Continuation of Benefit Payments to Certain Individuals Who Are Participating in a Program of Vocational Rehabilitation Services, Employment Services, or Other Support Services, 36494-36509 [05-12432]

Agencies

• Social Security Administration

[Federal Register Volume 70, Number 121 (Friday, June 24, 2005)]
[Rules and Regulations]
[Pages 36494-36509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12432]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960--AF86


Continuation of Benefit Payments to Certain Individuals Who Are 
Participating in a Program of Vocational Rehabilitation Services, 
Employment Services, or Other Support Services

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are publishing final rules that amend the rules for the 
continuation of disability benefit payments under titles II and XVI of 
the Social Security Act (the Act) to certain individuals who recover 
medically while participating in an appropriate vocational 
rehabilitation (VR) program with a State vocational rehabilitation 
agency. We are amending these rules to conform with statutory 
amendments that extend eligibility for these continued benefit payments 
to certain individuals who recover medically while participating in an 
appropriate program of services. These include individuals 
participating in the Ticket to Work and Self-Sufficiency Program or 
another program of vocational rehabilitation services, employment 
services, or other support services approved by the Commissioner of 
Social Security. We are also extending eligibility for these continued 
benefit payments to students age 18 through 21 who recover medically, 
or whose disability is determined to have ended as a result of an age-
18 redetermination, while participating in an individualized education 
program developed under the Individuals with Disabilities Education Act 
with an appropriate provider of services. Providers of services we may 
approve include a public or private organization with expertise in the 
delivery or coordination of vocational rehabilitation services, 
employment services, or other support services; or a public, private or 
parochial school that provides or coordinates a program of vocational 
rehabilitation services, employment services, or other support services 
carried out under an individualized program or plan.

DATES: Effective Date: These rules are effective July 25, 2005.

FOR FURTHER INFORMATION CONTACT: Mary Hoover, Policy Analyst, Office of 
Program Development and Research, Social Security Administration, 128 
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
e-mail to regulations@ssa.gov, or telephone (410) 965-5651 or TTY 1-
800-325-0778 for information about these regulations. For information 
on eligibility or filing for benefits, call our national toll-free 
number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web 
site, Social Security Online, at https://www.socialsecurity.gov.

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at https://www.gpoaccess.gov/fr/
index.html. It is also available on the Internet site for the Social 
Security Administration (i.e., Social Security Online): https://
policy.ssa.gov/pnpublic.nsf/LawsRegs.

SUPPLEMENTARY INFORMATION:

Statutory Background

The Social Security Disability Amendments of 1980

    The Social Security Disability Amendments of 1980 (the 1980 
Amendments), Public Law 96-265, amended titles II and XVI of the Act to 
provide for the continuation of payment of disability benefits under 
the Social Security or SSI program to certain

[[Page 36495]]

individuals whose disability medically ceases while the individual is 
engaged in a program of vocational rehabilitation. Section 301 of the 
1980 Amendments added sections 225(b) and 1631(a)(6) of the Act to 
provide that the payment of benefits based on disability shall not be 
terminated or suspended because the physical or mental impairment, on 
which the individual's entitlement or eligibility is based, has or may 
have ceased, if:
     The individual is participating in an approved vocational 
rehabilitation program under a State plan approved under title I of the 
Rehabilitation Act of 1973, and
     The Commissioner of Social Security determines that 
completion of the program, or its continuation for a specified period 
of time, will increase the likelihood that the individual may be 
permanently removed from the disability benefit rolls.
    The purpose of these benefit continuation provisions is to 
encourage individuals to continue participating in the approved 
vocational rehabilitation program in which they are engaged at the time 
their disability ceases in ``those exceptional cases where the 
administration is able to determine that continuation in a vocational 
rehabilitation program will increase the likelihood of the individual's 
being permanently removed from the disability rolls.'' S. Rep. No. 408, 
96th Cong., 1st Sess. 50 (1979).
    Our regulations implementing the provisions of the Act added by 
section 301 of the 1980 Amendments provide that we may continue an 
individual's benefits (and, when the individual receives benefits as a 
disabled worker, the benefits of his or her dependents) after the 
individual's impairment is no longer disabling if:
     The individual's disability did not end before December 
1980, the effective date of the provisions of the Act added by section 
301 of the 1980 Amendments;
     The individual is participating in an appropriate program 
of vocational rehabilitation, that is, one that has been approved under 
a State plan approved under title I of the Rehabilitation Act of 1973 
and that meets the requirements outlined in 34 CFR part 361 for a 
rehabilitation program;
     The individual began the program before his or her 
disability ended; and
     We have determined that the individual's completion of the 
program, or his or her continuation in the program for a specified 
period of time, will significantly increase the likelihood that the 
individual will not have to return to the disability benefit rolls.
    Our regulations provide that these continued benefits generally 
will be stopped with the month the individual completes the program, 
stops participating in the program for any reason, or we determine that 
the individual's continuing participation in the program will no longer 
significantly increase the likelihood that the individual will be 
permanently removed from the disability benefit rolls.

The Omnibus Budget Reconciliation Act of 1987

    Section 9112 of the Omnibus Budget Reconciliation Act of 1987 (OBRA 
1987), Public Law 100-203, amended section 1631(a)(6) of the Act to 
extend eligibility for continued benefits under that section to 
individuals who receive SSI benefits based on blindness and whose 
blindness ends while they are participating in an approved State 
vocational rehabilitation program. This amendment was effective April 
1, 1988. We implemented this amendment through the issuance of 
operating instructions reflecting the extension of eligibility for 
continued benefits under section 1631(a)(6) of the Act to individuals 
receiving SSI blindness benefits. In addition, when we added Sec. Sec.  
416.2201(b) and 416.2212 to our regulations governing payments under 
the vocational rehabilitation cost reimbursement program, we included 
rules to reflect the expanded scope of the benefit continuation 
provision under section 1631(a)(6) of the Act resulting from the 
amendment made by section 9112 of OBRA 1987.

