29 U.S.C. § 722: Eligibility and individualized plan for employment

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 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 this section, an individual shall be presumed to be an individual that can benefit in terms of an employment outcome from vocational rehabilitation services under section 705(20)(A) of this title . Prior to determining under this subsection that an applicant described in subparagraph (A) is unable to benefit due to the severity of the individual’s disability or that the individual is ineligible for vocational rehabilitation services, the designated State unit shall explore the individual’s abilities, capabilities, and capacity to perform in work situations, through the use of trial work experiences, as described in section 705(2)(D) of this title , with appropriate supports provided through the designated State unit. Such experiences shall be of sufficient variety and over a sufficient period of time to determine the eligibility of the individual. In providing the trial experiences, the designated State unit shall provide the individual with the opportunity to try different employment experiences, including supported employment, and the opportunity to become employed in competitive integrated employment. considered to be an individual with a significant disability under section 705(21)(A) of this title ; and 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). Nothing in this paragraph shall be construed to create an entitlement to any vocational rehabilitation service. To the maximum extent appropriate and consistent with the requirements of this part, for purposes of determining the eligibility of an individual for vocational rehabilitation services under this subchapter and developing the individualized plan for employment described in subsection (b) for the individual, the designated State unit shall use information that is existing and current (as of the date of the determination of eligibility or of the development of the individualized plan for employment), including information available from other programs and providers, particularly information used by education officials and the Social Security Administration, information provided by the individual and the family of the individual, and information obtained under the assessment for determining eligibility and vocational rehabilitation needs. Determinations made by officials of other agencies, particularly education officials described in section 721(a)(11)(D) of this title , regarding whether an individual satisfies one or more factors relating to whether an individual is an individual with a disability under section 705(20)(A) of this title or an individual with a significant disability under section 705(21)(A) of this title shall be used, to the extent appropriate and consistent with the requirements of this part, in assisting the designated State unit in making such determinations. the review of existing data described in section 705(2)(A)(i) of this title ; and 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 . 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; 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; the reasons for the determination, including the clear and convincing evidence that forms the basis for the determination of ineligibility; and 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); 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 within 12 months; and thereafter, if such a review is requested by the individual or, if appropriate, by the individual’s representative. 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 the designated State unit is exploring an individual’s abilities, capabilities, and capacity to perform in work situations under paragraph (2)(B). 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; a description of the full range of components that shall be included in an individualized plan for employment; an explanation of agency guidelines and criteria associated with financial commitments concerning an individualized plan for employment; additional information the eligible individual requests or the designated State unit determines to be necessary; and information on the availability of assistance in completing designated State agency forms required in developing an individualized plan for employment; and 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 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. For an individual entitled to benefits under title II or XVI of the Social Security Act ( 42 U.S.C. 401 et seq., 1381 et seq.) on the basis of a disability or blindness, the designated State unit shall provide to the individual general information on additional supports and assistance for individuals with disabilities desiring to enter the workforce, including assistance with benefits planning. An individualized plan for employment shall be a written document prepared on forms provided by the designated State unit. An individualized plan for employment shall be developed and implemented in a manner that affords eligible individuals the opportunity to exercise informed choice in selecting an employment outcome, the specific vocational rehabilitation services to be provided under the plan, the entity that will provide the vocational rehabilitation services, and the methods used to procure the services, consistent with subsection (d). agreed to, and signed by, such eligible individual or, as appropriate, the individual’s representative; and approved and signed by a qualified vocational rehabilitation counselor employed by the designated State unit. A copy of the individualized plan for employment for an eligible individual shall be provided to the individual or, as appropriate, to the individual’s representative, in writing and, if appropriate, in the native language or mode of communication of the individual or, as appropriate, of the individual’s representative. a qualified vocational rehabilitation counselor; and the eligible individual or, as appropriate, the individual’s representative; 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 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. The individualized plan for employment shall be developed as soon as possible, but not later than a deadline of 90 days after the date of the determination of eligibility described in paragraph (1), unless the designated State unit and the eligible individual agree to an extension of that deadline to a specific date by which the individualized plan for employment shall be completed. 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); 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 personal assistance services (including training in the management of such services); 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 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 timelines for the achievement of the employment outcome and for the initiation of the services; 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; a description of criteria to evaluate progress toward achievement of the employment outcome; the responsibilities of the designated State unit; the responsibilities the eligible individual will assume in relation to the employment outcome of the individual; if applicable, the participation of the eligible individual in paying for the costs of the plan; and 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 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 ; the extended services needed by the eligible individual; and 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; as determined to be necessary, a statement of projected need for post-employment services; and 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. Each State shall establish procedures for mediation of, and procedures for review through an impartial due process hearing of, determinations made by personnel of the designated State unit that affect the provision of vocational rehabilitation services to applicants or eligible individuals. The procedures shall allow an applicant or an eligible individual the opportunity to request mediation, an impartial due process hearing, or both procedures. the right to obtain review of determinations described in paragraph (1) in an impartial due process hearing under paragraph (5); the right to pursue mediation with respect to the determinations under paragraph (4); the availability of assistance from the client assistance program under section 732 of this title ; and 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. at the time an individual applies for vocational rehabilitation services provided under this subchapter; at the time the individualized plan for employment for the individual is developed; and upon reduction, suspension, or cessation of vocational rehabilitation services for the individual. 