**UNITED STATES DEPARTMENT OF EDUCATION**

**OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES**

**REHABILITATION SERVICES ADMINISTRATION**

**WASHINGTON, DC 20202**

> **TECHNICAL ASSISTANCE CIRCULAR**
>
> **RSA-TAC-98-03**
>
> **Date: 09-29-98**

**ADDRESSEES:** STATE VOCATIONAL REHABILITATION AGENCIES (GENERAL)

> STATE VOCATIONAL REHABILITATION AGENCIES (BLIND)
>
> CLIENT ASSISTANCE PROGRAMS
>
> REGIONAL REHABILITATION CONTINUING EDUCATION PROGRAMS
>
> AMERICAN INDIAN VOCATIONAL REHABILITATION SERVICE PROGRAMS
>
> RSA SENIOR MANAGEMENT TEAM

**SUBJECT:** Clarification of Data Requested on the RSA-722

**CITATIONS:** Section 102(c)(5) of the Rehabilitation Act of 1973, as
amended by the 1998 amendments (1998 Act);

> Section 102(d) of the Rehabilitation Act of 1973, as amended by the
> 1992 amendments (1992 Act);

34 CFR 361.57(b).

**CONTENT:** The purpose of this Technical Assistance Circular (TAC) is
to clarify the information RSA is seeking on the RSA-722, Resolution of
Applicant/Client Appeals, form. The State vocational rehabilitation (VR)
agencies must submit the RSA-722 each year to RSA by October 30 (within
30 days after the end of the fiscal year). The RSA-722 collects data
on: 1) the number of appeals filed with impartial hearing officers
(IHOs); 2) the number of IHO decisions reviewed by the State Director;
and 3) the types of complaints or issues appealed.