The Omnibus Budget Reconciliation Act of 1990

    Section 5113 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 
1990), Public Law 101-508, amended sections 225(b) and 1631(a)(6) of 
the Act to permit the continuation of benefit payments on account of an 
individual's participation in a non-State vocational rehabilitation 
program. Section 5113 amended sections 225(b) and 1631(a)(6) of the Act 
to allow the continuation of payment of Social Security disability 
benefits or SSI disability or blindness benefits to an individual whose 
disability or blindness ends while he or she is participating in a 
program of vocational rehabilitation services approved by us. These 
amendments extended to Social Security disability beneficiaries and SSI 
disability or blindness beneficiaries who medically recover while 
participating in an approved non-State vocational rehabilitation 
program the same benefit continuation rights applicable to individuals 
participating in an approved State vocational rehabilitation program. 
The amendments made by section 5113 of OBRA 1990 were effective for 
benefits payable for months beginning on or after November 1, 1991, and 
applied to individuals whose disability or blindness ended on or after 
that date. We implemented these amendments through the issuance of 
operating instructions reflecting the extension of eligibility for 
continued benefits under sections 225(b) and 1631(a)(6) of the Act to 
individuals who medically recover while participating in an approved 
non-State vocational rehabilitation program.

The Personal Responsibility and Work Opportunity Reconciliation Act of 
1996

    The Personal Responsibility and Work Opportunity Reconciliation Act 
of 1996, Public Law 104-193, amended section 1614(a)(3) of the Act to 
require redeterminations of the eligibility for SSI benefits based on 
disability of individuals who attain age 18 (age-18 redeterminations). 
The law requires us to redetermine the eligibility of individuals who 
attain age 18 and who were eligible for SSI benefits based on 
disability for the month before the month in which they attained age 
18. In these disability redeterminations, the law requires us to use 
the rules for determining initial eligibility for adults (individuals 
age 18 or older) filing new applications for benefits. The medical 
improvement review standard used in continuing disability reviews does 
not apply to these disability redeterminations.
    In Sec.  416.987(b) of our regulations, we explain the rules for 
adult applicants that we use in redetermining the eligibility of an 
individual who has attained age 18. If we find that the individual is 
not disabled, we will find that his or her disability has ended, as 
explained in Sec.  416.987(e). For an individual whose disability has 
ended as a result of an age-18 redetermination using the rules 
described in Sec.  416.987(b), and who is participating in a program of 
vocational rehabilitation services when disability ends, our operating 
guides provide that we will consider the individual for eligibility for 
continued benefits under section 1631(a)(6) of the Act. For benefits to 
continue, the individual must be participating in an approved program 
of vocational rehabilitation services. In addition, the completion or 
continuation of the program must satisfy the test of increasing the 
likelihood of the individual's permanent removal from the benefit 
rolls. The individual must meet all of the other requirements of SSI 
eligibility.

[[Page 36496]]

The Ticket to Work and Work Incentives Improvement Act of 1999

    On December 17, 1999, the Ticket to Work and Work Incentives 
Improvement Act of 1999, Public Law 106-170, became law. Section 101(a) 
of this law added a new section 1148 of the Act to establish the Ticket 
to Work and Self-Sufficiency Program (Ticket to Work program). The 
purpose of the Ticket to Work program is to expand the universe of 
service providers available to beneficiaries with disabilities who are 
seeking employment services, vocational rehabilitation services, or 
other support services to assist them in obtaining, regaining, and 
maintaining self-supporting employment.
    Under the Ticket to Work program, the Commissioner of Social 
Security may issue a ticket to Social Security disability beneficiaries 
and disabled or blind SSI beneficiaries for participation in the 
program. Each beneficiary has the option of using his or her ticket to 
obtain services from a provider known as an employment network or from 
a State vocational rehabilitation agency. The beneficiary will choose 
the employment network or State vocational rehabilitation agency, and 
the employment network or State vocational rehabilitation agency will 
provide services. Employment networks will also be able to choose whom 
they serve.
    We published final regulations implementing the Ticket to Work 
program in the Federal Register on December 28, 2001 (66 FR 67370). The 
regulations were effective on January 28, 2002. Under the regulations, 
service providers who provide vocational rehabilitation services, 
employment services, or other support services can qualify as 
employment networks and serve beneficiaries under the Ticket to Work 
program. The expansion of options available to beneficiaries to obtain 
these services is intended to enhance the choices of beneficiaries in 
getting the services they need to obtain, regain and/or maintain 
employment.
    Section 101(b) of the Ticket to Work and Work Incentives 
Improvement Act of 1999 amended sections 225(b)(1) and 1631(a)(6)(A) of 
the Act by deleting ``a program of vocational rehabilitation services'' 
and inserting in its place ``a program consisting of the Ticket to Work 
and Self-Sufficiency Program under section 1148 or another program of 
vocational rehabilitation services, employment services, or other 
support services.'' The amended provisions of these sections now 
expressly authorize the continuation of benefit payments under section 
225(b) or 1631(a)(6) of the Act to an individual whose disability or 
blindness ceases when the individual is participating in a program 
consisting of the Ticket to Work program under section 1148 of the Act 
or another program of vocational rehabilitation services, employment 
services, or other support services approved by the Commissioner of 
Social Security. The amendments did not change the requirement in 
sections 225(b)(2) and 1631(a)(6)(B) of the Act that, for an individual 
to qualify, the Commissioner of Social Security must determine that the 
completion of the program, or its continuation for a specified period 
of time, will increase the likelihood that the individual may be 
permanently removed from the disability or blindness benefit rolls.

The Individuals With Disabilities Education Act (IDEA)

    Part B of IDEA, as amended (20 U.S.C. 1400 et seq.), establishes a 
program for assistance to States to provide special education and 
related services to children with disabilities. Part B of IDEA is 
administered by the U.S. Department of Education.
    The concept of a ``disability'' under IDEA is distinct from the 
definition of disability under title II or title XVI of the Social 
Security Act. A person may have a disability for the purposes of part B 
of IDEA, but not meet or no longer meet the definition of disability 
under the title II or title XVI programs. In this preamble, when we use 
the term ``individual with a disability,'' ``student with a 
disability,'' or a similar term with reference to IDEA, we intend the 
term to have the same meaning as the term ``child with a disability'' 
as defined in section 602(3) of IDEA, as amended (20 U.S.C. 1401(3)).
    In order for a State to receive assistance under part B of IDEA, an 
individualized education program (IEP) must be developed, reviewed and 
revised for each child with a disability. The IEP must be developed, 
reviewed and, if appropriate, revised by a team including, among 
others, the student, if appropriate, and his or her parents, a special 
education teacher, the student's regular education teacher, if the 
child is or may be participating in the regular education environment, 
and other individuals who have knowledge or special expertise 
concerning the child. For each student with a disability beginning at 
age 16 (or younger if determined appropriate by the IEP team), the IEP 
must include a statement of needed transition services for the student 
that promotes movement from school to post-school activities. Based on 
the individual student's needs, transition services might include 
postsecondary education, vocational training, integrated employment 
(including supported employment), continuing and adult education, adult 
services, independent living, or community participation.
    In the NPRM, we cited language from Public Law 105-17, the IDEA 
Amendments of 1997, enacted on June 4, 1997. Congress made changes to 
IDEA in Public Law 108-446 enacted on December 3, 2004. Effective July 
1, 2005, the IDEA's provision regarding transition services in an IEP 
will provide that ``beginning not later than the first IEP to be in 
effect when the child is 16, and updated annually'' the child's IEP 
must include ``appropriate measurable postsecondary goals based upon 
age appropriate transition assessments related to training education, 
employment, and where appropriate, independent living skills; * * * the 
transition services (including courses of study) needed to assist the 
child in reaching those goals; and * * * beginning not later than 1 
year before the child reaches the age of majority under State law, a 
statement that the child has been informed of the child's rights under 
this title, if any, that will transfer to the child on reaching the age 
of majority under section 615(m).

