CANAR Draft Comments by NPRM Docket and Section

CANAR Draft Comments by NPRM Docket and Section

DEPARTMENT OF EDUCATION

34 CFR Parts 361, 363,397

[Docket ID ED – 2015 – OSERS – 0001]

1. Section 361.5(c) (25) – Definition of Indian, American Indian, Indian American and Indian Tribe

This proposed rule expands the definition of eligible applicants for the American Indian Vocational Rehabilitation Services Program to include ‘tribal organizations’ as defined in the Indian Self-Determination and Education Assistance Act (25 U.S.C 450 (b) (1))and referenced in Section 371.6 of the companion NPRM as follows;

‘tribal organization means the recognized governing body of any Indian tribe;any legally established organization of Indianswhich is controlled, sanctioned, or chartered by such governing bodyor which is democratically elected by the adult members of the Indian community to be served by such organizationand which includes the maximum participation of Indians in all phases of its activities.’

We are concerned that a literal reading of this provision has the potential to negatively impact Tribal Sovereignty and Tribal government autonomy. In addition, we believe it has the potential to weaken and/or harm current successful tribally operated AIVRS programsby duplicating effort and pitting entities within the authority of one Tribal government against each other. This is in conflict with current Congressional and Administration policy on recognizing and honoring Tribal Sovereignty. In 2013, President Obama referred to the Administration’s commitment to Tribal sovereignty as follows:

“The United States recognizes a unique legal and political relationship with Federally-recognized tribes. This relationship is set forth in the Constitution of the United States, treaties, statutes, Executive Orders, administrative rules and regulations, and judicial decisions. The foregoing policies promoting self-determination seek to bolster tribal institutions and help American Indians and Alaska Natives (AI/AN) in their efforts to rebuild as prosperous native nations.”

In the introduction of a recent Senate bill, S. 383, in February, 2015, Congressional leaders stated:

“Congress, after careful review of the historical and special legal relationship of the United States with, and resulting responsibilities to, Indians, finds that—

(1) the relationship of Indian tribes to the United States is founded in part on the settled doctrine of the law of nations that when a stronger sovereign assumes authority over a weaker sovereign, the stronger nation assumes a duty of protection for the weaker nation, which does not surrender the right to self-government; . . .”

We believe that our nation’s long-standing policy on Tribal sovereignty and self-governance should govern the proposed rule in this Section. In keeping with this, we strongly recommend that separate ‘tribal organization’ applicants who propose to serve American Indian members of a specific tribe or tribes, must, as a requirement, obtain that Tribal government’s approval for submitting an application.

We strongly recommend that the Department institute a policy that permits Tribal governments to designate only one entity as the applicant/recipient of the AIVRS funding. This is in keeping with the proposed definitions in 34 CFR part 371; Tribal Vocational Rehabilitation Program which refers to the program as a unit designated by the governing bodies of an Indian Tribe, and the definition of Representatives of the Tribal Vocational Rehabilitation program and the Tribes without the authority to control and designate their own applicants will find these new definitions meaningless.

May interfere with Tribal government in the exercise of their government functions, in conflict with Executive Orders 12866 and 13563.

Section 361.24 – Cooperation and Coordination with Other Entities re: Transition of Students and Youth with Disabilities.

This section requires the State VR agency (the DSU) to coordinate pre-employment transition services with AIVRS projects in the State. We do not believe this goes far enough to serve the hundreds of thousands of American Indian students and youth with disabilities at high risk for suicide, incarceration and school dropout, within and outside the education system. We strongly recommend that the DSU be required to enter into formal interagency agreements with AIVRS and with Tribal Education Agencies located in the state. We strongly recommend that AIVRS and Tribal Education Agencies appear throughout the proposed regulations governing the new transition services provisions. Finally, we recommend that the DSU be required to document how equitable pre-employment transition services will be provided to American Indian students with disabilities, and how services to American Indian students with disabilities will be incorporated into the budgeting and spending plans for the State’s 15% set aside for Transition of Students with Disabilities.

DEPARTMENT OF EDUCATION

34 CFR Parts 367, 369, 370, 371, 373, 376, 377, 379, 381, 385, 386, 387, 388,

389, 390, and 396

[Docket No. 2015–ED–OSERS–0002]

Section 370.30 – American Indian Consortium

We commend the Secretary for regulating on this source of additional funding for Tribal members to be able to seek legal assistance and representation from the Rehabilitation Act's Client Assistance Program (CAP).

The CAP is a legal advocacy program for people with disabilities and it operates all over theNation as a consumer rights advocate against the State VR program, and now the Tribal AIVRS programs.

Section 371, Subpart A – Changing Title of Program

We agree that the proposed changes in this section implements new law and would eliminate confusion.

Section 371.1 – Purpose of the AIVRS program, Culturally Appropriate Services and Defining “near”

This proposed rule will make clear the purpose and scope of the AIVRS program as provided in the Workforce Investment Act of 1998 and in the new WIOA statute. It will also provide an important update to the current regulations which erase any question as to the authority of AIVRS grantees to provide culturally appropriate services for American Indian consumers with disabilities. We urge the Department to provide more and better examples of what is meant by culturally appropriate services in the text of the final rule, perhaps in the form of examples.

Section 371.2 – (see discussion re: “tribal organization” above.

Section 371.6 – Definitions (holding off here – no comments from me, except positive feedback – waiting to hear from program folks)

371.6 – Subsistence

Commend the Secretary for clarifying that this is a culturally appropriate closure for and an allowable employment outcome under the American Indian Vocational Rehabilitation Services (AIVRS) program.

Section 371 – Subpart B – Training and Technical Assistance

We cannot pass up an opportunity to encourage the Secretary to maximize the funding for the AIVRS program. As you know, the set aside allowed by 29 U.S.C. Section 730(c) is up to 1.5% of Title I funding. Here is the language in Section 730(c) for your reference:

(c)Funds for American Indian vocational rehabilitation services

(1)For fiscal year 1987 and for each subsequent fiscal year, the Commissioner shall reserve from the amount appropriated under section720(b)(1)of this title for allotment under this section a sum, determined under paragraph (2), to carry out the purposes of part C of this subchapter.

(2)The sum referred to in paragraph (1) shall be, as determined by the Secretary—

(A)not less than three-quarters of 1 percent and not more than 1.5 percent of the amount referred to in paragraph (1), for fiscal year 1999; and

(B)not less than 1 percent and not more than 1.5 percent of the amount referred to in paragraph (1), for each of fiscal years 2000 through 2003.

We disagree, in part, with the argument the Department outlined in the preamble that, regardless of the amount allotted for AIVRS program funding, the 1.8 to 2.0 set aside to provide Training and Technical Assistance to grantee will increase efficiency and therefore provide substantial benefits to both grantees and beneficiaries. We do believe it will provide substantial benefits to current grantees, but we also believe it will hurt our beneficiaries and our potential clients. In effect, it will deny services to hundreds of potential American Indian consumers with disabilities, and prevent expansion of the AIVRS program into high-need/high-risk American Indian communities.

We urge you to revisit the funding allotment decisions for the AIVRS Program and take action to increase the amount of the set-aside to the full 1.5% of the amount appropriated for Title I programs for 2016 and in future years.