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 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. Each State shall ensure that procedures are established and implemented under this subsection to allow parties described in paragraph (1) to disputes involving any determination described in paragraph (1) to resolve such disputes through a mediation process that, at a minimum, shall be available whenever a hearing is requested under this subsection. is voluntary on the part of the parties; 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 is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws (including regulations) relating to the provision of vocational rehabilitation services under this subchapter, from which the mediators described in subparagraph (B) shall be selected. The State shall bear the cost of the mediation process. Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute. An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process. Nothing in this subsection shall be construed to preclude the parties to such a dispute from informally resolving the dispute prior to proceedings under this paragraph or paragraph (5), if the informal process used is not used to deny or delay the right of the applicant or eligible individual to a hearing under this subsection or to deny any other right afforded under this subchapter. A due process hearing described in paragraph (2) shall be conducted by an impartial hearing officer who, on reviewing the evidence presented, shall issue a written decision based on the provisions of the approved State plan, requirements specified in this chapter (including regulations implementing this chapter), and State regulations and policies that are consistent with the Federal requirements specified in this subchapter. The officer shall provide the written decision to the applicant or eligible individual, or, as appropriate, the applicant’s representative or individual’s representative, and to the designated State unit. The impartial hearing officer shall have the authority to render a decision and require actions regarding the applicant’s or eligible individual’s vocational rehabilitation services under this subchapter. the designated State unit; and members of the Council or commission, as appropriate, described in section 721(a)(21) of this title . on a random basis; or the Director of the designated State unit and the individual with a disability; or in appropriate cases, the Director and the individual’s representative. 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 an official from the office of the Governor. If the State establishes impartial review procedures under subparagraph (D), either party may request the review of the decision of the hearing officer within 20 days after the decision. 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; 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; 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 not delegate the responsibility for making the final decision to any officer or employee of the designated State unit. A decision made after a hearing under subparagraph (A) shall be final, except that a party may request an impartial review if the State has established procedures for such review under subparagraph (D) and a party involved in a hearing may bring a civil action under subparagraph (J). A decision made under subparagraph (F) shall be final unless such a party brings a civil action under subparagraph (J). If a party brings a civil action under subparagraph (J) to challenge a final decision of a hearing officer under subparagraph (A) or to challenge a final decision of a State reviewing official under subparagraph (F), the final decision involved shall be implemented pending review by the court. Any party aggrieved by a final decision described in subparagraph (I), may bring a civil action for review of such decision. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy. 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; shall hear additional evidence at the request of a party to the action; and basing the decision of the court on the preponderance of the evidence, shall grant such relief as the court determines to be appropriate. A fair hearing board, established by a State before January 1, 1985 , and authorized under State law to review determinations or decisions under this chapter, is authorized to carry out the responsibilities of the impartial hearing officer under this subsection. The provisions of paragraphs (1), (2), and (3) that relate to due process hearings do not apply, and paragraph (5) (other than subparagraph (J)) does not apply, to any State to which subparagraph (A) applies. Unless the individual with a disability so requests, or, in an appropriate case, the individual’s representative, so requests, pending a decision by a mediator, hearing officer, or reviewing officer under this subsection, the designated State unit shall not institute a suspension, reduction, or termination of services being provided for the individual, including evaluation and assessment services and plan development, unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual, or the individual’s representative. The Director of the designated State unit shall collect information described in subparagraph (B) and prepare and submit to the Commissioner a report containing such information. The Commissioner shall prepare a summary of the information furnished under this paragraph and include the summary in the annual report submitted under section 710 of this title . The Commissioner shall also collect copies of the final decisions of impartial hearing officers conducting hearings under this subsection and State officials conducting reviews under this subsection. a copy of the standards used by State reviewing officials for reviewing decisions made by impartial hearing officers under this subsection; 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; information on the number of hearing decisions made under this subsection that were not reviewed by the State reviewing officials; and sustained in favor of an applicant or eligible individual; sustained in favor of the designated State unit; reversed in whole or in part in favor of the applicant or eligible individual; and reversed in whole or in part in favor of the designated State unit. The confidentiality of records of applicants and eligible individuals maintained by the designated State unit shall not preclude the access of the Commissioner to those records for the purposes described in subparagraph (A). 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; to assist applicants and eligible individuals in exercising informed choice in decisions related to the provision of assessment services under this subchapter; 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; the employment outcome; the specific vocational rehabilitation services needed to achieve the employment outcome; the entity that will provide the services; the employment setting and the settings in which the services will be provided; and the methods available for procuring the services; and 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.