> **Types of Appeals to be Reported:**
>
> It is important to note that the RSA-722 collects information on the
> number of appeals filed with IHOs under Title I of the Rehabilitation
> Act of 1973, as amended (Act). The RSA-722 does [not]{.underline}
> collect data on full evidentiary hearings filed pursuant to 34 CFR
> 395.13. RSA recognizes that many States use the same IHO structure for
> licensed blind vendors grieving an action by the State Licensing
> Agency under the Randolph-Sheppard Vending Facility Program as they do
> for appeals filed against the Title I VR agency. However, the number
> of Randolph-Sheppard appeals and reviews of those decisions should
> [not]{.underline} be reflected on the RSA-722. The annual RSA-722
> should report only the number of appeals filed against the VR agency
> under Title I of the Act.
>
> **Reporting FY 1998 Data:**
>
> As you know, the Rehabilitation Act of 1973, as amended (Act), was
> reauthorized and signed into law on August 7, 1998. The 1998
> amendments to the Act modified the due process requirements governing
> the VR agency. One key change in the law deletes the State VR
> Director\'s authority to review IHO decisions, which is one of the
> required elements on the RSA-722 data collection instrument.
> Therefore, with regard to this particular item, State VR agencies will
> not report any \"Director reviews\" of IHO decisions after August 7,
> 1998, which is the effective date for the 1998 amendments to the Act.
> However, all other data requested on the RSA-722 should be reported
> for the entire fiscal year from October 1, 1997 to September 30, 1998.
>
> **State VR Director\'s Review of IHO Decisions:**
>
> RSA recognizes that the 1998 amendments to the Act removes the State
> VR Director\'s authority to review IHO decisions. However, State
> agencies will be reporting \"director reviews\" for most of FY 1998,
> thus necessitating this clarification. Furthermore, RSA believes this
> clarification of the term \"review\" will be helpful as States
> establish \"impartial review\" procedures pursuant to section
> 102(c)(5)(D)-(H) of the newly-reauthorized Act.
>
> RSA has noted wide variations among States in terms of the number of
> times the State VR agency reports State Director \"reviews\" of IHO
> decisions as compared to the number of IHO decisions reported by a
> State VR agency in a given year. The data suggest that some State VR
> agencies report that the Director \"reviews\" all IHO decisions,
> because the total of Director reviews reported equals the total number
> of IHO decisions reported. Conversely, other State VR agencies report
> a very small number of Director reviews as compared to the number of
> IHO decisions issued. These variations suggest that State VR agencies
> are classifying \"Director reviews\" differently, and therefore,
> indicate that there may be a need to clarify the term \"Director
> review.\"
>
> For purposes of reporting director reviews on the RSA-722, it is
> appropriate only to count a decision as having been \"reviewed\" when
> the director does more than just read the IHO decision. If the
> director studies and analyzes the decision in accordance with the
> agency\'s developed standards of review, then the agency should count
> this as an IHO decision \"reviewed\" by the director. If the director
> merely reads or declines to comment on the IHO decision, the agency
> should not count this as an IHO decision \"reviewed\" by the director.
> This clarification of the term \"reviewed\" is consistent with the
> agency review authority set forth in the applicable Federal
> regulations.
>
> Federal regulations at 34 CFR 361.57(b)(4) requires the IHO to issue
> \"a full written report of the findings and grounds for the decision
> within 30 days of the completion of the hearing.\" The IHO must
> provide this written report to the individual (appellant), or, if
> appropriate, to the individual\'s representative, and to the director
> of the designated State unit (VR agency). Once the State VR director
> reads the IHO\'s written report, Section 102(d)(3) of the Act, as
> amended in 1992, gives the State VR director the authority to review
> the IHO decision.
>
> The director\'s authority to review is further clarified in
> regulations at 34 CFR 361.57(b)(5)-(11). In particular, 34 CFR
> 361.57(b)(7) requires that the State VR director\'s decision to review
> the IHO decision \"must be based on standards of review contained in
> written State unit policy.\" The preamble commentary to the final
> regulations, published in the *Federal Register*, provides some
> guidance to the States in developing these standards of review. The
> \"standards developed under paragraph (b)(7) of this section
> \[should\] be consistent with RSA policy, specifically Chapter 0545 of
> the *Rehabilitation Services Manual* (Clients\' Rights to Appeal
> Decisions), which specifies a number of fundamental issues that should
> be addressed in connection with determining whether to review a
> hearing officer\'s decision (e.g., Is the initial decision arbitrary,
> capricious, an abuse of discretion or otherwise unreasonable? Is the
> initial decision consistent with the facts of the case and applicable
> Federal and State policies?).\" (62 FR 6332).
>
> These regulatory requirements make it clear that the director\'s
> decision to \"review\" an IHO decision must be something more than
> mere \"reading\" of the IHO decision. In fact, the IHO report must
> trigger a concern to the VR director, upon reading it, that forces him
> or her to question the validity of the initial decision for some
> reason. These concerns and questions then give rise to the director\'s
> authority to review the decision, in other words study the IHO\'s
> decision according to the agency\'s \"standards of review\" to ensure
> that the IHO\'s decision is not arbitrary and capricious and is
> consistent with the facts of the case and applicable Federal and State
> laws and policies. As the Act and regulations require, the director\'s
> decision to review must be based on written standards of review that
> address fundamental issues as suggested in Chapter 0545 of the
> *Rehabilitation Services Manual*.
>
> Should the State VR director decide to \"review\" an IHO decision,
> after applying the agency\'s established \"standards of review,\" 34
> CFR 361.57(b)(9) governs when the director may overturn or modify a
> decision that favors the individual. In particular, the director may
> not overturn or modify an IHO decision, or part of that decision,
> \"which supports the position of the individual unless the director
> concludes, based on clear and convincing evidence, that the IHO\'s
> decision is clearly erroneous because it is contrary to the approved
> State plan, the Act, Federal vocational rehabilitation regulations, or
> State regulations or policies that are consistent with Federal
> requirements.\"
>
> In summary, for purposes of the RSA-722, the VR director should count
> a decision as having been \"reviewed\" only when the director analyzes
> the decision in accordance with the agency\'s developed standards of
> review. State agencies should review their policies and standards for
> review to ensure conformity with the Act and its regulations.

**INQUIRIES:** RSA Regional Commissioners

> Fredric K. Schroeder, Ph.D.
>
> Commissioner
>
> Rehabilitation Services Administration

cc: CSAVR

NAPAS

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