
regulations (81 FR at 55685), VR services are provided on a continuum,
with pre-employment transition services being the earliest set of
services available for students with disabilities. Given that the
purpose of assessment services under section 103(a)(1) and 34 CFR
361.48(b)(2) is to determine the VR needs of individuals with
disabilities, it is reasonable that an eligible student with a
disability would need further assessment services while engaging in any
of the pre-employment transition services set forth at section 113(b)
and 34 CFR 361.48(a)(2) to fully benefit from those activities.
Counseling and Guidance
Section 103(a)(2) and 34 CFR 361.48(b)(3) permit DSUs to provide
counseling and guidance services to eligible individuals throughout the
VR process. These services are directly connected with the nature,
scope, and purpose of two pre-employment transition services,
specifically job exploration counseling (section 113(b)(1) and 34 CFR
361.48(a)(2)(i)) and counseling on opportunities for enrollment in
comprehensive transition and other postsecondary education programs at
institutions of higher education (section 113(b)(3) and 34 CFR
361.48(a)(2)(iii)). Given that counseling and guidance services are
specifically listed among the pre-employment
[[Page 11853]]
transition services at section 113(b) and 34 CFR 361.48(a)(2), these
services clearly fall within the nature, scope, and purpose of pre-
employment transition services. Therefore, it is reasonable that an
eligible student with a disability could need these services in order
to benefit from pre-employment transition services activities.
Referral Services
Section 103(a)(3) and 34 CFR 361.48(b)(4) permit DSUs to provide
referral services to eligible individuals with disabilities to secure
needed services from other agencies throughout the VR process. While
these services are not directly connected to any particular pre-
employment transition services activity described in section 113(b) and
34 CFR 361.48(a)(2), section 113(a) of the Rehabilitation Act and 34
CFR 361.48(a) make clear that the VR agency must provide, or arrange
for the provision of, pre-employment transition services to students
with disabilities in need of such services. The Rehabilitation Act
clearly envisioned circumstances in which the DSU itself would not be
able to provide the pre-employment transition services and would need
to reach agreements with other entities to provide those services. As
such, it is reasonable that an eligible student with a disability could
need a referral in order to participate in one or more of the pre-
employment transition services set forth in section 113(b) of the
Rehabilitation Act and 34 CFR 361.48(a)(2). In this circumstance, the
referral services under section 103(a)(3) and 34 CFR 361.48(b)(4) for
that eligible student with a disability would fall squarely within the
nature, scope, and purpose of pre-employment transition services.
Maintenance
Section 103(a)(7) and 34 CFR 361.48(b)(7) permit DSUs to provide
maintenance to eligible individuals with disabilities to cover
additional costs incurred while receiving VR services. DSUs may provide
maintenance to eligible individuals with disabilities throughout the VR
process, including during the early stages in the continuum of VR
services. Maintenance is unique from most other VR services listed in
section 103(a) and 34 CFR 361.48(b) because it must be provided in
combination with another VR service, such as pre-employment transition
services. It is reasonable that an eligible student with a disability
who is participating in pre-employment transition services could incur
additional costs to participate in those services (e.g., purchase of
required clothing for a work-based learning experience under section
113(b)(2) and 34 CFR 361.48(a)(2)(ii) or the purchase of a talking
alarm clock to participate in workplace readiness training under
section 113(b)(4) and 34 CFR 361.48(a)(2)(iv)). Therefore, to the
extent an eligible student with a disability needs maintenance, in
accordance with an approved IPE, to benefit from pre-employment
transition services, then such maintenance services fall within the
nature, scope, and purpose of pre-employment transition services.
However, we clarify that it is not reasonable to provide maintenance
services to all eligible students with disabilities in all
circumstances with the use of the reserved funds under this
interpretation. DSUs must ensure the costs incurred for maintenance are
allocable to the pre-employment transition services that the eligible
student with a disability is receiving, as opposed to other VR services
that the student may be receiving simultaneously. For example, if the
DSU agreed to pay for the fee for the eligible student to take a
college entrance test preparatory course, this VR service would be
beyond the nature, scope, and purpose of all of the pre-employment
transition services described in section 113(b) and 34 CFR 361.48(a)(2)
and, as such, would not be allocable to those services. In this
example, the DSU must pay the costs incurred for maintenance with other
VR program funds, not the funds reserved under section 110(d)(1) and 34
CFR 361.65(a)(3)(i) for the provision of pre-employment transition
services.
