STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ALIK KUTSKI, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2315

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on March 7, 1979. The parties were represented by counsel:

For Petitioner: William R. Barker, Esquire

128 West Central Boulevard Orlando, Florida 32802

For Respondent: Douglas E. Whitney, Esquire

Room 912, 400 West Robinson

Orlando, Florida 32801

By petition dated November 14, 1978, petitioner alleges that he was "certified as eligible for vocational rehabilitative services . . . [and] should have been granted maintenance in the amount of $45.00 per week from approximately January 1, 1978, to June 16, 1978."

FINDINGS OF FACT

1. After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978.

   
   

2. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need

   not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978.

   
   

3. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments.

   
   

4. At no time before filing the petition in the present case did petitioner request any maintenance benefits.

   
   

5. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner relies on 45 CFR 1361.40(a)(5) as authority for the position that he is entitled to back maintenance payments for the period of time he was not involved in a vocational program. This federal regulation requires that Florida adopt a state plan which

   
   

   shall provide that, as appropriate, the following vocational rehabilitation services will be available to individuals:

   * * *

   (5) Maintenance;

   . . . .

   
   

   This language in 45 CFR Section 1361.40(a)(5) does not specify the conditions under which maintenance payments must be made. It only requires that Florida specify those conditions. As the responsible Florida agency, respondent has done this in its Rehabilitation Services Manual and Vocational Rehabilitation Counselor Manual.

   
   

7. Neither manual purports to require maintenance payments to persons who drop out of vocational rehabilitation programs. Moreover, since neither manual

has been promulgated as a rule, petitioner would not be entitled to back payments, even if language in one of the manuals seemed to authorize such payments. See Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977). Nor did petitioner undertake to establish "prior agency practice . . . [or any] departure therefrom. . . ." Section 120.68(12)(b), Florida Administrative Code.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William R. Barker, Esquire

128 West Central Boulevard Orlando, Florida 32802

Douglas E. Whitney, Esquire Room 912, 400 West Robinson

Orlando, Florida 32801

Docket for Case No: 78-002315

Orders for Case No: 78-002315