§ 727 TITLE 29—LABOR Page 224

section 727 of this title, reduce or make no further payments to the State under this program,

until the State has entered into an approved

program improvement plan, or satisfies the

Commissioner that the State is complying substantially with the terms and conditions of such

a program improvement plan, as appropriate.

(d) Report to Congress

Beginning in fiscal year 1996, the Commissioner shall include in each annual report to the

Congress under section 712 of this title an analysis of program performance, including relative

State performance, based on the standards and

indicators.

(Pub. L. 93–112, title I, §106, as added Pub. L.

102–569, title I, §127(a), Oct. 29, 1992, 106 Stat.

4385.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 727 of this title.

§ 727. Monitoring and review

(a) In general

(1) Duties

In carrying out the duties of the Commissioner under this subchapter, the Commissioner shall—

(A) provide for the annual review and periodic on-site monitoring of programs under

this subchapter; and

(B) determine whether, in the administration of the State plan, a State is complying

substantially with the provisions of such

plan and with evaluation standards and performance indicators established under section 726 of this title.

(2) Procedures for reviews

In conducting reviews under this section the

Commissioner shall consider, at a minimum—

(A) State policies and procedures;

(B) guidance materials;

(C) decisions resulting from hearings conducted in accordance with due process;

(D) strategic plans and updates;

(E) plans and reports prepared under section 726(b) of this title;

(F) consumer satisfaction surveys described in section 721(a)(32) of this title;

(G) information provided by the State Rehabilitation Advisory Council established

under section 725 of this title;

(H) reports; and

(I) budget and financial management data.

(3) Procedures for monitoring

In conducting monitoring under this section

the Commissioner shall conduct—

(A) on-site visits, including on-site reviews

of records to verify that the State is following requirements regarding the order of selection set forth in section 721(a)(5)(A) of

this title;

(B) public hearings and other strategies for

collecting information from the public;

(C) meetings with the State Rehabilitation

Advisory Council;

(D) reviews of individual case files, including individualized written rehabilitation

programs and ineligibility determinations;

and

(E) meetings with rehabilitation counselors and other personnel.

(4) Areas of inquiry

In conducting the review and monitoring,

the Commissioner shall examine—

(A) the eligibility process;

(B) the provision of services, including, if

applicable, the order of selection;

(C) whether the personnel evaluation system described in section 721(a)(35) of this

title facilitates and does not impede the accomplishments of the program;

(D) such other areas as may be identified

by the public or through meetings with the

State Rehabilitation Advisory Council; and

(E) such other areas of inquiry as the Commissioner may consider appropriate.

(b) Technical assistance

The Commissioner shall—

(1) provide technical assistance to programs

under this subchapter regarding improving the

quality of vocational rehabilitation services

provided; and

(2) provide technical assistance and establish

a corrective action plan for a program under

this subchapter if the Commissioner finds that

the program fails to comply substantially

with the provisions of the State plan, or with

evaluation standards or performance indicators established under section 726 of this title,

in order to ensure that such failure is corrected as soon as practicable.

(c) Failure to comply with plan

(1) Withholding payments

Whenever the Commissioner, after providing

reasonable notice and an opportunity for a

hearing to the State agency administering or

supervising the administration of the State

plan approved under section 721 of this title,

finds that—

(A) the plan has been so changed that it no

longer complies with the requirements of

section 721(a) of this title; or

(B) in the administration of the plan there

is a failure to comply substantially with any

provision of such plan or with an evaluation

standard or performance indicator established under section 726 of this title,

the Commissioner shall notify such State

agency that no further payments will be made

to the State under this subchapter (or, in the

discretion of the Commissioner, that such further payments will be reduced, in accordance

with regulations the Commissioner shall prescribe, or that further payments will not be

made to the State only for the projects under

the parts of the State plan affected by such

failure), until the Commissioner is satisfied

there is no longer any such failure.

(2) Period

Until the Commissioner is so satisfied, the

Commissioner shall make no further payments

to such State under this subchapter (or shall

reduce payments or limit payments to

projects under those parts of the State plan in

which there is no such failure).