Transportation
Section 103(a)(8) and 34 CFR 361.48(b)(8) permit DSUs to provide
transportation services, including training in the use of public
transportation, to eligible individuals with disabilities throughout
the VR process. As with the maintenance services just described, DSUs
must provide transportation services only in combination with another
VR service, such as pre-employment transition services. It is
reasonable that an eligible student with a disability who is
participating in pre-employment transition services could need
transportation services to benefit from any of the pre-employment
transition services described in section 113(b) of the Rehabilitation
Act and 34 CFR 361.48(a)(2) (e.g., to attend counseling sessions under
section 113(b)(1) and (3) and 34 CFR 361.48(a)(2)(i) and (iii), work-
based learning experiences under section 113(b)(2) and 34 CFR
361.48(a)(2)(ii), or self-advocacy training sessions under section
113(b)(5) and 34 CFR 361.48(a)(2)(v)). It is also reasonable that an
eligible student with a disability could need transportation to
participate in workplace readiness training under section 113(b)(4) and
34 CFR 361.48(a)(2)(iv) to learn how to travel independently in
preparation for eventual employment. As such, to the extent an eligible
student with a disability needs transportation services in accordance
with an approved IPE to participate in any of the pre-employment
transition services, the transportation services clearly fall within
the nature, scope, and purpose of those pre-employment transition
services. We clarify that it is not reasonable to provide all types of
transportation services to all eligible students with disabilities with
the use of the reserved funds under this interpretation. As with the
maintenance services described earlier, DSUs must ensure the costs
incurred for transportation services are allocable to the pre-
employment transition services that the eligible student with a
disability is receiving, as opposed to other VR services that the
eligible student may be receiving simultaneously. For example, if the
DSU agreed to pay for a vehicle modification to make it more accessible
for the eligible student with a disability while participating in pre-
employment transition services and other VR counseling services, as
well as a dual enrollment program under the Individuals with
Disabilities Education Act, the DSU must determine whether a prudent
person would agree that the cost for the vehicle modification is
reasonable as a cost associated with the pre-employment transition
services the student is receiving and, if so, to what extent the cost
is allocable to the pre-employment transition services activity. To
make this determination, the DSU should take into account the duration
of the pre-employment transition services that the eligible student
with a disability is participating in to determine whether, or to what
extent, the transportation cost in this circumstance would be allocable
to the funds reserved under section 110(d)(1) and 34 CFR
361.65(a)(3)(i) or whether this cost more appropriately should be paid
with other VR program funds.
Personal Assistance Services
Section 103(a)(9) and 34 CFR 361.48(b)(14) permit DSUs to provide
personal assistance services to eligible individuals with disabilities
when needed to participate in another VR service. As with maintenance
and transportation services just described, DSUs may provide personal
assistance
[[Page 11854]]
services only in combination with another VR service, such as pre-
employment transition services. It is reasonable that an eligible
student with a disability, particularly a student with a significant
disability, who is participating in pre-employment transition services
could need personal assistance services in order to participate in
those services (e.g., personal assistance services during a work-based
learning experience under section 113(b)(2) and 34 CFR
361.48(a)(2)(ii)). Therefore, to the extent an eligible student with a
disability needs personal assistance services, in accordance with an
approved IPE, to participate in pre-employment transition services,
such personal assistance services fall within the nature, scope, and
purpose of pre-employment transition services. We clarify that, as with
the maintenance and transportation services just described, only those
personal assistance services identified in an IPE directly related to
the eligible student with a disability's participation in pre-
employment transition services are allocable and, thus, could be paid
with the reserved funds. DSUs must pay for all other personal
assistance services needed by the eligible student with other VR
program funds.
Rehabilitation Teaching & Orientation and Mobility Services
Section 103(a)(11) and 34 CFR 361.48(b)(11) permit DSUs to provide
rehabilitation teaching services and orientation and mobility services
to eligible individuals who are blind. These services, particularly the
orientation and mobility services, also are offered as pre-employment
transition services, namely ``workplace readiness'' training under
section 113(b)(4) of the Rehabilitation Act and 34 CFR 361.48(a)(2).
