H. R. 1385—203
‘‘(A) CONTRACTS
WITH
FOR-PROFIT
ORGANIZATIONS.—
The State plan shall provide that the designated State
agency has the authority to enter into contracts with for-
profit organizations for the purpose of providing, as voca-
tional rehabilitation services, on-the-job training and
related programs for individuals with disabilities under
part A of title VI, upon a determination by such agency
that such for-profit organizations are better qualified to
provide such rehabilitation services than nonprofit agencies
and organizations.
‘‘(B) COOPERATIVE
AGREEMENTS
WITH
PRIVATE
NON-
PROFIT ORGANIZATIONS.—The State plan shall describe the
manner in which cooperative agreements with private non-
profit vocational rehabilitation service providers will be
established.
‘‘(b) APPROVAL; DISAPPROVAL OF THE STATE PLAN.—
‘‘(1) APPROVAL.—The Commissioner shall approve any plan
that the Commissioner finds fulfills the conditions specified
in this section, and shall disapprove any plan that does not
fulfill such conditions.
‘‘(2) DISAPPROVAL.—Prior to disapproval of the State plan,
the Commissioner shall notify the State of the intention to
disapprove the plan and shall afford the State reasonable notice
and opportunity for a hearing.
‘‘SEC. 102. ELIGIBILITY AND INDIVIDUALIZED PLAN FOR EMPLOYMENT.
‘‘(a) ELIGIBILITY.—
‘‘(1) CRITERION FOR ELIGIBILITY.—An individual is eligible
for assistance under this title if the individual—
‘‘(A) is an individual with a disability under section
7(20)(A); and
‘‘(B) requires vocational rehabilitation services to pre-
pare for, secure, retain, or regain employment.
‘‘(2) PRESUMPTION OF BENEFIT.—
‘‘(A) DEMONSTRATION.—For purposes of this section,
an individual shall be presumed to be an individual that
can benefit in terms of an employment outcome from voca-
tional rehabilitation services under section 7(20)(A), 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
from vocational rehabilitation services due to the severity
of the disability of the individual.
‘‘(B) METHODS.—In making the demonstration required
under subparagraph (A), 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 7(2)(D), with
appropriate supports provided through the designated State
unit, except under limited circumstances when an individ-
ual cannot take advantage of such experiences. Such experi-
ences shall be of sufficient variety and over a sufficient
period of time to determine the eligibility of the individual
or to determine the existence of clear and convincing evi-
dence that the individual is incapable of benefiting in terms
of an employment outcome from vocational rehabilitation
H. R. 1385—204
services due to the severity of the disability of the individ-
ual.
‘‘(3) PRESUMPTION OF ELIGIBILITY.—
‘‘(A) IN
GENERAL.—For 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 signifi-
cant disability under section 7(21)(A); and
‘‘(ii) presumed to be eligible for vocational
rehabilitation services under this title (provided that
the individual intends to achieve an employment out-
come consistent with the unique strengths, resources,
priorities, concerns, abilities, capabilities, interests,
and informed choice of the individual) unless the des-
ignated State unit involved can demonstrate by clear
and convincing evidence that such individual is incapa-
ble of benefiting in terms of an employment outcome
from vocational rehabilitation services due to the sever-
ity of the disability of the individual in accordance
with paragraph (2).
‘‘(B) CONSTRUCTION.—Nothing in this paragraph shall
be construed to create an entitlement to any vocational
rehabilitation service.
‘‘(4) USE OF EXISTING INFORMATION.—
‘‘(A) IN GENERAL.—To the maximum extent appropriate
and consistent with the requirements of this part, for pur-
poses of determining the eligibility of an individual for
vocational rehabilitation services under this title and devel-
oping 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 employ-
ment), including information available from other programs
and providers, particularly information used by education
officials and the Social Security Administration, informa-
tion provided by the individual and the family of the
individual, and information obtained under the assessment
for determining eligibility and vocational rehabilitation
needs.
‘‘(B) DETERMINATIONS BY OFFICIALS OF OTHER AGEN-
CIES.—Determinations made by officials of other agencies,
particularly 
education 
officials 
described 
in 
section
101(a)(11)(D), regarding whether an individual satisfies one
or more factors relating to whether an individual is an
individual with a disability under section 7(20)(A) or an
individual with a significant disability under section
7(21)(A) 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.
