29 USC 722 - Eligibility and individualized plan for employment

View all text of Part A [§ 720 - § 728a]

§ 722. Eligibility and individualized plan for employment

(a) Eligibility

(1) Criterion for eligibilityAn individual is eligible for assistance under this subchapter if the individual—

(A) has undergone an assessment for determining eligibility and vocational rehabilitation needs and as a result has been determined to be an individual with a disability under section 705(20)(A) of this title; and

(B) requires vocational rehabilitation services to prepare for, secure, retain, advance in, or regain employment that is consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

For purposes of an assessment for determining eligibility and vocational rehabilitation needs under this chapter, an individual shall be presumed to have a goal of an employment outcome.

(2) Presumption of benefit

(A) Applicants

(B) Responsibilities

(3) Presumption of eligibility

(A) In generalFor purposes of this section, an individual who has a disability or is blind as determined pursuant to title II or title XVI of the Social Security Act (42 U.S.C. 401 et seq. and 1381 et seq.) shall be—

(i) considered to be an individual with a significant disability under section 705(21)(A) of this title; and

(ii) presumed to be eligible for vocational rehabilitation services under this subchapter (provided that the individual intends to achieve an employment outcome consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual) unless the designated State unit involved can demonstrate by clear and convincing evidence that such individual is incapable of benefiting in terms of an employment outcome due to the severity of the individual’s disability (as of the date of the determination).

(B) Construction

(4) Use of existing information

(A) In general

(B) Determinations by officials of other agencies

(i) the review of existing data described in section 705(2)(A)(i) of this title; and

(ii) to the extent that such data is unavailable or insufficient for determining eligibility, the provision of assessment activities described in section 705(2)(A)(ii) of this title.

(5) Determination of ineligibilityIf, after the designated State unit carries out the activities described in paragraph (2)(B), a review of existing data, and, to the extent necessary, the assessment activities described in section 705(2)(A)(ii) of this title, an individual who applies for services under this subchapter is determined not to be eligible for the services, or if an eligible individual receiving services under an individualized plan for employment is determined to be no longer eligible for the services—

(A) the ineligibility determination shall be an individualized one, based on the available data, and shall not be based on assumptions about broad categories of disabilities;

(B) the ineligibility determination involved shall be made only after providing an opportunity for full consultation with the individual or, as appropriate, the individual’s representative;

(C) the individual or, as appropriate, the individual’s representative, shall be informed in writing (supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual) of the ineligibility determination, including—

(i) the reasons for the determination, including the clear and convincing evidence that forms the basis for the determination of ineligibility; and

(ii) a description of the means by which the individual may express, and seek a remedy for, any dissatisfaction with the determination, including the procedures for review by an impartial hearing officer under subsection (c);

(D) the individual shall be provided with a description of services available from the client assistance program under section 732 of this title and information on how to contact that program; and

(E) any ineligibility determination that is based on a finding that the individual is incapable of benefiting in terms of an employment outcome shall be reviewed—

(i) within 12 months; and

(ii) thereafter, if such a review is requested by the individual or, if appropriate, by the individual’s representative.

(6) Timeframe for making an eligibility determinationThe designated State unit shall determine whether an individual is eligible for vocational rehabilitation services under this subchapter within a reasonable period of time, not to exceed 60 days, after the individual has submitted an application for the services unless—

(A) exceptional and unforeseen circumstances beyond the control of the designated State unit preclude making an eligibility determination within 60 days and the designated State unit and the individual agree to a specific extension of time; or

(B) the designated State unit is exploring an individual’s abilities, capabilities, and capacity to perform in work situations under paragraph (2)(B).

