vs. ) CASE NO. 79-599
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 12 and 18, 1979, in the Federal Building and United States Courthouse in Orlando, Florida.
For Petitioner: William R. Barker
Greater Orlando Area Legal Services, Inc.
For Respondent: Douglas E. Whitney
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner John A. Kutski applied for vocational rehabilitation (V.R.) services in February of 1977. On or about March 4, 1977, petitioner was certified for eligibility under the disabilities of degeneration of the acromiocalvicular joint following surgery and a history of right menisectomy. A disability of passive/aggressive personality was subsequently added to the disabilities. On March 18, 1977, a client services program was entered into between petitioner and respondent consisting of a two-year training program at Valencia Community College to teach petitioner to be a lawyer's assistant. The program also provided for ten psychotherapy sessions with Robert Edelman, Ph.D.
Petitioner commenced his vocational training at Valencia Community College in the legal assistant program and also was employed as an assistant at
the Youth Hall in Orlando. He did not attend any psychotherapy sessions with Dr. Edelman. During the latter part of 1977, petitioner became ill and it was found that he was suffering from hypertension. He was treated for this condition by Dr. Tew and Dr. Samano. According to respondent, the medication he was taking interfered with his school work. Consequently, petitioner voluntarily dropped out of school in the early part of 1978.
Thereafter, petitioner attempted to have respondent sponsor him in his own business of wood techniques and macrame. After various discussions between respondent's counselors and the petitioner, respondent rejected this proposal.
During this initial period of time, petitioner's counselor was Albert Tester. Mr. Tester testified that in the beginning phases of the program, the petitioner was energetic and motivated. Then, when the program did not go the way petitioner wanted with regard to establishing his own business, petitioner became verbally abusive and threatening. On one occasion in January or February of 1978, petitioner came to Tester's home while Tester was on sick leave, demanded to see him and left him a threatening note. After this incident, Mr. Tester did not feel that he could successfully serve as petitioner's V.R. counselor and petitioner's file was transferred to James Ryder to March of 1978.
In May of 1978, shortly after petitioner was advised that respondent would not sponsor a program for the establishment of his own small business, petitioner became verbally abusive to his counselor and threw a file across the room in a supervisor's office. Mr. Ryder recommended that petitioner's file be closed at that time, but this recommendation was not followed.
On June 9, 1978, a supplemental client services program was entered into between the parties. This program listed petitioner's vocational handicap as hypertension and passive/aggressive personality. It provided for treatment for his hypertension and for 15 trial sessions in psychotherapy by Dr. Edelman. Dr. Edelman had previously recommended a course of biofeedback rather than psychotherapy. However, the psychotherapy treatment had been inserted on the program because biofeedback was not, at that time, an approved form of treatment. The program also provided for a training course at Mid-Florida Tech in photography.
The petitioner commenced his schooling in photography at Mid-Florida Tech. According to his photography instructor, petitioner was very energetic and performed above average during the beginning months of the program. His attitude as a student then began to worsen. He was disruptive in class, insubordinate to the instructor and guilty of excessive absenteeism.
Mr. Ryder testified that he did not make an appointment for petitioner with Dr. Edelman. Because petitioner was having transportation and scheduling problems, Mr. Ryder told petitioner to make his own appointment. Petitioner never did see Dr. Edelman.
Due to Mr. Ryder`s change in employment, petitioner's file was transferred to counselor Joanne Linville in October or November of 1978.
In late December of 1978 or early January of 1979, petitioner experienced a urinary problem. His physician, Dr. Samano, recommended that he see a urologist. Petitioner contacted his counselor, Joanne Linville, in early January and requested her to make arrangements for him to see a urologist. The testimony is not clear as to the reason for the delay between the time petitioner originally requested the services of a urologist and the time when he
had an office visit with Dr. Riveron on January 15, 1979. However, it is clear from the testimony of Charles May, the program supervisor, that attempts were made to find a urologist acceptable to petitioner and Dr. Samano who was on the respondent's panel of physicians. Petitioner felt that his urinary problem was of an emergency nature and he placed phone calls to Ms. Linville on a daily basis regarding this matter.
Due to petitioner's harassing and abusive behavior toward her, Ms. Linville felt that she could no longer work with the petitioner and that his case should be closed. A psychiatric consultant for respondent, Dr. Roger E. Phillips, reviewed the petitioner's file at Ms. Linville's request on or about January 11, 1979. Dr. Phillips was asked for his opinion on whether the petitioner's file should be transferred to the mental health unit of V.R. It was his opinion that because of petitioner's harassing behavior and refusal to accept treatment, his file should be closed. Dr. Phillips felt that it would be a waste of V.R. funds to send a client to the mental health unit if the client did not wish to visit a psychiatrist or psychologist.
Although various counselors, supervisors and Dr. Phillips had recommended that petitioner's file be closed, unusual attempts were being made to maintain the file. The proposals and discussions regarding transferring petitioner's case to the mental health unit occurred during the last two weeks of January, 1979.
