The Administration for Community Living (ACL), a division of the Department of Health and Human Services, promulgated a proposed rule on November 16 taking charge of the Independent Living Services (ILS) and Centers for Independent Living (CILS or Centers) programs.
The Department of Education regulated Independent Living (IL) programs until the authority was transferred to HHS under the Workforce Innovation and Opportunity Act of 2014 (WIOA).
This proposed rule would consolidate existing IL regulations under 34 CFR parts 364, 365, and 366 into a single regulation under 45 CFR part 1329, Subparts A-C. Highlights of the proposed rule are provided below.
Subpart A. General Provisions for the IL programs – proposed subpart A sets forth the purpose of the programs, definitions, indicators of minimum compliance, reporting requirements, enforcement and the appeals process.
- In the preamble, the ACL states that IL programs fall under the directive of Section 2402(a) of the Affordable Care Act, which requires the Secretary of HHS to ensure that all States receiving federal funds develop service systems that are responsive to the needs and choices of beneficiaries receiving home and community-based long term services (HCBS); maximize independence and self-direction; provide support coordination to assist with a community-supported life; and achieve a more consistent and coordinated approach to the administration of policies and procedures across public programs. In June 2014, HHS published guidance entitled “Section 2402(a) of the Affordable Care Act – Guidance for Implementing Standards for Person-Centered Planning and Self-Direction in Home and Community-Based Services Programs” that is applicable to IL programs.
Definitions and indicators of minimum compliance
- Centers for Independent Living, defined as consumer-controlled, community-based, cross-disability, nonresidential, private nonprofit agencies for individuals with significant disabilities (regardless of age or income), must demonstrate minimum compliance through the following: promotion of the IL philosophy; provision of IL services on a cross-disability basis; support for the development and achievement of IL goals chosen by the consumer; efforts to increase the availability of quality community options for IL; provision of IL core services; resource development activities to secure other funding sources; and community capacity building activities.
- The four IL core services the Centers must provide comprise: (i) information and referral; (ii) IL skills training; (iii) peer counseling; and (iv) individual and system advocacy.
- In the proposed rule, ACL adds a fifth, three-part core services requirement: (a) services to support transition from nursing homes and other institutions to home and community based residences; (b) services to assist those at risk of entering institutions, and (c) services to facilitate transition of youth to postsecondary life. ACL is seeking comments as to whether the fifth requirement is sufficiently specific; whether to include a definition of an “institution” and if so, the suitability of applying the Medicare and Medicaid definition; how “home and community-based residence” and “at risk” should be defined; the effectiveness and limitations of including the issue of being “at risk” as part of CIL consumers’ self-disclosure; and input with regard to ACL’s interpretation of “youth” and the term “completed their secondary education,” as well as “otherwise left school.”
- Each CIL and each State are required to file an annual performance report, the 704 Report, which describes the CIL’s or State’s work and how the CIL or State is meeting the goals and federal requirements. ACL proposes that the agency will issue guidance on how the reports would be filed. ACL also stated that it is considering changes to the 704 Report, and that stakeholders would have an opportunity to provide feedback.
Enforcement and appeals process:
- In the proposed rule, ACL proposes that a Center found to be out of compliance must develop a corrective action plan. If a Center would fail to submit a corrective action plan or would fail to implement it, the Administrator could take steps to terminate funding to that Center.
- ACL proposes to utilize a version of the appeals process from existing IL regulations, modified to account for the new administrative structure of the program. ACL also proposes a two-step preliminary appeals process in circumstances of the imminent threat of termination or withholding of funds, first to the Director of the Independent Living Administration and then to the Administrator of ACL. Further, the ACL Administrator’s determinations of the type reviewed by the Departmental Appeals Board (DAB) would be subject to review by DAB.
- According to the proposed rule, the State also would have an appeals process. ACL proposes to allow a State to file an appeal with DAB concerning the four types of determinations related to direct, discretionary project programs: (i) denial of payment claimed under an award or requirement of set-off funds already received; (ii) termination for failure to comply with the terms of an award; (iv) denial of noncompeting continuation award; and (iv) a voiding of an award. The procedures in 45 CFR Part 16 would apply to an appeal made by a State. ACL is soliciting comments about the proposed appeals process, including whether additional details need to be included in the proposed regulation.
Subpart B. Independent Living Services – proposed subpart B sets forth requirements for the designated State entity (DSE), Statewide Independent Living Council (SILC) and State Plan for Independent Living (SPIL), incorporating some of the language from 34 CFR part 364 and part 365.
- Currently, ILS services are authorized for individuals with significant disabilities. ACL proposes to add the phrase “particularly those in unserved areas of the State” with regard to the individuals with significant disabilities.
- Under current regulations, States must establish and maintain a SILC and submit an approvable SPIL that identifies activities to achieve the State’s specified IL objectives.
- ACL proposes that SILC be autonomous from the DSE and all other State agencies. Moreover, States may not use more than 30 percent of Part B (State Independent Living) funds for SILC resources unless approved in a SPIL. ACL proposes that the State match of the Part B funds be included in the calculation of the 30 percent. ACL proposes that the percentage allocated to the resource plan in each State is based on the amount of Part B funds actually needed (“necessary and sufficient”) by each SILC to fulfill its statutory duties and authorities, rather than an expectation that 30 percent is the baseline. “Necessary and sufficient,” however, has not been defined and ACL is seeking comment on whether a definition is needed.
- A SPIL has been approved in each State through fiscal year 2016. ACL proposes that going forward, SPILs would be developed jointly by the chairperson of the SILC and the directors of Centers in the State, after receiving public input from individuals with disabilities and other stakeholders throughout the State. ACL further proposes that going forward, a DSE must submit a SPIL to the ACL Administrator and receive approval to receive federal funds.
Subpart C. Centers for Independent Living – proposed subpart C sets forth definitions, Part C allotment to States and the funding formula to CILs, conditions CILs must meet to receive funding, competitive awards to new Centers, periodic reviews of CILs to verify compliance with the standards and assurances, and the grant terms and conditions.
Existing Department of Education IL program regulations will remain in effect until the proposed HHS regulation become final.
Comments on the proposed rule are due on January 15, 2016.