(b) Development of an individualized plan for employment

(1) Options for developing an individualized plan for employmentIf an individual is determined to be eligible for vocational rehabilitation services as described in subsection (a), the designated State unit shall complete the assessment for determining eligibility and vocational rehabilitation needs, as appropriate, and shall provide the eligible individual or the individual’s representative, in writing and in an appropriate mode of communication, with information on the individual’s options for developing an individualized plan for employment, including—

(A) information on the availability of assistance from a qualified vocational rehabilitation counselor or, as appropriate, a disability advocacy organization in developing all or part of the individualized plan for employment for the individual, and the availability of technical assistance in developing all or part of the individualized plan for employment for the individual;

(B) a description of the full range of components that shall be included in an individualized plan for employment;

(i) an explanation of agency guidelines and criteria associated with financial commitments concerning an individualized plan for employment;

(ii) additional information the eligible individual requests or the designated State unit determines to be necessary; and

(iii) information on the availability of assistance in completing designated State agency forms required in developing an individualized plan for employment; and

(D)

(i) a description of the rights and remedies available to such an individual including, if appropriate, recourse to the processes set forth in subsection (c); and

(ii) a description of the availability of a client assistance program established pursuant to section 732 of this title and information about how to contact the client assistance program.

(2) Individuals desiring to enter the workforce

(3) Mandatory procedures

(A) Written document

(B) Informed choice

(i) agreed to, and signed by, such eligible individual or, as appropriate, the individual’s representative; and

(ii) approved and signed by a qualified vocational rehabilitation counselor employed by the designated State unit.

(D) Copy

(E) Review and amendmentThe individualized plan for employment shall be—

(i) reviewed at least annually by—(I) a qualified vocational rehabilitation counselor; and(II) the eligible individual or, as appropriate, the individual’s representative;

(ii) amended, as necessary, by the individual or, as appropriate, the individual’s representative, in collaboration with a representative of the designated State agency or a qualified vocational rehabilitation counselor (to the extent determined to be appropriate by the individual), if there are substantive changes in the employment outcome, the vocational rehabilitation services to be provided, or the service providers of the services (which amendments shall not take effect until agreed to and signed by the eligible individual or, as appropriate, the individual’s representative, and by a qualified vocational rehabilitation counselor employed by the designated State unit); and

(iii) amended, as necessary, to include the postemployment services and service providers that are necessary for the individual to maintain or regain employment, consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

(F) Timeframe for completing the individualized plan for employment

(4) Mandatory components of an individualized plan for employmentRegardless of the approach selected by an eligible individual to develop an individualized plan for employment, an individualized plan for employment shall, at a minimum, contain mandatory components consisting of—

(A) a description of the specific employment outcome that is chosen by the eligible individual, consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the eligible individual, consistent with the general goal of competitive integrated employment (except that in the case of an eligible individual who is a student, the description may be a description of the student’s projected postschool employment outcome);

(B)

(i) a description of the specific vocational rehabilitation services that are—(I) needed to achieve the employment outcome, including, as appropriate—(aa) the provision of assistive technology devices and assistive technology services (including referrals described in section 723(a)(3) of this title to the device reutilization programs and demonstrations described in subparagraphs (B) and (D) of section 3003(e)(2) of this title through agreements developed under section 721(a)(11)(I) of this title; and(bb) personal assistance services (including training in the management of such services);(II) in the case of a plan for an eligible individual that is a student, the specific transition services and supports needed to achieve the student’s employment outcome or projected postschool employment outcome; and(III) provided in the most integrated setting that is appropriate for the service involved and is consistent with the informed choice of the eligible individual; and

(ii) timelines for the achievement of the employment outcome and for the initiation of the services;

(C) a description of the entity chosen by the eligible individual or, as appropriate, the individual’s representative, that will provide the vocational rehabilitation services, and the methods used to procure such services;

(D) a description of criteria to evaluate progress toward achievement of the employment outcome;

(E) the terms and conditions of the individualized plan for employment, including, as appropriate, information describing—

(i) the responsibilities of the designated State unit;

(ii) the responsibilities of the eligible individual, including—(I) the responsibilities the eligible individual will assume in relation to the employment outcome of the individual;(II) if applicable, the participation of the eligible individual in paying for the costs of the plan; and(III) the responsibility of the eligible individual with regard to applying for and securing comparable benefits as described in section 721(a)(8) of this title; and

