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### §722. Individualized written rehabilitation program

#### (a) Eligibility

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

(A) is an individual with a disability under section 706(8)(A) of this title; and

(B) requires vocational rehabilitation services to prepare for, enter, engage in, or retain gainful employment.

(2) 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 considered to have—

(A) a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment under section 706(8)(A)(i) of this title; and

(B) a severe physical or mental impairment which seriously limits one or more functional capacities in terms of an employment outcome under section 706(15)(A)(i) of this title.

(3) Determinations made by officials of other agencies, particularly the education officials described in section 721(a)(24) 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 706(8)(A) of this title or an individual with a severe disability under section 706(15)(A) of this title, shall be used (to the extent appropriate and available and consistent with the requirements under this chapter) for making such determinations under this chapter.

(4)(A) It shall be presumed that an individual can benefit in terms of an employment outcome from vocational rehabilitation services under section 706(8)(A)(ii) of this title, unless the designated State unit can demonstrate by clear and convincing evidence that such individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome.

(B) In making the demonstration required under subparagraph (A) with respect to cases in which the issue concerns the severity of the disability of an individual, the designated State unit shall first conduct an extended evaluation by providing the services described in subparagraph (C)(iii)(I), and conducting the assessment described in subparagraph (C)(iii)(II), of section 706(22) of this title.

(5)(A) The 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 to receive the services unless—

(i) the designated State unit notifies the individual that exceptional and unforeseen circumstances beyond the control of the agency preclude the agency from completing the determination within the prescribed time and the individual agrees that an extension of time is warranted; or

(ii) such an extended evaluation is required.

(B) The determination of eligibility shall be based on the review of existing data described in section 706(22)(A)(i) of this title, and, to the extent necessary, the preliminary assessment described in section 706(22)(A)(ii) of this title.

(6) The designated State unit shall ensure that a determination of ineligibility made with respect to an individual prior to the initiation of an individualized written rehabilitation program, based on the review, and to the extent necessary, the preliminary assessment, shall include specification of—

(A) the reasons for such a determination;

(B) the rights and remedies available to the individual, including, if appropriate, recourse to the processes set forth in subsections (b)(2) and (d) of this section; and

(C) the availability of services provided by the client assistance program under section 732 of this title to the individual.

#### (b) Development and scope of program; annual review; joint redevelopment and agreement of terms; revision as needed

(1)(A) As soon as a determination has been made that an individual is eligible for vocational rehabilitation services, the designated State unit shall complete an assessment for determining eligibility and vocational rehabilitation needs described in subparagraphs (B) and (C) of section 706(22) of this title (if such assessment is necessary) and ensure that—

(i) an individualized written rehabilitation program is jointly developed, agreed upon, and signed by—

(I) such eligible individual (or, in an appropriate case, a parent, a family member, a guardian, an advocate, or an authorized representative, of such individual); and

(II) the vocational rehabilitation counselor or coordinator; and

(ii) such program meets the requirements set forth in subparagraph (B).

(B) Each individualized written rehabilitation program shall—

(i) be designed to achieve the employment objective of the individual, consistent with the unique strengths, resources, priorities, concerns, abilities, and capabilities, of the individual;

(ii) include a statement of the long-term rehabilitation goals based on the assessment for determining eligibility and vocational rehabilitation needs described in section 706(22)(B) of this title, including an assessment of career interests, for the individual, which goals shall, to the maximum extent appropriate, include placement in integrated settings;

(iii) include a statement of the intermediate rehabilitation objectives related to the attainment of such goals, determined through such assessment carried out in the most individualized and integrated setting (consistent with the informed choice of the individual);

(iv)(I) include a statement of the specific vocational rehabilitation services to be provided, and the projected dates for the initiation and the anticipated duration of each such service;

(II) if appropriate, include a statement of the specific rehabilitation technology services to be provided to assist in the implementation of intermediate rehabilitation objectives and long-term rehabilitation goals for the individual; and

(III) if appropriate, include a statement of the specific on-the-job and related personal assistance services to be provided to the individual, and, if appropriate and desired by the individual, the training in managing, supervising, and directing personal assistance services to be provided to the individual;

(v) include an assessment of the expected need for postemployment services and, if appropriate, extended services;

(vi) provide for—

(I) a reassessment of the need for postemployment services and, if appropriate, extended services prior to the point of successful rehabilitation, in accordance with this subsection; and

(II) if appropriate, the development of a statement detailing how such services shall be provided or arranged through cooperative agreements with other service providers;

