34 C.F.R. Subpart D—What Conditions Must Be Met After an Award?
Title 34 - Education
The service provider shall apply the standards and procedures established by the DSU pursuant to 34 CFR 365.30 to ensure expeditious and equitable handling of referrals and applications for IL services from individuals with significant disabilities. (Authority: 29 U.S.C. 711(c) and 796–796f–5) (a) Eligibility. (1) Before or at the same time as an applicant for IL services may begin receiving IL services funded under this part, the service provider shall determine the applicant's eligibility and maintain documentation that the applicant has met the basic requirements specified in §364.40. (2) The documentation must be dated and signed by an appropriate staff member of the service provider. (b) Ineligibility. (1) If a determination is made that an applicant for IL services is not an individual with a significant disability, the service provider shall provide documentation of the ineligibility determination that is dated and signed by an appropriate staff member. (2)(i) The service provider may determine an applicant to be ineligible for IL services only after full consultation with the applicant or, if the applicant chooses, the applicant's parent, guardian, or other legally authorized advocate or representative, or after providing a clear opportunity for this consultation. (ii) The service provider shall notify the applicant in writing of the action taken and inform the applicant or, if the applicant chooses, the applicant's parent, guardian, or other legally authorized advocate or representative, of the applicant's rights and the means by which the applicant may appeal the action taken. (Cross-reference: See §364.58(a).) (iii) The service provider shall provide a detailed explanation of the availability and purposes of the CAP established within the State under section 112 of the Act, including information on how to contact the program. (iv) If appropriate, the service provider shall refer the applicant to other agencies and facilities, including the State's VR program under 34 CFR part 361. (c) Review of ineligibility determination. (1) If an applicant for IL services has been found ineligible, the service provider shall review the applicant's ineligibility at least once within 12 months after the ineligibility determination has been made and whenever the service provider determines that the applicant's status has materially changed. (2) The review need not be conducted in situations where the applicant has refused the review, the applicant is no longer present in the State, or the applicant's whereabouts are unknown. (Authority: 29 U.S.C. 711(c) and 796c(e)) (a) General. (1) Unless the individual who is to be provided IL services under this part signs a waiver in accordance with paragraph (a)(2) of this section, the service provider, in collaboration with the individual with a significant disability, shall develop and periodically review an IL plan for the individual in accordance with the requirements in §364.43(c) and paragraphs (b) through (e) of this section. (2) The requirements of this section with respect to an IL plan do not apply if the individual knowingly and voluntarily signs a waiver stating that an IL plan is unnecessary. (3) Subject to paragraph (a)(2) of this section, the service provider shall provide each IL service in accordance with the IL plan. (b) Initiation and development of an IL plan. (1) Development of an individual's IL plan must be initiated after documentation of eligibility under §364.51(a) and must indicate the goals or objectives established, the services to be provided, and the anticipated duration of the service program and each component service. (2) The IL plan must be developed jointly and signed by the appropriate staff member of the service provider and the individual with a significant disability or, if consistent with State law and the individual chooses, the individual's guardian, parent, or other legally authorized advocate or representative. (3) A copy of the IL plan, and any amendments, must be provided in an accessible format to the individual with a significant disability or, if consistent with State law and the individual chooses, the individual's guardian, parent, or other legally authorized advocate or representative. (c) Review. (1) The IL plan must be reviewed as often as necessary but at least on an annual basis to determine whether services should be continued, modified, or discontinued, or whether the individual should be referred to a program of VR services under 34 CFR part 361 or to any other program of assistance. (2) Each individual with a significant disability or, if consistent with State law and the individual chooses, the individual's guardian, parent, or other legally authorized advocate or representative, must be given an opportunity to review the IL plan and, if necessary, jointly redevelop and agree by signature to its terms. (d) Coordination with vocational rehabilitation, developmental disabilities, and special education programs. The development of the IL plan and the provision of IL services must be coordinated to the maximum extent possible with any individualized— (1) Written rehabilitation program for VR services for that individual; (2) Habilitation program for the individual prepared under the Developmental Disabilities Assistance and Bill of Rights Act; and (3) Education program for the individual prepared under part B of the Individuals with Disabilities Education Act. (e) Termination of services. If the service provider intends to terminate services to an individual receiving IL services