Other Background

The National Longitudinal Transition Study

    The National Longitudinal Transition Study (NLTS) was mandated by 
the U.S. Congress in 1983, and describes the experiences and outcomes 
of youth with disabilities nationally during secondary school and early 
adulthood. It was conducted from 1987 through 1993 by SRI International 
under contract number 300-87-0054 with the Office of Special Education 
Programs, Department of Education. (The electronic file of this 
document is available at https://www.sri.com/policy/cehs/publications/
dispub/nlts/nltssum.html.) The NLTS provides evidence of the importance 
of supporting students with disabilities to stay in school. The study 
showed that:
     Students with disabilities who stay in school have better 
post-school outcomes than their peers who dropped out of school.
     Students with disabilities who stayed in school were more 
likely to enroll in postsecondary vocational or academic programs.
     There was a consistently positive relationship between 
staying in school and employment success.
    In addition, the NLTS documented the importance of vocational 
education

[[Page 36497]]

and work experience programs in school:
     Students with disabilities who took occupationally 
oriented vocational education were significantly less likely to drop 
out of school than students who did not.
     Students with disabilities who participated in work 
experience programs missed significantly less school and were less 
likely to fail a course or drop out of high school.
     For the majority of students with disabilities (those with 
learning, speech or emotional disabilities or mild mental retardation) 
vocational education in high school was related to a higher probability 
of finding competitive jobs and higher earnings.
     For students with orthopedic or health impairments, 
participation in high school work experience programs translated into a 
higher likelihood of employment and higher earnings after high school.
    The NLTS also documented that the post-school paths of youths with 
disabilities reflected their transition goals. Twelfth-graders who had 
a transition goal related to competitive employment or to postsecondary 
education were more likely to find jobs or go on to postsecondary 
schools than students who did not have such a goal.
    The NLTS suggests that any efforts that encourage students with 
disabilities to stay in school and complete their educational and 
vocational training are important to improving post-school outcomes for 
students with disabilities. It indicates that students with 
disabilities drop out of school at a higher rate than students in the 
general population (38 percent vs. 25 percent).

The New Freedom Initiative

    On February 1, 2001, President George W. Bush announced his New 
Freedom Initiative to promote the full participation of people with 
disabilities in all areas of society by increasing access to assistive 
and universally designed technologies, expanding educational and 
employment opportunities, and promoting full access to community life. 
Because a solid education is critical to ensuring that individuals with 
disabilities have an equal chance to succeed, the New Freedom 
Initiative includes goals of expanding access to quality education for 
youths with disabilities, ensuring that they receive support to 
transition from school to employment, and improving the high school 
graduation rates of students with disabilities. These final rules fully 
support the education and employment goals embodied in the New Freedom 
Initiative.

Changes to the Regulations

    These final rules update our regulations to reflect amendments to 
sections 225(b) and 1631(a)(6) of the Act. They also make certain other 
changes to our regulations regarding eligibility for continued benefit 
payments under these sections of the Act.
    On August 1, 2003, we published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register (68 FR 45180) and provided a 60-day 
period for interested parties to comment. We received comments from 201 
commenters. We summarize the significant comments we received on the 
proposed rules and provide our responses to those comments later in 
this preamble under ``Public Comments on the Notice of Proposed 
Rulemaking.'' As we explain below, in these final regulations, we are 
making certain changes from the proposed rules in response to public 
comments.
    Subsequent to the publication of the NPRM, one of the sections that 
we proposed to amend (and that we are now amending in these final 
regulations) was redesignated as a result of a separate publication of 
a final rule affecting the regulations under the SSI program. 
Specifically, on September 11, 2003, we published a final rule in the 
Federal Register (68 FR 53506), relating to access to information held 
by financial institutions, that redesignated Sec.  416.1321, 
``Suspensions; general,'' as Sec.  416.1320, and added a new Sec.  
416.1321, ``Suspension for not giving us permission to contact 
financial institutions,'' effective October 14, 2003. As a result of 
this change, the section identified in the NPRM as Sec.  416.1321 is 
now Sec.  416.1320. Reflecting this change, the final regulations that 
we are publishing today amend Sec.  416.1320. Therefore, in explaining 
the changes to this section in this preamble, we identify the section 
affected as Sec.  416.1320, rather than Sec.  416.1321 as provided in 
the NPRM.

Extension of Eligibility for Continued Benefit Payments to Individuals 
Who Receive SSI Benefits Based on Blindness

    We are revising Sec. Sec.  416.1320(d), 416.1331(a) and (b), 
416.1338(a) and (b), and 416.1402(j) to reflect the OBRA 1987 amendment 
that extended the scope of section 1631(a)(6) of the Act to cover 
individuals receiving SSI benefits based on blindness. We are revising 
these sections to indicate that an individual whose eligibility for SSI 
benefits is based on blindness and whose blindness ends due to medical 
recovery while he or she is participating in a program of vocational 
rehabilitation services, employment services, or other support services 
may be eligible for continued benefits under section 1631(a)(6) of the 
Act. We also are reflecting this expanded scope of the statute in new 
Sec.  416.1338(e), that we discuss later in this preamble.

Individuals Whose Disability Is Determined To Have Ended as a Result of 
an Age-18 Redetermination of SSI Eligibility

    We are revising the introductory text of Sec.  416.1338(a) to 
indicate that individuals who receive SSI benefits based on disability 
and whose disability is determined to have ended under the rules in 
Sec.  416.987(b) and (e)(1) in an age-18 redetermination may have their 
benefit payments continued under section 1631(a)(6) of the Act if the 
individual meets all other requirements for continued benefits.