(vii) include objective criteria and an evaluation procedure and schedule for determining whether such goals and objectives are being achieved;

(viii) include the terms and conditions under which goods and services described above will be provided to the individual in the most integrated settings;

(ix) identify the entity or entities that will provide the vocational rehabilitation services and the process used to provide or procure such services;

(x) include a statement by the individual, in the words of the individual (or, if appropriate, in the words of a parent, a family member, a guardian, an advocate, or an authorized representative, of the individual), describing how the individual was informed about and involved in choosing among alternative goals, objectives, services, entities providing such services, and methods used to provide or procure such services;

(xi) include, if necessary, an amendment specifying—

(I) the reasons that an individual for whom a program has been prepared is no longer eligible for vocational rehabilitation services; and

(II) the rights and remedies available to such an individual including, if appropriate, recourse to the processes set forth in subsections (b)(2) and (d) of this section;

(xii) set forth the rights and remedies available to such an individual including, if appropriate, recourse to the processes set forth in subsections (b)(2) and (d) of this section;

(xiii) provide a description of the availability of a client assistance program established pursuant to section 732 of this title;

(xiv) to the maximum extent possible, be provided in the native language, or mode of communication, of the individual, or, in an appropriate case, of a parent, a family member, a guardian, an advocate, or an authorized representative, of such individual; and

(xv) include information identifying other related services and benefits provided pursuant to any Federal, State, or local program that will enhance the capacity of the individual to achieve the vocational objectives of the individual.

(C) The designated State unit shall furnish a copy of the individualized written rehabilitation program and amendments to the program to the individual with a disability or, in an appropriate case, a parent, a family member, a guardian, an advocate, or an authorized representative, of the individual.

(2) Each individualized written rehabilitation program shall be reviewed annually, at which time such individual (or, in appropriate cases, the parents or guardian of the individual) will be afforded an opportunity to review such program and jointly redevelop and agree to its terms. Any revisions or amendments to the program resulting from such review shall be incorporated into or affixed to such program. Such revisions or amendments shall not take effect until agreed to and signed by the individual with a disability, or, if appropriate, by a parent, a family member, a guardian, an advocate, or an authorized representative, of such individual. Each individualized written rehabilitation program shall be revised as needed.

#### (c) Determination and achievement of vocational goal; decision respecting potential and capability of achievement; annual review of decision

The Director of the designated State unit shall also ensure that (1) in making any determination of ineligibility referred to in subsection (a) of this section, or in developing and carrying out the individualized written rehabilitation program required by section 721 of this title in the case of each individual with a disability, emphasis is placed upon the determination and achievement of a vocational goal for such individual, (2) a decision that such an individual is not capable of achieving such a goal and thus is not eligible for vocational rehabilitation services provided with assistance under this part, is made only in full consultation with such individual (or, in appropriate cases, such individual's parents or guardians), and only upon the certification, as an amendment to such written program, or as a part of the specification of reasons for an ineligibility determination, as appropriate, that the preliminary diagnosis or assessment for determining eligibility and vocational rehabilitation needs described in subparagraphs (B) and (C) of section 706(22) of this title, as appropriate, has demonstrated that such individual is not then capable of achieving such a goal, and (3) any such decision, as an amendment to such written program, shall be reviewed at least annually in accordance with the procedure and criteria established in this section.

#### (d) Review by Director of determinations by rehabilitation counselor or coordinator; notice and opportunity for submission of evidence and information; written decision; delegation of responsibility; fair hearing board; collection of data and report to Commissioner; summary of data by Commissioner

(1) Except as provided in paragraph (4), the Director of any designated State unit shall establish procedures for the review of determinations made by the rehabilitation counselor or coordinator under this section, upon the request of an individual with a disability (or, in appropriate cases, such individual's parents or guardian).

(2)(A) Such review procedures shall provide an opportunity to such individuals for the submission of additional evidence and information to an impartial hearing officer who shall make a decision based on the provisions of the State plan approved under section 721(a) of this title.

(B) The impartial hearing officer shall be selected to hear a particular case—

(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 an appropriate case, the Director and a parent, a family member, a guardian, an advocate, or an authorized representative, of such individual.

(C) The impartial hearing officer shall be selected from among a pool of qualified persons identified jointly by—

(i) the designated State unit; and

(ii)(I) the members of the State Rehabilitation Advisory Council established under section 725 of this title who were appointed under one of clauses (v) through (viii) of section 725(b)(1)(A) of this title, or under one of clauses (v) through (ix) of section 725(b)(1)(B) of this title, as appropriate;

(II) the commission described in subparagraph (B) or (C)(i) of section 721(a)(36) of this title; or

(III) the commissions described in section 721(a)(36)(C)(ii) of this title.