under an IL plan, the service provider shall follow the procedures in §364.51(b)(2)(ii) through (iv) and (c). (Authority: 29 U.S.C. 711(c) and 796c(e) and (j)) For each applicant for IL services (other than information and referral) and for each individual receiving IL services (other than information and referral), the service provider shall maintain a consumer service record that includes— (a) Documentation concerning eligibility or ineligibility for services; (b) The services requested by the consumer; (c) Either the IL plan developed with the consumer or a waiver signed by the consumer stating that an IL plan is unnecessary; (d) The services actually provided to the consumer; and (e) The IL goals or objectives— (1) Established with the consumer, whether or not in the consumer's IL plan; and (2) Achieved by the consumer. (f) A consumer service record may be maintained either electronically or in written form, except that the IL plan and waiver must be in writing. (Authority: 29 U.S.C. 711(c), 712 and 796c(m)(4)(B)) The service provider may not impose any uniform durational limitations on the provision of IL services, except as otherwise provided by Federal law or regulation. (Authority: 29 U.S.C. 711(c) and 796–796f–5) In providing IL services to individuals with significant disabilities, service providers shall comply with— (a) The written standards for IL service providers established by the DSU pursuant to 34 CFR 365.31; and (b) All applicable State or Federal licensure or certification requirements. (Authority: 29 U.S.C. 711(c) and 796–796f–5) (a) General provisions. The State plan must assure that each service provider will adopt and implement policies and procedures to safeguard the confidentiality of all personal information, including photographs and lists of names. These policies and procedures must assure that— (1) Specific safeguards protect current and stored personal information; (2) All applicants for, or recipients of, IL services and, as appropriate, those individuals' legally authorized representatives, service providers, cooperating agencies, and interested persons are informed of the confidentiality of personal information and the conditions for gaining access to and releasing this information; (3) All applicants or their legally authorized representatives are informed about the service provider's need to collect personal information and the policies governing its use, including— (i) Identification of the authority under which information is collected; (ii) Explanation of the principal purposes for which the service provider intends to use or release the information; (iii) Explanation of whether providing requested information to the service provider is mandatory or voluntary and the effects to the individual of not providing requested information; (iv) Identification of those situations in which the service provider requires or does not require informed written consent of the individual or his or her legally authorized representative before information may be released; and (v) Identification of other agencies to which information is routinely released; (4) Persons who are unable to communicate in English or who rely on alternative modes of communication must be provided an explanation of service provider policies and procedures affecting personal information through methods that can be adequately understood by them; (5) At least the same protections are provided to individuals with significant disabilities as provided by State laws and regulations; and (6) Access to records is governed by rules established by the service provider and any fees charged for copies of records are reasonable and cover only extraordinary costs of duplication or making extensive searches. (b) Service provider use. All personal information in the possession of the service provider may be used only for the purposes directly connected with the provision of IL services and the administration of the IL program under which IL services are provided. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibility for the provision of IL services or the administration of the IL program under which IL services are provided. In the provision of IL services or the administration of the IL program under which IL services are provided, the service provider may obtain personal information from other service providers and cooperating agencies under assurances that the information may not be further divulged, except as provided under paragraphs (c), (d), and (e) of this section. (c) Release to recipients of IL services. (1) Except as provided in paragraphs (c)(2) and (c)(3) of this section, if requested in writing by a recipient of IL services, the service provider shall release all information in that individual's record of services to the individual or the individual's legally authorized representative in a timely manner. (2) Medical, psychological, or other information that the service provider determines may be harmful to the individual may not be released directly to the individual, but must be provided through a qualified medical or psychological professional or the individual's legally authorized representative. (3) If personal information has been obtained from another agency or organization, it may be released only by, or under the conditions established by, the other agency or organization. (d) Release for audit, evaluation, and research. Personal information may be released to an organization, agency, or individual engaged in audit, evaluation, or research activities only for purposes directly connected with the administration of an IL program, or for purposes that