Does the executive order apply?

The morning after President Biden announced the Executive Orders related to required vaccines, I received a flood of calls/emails asking, “Does that apply to us?”

The orders were for federal contractors. CILs that receive direct grants (Part C) are grantees, not contractors. The executive orders do not apply to CILs.

Some centers are requiring staff to be vaccinated. Staff may request a reasonable accommodation for religious or disability reasons. Centers that grant this accommodation are sometimes requiring testing, most typically weekly, if the staff person works in person or from the office.

Giving credit where credit is due

Most grants — including those your center receives from Health and Human Services, are required to include that information in any press releases or other ACL supported publications and forums describing projects or programs funded in whole or in part with ACL funding. This means those carefully developed PSAs to urge people to get vaccines, or the flyers and other materials paid for through the CARES Act or Part C or the CDC Vaccine funds must have language that follows what your grant award says. (Yes, you should read that Grant Award carefully. It does require some things of you.)

Here is the sample language from a grant award from HHS.

If the HHS Grant or Cooperative Agreement is NOT funded with other non-governmental sources: “This (project/publication/program/website, etc.) (is/was) supported by the Administration for Community Living (ACL), US Department of Health and Human Services (HHS) as part of a financial assistance award totaling $XX with 100% funding by ACL/HHS. The contents are those of the author(s) and do not necessarily represent the official views of, nor an endorsement, by ACL/HHS or the U.S. Government.

If the HHS Grant or Cooperative Agreement IS partially funded with other nongovernmental sources: “This (project/publication/program/website, etc.) (is/was) supported by the Administration for Community Living (ACL), U.S. Department of Health and Human Services (HHS) as part of a financial assistance award totaling $XX with XX percentage funded by non-government sources(s). The contents are those of the author(s) and do not necessarily represent the official views of, not an endorsement, by ACL/HHS, or the U.S. Government.

Lobbying: What can SILCs and CILs do?

The first rule is that you cannot ever endorse a candidate. (This has to do with IRS rules around non-profit status, if you have that, and rules against state entities endorsing candidates if you are not a non-profit.)

The second rule is that you cannot use federal money to lobby. This means several things.

  1. A any action you take to attempt to influence related to money you are receiving or wish to receive is considered lobbying.
  2. Any action you take to support or oppose a specific piece of legislation is considered lobbying.
  3. The SILC or CIL can lobby if there are no federal funds spent in supporting the effort either in direct costs, salaries, or indirect costs.
  4. The SILC council members and CIL board members, as long as they don’t imply that they are speaking for the council/board and as long as the council/board doesn’t assist with any costs, can speak to any matter as members of the public unless the state prohibits this in its executive orders or other documents related to council operations.
  5. Testimony around the effectiveness of centers for independent living or other issues of concern to the disability community can be provided by SILC or CIL staff or council/board members at SILC/CIL cost (including federal funds) as long as it doesn’t end with a request for continuing or increasing funds or opposing or supporting legislation.
  6. Reports of statewide effectiveness of IL can be provided by SILC staff or council members at SILC cost, or CIL staff at CIL cost, as long as there is not a request for continuing or increasing funds or opposing or supporting legislation.
  7. You can respond to questions asked in a hearing or other forum, as long as you don’t lobby – that is ask for a specific vote for or against a bill or budget item.

Can I use grant funding to establish incentive programs? New FAQ released.

Dark-haired, bearded man in denim shirt and seated in a wheelchair, sits at the kitchen table with a bowl of food and looks at reports.

Recently our key funder, ACL, released information on using grant funds to purchase incentive items as part of the program of a center. While this FAQ answers the pressing question of incentives related to CDC and ACL funds and COVID-19, the guidance could be considered in other situations as well. You are expected to have a well-designed incentive program, so a written policy and procedure should back up your practice. Some key points:

  • Grantees may use federal funding to establish one or more incentive programs.
  • Incentives should be used in “limited circumstances” to meet program goals.
  • Gift cards, gift items, giveaways and prizes may be used. Cash gifts are not allowed with funding under the CARES Act and from the CDC Vaccine funding
  • When using gift cards you must avoid appearing to endorse, or that HHS or ACL endorses a specific company.
  • Your records must clearly show how each gift card is distributed, verifying that they were used for the purpose of the program and weren’t for example, recycled into petty cash or used for staff or board incentives not related to your incentive program.
  • Your program should address potential ethical considerations, including potential conflicts of interest by board and staff.
  • You must be able to show that the expense charged to your federal grant is reasonable and necessary, and if it supports goals in more than one grant, is properly allocated across your funding sources.