(iii) the responsibilities of other entities as the result of arrangements made pursuant to comparable services or benefits requirements as described in section 721(a)(8) of this title;

(F) for an eligible individual with the most significant disabilities for whom an employment outcome in a supported employment setting has been determined to be appropriate, information identifying—

(i) the extended services needed by the eligible individual; and

(ii) the source of extended services or, to the extent that the source of the extended services cannot be identified at the time of the development of the individualized plan for employment, a description of the basis for concluding that there is a reasonable expectation that such source will become available;

(G) as determined to be necessary, a statement of projected need for post-employment services; and

(H) for an individual who also is receiving assistance from an employment network under the Ticket to Work and Self-Sufficiency Program established under section 1148 of the Social Security Act (42 U.S.C. 1320b–19), a description of how responsibility for service delivery will be divided between the employment network and the designated State unit.

(1) In general

(2) Notification

(A) Rights and assistanceThe procedures shall provide that an applicant or an eligible individual or, as appropriate, the applicant’s representative or individual’s representative shall be notified of—

(i) the right to obtain review of determinations described in paragraph (1) in an impartial due process hearing under paragraph (5);

(ii) the right to pursue mediation with respect to the determinations under paragraph (4);

(iii) the availability of assistance from the client assistance program under section 732 of this title; and

(iv) any applicable State limit on the time by which a request for mediation under paragraph (4) or a hearing under paragraph (5) shall be made, and any required procedure by which the request shall be made.

(B) TimingSuch notification shall be provided in writing—

(i) at the time an individual applies for vocational rehabilitation services provided under this subchapter;

(ii) at the time the individualized plan for employment for the individual is developed; and

(iii) upon reduction, suspension, or cessation of vocational rehabilitation services for the individual.

(3) Evidence and representationThe procedures required under this subsection shall, at a minimum—

(A) provide an opportunity for an applicant or an eligible individual, or, as appropriate, the applicant’s representative or individual’s representative, to submit at the mediation session or hearing evidence and information to support the position of the applicant or eligible individual; and

(B) include provisions to allow an applicant or an eligible individual to be represented in the mediation session or hearing by a person selected by the applicant or eligible individual.

(4) Mediation

(A) Procedures

(B) RequirementsSuch procedures shall ensure that the mediation process—

(i) is voluntary on the part of the parties;

(ii) is not used to deny or delay the right of an individual to a hearing under this subsection, or to deny any other right afforded under this subchapter; and

(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(D) Cost

(E) Scheduling

(F) Agreement

(G) Confidentiality

(H) Construction

(5) Hearings

(A) Officer

(B) ListThe designated State unit shall maintain a list of qualified impartial hearing officers who are knowledgeable about Federal laws (including regulations) relating to the provision of vocational rehabilitation services under this subchapter from which the officer described in subparagraph (A) shall be selected. For the purposes of maintaining such list, impartial hearing officers shall be identified jointly by—

(i) the designated State unit; and

(ii) members of the Council or commission, as appropriate, described in section 721(a)(21) of this title.

(i) on a random basis; or

(ii) by agreement between—(I) the Director of the designated State unit and the individual with a disability; or(II) in appropriate cases, the Director and the individual’s representative.

(D) Procedures for seeking reviewA State may establish procedures to enable a party involved in a hearing under this paragraph to seek an impartial review of the decision of the hearing officer under subparagraph (A) by—

(i) the chief official of the designated State agency if the State has established both a designated State agency and a designated State unit under section 721(a)(2) of this title; or

(ii) an official from the office of the Governor.