would significantly improve the quality of life for individuals with significant disabilities and only if the organization, agency, or individual assures that— (1) The information will be used only for the purposes for which it is being provided; (2) The information will be released only to persons officially connected with the audit, evaluation, or research; (3) The information will not be released to the involved individual; (4) The information will be managed in a manner to safeguard confidentiality; and (5) The final product will not reveal any personally identifying information without the informed written consent of the involved individual or the individual's legally authorized representative. (e) Release to other programs or authorities. (1) Upon receiving the informed written consent of the individual or, if appropriate, the individual's legally authorized representative, the service provider may release personal information to another agency or organization for the latter's program purposes only to the extent that the information may be released to the involved individual and only to the extent that the other agency or organization demonstrates that the information requested is necessary for the proper administration of its program. (2) Medical or psychological information may be released pursuant to paragraph (e)(1) of this section if the other agency or organization assures the service provider that the information will be used only for the purpose for which it is being provided and will not be further released to the individual. (3) The service provider shall release personal information if required by Federal laws or regulations. (4) The service provider shall release personal information in response to investigations in connection with law enforcement, fraud, or abuse, unless expressly prohibited by Federal or State laws or regulations, and in response to judicial order. (5) The service provider also may release personal information to protect the individual or others if the individual poses a threat to his or her safety or to the safety of others. (Authority: 29 U.S.C. 711(c)) A DSU may carry out the functions and responsibilities described in §§364.50, 364.51 (subject to 364.43(d)), 364.52, 364.53, and 364.56 or, except as otherwise provided, may delegate these functions and responsibilities to the appropriate service provider with which the DSU subgrants or contracts to provide IL services. (Authority: 29 U.S.C. 711(c), 796c(f) and 796e–2) Each service provider shall— (a) Establish policies and procedures that an individual may use to obtain review of decisions made by the service provider concerning the individual's request for IL services or the provision of IL services to the individual; and (b) Use formats that are accessible to inform each individual who seeks or is receiving IL services from the service provider about the procedures required by paragraph (a) of this section. (Authority: 29 U.S.C. 711(c)) (a) No Federal requirement or prohibition. (1) A State is neither required to allow nor prohibited from allowing service providers to charge consumers for the cost of IL services. (2) If a State allows service providers to charge consumers for the cost of IL services, a State is neither required to allow nor prohibited from allowing service providers to consider the ability of individual consumers to pay for the cost of IL services in determining how much a particular consumer must contribute to the costs of a particular IL service. (b) State plan requirements. If a State chooses to allow service providers to charge consumers for the cost of IL services or if a State chooses to allow service providers to consider the ability of individual consumers to pay for the cost of IL services, the State plan must— (1) Specify the types of IL services for which costs may be charged and for which a financial need test may be applied; and (2) Assure that any consideration of financial need is applied uniformly so that all individuals who are eligible for IL services are treated equally. (c) Financial need. Consistent with paragraph (b) of this section, a service provider may choose to charge consumers for the cost of IL services or may choose to consider the financial need of an individual who is eligible for IL services. (d) Written policies and documentation. If the service provider chooses to consider financial need— (1) It shall maintain written policies covering the specific types of IL services for which a financial need test will be applied; and (2) It shall document the individual's participation in the cost of any IL services, including the individual's financial need. (Authority: 29 U.S.C. 711(c))
Title 34: Education
PART 364—STATE INDEPENDENT LIVING SERVICES PROGRAM AND CENTERS FOR INDEPENDENT LIVING PROGRAM: GENERAL PROVISIONS
Subpart D—What Conditions Must Be Met After an Award?
§ 364.50 What requirements apply to the processing of referrals and applications?
§ 364.51 What requirements apply to determinations of eligibility or ineligibility?
§ 364.52 What are the requirements for an IL plan?
§ 364.53 What records must be maintained for the individual?
§ 364.54 What are the durational limitations on IL services?
§ 364.55 What standards shall service providers meet?
§ 364.56 What are the special requirements pertaining to the protection, use, and release of personal information?
§ 364.57 What functions and responsibilities may the State delegate?
§ 364.58 What appeal procedures must be available to consumers?
§ 364.59 May an individual's ability to pay be considered in determining his or her participation in the costs of IL services?