Petitioner saw Dr. Riveron for his urological problems on January 15th and again on February 13, 1979. On the latter date, Dr. Riveron recommended that petitioner be hospitalized for a short period of 24 to 48 hours for various urological examinations to be administered under general anesthesia. Dr. Riveron requested authorization from respondent to have petitioner seen by a cardiologist prior to anesthesia due to petitioner's history of hypertension.
Petitioner was advised that his program was being reevaluated for a possible transfer to the mental health unit. He opposed such a transfer, feeling that his problems were of a medical, rather that a psychological, nature. Through his attorney, petitioner requested a staffing and one was scheduled for February 19, 1979.
Petitioner requested that the staffing be continued until his medical problems with the urinary tract were resolved. He also indicated that he had a test on the scheduled date of the staffing. After checking with the petitioner's school and learning that no test was scheduled on February 19, 1979, respondent refused to adjourn the staffing. Petitioner did not attend the meeting, but his attorney did.
By letter dated February 19, 1979, petitioner was advised that his case file was being transferred to Anna Sayre, who was a counselor in the mental health unit. He was asked to contact Ms. Sayre and confirm his appointment of February 26, 1979. Petitioner was advised that his plan of services would include an internal medicine evaluation and a current psychological or psychiatric evaluation with a V.R. panel doctor. Petitioner was further advised by said letter that his current services would be continued pending receipt of the two evaluations and that other services would be considered upon reevaluation of his program. Finally, petitioner was advised that should he not desire to pursue the program outlined, respondent had no alternative program to offer and the services of V.R. would be terminated.
Following the February 19, 1979, letter, Ms. Sayre had a personal conference with petitioner. An appointment was made by Ms. Sayre for petitioner to see Dr. Guttman, a psychiatrist. Thereafter, petitioner's attorney called Ms. Sayre and informed her that petitioner desired a list of three psychiatrists' names to choose from. Ms. Sayre also provided petitioner with the names of three cardiologists from which to choose. It was Ms. Sayre's testimony that while petitioner's entire services were conditioned upon him seeing a psychiatrist, she did not make that condition a contingency for the receipt or pursuit of medical care.
Petitioner informed Ms. Sayre that he was declining to see any psychiatrist. Ms. Sayre told him that if he did so, V.R. services would be terminated. By letter dated March 2, 1979, Ms. Sayre advised petitioner that his case with V.R. was being closed due to the fact that he had declined to see a psychiatrist.
Petitioner then petitioned for a hearing. By stipulation between the parties, petitioner's services were reinstated pending a final determination of this Proceeding.
CONCLUSIONS OF LAW
It is petitioner's contention in this proceeding that his rights were violated when respondent changed his client services program without consultation or authorization and that he was improperly terminated from the program. The undersigned has carefully considered the federal and state laws and regulations cited by petitioner in support of these contentions, as well as the evidence adduced at the hearing.
The evidence as a whole indicated that the termination of vocational rehabilitation services to petitioner was justified in light of the fact that petitioner refused to accept and comply with the services and treatment offered to him and deemed necessary for the attainment of the goals toward employability. A review of the facts as found above can lead to no conclusion but that V.R. personnel made every attempt possible to work with petitioner in both the areas for which he was certified eligible for services and in connection with his other physical ailments. While respondent may have responded more slowly to petitioner's demands for medical attention than petitioner desired, the fact remains that petitioner failed to respond at all to the requirements of psychological treatments outlined in all three of the programs in which services were provided for him. Instead, he was verbally abusive, threatening and demanding to the V.R. counselors and supervisors who were making every effort possible to continue his services in the realm of psychological consultation. Petitioner did have a diagnosed mental disability and it was not unreasonable to require treatment in that realm. Attendant to a client's right to receive services under a program are responsibilities regarding the treatment of the disability. Petitioner having continuously failed to fulfill these responsibilities, respondent was justified in terminating services to him.
Petitioner urges that his program was changed without consultation or authorization. The evidence demonstrates this contention to be without merit. The first program change, occurring in June of 1978, was authorized and consented to by the petitioner. The second change, occurring in February of 1979, is more properly labeled a reevaluation of his program with different treatment being provided. The same training and services ware being offered.
Petitioner was invited to attend the staff conference which led to the decisions set forth in the February 19, 1979, letter, but declined to do so.
Petitioner has failed to adequately demonstrate that the respondent's decision to terminate services to him was wrongfully made. On the contrary, the evidence illustrates that it was petitioner who failed to avail himself of the treatment, training and services provided to him.
23. The undersigned has fully considered the proposed findings of fact submitted by the parties. To the extent that the same are not contained in this recommended order, the proposed findings are rejected as being either not supported by competent, substantial evidence, irrelevant and immaterial to the issues or conclusions of law as opposed to findings of fact.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for reinstatement of services and additional relief be DENIED and DISMISSED, and that the decision to terminate vocational rehabilitation services to petitioner be AFFIRMED.
Respectfully submitted and entered this 21st day of August, 1979, in Tallahassee, Florida.
DIANE D. TREMOR
William R. Barker
Greater Orlando Area Legal Services, Inc.
Douglas E. Whitney
Secretary David H. Pingree Department of HRS