‘‘(C) BASIS.—The determination of eligibility for voca-
tional rehabilitation services shall be based on—
‘‘(i) the review of existing data described in section
7(2)(A)(i); and
H. R. 1385—205
‘‘(ii) to the extent that such data is unavailable
or insufficient for determining eligibility, the provision
of assessment activities described in section 7(2)(A)(ii).
‘‘(5) DETERMINATION
OF
INELIGIBILITY.—If an individual
who applies for services under this title is determined, based
on the review of existing data and, to the extent necessary,
the assessment activities described in section 7(2)(A)(ii), not
to be eligible for the services, or if an eligible individual receiv-
ing services under an individualized plan for employment is
determined to be no longer eligible for the services—
‘‘(A) the ineligibility determination involved shall be
made only after providing an opportunity for full consulta-
tion with the individual or, as appropriate, the individual’s
representative;
‘‘(B) 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; 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);
‘‘(C) the individual shall be provided with a description
of services available from the client assistance program
under section 112 and information on how to contact that
program; and
‘‘(D) 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 DETERMINA-
TION.—The designated State unit shall determine whether an
individual is eligible for vocational rehabilitation services under
this title 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 des-
ignated State unit and the individual agree to a specific
extension of time; or
‘‘(B) the designated State unit is exploring an individ-
ual’s abilities, capabilities, and capacity to perform in work
situations under paragraph (2)(B).
‘‘(b) DEVELOPMENT OF AN INDIVIDUALIZED PLAN FOR EMPLOY-
MENT.—
‘‘(1) OPTIONS FOR DEVELOPING AN INDIVIDUALIZED PLAN FOR
EMPLOYMENT.—If 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,
H. R. 1385—206
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, to
the extent determined to be appropriate by the eligible
individual, from a qualified vocational rehabilitation coun-
selor 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;
‘‘(C) as appropriate—
‘‘(i) an explanation of agency guidelines and cri-
teria 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 avail-
able 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 assist-
ance program established pursuant to section 112 and
information about how to contact the client assistance pro-
gram.
‘‘(2) MANDATORY PROCEDURES.—
‘‘(A) WRITTEN DOCUMENT.—An individualized plan for
employment shall be a written document prepared on forms
provided by the designated State unit.
‘‘(B) INFORMED
CHOICE.—An individualized plan for
employment shall be developed and implemented in a man-
ner that affords eligible individuals the opportunity to exer-
cise 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).
‘‘(C) SIGNATORIES.—An individualized plan for employ-
ment shall be—
‘‘(i) agreed to, and signed by, such eligible individ-
ual 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.—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
H. R. 1385—207
language or mode of communication of the individual or,
as appropriate, of the individual’s representative.
‘‘(E) REVIEW
AND
AMENDMENT.—The individualized
plan for employment shall be—
‘‘(i) reviewed at least annually by—
‘‘(I) a qualified vocational rehabilitation coun-
selor; and
‘‘(II) the eligible individual or, as appropriate,
the individual’s representative; and
‘‘(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 rehabilita-
tion 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).
‘‘(3) MANDATORY COMPONENTS OF AN INDIVIDUALIZED PLAN
FOR EMPLOYMENT.—Regardless of the approach selected by an
eligible individual to develop an individualized plan for employ-
ment, an individualized plan for employment shall, at a mini-
mum, 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, abili-
ties, capabilities, interests, and informed choice of the
eligible individual, and, to the maximum extent appro-
priate, results in employment in an integrated setting;
‘‘(B)(i) a description of the specific vocational rehabilita-
tion services that are—
‘‘(I) needed to achieve the employment outcome,
including, as appropriate, the provision of assistive
technology devices and assistive technology services,
and personal assistance services, including training
in the management of such services; and
‘‘(II) 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 representa-
tive, 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;
H. R. 1385—209
‘‘(iii) upon reduction, suspension, or cessation of
vocational rehabilitation services for the individual.
‘‘(3) EVIDENCE
AND
REPRESENTATION.—The 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 rep-
resentative 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 ses-
sion or hearing by a person selected by the applicant or
eligible individual.
‘‘(4) MEDIATION.—
‘‘(A) PROCEDURES.—Each State shall ensure that proce-
dures are established and implemented under this sub-
section to allow parties described in paragraph (1) to dis-
putes 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.