Students Participating in an Individualized Education Program or 
Similar Individualized Program or Plan

    The NLTS demonstrated that there was a consistently positive 
relationship between staying in school and employment success, and it 
suggested that any efforts that encourage students with disabilities to 
stay in school and complete their educational and vocational training 
are important to improving post-school outcomes for students with 
disabilities. The NLTS also documented the importance of vocational 
education and work experience programs in school.
    We are, therefore, amending our rules to encourage young people 
with disabilities to stay in school and complete their educational and 
vocational training, and to encourage the families of students with 
disabilities to support them in preparing for employment and self-
sufficiency. This is consistent with the goals of the President's New 
Freedom Initiative to expand access to quality education for youth with 
disabilities, ensure that they receive support to transition from 
school to employment, and improve the high school graduation rates of 
students with disabilities. Specifically, we are providing that, if a 
student age 18 through 21 is receiving services under an IEP or similar 
individualized program or plan, and if the student's disability ceases 
as a result of a continuing disability review or an age-18 disability 
redetermination, we will consider that the student's completion of or 
continuation in the IEP will increase the likelihood that he or she 
will not have to return to the disability or blindness benefit rolls.

[[Page 36498]]

    We are providing benefit continuation for students whose disability 
is determined to have ended as a result of an age-18 redetermination 
and who are receiving services under IEPs in order to encourage young 
people with disabilities to stay in school and complete their 
educational and vocational training, and to encourage their families to 
support them in preparing for employment and self-sufficiency. We are 
providing benefit continuation on this basis for students with 
disabilities through age 21, since each State can receive a grant of 
assistance under IDEA for serving individuals with disabilities through 
age 21.
    We are revising Sec.  416.1338(a) to indicate that individuals who 
receive SSI benefits based on disability and whose disability is 
determined to have ended under the rules in Sec.  416.987(b) and (e)(1) 
as a result of an age-18 redetermination may have their benefit 
payments continued under section 1631(a)(6) of the Act if the 
individual meets all other requirements for continued benefits. Young 
people whose disability has ended as a result of a redetermination of 
their eligibility at age 18 may have no improvement in their medical 
condition; they are found not disabled because they do not meet the 
initial disability standard that we apply to adult applicants. 
Therefore, we are adding rules to provide that we will consider 
completion of or continuation by a student age 18 through 21 in such a 
program to be analogous to the individualized determination that 
completion of or continuation in other approved programs of vocational 
rehabilitation services will improve an individual's level of education 
or work experience so that he or she would be more likely to be able to 
do other work that exists in the national economy, despite a possible 
future reduction in his or her residual functional capacity. On this 
basis, under the rules we are adding as Sec. Sec.  404.328(b) and 
416.1338(e)(2), we will determine that participation in such a program 
will increase the likelihood that an individual age 18 through 21 who 
is engaged in such a program at the time his or her disability ceases 
will not have to return to the disability rolls.

Individuals Participating in the Ticket to Work Program or Another 
Program of Vocational Rehabilitation Services, Employment Services, or 
Other Support Services Approved by Us

    We are revising and updating our regulations regarding the type of 
program in that an individual must be participating in order to qualify 
for continued benefits. The regulations that we are revising by these 
final rules were based on the original provisions of sections 225(b) 
and 1631(a)(6) of the Act, and indicated that an individual whose 
impairment is no longer disabling may be considered for eligibility for 
continued benefits if he or she is participating in a vocational 
rehabilitation program provided by a State vocational rehabilitation 
agency. The amendments to sections 225(b)(1) and 1631(a)(6)(A) of the 
Act, made by OBRA 1990, extended consideration for continued benefits 
under sections 225(b) and 1631(a)(6) of the Act to individuals in 
approved non-State vocational rehabilitation programs.
    We implemented the amendments made by OBRA 1990 by publishing 
operating instructions in 1992. These instructions identified an 
approved non-State vocational rehabilitation program as any non-State 
vocational rehabilitation service provider who meets one of the 
following criteria:
     Is licensed, certified, accredited, or registered, as 
appropriate, to provide vocational rehabilitation services in the State 
in which it provides services; or
     Is an agency of the Federal government (e.g., the 
Department of Veterans Affairs); or
     Is a provider approved to provide services under a Social 
Security Administration research or demonstration project.
    The amendments to sections 225(b)(1) and 1631(a)(6)(A) of the Act, 
made by section 101(b) of Public Law 106-170, further expanded the type 
of program in which an individual must be participating to qualify for 
continued benefits. These sections of the Act now provide that an 
individual may be considered for eligibility for continued benefits if 
she or he is participating in a program consisting of the Ticket to 
Work program or another program of vocational rehabilitation services, 
employment services, or other support services approved by the 
Commissioner of Social Security.
    We are revising Sec. Sec.  404.316(c)(1), 404.337(c)(1), 
404.352(d)(1), 404.902(s), 404.1586(g)(1), 404.1596(c)(4), 404.1597(a), 
416.1320(d)(1), 416.1331(a) and (b), 416.1338(a), and 416.1402(j) to 
take account of the amendments to sections 225(b)(1) and 1631(a)(6)(A) 
of the Act. In the revisions to these sections of the regulations, we 
are using the term ``an appropriate program of vocational 
rehabilitation services, employment services, or other support 
services'' to refer to the program in which an individual must be 
participating in order to be considered for eligibility for continued 
benefits under sections 225(b) and 1631(a)(6) of the Act, as amended.
    We are also amending our regulations by adding new Sec. Sec.  
404.327(a) and 416.1338(c) to explain the term ``an appropriate program 
of vocational rehabilitation services, employment services, or other 
support services.'' We explain that an appropriate program of 
vocational rehabilitation services, employment services, or other 
support services means one of the following:
     A program that is carried out under an individual work 
plan with an employment network under the Ticket to Work program;
     A program that is carried out under an individualized plan 
for employment with a State vocational rehabilitation agency operating 
under a State plan approved under title I of the Rehabilitation Act of 
1973, as amended (29 U.S.C. 720-751);
     A program that is carried out under an individualized plan 
for employment with an organization administering a Vocational 
Rehabilitation Services Project for American Indians with Disabilities 
authorized under section 121 of part C of title I of the Rehabilitation 
Act of 1973, as amended (29 U.S.C. 741);
     A program of vocational rehabilitation services, 
employment services, or other support services that is carried out 
under a similar, individualized written employment plan with an agency 
of the Federal government (e.g., the Department of Veterans Affairs), a 
one-stop delivery system or specialized one-stop center described in 
section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C. 
2864(c)), or another provider of services approved by us;
     A program of vocational rehabilitation services, 
employment services, or other support services that is carried out 
under a similar, individualized written employment plan and provided by 
or coordinated by a public, private, or parochial school; or
     For a student age 18 through 21, an individualized 
education program (IEP) developed under policies and procedures 
approved by the Secretary of Education for assistance to States for the 
education of individuals with disabilities under the Individuals with 
Disabilities Education Act (IDEA), as amended (20 U.S.C. 1400 et seq.).
    We also are including an appropriate cross-reference to Sec.  
404.327(a) or Sec.  416.1338(c) in the sections of the regulations that 
state the basic requirement that the individual must be participating 
in an appropriate program.
    In the NPRM, we included the provisions relating to a program of

