NCIL requests further guidance from the Administration for Community Living on the following issues contained in the Final Rule for Independent Living Programs.
Independent Living Administration
Issue – Current funding levels for CILs are based on when the CIL was funded. The amount of initial funding increases and decreases in funding appropriations and individual awards over time. The methodology used to distribute ARRA funds over the past several years, which has caused some CIL funding levels to increase or decrease dramatically, with no observable relationship to the CIL’s service area size and/or population.
Further guidance – Funding levels for CILs needs to be reviewed and reorganized to reflect sufficient minimum and equitable funding levels for individual CILs
Issue – While the Final IL Regulations suggests that funding and definition for the 5th core service may be beyond the scope of the rule, ACL is now in a unique position to provide better training, technical assistance, and influence to state and federal entities who administer funding, services, and programs to and for people with disabilities. CIL budgets have experienced a steady decline in its budget since 2014 in spite of taking on more responsibility.
Further Guidance – NCIL recommends continued and improved coordination to increase training and technical assistance to state and federal programs to require increase consumer control, contracts and collaboration with consumer-controlled Centers for Independent Living.
Issue – It is inefficient and ineffective to prohibit carryover of the Part C dollars. Carryover into a specific period could be in keeping with the goals of that period. For example, if a key position is vacant the last couple of months of a year, that unspent salary could be spent in the next quarter to assist with training costs for the replacement employee.
Further guidance – Develop a provision for the carryover of Part C dollars from year to year, clarifying that program generated income from the same period can also carry over.
Centers for Independent Living
Fifth Core Service
Issue – Consumers shouldn’t have to go through a lot of red tape to demonstrate that they had been eligible for IEP programs under IDEA. This process need not be burdensome for staff to document such eligibility. The fact that a student may have attended a private school, charter school, or home schooled, and may not have been deemed eligible for IDEA, shouldn’t prevent them from receiving youth transition services. We’ll need guidance so the process of determining whether someone was “eligible for IEP programs under section 614(d) of IDEA” is simple and easily understood by all.
Issue – Age of youth eligible for the fifth core youth transition service to be extended beyond age 24 because many youth with disabilities will not complete their postsecondary work by this age.
Further guidance – It is recommended that ACL work with NCIL to further define diversion and transition– what services and activities apply – for that are in line with the included examples of existing definitions.
704 Reporting Requirement
Further guidance: We look forward to working with ACL on the amendments to the 704 reporting instruments and include the information that NCIL has developed for a new reporting process/content/outcome measures.
CSR Documentation:
Issues:
- Determining eligibility needs to be further clarified.
- No eligibility or waiver is needed for provision of information and referral services.
- “Anticipated duration”
- Stipulate that the consumer directs and controls the services they receive.
- Typically information is not released from the CIL to other entities, but in the instances where such information is released the signed, dated release of information should be included.
- Currently, CILs have been required to maintain CSR’s that comply with all requirements for consumers who do not receive any IL funded services, such as transportation or Personal Assistance Services
- It is not typically that CILs maintain medical or psychological information
- Include the statement that verification of disability is self-determined by the individual seeking services. Similar language should be used for board members with disability as well.
- Suggest removing “anticipated duration” as it implies something more than a target date, and target date should be sufficient.
- Documentation for services funded entirely by other sources should only comply with the requirements that are applicable to the funding source for the services provided and received. A CSR should not be required.
Further guidance: NCIL looks forward to working with ACL in clarifying requirements for CSR documentation.
Issue – After consideration of the comments on this provision, ACL agrees with the concerns expressed, and added the clarification that a DSE is eligible to receive funds to provide independent living services only where so specified in the SPIL. We have added a corresponding clarification to the preamble language in § 1329.17.
Further Guidance – NCIL would like to emphasize that DSEs should not allowed to provide services because they are not consumer controlled and should be only performing the responsibility of fiscal management of Part B.
Network of CILs
Issue – The SILCs, pursuant to their duty under Section 705(c)(1)(B) to monitor, review, and evaluate implementation of the SPIL, will make the determination that entities counted as CILs eligible to sign the SPIL comply with the standards in Sections 725 (b) and the assurances in Section 725(c).
Further guidance: NCIL firmly believes that SILCs should not determine which CILs are in their network, the IL network should do that and list it in the SPIL.
Include additional language to reflect that SILC’s should not make the determination as to whether CILs meet the minimum standards and indicators. That should be determined by the funding source.
Role of DSE
Clarification needs to be provided to reflect that the DSE should not be allowed to provide IL Services because they are not consumer controlled and do not meet the definition of “eligible agency” to provide IL Services in §1329.4.
General Requirements for a State Plan for Independent Living (§ 1329.17)
Issue – ACL suggests that the public input requirement may be satisfied by a public meeting to get input prior to development of the SPIL, and then an opportunity for public comment before the SPIL is submitted, for instance through another public meeting where a preliminary draft is provided in advance, or by offering some other meaningful and accessible opportunity for the public to comment prior to SPIL submission.
Further guidance – NCIL appreciates the guidance provided, however, we feel that clearly demonstrated opportunities to provide input prior to the development as well prior to submission must occur before approval of a SPIL. We look forward to working with ACL for further guidance.