ACL recommends that grantees consider the following seven elements in designing an incentive program:

  1. Proposed Incentive: i.e., what incentive will be provided?
  2. Justification: what is the purpose for the incentive and what is the specific reason for selecting this incentive? What evidence indicates that an incentive is needed, and what evidence suggests that the selected incentive will be effective at achieving the desired result?
  3. Anticipated gains: explain how providing such an incentive will defray societal costs or have a positive return on investment, for example by increasing overall participation. Additionally, describe potential unintended negative consequences and how those are outweighed by the benefits.
  4. Defined amount: cost per person and total allocated funding for the recipient incentives.
  5. Qualifications for issuance: what makes a person eligible for the incentive? Does it take into consideration issues related to equity in your community?
  6. Method of issuance and tracking: how will the incentive be delivered? Does the proposed plan and implementation align with any relevant policies and procedures governing your organization (e.g., procurement, ethics, etc.)? How will the budget and supply be tracked? Can the grantee assure usage will only be for allowable expenses?
  7. Method of evaluation: how will the incentive plan be evaluated for effectiveness?

One last thought. While you cannot guarantee how an individual will spend a gift card incentive, you can communicate your expectations that it will assist them in meeting the unique needs presented by the pandemic.

How can your board find a new Executive Director with a disability?

The rules for consumer control indicate that 51% of your managers must have a disability. In smaller centers where there is only one manager — the Executive Director — the board must hire a person with a disability. Even if there are two managers, 51% of two is two, and both must have a disability. As a result, most centers are seeking a person with a disability to fill the ED role.

Clear board with the words AFFIRMATIVE ACTION in black. A hand with a marker is underlining it in red.

There was a time when this was extremely awkward, because the Equal Employment Opportunity Commission (EECO) was clear that you could not ask interviewees about having a disability for fear that you might discriminate against them because of the disability. We have quite the opposite reason for asking — and now that reason is validated by guidance related to pre-employment questions about disability. This new guidance says that if you are asking about whether the person has a disability for the purposes of your affirmative action program, you may invite applicants to voluntarily self-identfy if:

  • The CIL is undertaking affirmative action because of a federal, state, or local law. This is the case for centers, because the Rehabilitation Act as amended requires consumer control, which is defined including having 51% of managers and 51% of other staff be people with disabilities.
  • Or the CIL is voluntarily using the information to benefit individuals with disabilities.
  • Employers may invite voluntary self-identification only if you are using the information to benefit individuals with disabilities.
  • You must state clearly on any written questionnaire, application or in your employment advertising, or state clearly orally, that the information requested is used solely in connection with affirmative action obligations.
  • You must state clearly that providing this information is voluntary, will be kept confidential as required by the ADA, and that if they refuse to answer they will not be subject to any adverse treatment. I suggest that you add that you may in some cases be choosing a person with a disability over a non-disabled applicant.

May I add a personal note? I didn’t know anything about Independent Living when I wrote a grant back in 1979. Fortunately Lex Frieden at ILRU provided all of the ten newly funded centers with training, and veterans Marca Bristo and Max Starkloff, who directed two of the other centers, knew what IL was all about. Due to their influence I looked around and told the board, “we really need a director with a visible disability”, and I am pleased that they have kept true to that goal in the hiring of the next few directors as well. (My disability isn’t always evident.) Even when a center is big enough that other managers can meet the 51% requirement, I feel that the message to the community is unmistakable when the leader has a visible disability, or has an invisible disability and is willing to talk about it and to show clear consumer control at the local level.

Is my CIL required to report to the SILC? Why? How?

Every state is required to develop and implement a State Plan for Independent Living (SPIL), developed jointly by all the Centers for Independent Living (CILs) in the state (signed by a majority of them) and the Council. Your Statewide Independent Living Council (SILC) is then responsible for monitoring and evaluating the progress your state is making regarding its state plan. This means that your SILC somehow tracks the progress being made on the specific plan goals. If the goals are related to service provision, the reporting will have to come from the CILs because the SILC is not allowed to provide direct services.