‘‘(B) REQUIREMENTS.—Such 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 title; and
‘‘(iii) is conducted by a qualified and impartial
mediator who is trained in effective mediation tech-
niques.
‘‘(C) LIST OF MEDIATORS.—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 title, from which the mediators described in subpara-
graph (B) shall be selected.
‘‘(D) COST.—The State shall bear the cost of the medi-
ation process.
‘‘(E) SCHEDULING.—Each session in the mediation proc-
ess shall be scheduled in a timely manner and shall be
held in a location that is convenient to the parties to
the dispute.
‘‘(F) AGREEMENT.—An agreement reached by the par-
ties to the dispute in the mediation process shall be set
forth in a written mediation agreement.
‘‘(G) CONFIDENTIALITY.—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.
‘‘(H) CONSTRUCTION.—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
H. R. 1385—210
the applicant or eligible individual to a hearing under
this subsection or to deny any other right afforded under
this title.
‘‘(5) HEARINGS.—
‘‘(A) OFFICER.—A due process hearing described in
paragraph (2) shall be conducted by an impartial hearing
officer who shall issue a decision based on the provisions
of the approved State plan, this Act (including regulations
implementing this Act), and State regulations and policies
that are consistent with the Federal requirements specified
in this title. The officer shall provide the decision in writing
to the applicant or eligible individual, or, as appropriate,
the applicant’s representative or individual’s representa-
tive, and to the designated State unit.
‘‘(B) LIST.—The designated State unit shall maintain
a list of qualified impartial hearing officers who are
knowledgeable in laws (including regulations) relating to
the provision of vocational rehabilitation services under
this title 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 101(a)(21).
‘‘(C) SELECTION.—Such an impartial hearing officer
shall be selected to hear a particular case relating to a
determination—
‘‘(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 REVIEW.—A 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
101(a)(2); or
‘‘(ii) an official from the office of the Governor.
‘‘(E) REVIEW REQUEST.—If the State establishes impar-
tial review procedures under subparagraph (D), either
party may request the review of the decision of the hearing
officer within 20 days after the decision.
‘‘(F) REVIEWING
OFFICIAL.—The reviewing official
described in subparagraph (D) shall—
‘‘(i) in conducting the review, provide an oppor-
tunity 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
H. R. 1385—211
and convincing evidence, that the decision of the impar-
tial hearing officer is clearly erroneous on the basis
of being contrary to the approved State plan, this Act
(including regulations implementing this Act) or any
State regulation or policy that is consistent with the
Federal requirements specified in this title; and
‘‘(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.
‘‘(G) FINALITY OF HEARING DECISION.—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).
‘‘(H) FINALITY
OF
REVIEW.—A decision made under
subparagraph (F) shall be final unless such a party brings
a civil action under subparagraph (J).
‘‘(I) IMPLEMENTATION.—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 subpara-
graph (F), the final decision involved shall be implemented
pending review by the court.
‘‘(J) CIVIL ACTION.—
‘‘(i) IN GENERAL.—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 juris-
diction or in a district court of the United States of
competent jurisdiction without regard to the amount
in controversy.
‘‘(ii) PROCEDURE.—In 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.—A fair hearing board, established
by a State before January 1, 1985, and authorized under
State law to review determinations or decisions under this
Act, is authorized to carry out the responsibilities of the
impartial hearing officer under this subsection.
‘‘(B) APPLICATION.—The provisions of paragraphs (1),
(2), and (3) that relate to due process hearings do not
apply, and paragraph (5) (other than subparagraph (J))
H. R. 1385—212
does not apply, to any State to which subparagraph (A)
applies.
‘‘(7) IMPACT
ON
PROVISION
OF
SERVICES.—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 individ-
ual’s representative.
‘‘(8) INFORMATION COLLECTION AND REPORT.—
‘‘(A) IN GENERAL.—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 pre-
pare a summary of the information furnished under this
paragraph and include the summary in the annual report
submitted under section 13. 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.
‘‘(B) INFORMATION.—The information required to be col-
lected 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 com-
plaints 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.
‘‘(C) CONFIDENTIALITY.—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).
‘‘(d) POLICIES AND PROCEDURES.—Each designated State agency,
in consultation with the State Rehabilitation Council, if the State
has such a council, shall, consistent with section 100(a)(3)(C),
develop and implement written policies and procedures that enable