[[Page 36499]]

services from an organization administering a Vocational Rehabilitation 
Services Project for American Indians with Disabilities in proposed 
Sec. Sec.  404.327(a)(3) and 416.1338(c)(3). In these final rules, we 
deleted these proposed sections and incorporated the provisions in 
Sec. Sec.  404.327(a)(2) and 416.1338(c)(2). We clarify in these rules 
that a program of services from an organization administering such a 
project must be carried out under an individualized plan for 
employment, which is the same requirement that applies to a program of 
services from a State vocational rehabilitation agency. Because of this 
change, we renumbered the provisions that were set out in the NPRM as 
proposed Sec. Sec.  404.327(a)(4) and (5) and 416.1338(c)(4) and (5). 
In the final rules, these provisions are now Sec. Sec.  404.327(a)(3) 
and (4) and 416.1338(c)(3) and (4), respectively.
    The proposed rules also provided that a program of vocational 
rehabilitation services, employment services, or other support services 
that is carried out under an individualized written employment plan 
similar to an individualized plan for employment would qualify as an 
appropriate program, if it is carried out with a provider of services 
approved by us. Based on public comments we received on the NPRM, we 
are making changes in the provisions in Sec. Sec.  404.327(a)(3) and 
416.1338(c)(3) of the final rules. The final rules provide that a 
program of such services that is carried out under an individualized 
written employment plan similar to an individualized plan for 
employment will qualify as an appropriate program if it is carried out 
with an agency of the Federal government (e.g., the Department of 
Veterans Affairs), a one-stop delivery system or specialized one-stop 
center described in section 134(c) of the Workforce Investment Act of 
1998 (29 U.S.C. 2864(c)), or another provider of services approved by 
us. We also include in Sec. Sec.  404.327(a)(3) and 416.1338(c)(3) of 
the final rules examples of service providers that we may approve under 
these sections. We explain that providers we may approve include, but 
are not limited to--
     A public or private organization with expertise in the 
delivery or coordination of vocational rehabilitation services, 
employment services, or other support services ; or
     A public, private or parochial school that provides or 
coordinates a program of vocational rehabilitation services, employment 
services, or other support services carried out under an individualized 
program or plan.

Definition of ``Participating'' in a Program

    We are amending our regulations to add new Sec. Sec.  404.327(b) 
and 416.1338(d) to explain when an individual will be considered to be 
``participating'' in the program. Sections 225(b) and 1631(a)(6) of the 
Act and the regulations that we are revising by these final rules did 
not define the term ``participating.''
    Our operating instructions have used the term ``actively involved'' 
in a vocational rehabilitation program and have defined active 
participation in a State vocational rehabilitation program as placement 
in one of four State vocational rehabilitation agency status codes: 
vocational rehabilitation plan developed and approved; counseling and 
guidance; physical restoration; and training, including vocational and 
college training. No other State vocational rehabilitation agency 
status codes are considered ``active participation'' for purposes of 
continued benefit payments. Other providers of vocational 
rehabilitation services, employment services, or other support services 
do not use these codes and several State vocational rehabilitation 
agencies no longer use them.
    Our operating instructions on demonstrating participation in a non-
State vocational rehabilitation program have required that we obtain 
information regarding the individual's status, including whether the 
individual is actively receiving services such as counseling and 
guidance, physical restoration, or academic, business, vocational, or 
other training. We have used this information to determine on a case-
by-case basis whether the individual's status in the non-State program 
is equivalent to the State vocational rehabilitation status codes used 
to determine participation.
    In the new Sec. Sec.  404.327(b) and 416.1338(d), we explain the 
criteria we will now use to determine whether an individual is 
``participating'' in the program for purposes of continued benefit 
payments. We explain that if an individual is in an appropriate program 
(as described in Sec. Sec.  404.327(a) and 416.1338(c)), we will 
consider the individual to be participating in the program if the 
individual is taking part in the activities and services outlined in 
his or her plan. If the individual is age 18 through 21 and receiving 
services under an IEP developed under policies and procedures approved 
by the Secretary of Education for assistance to States for the 
education of individuals with disabilities under the Individuals with 
Disabilities Education Act, we will consider the individual to be 
participating in the program if he or she is taking part in the 
activities and services outlined in the IEP.
    In response to public comments, we have provided in Sec. Sec.  
404.327(b)(3) and 416.1338(d)(3) that an individual will be considered 
to be participating in his or her program during interruptions in his 
or her program, provided that such interruptions are temporary. We 
explain that, for an interruption to be considered temporary, the 
individual must resume taking part in the activities and services 
outlined in his or her individual work plan, individualized plan for 
employment, similar individualized written employment plan, or 
individualized education program, as the case may be, no more than 
three months after the month the interruption occurred.