Therefore, it is reasonable and allocable to pre-employment transition
services activities for a DSU to use funds reserved under section
110(d)(1) of the Rehabilitation Act and 34 CFR 361.65(a)(3)(i) to pay
for these services in the event an eligible student with a disability
needs them, in accordance with an approved IPE, to benefit from pre-
employment transition services. Because these services actually
constitute workplace readiness training under section 113(b)(4) and 34
CFR 361.48(a)(2)(iv), the services under section 103(a)(11) and 34 CFR
361.48(b)(11) clearly fall within the scope, nature, and purpose of
pre-employment transition services.
Rehabilitation Technology
Section 103(a)(14) and 34 CFR 361.48(b)(17) permit DSUs to provide
eligible individuals with disabilities rehabilitation technology
throughout the VR process when needed and identified on an approved
IPE. It is reasonable that an eligible student with a disability,
especially a student with a significant disability, could need
rehabilitation technology to benefit from pre-employment transition
services, particularly those involving work-based learning experiences
under section 113(b)(2) and 34 CFR 361.48(a)(2)(ii), workplace
readiness training under section 113(b)(4) and 34 CFR 361.48(a)(2)(iv),
and self-advocacy training under section 113(b)(5) and 34 CFR
361.48(a)(2)(v). For example, an eligible student with a disability may
need an electronic device (that does not constitute an auxiliary aid or
service as discussed elsewhere in this notice of interpretation) to
participate in one of the pre-employment transition services training
activities. In other words, without the rehabilitation technology, the
eligible student with a disability might not be able to participate in
the pre-employment transition services activity. Under this
circumstance, the rehabilitation technology falls within the nature,
scope, and purpose of pre-employment transition services under section
113(b) of the Rehabilitation Act and 34 CFR 361.48(a)(2) and, thus, is
allocable to those services. However, DSUs must ensure that the costs
incurred for the rehabilitation technology are needed by the eligible
student with a disability to participate in pre-employment transition
services, as opposed to other VR services the eligible student might be
participating in simultaneously. Pursuant to 2 CFR 200.403 through
200.405, the DSUs may use the funds reserved under section 110(d)(1) of
the Rehabilitation Act and 34 CFR 361.65(a)(3)(i) to pay for the costs
of rehabilitation technology that is reasonably allocable to the pre-
employment transition services activities of the eligible student with
a disability. The DSU must use other VR funds to pay for the portion of
the cost, or the entire cost if applicable, that is not allocable to
the pre-employment transition services activities.
Pre-Employment Transition Services Under Section 103(a)
Section 103(a)(15) and 34 CFR 361.48(b)(18) permit DSUs to provide
transition services, including pre-employment transition services, to
eligible students with disabilities. For purposes of this
interpretation, we discuss transition services separately in a later
section. This discussion focuses solely on the pre-employment
transition services available under section 103(a)(15) and 34 CFR
361.48(b)(18). As with the orientation and mobility services discussed
above, these pre-employment transition services are at the core of the
nature, scope, and purpose of the pre-employment transition services
provided under section 113(b) of the Rehabilitation Act and 34 CFR
361.48(a)(2). Therefore, it is reasonable and allocable to pre-
employment transition services activities for a DSU to use funds
reserved under section 110(d)(1) of the Rehabilitation Act and 34 CFR
361.65(a)(3)(i) to pay for these services in the event an eligible
student with a disability needs them, in accordance with an approved
IPE, to participate in pre-employment transition services under section
113(b) and 34 CFR 361.48(a)(2).
