STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM W. ENGLERT, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2645

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 14, 1982, in Merritt Island, Florida.

APPEARANCES

For Petitioner: William W. Englert, Jr., pro se

1280 Demitassee Avenue

Merritt Island, Florida 32952

For Respondent: Samuel Patterson Stafford, Esquire

Assistant District Counsel Department of Health and

Rehabilitiative Services

400 West Robinson Street, Suite 912 Orlando, Florida 32801

ISSUE

Whether or not the Respondent, Department of Health and Rehabilitative Services' cessation of further vocational rehabilitation services to petitioner and its (Respondent's) failure to release certain medical and psychological reports directly to Petitioner, was proper.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received herein, and the entire record compiled in this proceeding, the following relevant facts are found.

   
   

2. Petitioner, William W. Englert, Jr., during times material herein, was a recipient of certain vocational and rehabilitative services and other benefits from Respondent, Department of Health and Rehabilitative Services, Office of Vocational Rehabilitation. 1/ By letter dated October 1, 1981, Petitioner was advised by Betty J. Mynatt, District Counselor for Vocational Rehabilitation in Brevard County, that the Office of Vocational Rehabilitation was closing his

   file as of October 1, 1981, based on his failure to follow the recommendation of the staff in the district office, including the medical and psychological consultants, work evaluators and the V.R. and supervising counselors who recommended that Petitioner pursue intensive psychotherapy. Based on Petitioner's failure to follow that recommendation, he was deemed ineligible to receive further Vocational Rehabilitation services. Two weeks prior, i.e., approximately September 15, 1981, Petitioner was advised by Charles E. May, Vocational Rehabilitation Program Supervisor for District VII, by letter dated September 15, 1981, that the Offices of Vocational Rehabilitation would not release, directly to him, medical and psychological reports contained in his Vocational Rehabilitation file based on his (Petitioner's) refusal to accept the recommendation or follow the advice of those recommendations contained in those reports. Rather, Respondent concluded that such reports should be released, in Petitioner's behalf, to a third party who would offer assistance to him in utilizing such information to his personal benefit. Certain persons were suggested to Petitioner who would be able to lend beneficial assistance to him. (Petitioner's Composite Exhibit No. 1.)

   
   

3. Petitioner was observed by Harold F. Bernstein, Ph.D., a clinical psychologist licensed to practice in Brevard County, Florida, on three (3) occasions during early May and June of 1981. Dr. Bernstein, who is in private practice, is on the approved list of psychologists for vendor services to the Offices of Vocational Rehabilitation. He has served as a consultant, using Vocational Rehabilitation purchase of client services funds, since approximately 1973. (Respondent's Exhibit No. 5.) During the first and second sessions, which were held on May 7 and 14, 1981, Petitioner was evaluated and tested by Dr. Bernstein for the purpose of performing a psychological evaluation. During these two (2) sessions, Petitioner was "guarded" and resisted Dr. Bernstein's efforts to test and evaluate him. During the third meeting in June of 1981, Petitioner challenged and disputed Dr. Bernstein's evaluations, findings and ultimate recommendations. To perform the psychological testing of Petitioner, Dr. Bernstein used the Wischler Intelligence Scale for Children, 1952 Revision for Adults (WISC-R) , which in his opinion measured a valid profile of Petitioner. Dr. Bernstein noted six (6) impressions and/or problems as relates to Petitioner. These impressions were that Petitioner suffered from organic brain syndrome, neurological defects, anxiety disorders, paranoia, a social relations disorder and an average intellectual range.

   
   

4. Shirlee Wise, a Vocational Evaluator, is Director of the Vocational Rehabilitation Achievement Center (Center) in Brevard County. The Center is a work oriented facility, private, nonprofit. Vocational Rehabilitation has a contract with the Center to provide both work evaluation services and personal adjustment services to selected, eligible clients of the Vocational Rehabilitation Program.

   
   

5. Petitioner was referred to the Center and was enrolled in a work evaluation program which permitted Ms. Wise to prepare a final work evaluation report for petitioner. During the course of that program, Petitioner was resistant to the various work sample techniques utilized by the Center and consistently refused to be timed when assigned tasks to complete. Petitioner occasionally left the Center when its staff conducted work sampling tests and during the fifteen (15) work day period involved in the program, Petitioner was present only seven (7) of the fifteen (15) work days. At the conclusion of the program, staffers from the Center prepared a final work evaluation report on Petitioner on August 14, 1981. The report dealt with academics, interests testings, vocational work samplings, behavioral observations, a personal interview and a summary. When the report was prepared, Petitioner, who was

   present, was given a copy, and an oral explanation of the findings and summaries contained therein. The report concluded that Petitioner, based on observations, work samplings and the recommendations of staffers, should receive intensive psychotherapy. To date, Petitioner has refused to follow this recommendation.