Determining Increased Likelihood of Permanent Removal From the 
Disability Benefit Rolls

    We are amending our regulations to add new Sec. Sec.  404.328 and 
416.1338(e) to explain how we will determine whether an individual's 
completion of or continuation in an appropriate program of vocational 
rehabilitation services, employment services, or other support services 
will increase the likelihood that the individual will not have to 
return to the disability benefit rolls. Sections 225(b) and 1631(a)(6) 
of the Act provide for continued benefits to persons who are no longer 
disabled due to medical recovery and who are participating in an 
appropriate program only if we can determine that completion or 
continuation of the program ``will increase the likelihood'' that the 
individual will remain permanently off the disability benefit rolls. As 
the individual is not disabled and, by definition, is able to engage in 
substantial gainful activity without the need for the program, there is 
already a ``likelihood'' that the individual will stay off the 
disability benefit rolls. Benefits may be continued to the individual 
only if completion or continuation of the program will ``increase'' 
this likelihood. For this reason, new Sec. Sec.  404.328 and 
416.1338(e) explain that we will determine that the completion of the 
program, or its continuation for a specified period of time, will 
increase the likelihood that the individual will not have to return to 
the disability benefit rolls if we find that the individual's 
completion of or continuation in the program will provide the 
individual with:
     Work experience so that the individual would more likely 
be able to do past relevant work despite a possible future reduction in 
his or her residual

[[Page 36500]]

functional capacity (i.e., the work must last long enough for the 
individual to learn to do it, be substantial gainful activity, and have 
physical and mental requirements that the individual could meet even if 
his or her residual functional capacity were significantly reduced); or
     An improvement in any of the vocational factors of 
education or skilled or semi-skilled work experience so that he or she 
would more likely be able to adjust to other work that exists in the 
national economy, despite a possible future reduction in his or her 
residual functional capacity.
    We are also providing a rule in Sec. Sec.  404.328 and 416.1338(e) 
for students age 18 through 21 who are participating in an IEP 
developed under policies and procedures approved by the Secretary of 
Education for assistance to States for the education of individuals 
with disabilities under the IDEA, as amended (20 U.S.C. 1400 et seq.). 
Under the final rules, we will find that these students' completion of 
or continuation in the program will increase the likelihood that they 
will not have to return to the disability or blindness benefit rolls.
    Additionally, we are providing a rule in Sec. Sec.  404.328 and 
416.1338(e) to address that if an individual is receiving post IEP 
transition services, we will determine that the transition services 
will increase the likelihood that he or she will not have to return to 
the disability or blindness rolls if those services meet the 
requirements in Sec. Sec.  404.328(a) and 416.1338(e)(1).
    As a result of our revisions regarding how we will make a 
likelihood determination, we have eliminated the examples previously 
provided in Sec. Sec.  404.316(c)(1)(iv) and 416.1338(a)(4) regarding 
making a ``likelihood'' decision because these examples do not directly 
illustrate the revised rules. Additionally, in our revisions to 
Sec. Sec.  404.316(c), 404.337(c), 404.352(d), 404.902(s), 404.1586(g), 
404.1596(c), 404.1597(a), 416.1320(d), 416.1331(b), 416.1338(a), and 
416.1402(j), we have removed the modifier ``significantly'' from the 
phrase ``significantly increase the likelihood'' in these provisions to 
make the regulations conform more closely to the language of sections 
225(b)(2) and 1631(a)(6)(B) of the Act.

Summary of Revisions to the Regulations on Continuation of Social 
Security Disability and SSI Disability or Blindness Benefits

    We are revising Sec. Sec.  404.316(c)(1), 404.337(c)(1), 
404.352(d)(1), 404.1586(g)(1), 404.1596(c)(4), 416.1320(d) and 
416.1338(a) to indicate that an individual's benefits may be continued 
after his or her impairment is no longer disabling (or, for SSI 
blindness benefits, after his or her blindness ends due to medical 
recovery) if:
     The individual is participating in an appropriate program 
of vocational rehabilitation services, employment services, or other 
support services, as described in new Sec.  404.327(a) and (b) or in 
new Sec.  416.1338(c) and (d);
     The individual began participating in the program before 
the date his or her disability or blindness ended; and
     We have determined under new Sec.  404.328 or new Sec.  
416.1338(e) that the individual's completion of the program, or 
continuation in the program for a specified period of time, will 
increase the likelihood that the individual will not have to return to 
the disability or blindness benefit rolls.
    In the revision of Sec.  416.1338(a), we also explain that an 
individual whose disability is determined to have ended as a result of 
an age-18 redetermination may continue to receive SSI benefits if the 
requirements described above are met.
    We are revising Sec. Sec.  404.316(c)(2), 404.337(c)(2), 
404.352(d)(2), 404.1586(g)(2) and 416.1338(b) to indicate that we will 
stop an individual's benefits with the earliest of these months:
     The month in which the individual completes the program;
     The month in which the individual stops participating in 
the program for any reason; or
     The month in which we determine under Sec.  404.328 or 
Sec.  416.1338(e) that continued participation will no longer increase 
the likelihood that the individual will not have to return to the 
disability or blindness benefit rolls.
    We are revising the Exception in Sec. Sec.  404.316(c)(2), 
404.337(c)(2), 404.352(d)(2), and 404.1586(g)(2) by inserting the 
phrase ``provided that you meet all other requirements for entitlement 
to and payment of benefits through such month'' following the word 
``ends.''
    We are adding new Sec. Sec.  404.327, 404.328 and 416.1338(c), (d) 
and (e) to our regulations. In the new Sec. Sec.  404.327(a) and 
416.1338(c), we explain what we mean by ``an appropriate program of 
vocational rehabilitation services, employment services, or other 
support services.'' In new Sec. Sec.  404.327(b) and 416.1338(d), we 
explain when we will consider an individual to be ``participating'' in 
the program.
    We are adding new Sec. Sec.  404.328 and 416.1338(e) to explain 
when we will find that an individual's completion of or continuation in 
an appropriate program of vocational rehabilitation services, 
employment services, or other support services will increase the 
likelihood that the individual will not have to return to the 
disability or blindness benefit rolls.
    We are revising Sec.  404.902(s) by removing reference to ``an 
appropriate vocational rehabilitation program'' and inserting in its 
place ``an appropriate program of vocational rehabilitation services, 
employment services, or other support services.'' We are making this 
same change in the heading of Sec.  404.1586(g).
    We are revising Sec.  404.1597(a) to eliminate the references to 
November 1980 and December 1980; to remove reference to ``an 
appropriate vocational rehabilitation program'' and insert in its place 
``an appropriate program of vocational rehabilitation services, 
employment services, or other support services'; and to indicate that 
the individual must have started participating in the program before 
the date his or her disability ended.
    We are revising Sec.  416.1331(a) and (b). We are combining the 
discussion of the rules in the first and third sentences of the 
previous Sec.  416.1331(a) into a single sentence to indicate that the 
last month for which we can pay SSI benefits based on disability or 
blindness is the second month after the month in which the individual's 
disability or blindness ends. We explain that Sec.  416.1338 provides 
an exception to this rule for certain individuals who are participating 
in an appropriate program of vocational rehabilitation services, 
employment services, or other support services. We also are adding to 
Sec.  416.1331(a) appropriate cross-references to the sections of the 
SSI regulations that explain when disability or blindness ends. In 
addition, we are removing from Sec.  416.1331(a) the cross-reference to 
Sec.  416.261 that discusses special SSI benefits for working 
individuals who have a disabling impairment or impairments. We consider 
inclusion of this cross-reference in Sec.  416.1331 to be inappropriate 
since Sec.  416.1331 is concerned with the termination of SSI benefits 
in cases in which an individual's disability or blindness has ended.
    We are revising Sec.  416.1331(b) by removing reference to ``an 
appropriate vocational rehabilitation program'' and inserting in its 
place ``an appropriate program of vocational rehabilitation services, 
employment services, or other support services.'' In addition, we are 
revising Sec.  416.1331(b) by inserting the term ``or blind'' following 
the term