(3)(A) Within 20 days of the mailing of the decision to the individual with a disability (or, in appropriate cases, such individual's parents or guardian), the Director shall notify such individuals of the intent to review such decision in whole or in part.

(B) If the Director decides to review the decision, such individuals shall be provided an opportunity for the submission of additional evidence and information relevant to a final decision.

(C)(i) The Director may not overturn or modify a decision of an impartial hearing officer, or part of such a decision, that supports the position of the individual unless the Director concludes, based on clear and convincing evidence, that the decision of the independent hearing officer is clearly erroneous on the basis of being contrary to Federal or State law, including policy.

(ii) A final decision shall be made in writing by the Director and shall include a full report of the findings and the grounds for such decision.

(iii) Upon making a final decision, the Director shall provide a copy of such decision to such individual.

(D) Except as provided in paragraph (4), the Director may not delegate responsibility to make any such final decision to any other officer or employee of the designated State unit.

(4)(A) A fair hearing board, established by a State before January 1, 1985, and authorized under State law to review determinations under this chapter, is authorized to carry out the responsibilities of the Director under this subsection.

(B) The provisions of paragraphs (1) through (3) of this subsection shall not apply to any State to which subparagraph (A) of this paragraph applies.

(5) Unless the individual with a disability so requests, or, in an appropriate case, a parent, a family member, a guardian, an advocate, or an authorized representative, of such individual so requests, pending a final determination of such hearing or other final resolution under this subsection, the designated State unit shall not institute a suspension, reduction, or termination of services being provided under the individualized written rehabilitation program, unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual with a disability.

(6)(A) The Director shall collect data described in subparagraph (B) and prepare and submit to the Commissioner a report containing such data. For the report submitted on or before February 1, 1988, the Commissioner shall prepare a summary of the information furnished under this paragraph and include the summary in the annual report submitted under section 712 of this title.

(B) The data required to be collected under this paragraph shall include—

(i) a description of State procedures for review;

(ii) the number of appeals to the independent hearing officer and the State Director, including the type of complaint and the issues involved;

(iii) the number of decisions by the State Director reversing in whole or in part the decision of the impartial hearing officer; and

(iv) the number of decisions affirming the position of the individual with a disability assisted through the client assistance program.

(Pub. L. 93–112, title I, §102, Sept. 26, 1973, 87 Stat. 368; Pub. L. 93–516, title I, §111(e), Dec. 7, 1974, 88 Stat. 1620; Pub. L. 93–651, title I, §111(e), Nov. 21, 1974, 89 Stat. 2–5; Pub. L. 95–602, title I, §§103, 122(b)(1), Nov. 6, 1978, 92 Stat. 2959, 2987; Pub. L. 98–221, title I, §§104(a)(3), 112, Feb. 22, 1984, 98 Stat. 18, 20; Pub. L. 99–506, title I, §103(d)(2)(A), (B), title II, §203, title X, §1001(b)(5), Oct. 21, 1986, 100 Stat. 1810, 1815, 1842; Pub. L. 100–630, title II, §202(c), Nov. 7, 1988, 102 Stat. 3305; Pub. L. 102–569, title I, §§102(p)(8), 123, Oct. 29, 1992, 106 Stat. 4357, 4375; Pub. L. 103–73, title I, §107(b), Aug. 11, 1993, 107 Stat. 720.)

#### References in Text

The Social Security Act, referred to in subsec. (a)(2), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles II and XVI of the Act are classified generally to subchapters II (§401 et seq.) and XVI (§1381 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

#### Codification

For history of Pub. L. 93–651, which enacted amendments identical to Pub. L. 93–516, see Codification note set out under section 701 of this title.

#### Amendments

1993—Subsec. (a)(5)(B). Pub. L. 103–73, §107(b)(1), substituted “section 706(22)(A)(ii)” for “section 706(22)(A)(iii)”.

Subsec. (d)(2)(C)(ii)(I). Pub. L. 103–73, §107(b)(2)(A), substituted “who were appointed under one of clauses (v) through (viii) of section 725(b)(1)(A), or under one of clauses (v) through (ix) of section 725(b)(1)(B), as appropriate” for “who were appointed under one of subparagraphs (E) through (H) of section 725(b)(1) of this title”.