Young dark-haired man in a suit working with calculator and computer. The back of a wheelchair is visible at the edge of the photo.

As far as a center not reporting to the SILC on the SPIL goals and objectives – there isn’t a requirement that they do so on the SILC’s timeline, but they “gave their word”, so to speak, when they agreed to the SPIL. If the SPIL clearly identified those outcomes by CILs, they should be prepared to report. If you haven’t already, take the time at the next revision or development of a plan to be very clear on desired outcomes and how they will be measured, so that the centers are clear on what reporting is expected from the CILs.

Let me repeat this point, though – CILs are not required to report according to the SILC’s requirements, and there is no compliance process to force it. It is voluntary so you need to build on the agreement to the SPIL and negotiate if necessary. A lot of states find a way to have a single report with the Designated State Entity (DSE) shared by the SILC to reduce duplication.

That said, let me clarify that the SPIL applies to both Part B and Part C (Independent Living Program, ILP and CIL) funds, and reporting on the SPIL outcomes should include the full network for IL, including CIL services funded by both Part B and Part C. Both are federal funds, and reporting applies to both. Part B funds are not state funds, as some have mistakenly stated, but pass through the Designated State Entity to the CILs as directed in the SPIL. Part C funds are direct grants to CILs, but are still part of the statewide plan. In the past some SILCs have depended on the information submitted in the Program Performance Report (PPR – formerly the 704 report) which CILs are required to submit to the SILC as well as to ACL, but this year that report has been delayed by the Administration for Community Living (ACL), leaving the SILCs to request the data from a draft document since the official upload directions have not yet come out.

Let me clarify a related point. It is NOT the role of the SILC to monitor the Center itself. The DSE may monitor CILs receiving state or ILS Part B funds, as they are subgrantees of the DSE. The SILC, however, does not have compliance responsibilities with the centers. Sometimes the SILC is pressured by the DSE to monitor the Centers. I have even seen corrective action plans for a couple of SILCs where the DSE cited the SILC’s failure to monitor the CILs as a deficiency. Remember that each center is required to provide the SILC with the PPR and with progress on the SPIL. Any more can be negotiated by the IL network but is not required in federal regulations.

What can the DSE keep in administrative fees for distributing our Part B, Independent Living Services grants?

The regulations are clear on this. 45 CFR 1329.12 Role of the designated State entity states:

(a) A DSE that applies for and receives assistance must:

(1) Receive, account for, and disburse funds received by the State under Part B and Part C in a State under section 723 of the Act based on the State plan;

(2) Provide administrative support services for a program under Part B, as directed by the approved State plan, and for CILs under Part C when administered by the State under section 723 of the Act, 29 U.S.C. 796f-2;

(3) Keep such records and afford such access to such records as the Administrator finds to be necessary with respect to the programs;

(4) Submit such additional information or provide such assurances as the Administrator may require with respect to the programs; and

(5) Retain not more than 5 percent of the funds received by the State for any fiscal year under Part B, for the performance of the services outlined in paragraphs (a)(1) through (4) of this section. For purposes of these regulations, the 5 percent cap on funds for administrative expenses applies only to the Part B funds allocated to the State and to the State’s required 10 percent Part B match. It does not apply to other program income funds, including, but not limited to, payments provided to a State from the Social Security Administration for assisting Social Security beneficiaries and recipients to achieve employment outcomes, any other federal funds, or to other funds allocated by the State for IL purposes.

Answering the questions of the new CIL Executive Director

Do you remember your first day on the job? That flutter of excitement and apprehension? The navigation of new terms and new requirements that no one warned you about? We offer technical assistance to a new Executive Director in a number of ways. We have a monthly Technical Assistance call for executive directors, typically the second Monday of the month, and discuss a different topic each month, with input from ILRU and from peers in the field. If desired, Paula McElwee sets up a regular call (frequency determined by the new ED) to touch base on emerging issues and to clarify regulations and other requirements. This blog is another resource, and new EDs are encouraged to subscribe so you receive notices of new posts to your email. And now we have what I believe is the best ever resource for new EDs of Centers for Independent Living. It is called the Management 101 Tool Kit for New CIL Executive Directors.

