DETERMINATIONS OF ELIGIBILITY AND INDIVIDUALIZED WRITTEN REHABILITATION PROGRAM.

SEC. 123. DETERMINATIONS OF ELIGIBILITY AND INDIVIDUALIZED WRITTEN REHABILITATION PROGRAM. (a) Eligibility.— Section 102(a) (29 U.S.C. 722(a)) is amended to read as follows: “(a) (1) An individual is eligible for assistance under this title if the individual— “(A) is an individual with a disability under section 7(8)(A); 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— 106 STAT. 4376 “(A) a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment under section 7(8)(A)(i); and “(B) a severe physical or mental impairment which seriously limits one or more functional capacities in terms of an employment outcome under section 7(15)(A)(i). “(3) Determinations made by officials of other agencies, particularly the education officials described in section 101(a)(24), regarding whether an individual satisfies one or more factors relating to whether an individual is an individual with a disability under section 7(8)(A) or an individual with a severe disability under section 7(15)(A), shall be used (to the extent appropriate and avail-able and consistent with the requirements under this Act) for making such determinations under this Act. “(4) (A) It shall be presumed that an individual can benefit in terms of an employment outcome from vocational rehabilitation services under section 7(8)(A)(ii), 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 7(22). “(5) (A) 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 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 7(22)(A)(i), and, to the extent necessary, the preliminary assessment described in section 7(22)(A)(iii). “(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); and “(C) the availability of services provided by the client assistance program under section 112 to the individual.”. (b) Individualized Written Rehabilitation Program.— Section 102(b) (29 U.S.C. 722(b)) is amended— (1) by striking paragraph (1) and inserting the following: “(1) (A) As soon as a determination has been made that an individual is eligible for vocational rehabilitation services, the des-106 STAT. 4377ignated State unit shall complete an assessment for determining eligibility and vocational rehabilitation needs described in subparagraphs (B) and (C) of section 7(22) (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 7(22)(B), 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; 106 STAT. 4378 “(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); “(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); “(xiii) provide a description of the availability of a client assistance program established pursuant to section 112; “(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.”; and (2) in paragraph (2), by inserting after the first sentence the following: “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.”. (c) Technical Amendments.— Section 102(c) (29 U.S.C. 722(c)) is amended— (1) by striking “Commissioner shall also insure” and inserting “Director of the designated State unit shall also ensure”; and (2) in paragraph (2), by striking “evaluation of rehabilitation potential” and inserting “assessment for determining eligibility and vocational rehabilitation needs described in subparagraphs (B) and (C) of section 7(22)”. 106 STAT. 4379 (d) Selection of Impartial Hearing Officer.— Section 102(d) (29 U.S.C. 722(d)) is amended— (1) in paragraph (2)— (A) by inserting “(A)” after “(2)”; and (B) by adding at the end the following: “(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 105 who were appointed under one of subparagraphs (E) through (H) of section 105(b)(l); “(II) the commission described in subparagraph (B) or (C)(i) of section 101(a)(36); or “(III) the commissions described in section 101(a)(36)(C)(ii).”; (2) in paragraph (3), by striking subparagraph (C) and inserting the following: “(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.”; (3) by redesignating paragraph (5) as paragraph (6); and (4) by inserting after paragraph (4) the following: “(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 pro-gram, unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual with a disability.”.