[[Page 36501]]

``disabled'' and inserting the term ``or blindness'' following the term 
``disability.''
    In addition to the other revisions to Sec.  416.1338, previously 
discussed, we are revising the section heading to read: ``If you are 
participating in an appropriate program of vocational rehabilitation 
services, employment services, or other support services.''
    We are revising Sec.  416.1402(j) by removing ``an appropriate 
vocational rehabilitation program'' and inserting in its place ``an 
appropriate program of vocational rehabilitation services, employment 
services, or other support services,'' and by adding references to 
``blindness'' and ``blind.''

Other Changes

    We are also making technical changes to cross-references in Sec.  
416.987(b) to reflect our current rules. The first and third sentences 
of Sec.  416.987(b) refer to specific paragraphs in Sec.  416.920, the 
regulation that provides our rules for the sequential evaluation 
process we use for making initial determinations in adult claims. In 
2003, we added a new paragraph (d) to Sec.  416.920 and redesignated 
the remaining paragraphs of the section. Therefore, we must change our 
references in Sec.  416.987(b) from Sec.  416.920(f) to Sec.  
416.920(g).

Public Comments on the Notice of Proposed Rulemaking

    When we published the NPRM in the Federal Register on August 1, 
2003 (68 FR 45180), we provided interested parties 60 days to submit 
comments. We received comments from 201 commenters, including national, 
State and community-based agencies and private organizations serving 
people with disabilities, parents of beneficiaries, and other 
individuals. We carefully considered the comments we received on the 
proposed rules in publishing these final regulations. The comments we 
received and our responses to the comments are set forth below. 
Although we condensed, summarized, or paraphrased the comments, we 
believe that we have expressed the views accurately and have responded 
to all of the significant issues raised.
    In addition, several of the comments were about subjects that were 
outside the scope of this rulemaking. Except as noted, we have not 
summarized and responded to these comments below.

Comments and Responses

    In general, most of the commenters supported our proposal to amend 
the rules to extend benefits to young people age 18 through 21 with 
disabilities who are participating in IEPs when their disabilities 
medically improve, or when they are determined not to meet the 
requirements for disability as adults, noting that society would profit 
from this investment in young people. Many commenters also supported 
our proposal to extend eligibility for continuation of disability 
benefits to individuals participating in other programs of vocational 
rehabilitation services, employment services, or other support 
services. Additionally, many commenters supported our proposal to 
remove the modifier ``significantly'' from the phrase ``significantly 
increase the likelihood'' to make the regulations conform more closely 
to the language in the Act.
    Comment: Most of the commenters supported our proposal to amend the 
rules to extend benefits to young people age 18 through 21 with 
disabilities who are receiving services under an IEP developed under 
the IDEA. However, many of the commenters recommended extending this 
rule to all young people age 18 through 21 with disabilities who are 
attending public, private, or parochial schools who may not be 
receiving services under IDEA, noting that the new regulation should 
protect any young person who is losing his or her SSI disability 
benefit at age 18 and is enrolled in a school or an appropriate 
employment or vocational program.
    Response: While many young people with disabilities are placed in 
private schools by public agencies and may be receiving services under 
an IEP under IDEA when their disability ends as a result of a 
continuing disability review or an age-18 redetermination, other young 
people with disabilities attending public, private or parochial schools 
may not be participating in an IEP when their disability ends. Our 
proposed rules and these final rules do not preclude these individuals 
from being eligible under the general rules for continuation of 
disability benefits to individuals participating in other programs that 
qualify as an appropriate program of vocational rehabilitation 
services, employment services, or other support services and that we 
determine will increase the likelihood that the individual will not 
have to return to the disability benefit rolls. The final rules in 
Sec. Sec.  404.327(a)(3) and 416.1338(c)(3) define an appropriate 
program to include, among others, a program of vocational 
rehabilitation services, employment services, or other support services 
that is carried out under an individualized written employment plan 
similar to an individualized plan for employment--which is the plan 
used by State vocational rehabilitation agencies--with a provider of 
services approved by us. Under these rules, we may approve as a 
provider of services a public, private or parochial school having such 
a program. To make this clear, we are including provisions in final 
Sec. Sec.  404.327(a)(3) and 416.1338(c)(3) to explain that a provider 
of services that we may approve under these sections may include, among 
others, a public, private or parochial school that provides or 
coordinates vocational rehabilitation services, employment services, or 
other support services.
    Comment: Many commenters recommended applying the new regulations 
retroactively to young adults who have already lost their SSI and 
Medicaid benefits as a result of age-18 redeterminations, and who have 
been participating in vocational rehabilitation programs. They noted 
that SSA has been legally obligated to apply the provision for 
continuation of benefit payments in these cases since 1996, when 
Congress amended the law to require age-18 redeterminations.
    Many commenters also recommended that we apply the new rules for 
persons in an IEP retroactively to young adults who have already lost 
their SSI and Medicaid benefits, have an IEP, and are not yet 22 years 
old.
    Response: We have been applying the benefit continuation provision 
to recipients of SSI benefits whose disability was determined to have 
ended in an age-18 redetermination, but who were participating in a 
vocational rehabilitation program, under our operating guides since 
1997, shortly after the enactment of the Personal Responsibility and 
Work Opportunity Reconciliation Act of 1996 (Public Law 104-193) 
required these redeterminations. From that time, we have had operating 
instructions in place that have interpreted section 1631(a)(6) of the 
Act to apply to SSI recipients participating in appropriate vocational 
rehabilitation programs whose disability ends as a result of an age-18 
redetermination. These final rules incorporate into our regulations 
this interpretation of the Act. The final rules do not represent a 
change from this interpretation of the Act.
    We are not adopting the commenters' second recommendation. These 
final regulations establish new rules for individuals age 18 through 21 
who are participating in an IEP when their disabilities end as a result 
of a continuing disability review or an age-18 redetermination. As is 
our usual practice when we promulgate new regulations, we apply the 
regulations to cases that are pending in our administrative review 
process,