Subsec. (d)(6)(B). Pub. L. 103–73, §107(b)(2)(B), redesignated pars. (1) to (4) as cls. (i) to (iv), respectively.

1992—Subsec. (a). Pub. L. 102–569, §123(a), amended subsec. (a) generally, substituting present provisions for provisions requiring joint development of individualized written rehabilitation programs setting forth terms and conditions for provision of goods and services to individuals with handicaps.

Subsec. (b)(1). Pub. L. 102–569, §123(b)(1), added par. (1) and struck out former par. (1) which related to development and scope of individualized written rehabilitation programs.

Subsec. (b)(2). Pub. L. 102–569, §123(b)(2), inserted after first sentence “Any revisions or amendments to the program resulting from such review shall be incorporated into or affixed to such program. Such revisions or amendments shall not take effect until agreed to and signed by the individual with a disability, or, if appropriate, by a parent, a family member, a guardian, an advocate, or an authorized representative, of such individual.”

Subsec. (c). Pub. L. 102–569, §§102(p)(8), 123(c), substituted “Director of the designated State unit shall also ensure” for “Commissioner shall also insure”, “individual with a disability” for “individual with handicaps”, and “assessment for determining eligibility and vocational rehabilitation needs described in subparagraphs (B) and (C) of section 706(22) of this title” for “evaluation of rehabilitation potential”.

Subsec. (d)(1). Pub. L. 102–569, §102(p)(8), substituted “a disability” for “handicaps”.

Subsec. (d)(2). Pub. L. 102–569, §123(d)(1), designated existing provisions as subpar. (A) and added subpars. (B) and (C).

Subsec. (d)(3)(A). Pub. L. 102–569, §102(p)(8), substituted “a disability” for “handicaps”.

Subsec. (d)(3)(C). Pub. L. 102–569, §123(d)(2), added subpar. (C) and struck out former subpar. (C) which read as follows: “A final decision shall be made in writing by the Director and shall include a full report of the findings and the grounds for such decision. When a final decision is made, a copy of such decision shall be provided to such individuals.”

Subsec. (d)(5), (6). Pub. L. 102–569, §123(d)(3), (4), added par. (5) and redesignated former par. (5) as (6).

Pub. L. 102–569, §102(p)(8), substituted “a disability” for “handicaps” in par. (5)(B)(4).

1988—Subsec. (a). Pub. L. 100–630, §202(c)(1), substituted “including, where appropriate, recourse to the processes set forth in subsections (b)(2) and (d) of this section, and the availability of services provided under section 732 of this title” for “including recourse to the process set forth in subsection (b)(5) of this section”.

Subsec. (b)(1)(H). Pub. L. 100–630, §202(c)(2), substituted “individuals with severe handicaps” for “severely handicapped individuals”.

Subsec. (b)(2). Pub. L. 100–630, §202(c)(3), inserted comma after “annually” and after “(or”.

Subsec. (c)(2). Pub. L. 100–630, §202(c)(4), inserted “is” after “thus”.

1986—Subsec. (a). Pub. L. 99–506, §§103(d)(2)(B), 1001(b)(5)(A), substituted “individual with handicaps” for “handicapped individual” wherever appearing and “such individual's parents” for “his parents”.

Subsec. (b). Pub. L. 99–506, §203(a), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Each individualized written rehabilitation program shall be reviewed on an annual basis at which time each such individual (or, in appropriate cases, his parents or guardians) will be afforded an opportunity to review such program and jointly redevelop and agree to its terms. Such program shall include, but not be limited to (1) a statement of long-range rehabilitation goals for the individual and intermediate rehabilitation objectives related to the attainment of such goals, (2) a statement of the specific vocational rehabilitation services to be provided, (3) the projected date for the initiation and the anticipated duration of each such service, (4) objective criteria and evaluation procedure and schedule for determining whether such objectives and goals are being achieved, and, (5) where appropriate, a detailed explanation of the availability of a client assistance project established in such area pursuant to section 732 of this title.”

Subsec. (c). Pub. L. 99–506, §§103(d)(2)(B), 1001(b)(5)(A), substituted “individual with handicaps” for “handicapped individual” in cl. (1) and “such individual's parents” for “his parents” in cl. (2).

Subsec. (d)(1). Pub. L. 99–506, §1001(b)(5)(C), which directed that par. (1) be amended by substituting “delegate the responsibility” for “delegate his responsibility”, could not be executed because of prior amendment by section 203(b) of Pub. L. 99–506, see below.