(3) Disbursal of withheld funds

The Commissioner may, in accordance with

regulations the Secretary shall prescribe, dis-
Page 225 TITLE 29—LABOR § 728a

burse any funds withheld from a State under

paragraph (1) to any public or nonprofit private organization or agency within such State

or to any political subdivision of such State

submitting a plan meeting the requirements of

section 721(a) of this title. The Commissioner

may not make any payment under this paragraph unless the entity to which such payment is made has provided assurances to the

Commissioner that such entity will contribute, for purposes of carrying out such plan, the

same amount as the State would have been obligated to contribute if the State received

such payment.

(d) Review

(1) Petition

Any State that is dissatisfied with a final

determination of the Commissioner under section 721(b) of this title or subsection (c) of this

section may file a petition for judicial review

of such determination in the United States

Court of Appeals for the circuit in which the

State is located. Such a petition may be filed

only within the 30-day period beginning on the

date that notice of such final determination

was received by the State. The clerk of the

court shall transmit a copy of the petition to

the Commissioner or to any officer designated

by the Commissioner for that purpose. In accordance with section 2112 of title 28, the Commissioner shall file with the court a record of

the proceeding on which the Commissioner

based the determination being appealed by the

State. Until a record is so filed, the Commissioner may modify or set aside any determination made under such proceedings.

(2) Submissions and determinations

If, in an action under this subsection to review a final determination of the Commissioner under section 721(b) of this title or subsection (c) of this section, the petitioner or

the Commissioner applies to the court for

leave to have additional oral submissions or

written presentations made respecting such

determination, the court may, for good cause

shown, order the Commissioner to provide

within 30 days an additional opportunity to

make such submissions and presentations.

Within such period, the Commissioner may revise any findings of fact, modify or set aside

the determination being reviewed, or make a

new determination by reason of the additional

submissions and presentations, and shall file

such modified or new determination, and any

revised findings of fact, with the return of

such submissions and presentations. The court

shall thereafter review such new or modified

determination.

(3) Standards of review

(A) In general

Upon the filing of a petition under paragraph (1) for judicial review of a determination, the court shall have jurisdiction—

(i) to grant appropriate relief as provided

in chapter 7 of title 5, except for interim

relief with respect to a determination

under subsection (c) of this section; and

(ii) except as otherwise provided in subparagraph (B), to review such determination in accordance with chapter 7 of title 5.

(B) Substantial evidence

Section 706 of title 5 shall apply to the review of any determination under this subsection, except that the standard for review

prescribed by paragraph (2)(E) of such section 706 shall not apply and the court shall

hold unlawful and set aside such determination if the court finds that the determination is not supported by substantial evidence

in the record of the proceeding submitted

pursuant to paragraph (1), as supplemented

by any additional submissions and presentations filed under paragraph (2).

(Pub. L. 93–112, title I, §107, as added Pub. L.

102–569, title I, §128(a), Oct. 29, 1992, 106 Stat.

4386.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 705, 726, 796d–1

of this title.

§ 728. Expenditure of certain amounts

(a) Expenditure

Amounts described in subsection (b) of this

section may not be expended by a State for any

purpose other than carrying out programs for

which the State receives financial assistance

under this subchapter, under part C of subchapter VI of this chapter, or under subchapter

VII of this chapter.

(b) Amounts

The amounts referred to in subsection (a) of

this section are amounts provided to a State

under the Social Security Act (42 U.S.C. 301 et

seq.) as reimbursement for the expenditure of

payments received by the State from allotments

under section 730 of this title.

(Pub. L. 93–112, title I, §108, as added Pub. L.

102–569, title I, §129(a), Oct. 29, 1992, 106 Stat.

4389.)

REFERENCES IN TEXT

The Social Security Act, referred to in subsec. (b), is

act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended, which

is classified generally to chapter 7 (§301 et seq.) 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.

§ 728a. Training of employers with respect to

Americans with Disabilities Act of 1990

A State may expend payments received under

section 731 of this title—

(1) to carry out a program to train employers with respect to compliance with the requirements of title I of the Americans with

Disabilities Act of 1990 (42 U.S.C. 12111 et seq.);

and

(2) to inform employers of the existence of

the program and the availability of the services of the program.

(Pub. L. 93–112, title I, §109, as added Pub. L.

102–569, title I, §130(a), Oct. 29, 1992, 106 Stat.

4389.)

REFERENCES IN TEXT

The Americans with Disabilities Act of 1990, referred

to in par. (1), is Pub. L. 101–336, July 26, 1990, 104 Stat.

327, as amended. Title I of the Act is classified gener-