(E) Review request

(F) Reviewing officialThe reviewing official described in subparagraph (D) shall—

(i) in conducting the review, provide an opportunity for the submission of additional evidence and information relevant to a final decision concerning the matter under review;

(ii) not overturn or modify the decision of the hearing officer, or part of the decision, that supports the position of the applicant or eligible individual unless the reviewing official concludes, based on clear and convincing evidence, that the decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to the approved State plan, this chapter (including regulations implementing this chapter) or any State regulation or policy that is consistent with the Federal requirements specified in this subchapter;

(iii) make a final decision with respect to the matter in a timely manner and provide such decision in writing to the applicant or eligible individual, or, as appropriate, the applicant’s representative or individual’s representative, and to the designated State unit, including a full report of the findings and the grounds for such decision; and

(iv) not delegate the responsibility for making the final decision to any officer or employee of the designated State unit.

(G) Finality of hearing decision

(H) Finality of review

(I) Implementation

(J) Civil action

(i) In general

(ii) ProcedureIn any action brought under this subparagraph, the court—(I) shall receive the records relating to the hearing under subparagraph (A) and the records relating to the State review under subparagraphs (D) through (F), if applicable;(II) shall hear additional evidence at the request of a party to the action; and(III) basing the decision of the court on the preponderance of the evidence, shall grant such relief as the court determines to be appropriate.

(6) Hearing board

(A) In general

(B) Application

(7) Impact on provision of services

(8) Information collection and report

(A) In general

(B) InformationThe information required to be collected under this subsection includes—

(i) a copy of the standards used by State reviewing officials for reviewing decisions made by impartial hearing officers under this subsection;

(ii) information on the number of hearings and reviews sought from the impartial hearing officers and the State reviewing officials, including the type of complaints and the issues involved;

(iii) information on the number of hearing decisions made under this subsection that were not reviewed by the State reviewing officials; and

(iv) information on the number of the hearing decisions that were reviewed by the State reviewing officials, and, based on such reviews, the number of hearing decisions that were—(I) sustained in favor of an applicant or eligible individual;(II) sustained in favor of the designated State unit;(III) reversed in whole or in part in favor of the applicant or eligible individual; and(IV) reversed in whole or in part in favor of the designated State unit.

(d) Policies and proceduresEach designated State agency, in consultation with the State Rehabilitation Council, if the State has such a council, shall, consistent with section 720(a)(3)(C) of this title, develop and implement written policies and procedures that enable each individual who is an applicant for or eligible to receive vocational rehabilitation services under this subchapter to exercise informed choice throughout the vocational rehabilitation process carried out under this subchapter, including policies and procedures that require the designated State agency—

(1) to inform each such applicant and eligible individual (including students with disabilities who are making the transition from programs under the responsibility of an educational agency to programs under the responsibility of the designated State unit), through appropriate modes of communication, about the availability of, and opportunities to exercise, informed choice, including the availability of support services for individuals with cognitive or other disabilities who require assistance in exercising informed choice, throughout the vocational rehabilitation process;

(2) to assist applicants and eligible individuals in exercising informed choice in decisions related to the provision of assessment services under this subchapter;

(3) to develop and implement flexible procurement policies and methods that facilitate the provision of services, and that afford eligible individuals meaningful choices among the methods used to procure services, under this subchapter;

(4) to provide or assist eligible individuals in acquiring information that enables those individuals to exercise informed choice under this subchapter in the selection of—

(A) the employment outcome;

(B) the specific vocational rehabilitation services needed to achieve the employment outcome;

(D) the employment setting and the settings in which the services will be provided; and

(E) the methods available for procuring the services; and

(5) to ensure that the availability and scope of informed choice provided under this section is consistent with the obligations of the designated State agency under this subchapter.

(Pub. L. 93–112, title I, § 102, as added Pub. L. 105–220, title IV, § 404, Aug. 7, 1998, 112 Stat. 1138; amended Pub. L. 105–277, div. A, § 101(f) [title VIII, § 402(c)(5)], Oct. 21, 1998, 112 Stat. 2681–337, 2681–415; Pub. L. 113–128, title IV, § 413, July 22, 2014, 128 Stat. 1649.)