Family Services
Section 103(a)(19) and 34 CFR 361.48(b)(9) permit the DSU to
provide services to family members of an eligible individual with a
disability when these services are necessary for the eligible
individual to achieve an employment outcome. As with certain other
services (i.e., maintenance, transportation, and personal assistance
services), services to the family, by their very nature, must be
provided in combination with another VR service, such as pre-employment
transition services. Given that pre-employment transition services
represent the earliest set of services available to students with
disabilities under the VR program, it is reasonable that a family
member could need services to enable the eligible student with a
disability to benefit from pre-employment transition services. For
example, the parent or guardian may need transportation services to
accompany the eligible student with a disability to his or her pre-
employment transition services activities or the parent or guardian may
need language interpreter services in order to understand consent forms
that he or she might need to sign on behalf of the underage eligible
student with a disability participating in pre-employment transition
services. In such circumstances, the services to family members clearly
fall within the nature, scope, and purpose of the pre-employment
transition services provided under section 113(b) of the Rehabilitation
Act and 34 CFR 361.48(a)(2), thereby making the costs incurred for such
services allocable to pre-employment transition services.
[[Page 11855]]
Coaching Services
Finally, with respect to those services in section 103(a) of the
Rehabilitation Act that fall within the nature, scope, and purpose of
pre-employment transition services described in section 113(b) and 34
CFR 361.48(a)(2), the Secretary notes that section 103(a) is not an
exhaustive list of services (34 CFR 361.48(b)(21)). DSUs may provide
any service that an eligible individual needs to achieve an employment
outcome in accordance with an approved IPE. In the context of pre-
employment transition services, one such service is coaching services
for eligible students with disabilities participating in work-based
learning experiences under section 113(b)(2) and 34 CFR
361.48(a)(2)(ii). These coaches perform similar functions as job
coaches do in supported employment settings by assisting the eligible
student with a disability to perform the tasks assigned during the
work-based learning experiences. While these particular coaching
services are not specifically listed in section 103(a), they would be
considered allowable VR services under section 103(a) and 34 CFR
361.48(b)(21) if needed by an eligible student with a disability, in
accordance with an approved IPE, to participate in pre-employment
transition services. Given that pre-employment transition services are
among the earliest sets of services available to students with
disabilities, it is reasonable to expect that these eligible students
may need extra assistance through coaching services to participate in
these activities. In such circumstances, these coaching services
clearly fall within the nature, scope, and purpose of pre-employment
transition services, particularly work-based learning experiences under
section 113(b)(2) and 34 CFR 361.48(a)(2)(ii), and, thus, would be
allocable to those services.
Allocability of Certain Portions of VR Services
Next, the Secretary believes that the following VR services, set
forth in section 103(a) and 34 CFR 361.48(b), have aspects of those
services that fall within the nature, scope, and purpose of pre-
employment transition services when needed by an eligible student with
a disability, in accordance with an approved IPE, to benefit from one
or more of the pre-employment transition services described in section
113(b) of the Rehabilitation Act and 34 CFR 361.48(a)(2). In the narrow
circumstances described in this notice of interpretation, costs
incurred for certain portions of the following services could be
allocable to pre-employment transition services under the right set of
facts; therefore, in these circumstances, DSUs may pay these costs with
the funds reserved under section 110(d)(1) of the Rehabilitation Act
and 34 CFR 361.65(a)(3)(i). However, most aspects of the following
services fall outside the nature, scope, and purpose of pre-employment
transition services and, thus, are not allocable to those services. In
those more common circumstances, DSUs may not use funds reserved under
section 110(d)(1) and 34 CFR 361.65(a)(3)(i) to pay for those costs.