Business woman in blue shirt and glasses shakes the hand of a man in a suit.

This tool kit is designed for the new executive director of a Center for Independent Living (CIL) and its purpose is to focus attention on the most important aspects of the job. Concrete action steps are provided in easy to use checklists, bullet points, and dos and don’ts organized to help the new ED. The 17 sections of the tool kit provide information on a range of topics including the definition of a CIL, budget and finance, engaging and supporting the board of directors, strategic planning, and many more.

As a new ED, this resource is invaluable and will help you complete things you didn’t know were required, like updating the registrations on various websites. Experienced EDs may find the resource useful, as well, for getting back to the basics and remembering the CIL’s mission and requirements.

More from the revisions to the Uniform Guidance 2 CFR 200 – Indirect Cost Rates

Effective Dates

Q-9. When are the revisions to the Uniform Guidance published on August 13, 2020 effective?The effective date of the revisions to the Uniform Guidance published in 85 FR 49506 on August 13, 2020 is November 12, 2020, except for the amendments to §§ 200.216 and 200.340, which are effective August 13, 2020.

Q-15. How does the effective date apply to negotiated indirect cost rates? Existing negotiated indirect cost rates will generally remain in place until they are due to be renegotiated. The non-Federal entity must review its current indirect cost rate proposal or previously negotiated rate to ensure that it does not include any major conflicts with the revised Uniform Guidance (e.g., costs for covered telecommunications services or equipment). If there is a conflict, the non-Federal entity should work with the cognizant agency for indirect costs to ensure compliance with the revised Uniform Guidance.

Q-61. Will this prohibition impact awards that use the de minimis indirect cost rate, as the 10 percent is based on MTDC and not specific indirect costs elements? No, the prohibition on covered telecommunications and video surveillance services or equipment does not affect a non-Federal entity’s use of the de minimis indirect cost rate; however, the non-Federal entity must review its costs used to determine its de minimis indirect cost rate to ensure that unallowable costs are not included in the calculation. The MTDC cannot include unallowable costs in its calculation of the de minimis indirect cost rate.

Q-62. When a recipient normally charges prohibited services or equipment through their indirect cost pool, can a Federal award cover the same recipient’s indirect costs? No, like other unallowable costs, covered telecommunications and video surveillance services or equipment costs must not be charged either directly or indirectly to Federal awards. The recipient must separately negotiate an indirect cost rate for their Federal awards that excludes these costs from the indirect cost pool and base amount chargeable to its Federal award(s).

  • Q-63. How will covered telecommunications equipment or services as a new unallowable expense be implemented for indirect cost rates? Federally approved indirect cost rate agreements generally do not need to be reopened or amended, but may need to be adjusted in accordance with 2 CFR §200.411. The non-Federal entity must review its current indirect cost rate proposal or previously negotiated rate to ensure that it does not include expenses associated with covered telecommunications equipment or services because the non-Federal entity must certify that the costs included in its proposal are allowable.

•If a non-Federal entity has not included the covered telecommunications equipment or services, then it should include a statement with each indirect cost proposal affirming that it has not included any costs described in 2 CFR §200.216.

•If a non-Federal entity finds that it has included the covered telecommunications equipment or services in an indirect cost proposal currently under review or a previously negotiated rate, then it should immediately contact the cognizant agency for indirect costs to revise the indirect cost proposal or negotiated rate

2 CFR 200.216 Prohibition on certain telecommunications and video surveillance services or equipment.

Recently the regulations around how you as a grantee or subgrantee spend money have changed. Here is a new section for your consideration. You are prohibited from using federal dollars to procure or obtain certain equipment manufactured in or sold from the People’s Republic of China. More information is found at https://www.cfo.gov/assets/files/2CRF-FrequentlyAskedQuestions_2021050321.pdf Questions 46-64. Here is the text from the regulations:

(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant funds to:

(1) Procure or obtain;

(2) Extend or renew a contract to procure or obtain; or

(3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

(i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).

(ii) Telecommunications or video surveillance services provided by such entities or using such equipment.

(iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

(b) In implementing the prohibition under Public Law 115-232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.

(c) See Public Law 115-232, section 889 for additional information.

(d) See also § 200.471.