SILC Work Group Analysis of IL Regulations
I. Summary for NCIL Membership
1329.3
Applicability of other regulations – members need to become familiar with the other regulations referenced to ensure compliance.
1329.10 (a)(2)
This refers to the 5% of funds the DSE may retain for administrative costs.
1329.10 (a)(3)
Be sure to account for the full allocation/anticipated allocation of Part B funds including state match and potential COLA or other increases and priorities for use of funds if allocation is less than projected.
1329.11 (a)
Specifies that the selection of the DSE must be agreed to by the State as well as included in the SPIL – if you anticipate any difficulty getting agreement, you will need to lay groundwork with your governor.
1329.12 (a)(1)
The DSE must be accountable for the Part B funds (and Part C funds in a 723 state) and can impose requirements for grantees. Be sure to address in your SPIL how subgrantees will be selected, what requirements will be imposed for accountability, and how subgrantees will be monitored and evaluated.
1329.12 (b)(2)
The DSE is responsible for allocating necessary and sufficient rsources for the SILC to fulfill its statutory duties and authorities, consistent with the approved SPIL. Be sure your SPIL is clear on what is to be included in the SILC resource plan including amount(s) and source(s) of funding as well as other resources.
1329.12 (c)
The DSE must comply with, and may impose, fiscal and accounting requirements for use and accounting of funds – be sure to address in your SPIL how this will be done and become familiar with 45 CFR 75 – Uniform Administrative Requirements – to ensure you are in compliance.
1329.13 (c)
ACL did to listen to NCIL’s interpretation/recommendation that ACL is not authorized in the law to provide training and technical assistance directly – only through grant or contract. Watch for more information on how ACL plans to do this.
1329.14 (b)
This section very clearly directs that the SILC shall not be established as an entity within a state agency and must be independent and autonomous from all other state agencies. We will have to watch and see how ACL interprets and implements this section of the regulations.
1329.15 (a)(5)
This section refers to reporting required of SILCs – this should be the 704 Report (or whatever it is going to be called).
1329.15 (c)(2)
This section clearly identifies Title I Innovation & Expansion (I&E) funds, as well as Part B funds, as available resources for the SILC resource plan – as well as matching funds and Social Security Reimbursement funds. Just a reminder: Title I, Sec. 101(a)(18) requires I&E funds be used for the SILC resource plan.
1329.15 (c)(3)
If your approved SPIL includes more than 30% of Part B (plus State match) for the SILC resource plan, you are allowed to use the amount/percentage identified in the SPIL.
1329.15 (c)(4)
The DSE may not include any conditions or requirements in the contract/grant/ agreement for the SILC resource plan that may compromise the independence (autonomy) of the SILC.
1329.15 (c)(5)
The SILC is accountable for proper expenditure of funds and use of resources – become familiar with all regulations and requirements to ensure you are in compliance.
1329.16 (b)
This section is the regulations applying to SILC Authorities. 1329.16 (a) simply repeats the language in the law.
1329.17 (f)(1)
This sections clarifies that public input must be gathered prior to writing the SPIL and that public feedback/comment must be gathered on the draft SPIL prior to submission.
II. Areas Reflecting Agreement with NCIL’s Recommendations
1329.4
ACL agreed with NCIL’s recommendation that the law only provides for one DSE and reflected that in the definition of DSE.
Did not include definitions for “Home and Community-Based Services” or “At Risk” following NCIL’s recommendation.
Removed definition of “Institution” following NCIL’s recommendation.
1329.11
DSE Eligibility and Application – This is responsive to NCIL’s comments questioning what process is to be used and who has the authority to agree to the selection of the DSE.
1329.15 (c)
Supplemental information to the draft regulations indicated the SILC resource plan to be separate from the SPIL. NCIL commented that the SILC resource plan is an integral part of the SPIL and being part of the SPIL is what makes it binding. This supplementary information was not included in the final regulations, which is responsive to NCIL’s recommendation.
1329.15 (c)(6)
This section reflects recommendations from NCIL regarding what should be included/ covered in the SILC resource plan.
III. Areas where Further Guidance is Requested
1329.4 – Definitions
Service provider definition indicates the DSE may provide services directly. NCIL requests that strong guidance be provided that IL services may be provided by the DSE only if specified in the SPIL at the discretion of the SILC and CILs and only with the amount of funding allotted for that activity in the SPIL – particularly because the DSE clearly does not meet the definition of “eligible agency”.
1329.6 – Reporting
NCIL recommends further clarification regarding what report this might be and relations to the report required of SILCs in §1329.5
1329.7 (b) – Enforcement & Appeals Procedure
NCIL recommends further clarification of the role of the SILC and DSE in this process and assurance that the DSE is not to monitor the SILC, which would impair SILC autonomy. NCIL also requests guidance on an appeals process specific to the SILC and SPIL.
1329.10 (a)(2) – Authorized Use of Funds for IL Services
NCIL recommends further clarification that this section refers to the maximum 5% the DSE may retain for administrative costs – see comment 1329.4 – Definitions.
1329.15 (d)
Refers to “paragraph (a)” – but there is no paragraph (a) in this section. NCIL requests clarification be provided regarding content this reference is related to.