Vocational and Other Training Services
Section 103(a)(5) and 34 CFR 361.48(b)(6) permit DSUs to provide
vocational and other training services, including books, tools, and
other training materials, for eligible individuals in accordance with
an approved IPE. This provision also permits DSUs to pay for
postsecondary education tuition, so long as maximum efforts have been
made to obtain grant assistance. Before discussing these services, the
Secretary notes that pre-employment transition services are intended to
be an early set of exploration services for students with disabilities
that are ``designed to help students with disabilities to begin to
identify career interests that will be further explored through
additional [VR] services, such as transition services. Following the
continuum, transition services represent the next set of [VR] services
available to students with disabilities. They are outcome-oriented and
promote movement from school to post-school activities, including
postsecondary education, vocational training, and competitive
integrated employment. As such, transition services may include job-
related services, such as job search and placement assistance, job
retention services, follow-up services, and follow-along services based
on the needs of the individual'' (81 FR at 55685). Given the clear
nature, scope, and purpose of pre-employment transition services as a
very early set of career interest and exploration services for students
with disabilities, the services available under section 103(a)(5) and
34 CFR 361.48(b)(6) are predominately outside that scope. In fact, most
of the services fit squarely within the vocational training purpose of
transition services for those individuals transitioning from school to
a specific employment outcome, as described by the Department at 81 FR
at 55685 and, thus, are not allocable to pre-employment transition
services. However, an eligible student with a disability could need a
book, tool, or other training material to participate in pre-employment
transition services, specifically a work-based learning experience
under section 113(b)(2) and 34 CFR 361.48(a)(2)(ii). While a DSU could
use section 103(a)(7) of the Rehabilitation Act and 34 CFR 361.48(b)(7)
as the authority to pay for the book, tool, or training material since
it would be an additional cost incurred as a result of the
participation in the pre-employment transition services, the DSU also
could use the authority of section 103(a)(5) and 34 CFR 361.48(b)(6) to
pay the costs of the service. To the extent the book, tool, or training
material is necessary for the eligible student with a disability to
participate in the work-based learning experience under section
113(b)(2) and 34 CFR 361.48(a)(2)(ii), such service and associated cost
would be allocable to pre-employment transition services.
Advanced Training
Section 103(a)(18) and 34 CFR 361.48(b)(6) permit DSUs to encourage
eligible individuals to pursue advance training in the fields of
science, technology, engineering, or mathematics (including computer
science), law, medicine, or business. To the extent that a VR counselor
or other provider of pre-employment transition services discusses these
postsecondary options while discussing all opportunities for enrollment
in comprehensive transition and other postsecondary education programs
at institutions of higher education under section 113(b)(3) and 34 CFR
361.48(a)(2)(iii), the service under section 103(a)(18) and 34 CFR
361.48(b)(6) is squarely within the nature, scope, and purpose of pre-
employment transition services. As such, the service is allocable to
pre-employment transition services and could be paid for with funds
reserved for that purpose. However, to the extent that the DSU
encourages the advanced training under section 103(a)(18) by paying
tuition at a postsecondary institution, such service is outside the
nature, scope, and purpose of pre-employment transition services and,
thus, is not allocable to those services. Once the eligible student has
identified this career path and started postsecondary education, the
service is one that enables the individual to transition from school to
a specific employment outcome, as described at 81 FR at 55685, not
simply to explore career interests through pre-employment transition
services activities.
[[Page 11856]]
VR Services Not Allocable to Pre-Employment Transition Services
Lastly, the Secretary believes that the following VR services, set
forth in section 103(a) and 34 CFR 361.48(b), are not allocable to pre-
employment transition services in section 113(b) of the Rehabilitation
Act and 34 CFR 361.48(a)(2) because they are beyond the nature, scope,
and purpose of those services. As such, these services are not
allocable to pre-employment transition services, meaning that DSUs may
not use funds reserved under section 110(d)(1) and 34 CFR
361.65(a)(3)(i) to pay for those costs even if provided to eligible
students with disabilities who are also participating in pre-employment
transition services.
Transition Related Services
Sections 103(a)(4), (5), (15), and (18) permit DSUs to provide
eligible individuals with a variety of transition-related services in
accordance with an approved IPE (see also 34 CFR 361.48(b)(6) and
(12)). As discussed earlier, pre-employment transition services
represent the earliest set of services available for students with
disabilities. These are short-term services designed to help students
identify career interests. In contrast, transition services represent
the next set of services on the continuum of VR services to eligible
individuals. During the receipt of transition services, eligible
students with disabilities further develop and pursue their career
interests with postsecondary education, vocational training, job
search, job placement, job retention, job follow-up, and job follow-
along services. By their very nature, transition-related services are
beyond the nature, scope, and purpose of pre-employment transition
services set forth at section 113(b) and 34 CFR 361.48(a)(2). For this
reason, these services, with narrow exceptions described previously,
are not allocable to pre-employment transition services. As such, DSUs
may not use funds reserved under section 110(d)(1) and 34 CFR
361.65(a)(3)(i) to pay for these costs. Rather, they must use other VR
program funds to pay these costs.