Pub. L. 99–506, §203(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The Director of any designated State unit shall establish procedures for the review of determinations made by the rehabilitation counselor or coordinator under this section, upon the request of an individual with handicaps (or, in appropriate cases, his parents or guardians). Such procedures shall include a requirement that the final decision concerning the review of any such determination be made in writing by the Director. The Director may not delegate his responsibility to make any such final decision to any other officer or employee of the designated State unit.”

Pub. L. 99–506, §103(d)(2)(A), substituted “an individual with handicaps” for “a handicapped individual”.

Subsec. (d)(2). Pub. L. 99–506, §1001(b)(5)(B), which directed the substitution of “such individual's parent” for “his parent”, could not be executed because of prior amendment to par. (2), the only place in section containing “his parent”, by section 203(b) of Pub. L. 99–506, see below.

Pub. L. 99–506, §1001(b)(5)(D), which directed the substitution of “any responsibility of the Secretary” for “his responsibilities”, could not be executed because of prior amendment by section 203(b) of Pub. L. 99–506, see below.

Pub. L. 99–506, §203(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Any individual with handicaps (or, in appropriate cases, his parent or guardian) who is not satisfied with the final decision made under paragraph (1) by the Director of the designated State unit may request the Secretary to review such decision. Upon such request the Secretary shall conduct such a review and shall make recommendations to the Director as to the appropriate disposition of the matter. The Secretary may not delegate his responsibilities under this paragraph to any officer of the Department of Education who is employed at a position below that of an Assistant Secretary.”

Pub. L. 99–506, §103(d)(2)(B), substituted “individual with handicaps” for “handicapped individual”.

Subsec. (d)(3) to (5). Pub. L. 99–506, §203(b), added pars. (3) to (5).

1984—Subsec. (c)(2). Pub. L. 98–221, §112, struck out “beyond any reasonable doubt” after “rehabilitation potential, as appropriate, has demonstrated”.

Subsec. (d)(2). Pub. L. 98–221, §104(a)(3), substituted “Department of Education” for “Department of Health, Education, and Welfare”.

1978—Subsec. (a). Pub. L. 95–602, §122(b)(1), substituted “Commissioner” for “Secretary”.

Subsec. (b). Pub. L. 95–602, §103(1), inserted “and agree to” after “redevelop”.

Subsec. (c). Pub. L. 95–602, §122(b)(1), substituted “Commissioner” for “Secretary”.

Subsec. (d). Pub. L. 95–602, §103(2), added subsec. (d).

1974—Subsec. (a). Pub. L. 93–516, §111(e)(1), substituted “written rehabilitation program, or the specification of reasons for a determination of ineligibility prior to initiation of such program based on preliminary diagnosis,” for “written rehabilitation program,” and inserted provisions that the specifications of reasons for an ineligibility determination shall set forth the rights and remedies available to the individual in question, including recourse to the process set forth in subsec. (b)(5) of this section.

Pub. L. 93–651, §111(e)(1), amended subsec. (a) in exactly the same manner as it was amended by Pub. L. 93–516.

Subsec. (c)(1). Pub. L. 93–516, §111(e)(2), substituted “in making any determination of ineligibility referred to in subsection (a) of this section, or in developing and carrying out the individualized written rehabilitation program required by section 721 of this title in the case of each handicapped individual,” for “in developing and carrying out individualized written rehabilitation program required by section 721 of this title in the case of each handicapped individual primary”.

Pub. L. 93–651, §111(e)(2), amended subsec. (c)(1) in exactly the same manner as it was amended by Pub. L. 93–516.

Subsec. (c)(2). Pub. L. 93–516, §111(e)(3), substituted “program, or as a part of the specification of reasons for an ineligibility determination, as appropriate, that the preliminary diagnosis or evaluation of rehabilitation potential, as appropriate,” for “program, that the evaluation of rehabilitation potential”.

Pub. L. 93–651, §111(e)(3), amended subsec. (c)(2) in exactly the same manner as it was amended by Pub. L. 93–516.

Subsec. (c)(3). Pub. L. 93–516, §111(e)(4), substituted “such decision, as an amendment to such written program,” for “such decision”.

Pub. L. 93–651, §111(e)(4), amended subsec. (c)(3) in exactly the same manner as it was amended by Pub. L. 93–516.

#### Section Referred to in Other Sections

This section is referred to in sections 711, 721, 795m, 795n, 2211 of this title.