[[Page 36502]]

including cases that are on remand from a Federal court. We do not 
reopen previous determinations or decisions that have become final, and 
that were correct under the policy then in use, to apply a new policy 
retroactively. Consistent with our usual practice when we amend our 
regulations, we will apply the new rules in determinations or decisions 
about continuation of benefit payments that we make on or after the 
effective date of these final regulations.
    Comment: Many commenters recommended revising our proposed rules to 
extend benefits to individuals who complete an IEP but then continue on 
to another type of program of vocational rehabilitation services, 
employment services, or other support services. They indicated that in 
some instances such individuals are eligible for services under an IEP 
and subsequently under a vocational rehabilitation plan. They stated 
that there is no neat line that can be drawn between participating in a 
transitional program under an IEP and a continuation of that program 
under the auspices of the State vocational rehabilitation program. They 
also noted that the State VR agency is often required to coordinate 
with officials responsible for the public education of students with 
disabilities in order ``to facilitate the transition of students with 
disabilities from the receipt of educational services in school to the 
receipt of vocational rehabilitation services under the responsibility 
of the State vocational rehabilitation agency.'' They suggested that 
the rule should encourage transition from special education to State 
vocational rehabilitation programs when that transition is 
appropriate--particularly for those cases where the special education 
student is also a client of the State vocational rehabilitation agency 
prior to exiting special education. The commenters recommended that we 
consider school and vocational rehabilitation as part of a larger whole 
and that benefits should be continued under this rule for special 
education students who transition from their high school special 
education program into a rehabilitation program under the auspices of 
the State vocational rehabilitation agency.
    Response: We did not adopt this recommendation. Our rules do not 
exclude a post-IEP transition plan from qualifying as an appropriate 
program of vocational rehabilitation service, employment services, or 
other support services. However, an IEP by itself comprises a unique 
and comprehensive plan of both education and employment services 
designed to provide the individual with the skills and training likely 
to keep him or her off the benefit rolls. Therefore, we have added 
language that completion or continuation in an IEP will increase the 
likelihood that you will not have to return to the disability or 
blindness benefit rolls. If an individual is receiving post IEP 
transition services, we will determine that the transition services 
will increase the likelihood that he or she will not have to return to 
the disability or blindness rolls if those services meet the 
requirements in Sec. Sec.  404.328(a) and 416.1338(e)(1).
    Comment: One commenter recommended that we redefine what would be 
considered ``youth,'' for example to age 25, provided that the 
individual was involved in either a vocational rehabilitation program 
or school (including post-secondary education). The commenter noted 
that this would allow for young people to have the supports they need 
to get a good start on having a career, making them less likely to be 
dependent on disability benefits for the majority of their adulthoods. 
He noted that very few people before the age of 25 have a firm grasp on 
careers and people with significant disabilities are often behind 
because of the barriers they face. For example, people with significant 
disabilities who are going to college may need to spend an extra year 
at school if they can't handle as many courses per semester.
    Response: We did not use the term ``youth'' in our proposed rules, 
and we are not using the term in these final rules. The final rules 
provide for the continuation of benefit payments to students who are 
participating in an IEP when their disability ends and who are age 18 
through age 21. We are providing benefit continuation for those 
students participating in an IEP through age 21, since each State can 
receive a grant of assistance from the Department of Education under 
IDEA to serve students with disabilities under IEP's through age 21.
    The rules for continuation of benefits to individuals participating 
in an appropriate program of vocational rehabilitation services, 
employment services, or other support services are not limited to 
individuals in a particular age group, other than the rules for 
individuals participating in an IEP.
    Comment: One commenter recommended suspending continuing disability 
reviews while an individual is participating in an approved and 
appropriate program of schooling or employment preparation, to bring 
these rules for continued benefit payments for individuals who are 
participating in such a program into full alignment with the provision 
for suspending medical reviews for beneficiaries who are using a ticket 
under the Ticket to Work program.
    Response: This recommendation is outside the scope of these rules 
and would require a statutory change. Section 221(i) of the Act 
requires that we conduct continuing disability reviews if a person has 
been determined to be under a disability. Section 1148(i) of the Act 
provides an exception to this requirement. That section specifically 
provides that ``During any period for which an individual is using, as 
defined by the Commissioner, a ticket to work and self-sufficiency 
issued under this section, the Commissioner (and any applicable State 
agency) may not initiate a continuing disability review or other review 
under section 221 of whether the individual is or is not under a 
disability or a review under title XVI similar to any such review under 
section 221.'' The Act does not similarly provide for suspending 
continuing disability reviews for a beneficiary participating in any 
other approved and appropriate program of schooling or employment 
preparation.
    Comment: A number of commenters noted that our current operating 
instructions provide that ``once the VR program participation stops for 
more than 30 days, benefits will be ceased and cannot be resumed.'' 
They note further that this procedure will not adequately address the 
reality of programs designed for children and young adults with 
disabilities, because ``the nature of many impairments may result in 
times when it is not possible for the young adult to participate in the 
IEP for a temporary period. There also may be gaps in activity 
available under the IEP or a similar plan, for example, if a program is 
not in session during the summer months, but will resume again in the 
fall, or if there is a modest gap in time between one program and the 
next program that the person is scheduled to participate in under an 
IEP.''
    Response: We agree with the commenters that our rules should 
account for short interruptions in an individual's participation. We 
have modified our definition of ``participating'' in the final rules. 
We have added Sec. Sec.  404.327(b)(3) and 416.1338(d)(3) to indicate 
that an individual will be considered to be participating in his or her 
program under Sec.  404.327(b)(1) or (2) or Sec.  416.1338(d)(1) or (2) 
during interruptions in the program, provided that such interruptions 
are temporary.

[[Page 36503]]

We explain that for an interruption to be considered temporary, the 
individual must resume taking part in the activities and services 
outlined in his or her individual work plan, individualized plan for 
employment, similar individualized written employment plan, or 
individualized education program, as the case may be, no more than 
three months a