Medical Services
Section 103(a)(6) and 34 CFR 361.48(b)(5) permit DSUs to provide
certain medical services to eligible individuals, in accordance with an
approved IPE, under certain circumstances. Medical services are beyond
the nature, scope, and purpose of all the pre-employment transition
services described in section 113(b) of the Rehabilitation Act and 34
CFR 361.48(a)(2). While it is possible that an eligible student with a
disability could need such a service, it is not reasonable to believe
that the need was tied solely to the student's participation in pre-
employment transition services. Rather, it is most likely that the need
is more general and associated with the eligible student with a
disability's VR program as a whole, but not limited to the pre-
employment transition services. As such, the service is not allocable
to pre-employment transition services and DSUs must pay for the service
with other VR program funds.
Employment-Related Services
Sections 103(a)(12), (13), (16), (17), and (20) permit the DSU to
provide various employment-related services to eligible individuals
(see also 34 CFR 361.48(b)(13), (15), (16), (19), and (20)). These
services are next in the continuum of services, once eligible students
have identified their career interests through pre-employment
transition services and further developed and pursued them through
postsecondary education and vocational training offered through
transition services that assist them in transitioning from school to
specific employment outcomes. These employment-related services are
well beyond the continuum of services available as pre-employment
transition services and are directly tied to specific occupations. For
this reason, these services are beyond the nature, scope, and purpose
of pre-employment transition services described in section 113(b) and
34 CFR 361.48(a)(2). Thus, they are not allocable to those services.
DSUs must use other VR program funds to pay the costs associated with
providing these services.
Conclusion
Through this notice of interpretation, the Secretary clarifies that
DSUs may use VR funds reserved under section 110(d)(1) of the
Rehabilitation Act and 34 CFR 361.65(a)(3)(i) to pay for auxiliary aids
and services needed by all students with disabilities (i.e., both
eligible and potentially eligible students with disabilities) who have
sensory and communicative disorders to access or participate in pre-
employment transition services. In addition, the Secretary explains
that DSUs may use the reserved funds to pay for pre-employment
transition services needed by eligible students with disabilities and
certain other VR services in section 103(a) of the Rehabilitation Act
and 34 CFR 361.48(b) needed by those eligible students to benefit from
pre-employment transition services in accordance with an approved IPE.
Although the Department understands that pre-employment transition
services are available for all students with disabilities, not just
those determined eligible for the VR program, this interpretation
permitting the use of the reserved funds for certain VR services other
than pre-employment transition services is applicable only to those
students with disabilities who are receiving pre-employment transition
services, who have been determined eligible for the VR program, and who
have an approved IPE. Under this interpretation, DSUs may use the funds
reserved under section 110(d)(1) of the Rehabilitation Act and 34 CFR
361.65(a)(3)(i) to pay for those pre-employment transition services
needed by eligible students with disabilities in accordance with an
approved IPE, plus any other VR service needed by eligible students to
benefit from pre-employment transition services. With respect to those
students with disabilities who have not yet been determined eligible
for the VR program (i.e., potentially eligible students with
disabilities), DSUs may use the funds reserved under section 110(d)(1)
of the Rehabilitation Act and 34 CFR 361.65(a)(3)(i) only to pay for
those pre-employment transition services set forth in section 113 and
34 CFR 361.48(a), as well as for auxiliary aids and services needed by
those students to access or participate in pre-employment transition
services, as described in Department guidance issued to date. The
Secretary believes this interpretation is consistent with the
``Statement of the Managers to Accompany the Workforce Innovation and
Opportunity Act,'' the statutory purpose for the reservation of these
Federal VR funds, and the fiscal requirements of OMB's Uniform
Guidance.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at www.govinfo.gov. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or portable document format (PDF). To
use PDF you must have Adobe Acrobat Reader, which is available free at
the site.
[[Page 11857]]
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov.
Specifically, through the advanced search feature at this site, you
can limit your search to documents published by the Department.
Mark Schultz,
Delegated the authority to perform the functions and duties of the
Assistant Secretary for the Office of Special Education and
Rehabilitative Services.
[FR Doc. 2020-03208 Filed 2-27-20; 8:45 am]
BILLING CODE 4000-01-P