   
   

6. During the period in which Petitioner received vocational rehabilitative services, he was given a complete battery of psychological tests and other evaluative materials, including a neurological and orthopedic evaluation; a complete series of neuropsychological evaluations including a CAT scan and a work evaluation assignment at the Center. During the period in which Petitioner was receiving services, he openly criticized the recommendations and findings of the staff of Vocational Rehabilitation and its contract service providers. When petitioner failed to follow the recommendations of the Vocational Rehabilitation staff, he was declared ineligible for further services from the program. The terminal date of his eligibility for benefits and services was September 30, 1981. The staff of Vocational Rehabilitation closed petitioner's eligibility file based on a Code 56, which signifies a "failure to cooperate from applicant status." As stated, Petitioner was advised of this decision to close his file by letter dated October 1, 1981. (Testimony of Betty Mynatt.)

   
   

7. Lyle Peddicord, Supervisor and Vocational Rehabilitation Counselor for District VII since 1968 is familiar with Petitioner's Vocational Rehabilitation file. Supervisor Peddicord requested that Dr. Bernstein provide Petitioner with an explanation of his psychological report inasmuch as he felt that a personal explanation might be helpful to him. Supervisor Peddicord followed Petitioner's case history from the outset through the termination of Vocational Rehabilitation benefits.

   
   

8. Charles E. May, Program Supervisor for Vocational Rehabilitation in District VII, was familiar with Petitioner and recalled a meeting with him on September 10, 1981. During the meeting with Supervisor May, Petitioner also openly expressed his dissatisfaction with the recommendations and findings of the medical and psychological reports and evaluations and his inability to directly gain access to the medical and psychological information contained in his file.

   
   

9. Supervisor May also explained to Petitioner the importance of his need to follow the recommendations of the V.R. staff and the consequences which would result should he elect not to follow the staff recommendations. Supervisor May also explained to petitioner the restrictions that the V.R. program operates under with respect to the direct release of information to a client.

   
   

10. Petitioner admits that he was absent from the work evaluation program sponsored by the Center, however, he related that he was not in the best mental state during this period due to his father's illness and the resulting stress as a result of that illness. Petitioner also considered that the two (2) visits which he made to Dr. Bernstein's office were not sufficient, in his opinion, for Dr. Bernstein to recommend intensive psychotherapy sessions. Petitioner also was of the opinion that the refusal of Vocational Rehabilitation to directly permit him access to his file was improper and urges that V.R. be ordered to grant him direct access to his medical and psychological file.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The Vocational Rehabilitation Program is primarily a federally funded program and its records, absent a specific exception, are confidential and release of such information must be in compliance with pertinent provisions of the Code of Federal Regulations (CFR). Specifically, written requests and information may be released to a client, or as appropriate, his parent, guardian or other representative, in proceedings or actions for benefits. However, only such information as is relevant to the needs of the client may be released and in the case of medical or psychological information, the knowledge of which may be harmful to the client, such information generally will be released to the parent, guardian or other representative of the client by the State agency or to the client by a physician or by a licensed or certified psychologist. 45 CFR 1361.47. A review of the facts herein reveals that the staff of the Vocational Rehabilitation program of the Department of Health and Rehabilitative Services properly reviewed Petitioner's psychological and other available work materials and its staff jointly determined that Petitioner, based on the results of the psychological testings, should receive intensive psychotherapy. Petitioner refused to follow this recommendation. Petitioner also repeatedly objected to V.R.'s efforts to place him in a position or employment situation which was within or would match his interests and capability. The staff of V.R. concluded that under the circumstances the direct release to Petitioner of medical and psychological reports from his file would not be of personal benefit to him based on his repeated rejections of the interpretation and results of the findings therein. Respondent has consistently taken the position that the release of such materials would (and should) be made to a third party, of Petitioner's designation with the appropriate releases executed by Petitioner. This position, under the circumstances herein, appears to be both authorized and proper by the authorities contained in the criteria within which the Vocational Rehabilitation Program operates. Also, Respondent's decision to terminate further services to Petitioner was also proper and justified under the circumstances. It is, therefore, concluded as a matter of law that the Respondent properly preserved the confidentiality of Petitioner's Vocational Rehabilitation file and the termination of further services to Petitioner under the circumstances herein was proper and justified. Respondent is obliged to protect the confidentiality of the records sought herein and to cooperate with the dictates of Federal statutes. Chapter 413.22 through .26, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Respondent deny Petitioner direct access to his medical and psychological material contained in its files and terminate further Vocational Rehabilitation services to him.

RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.

ENDNOTE

1/ Herein sometimes referred to as V.R.

COPIES FURNISHED:

William W. Englert, Jr. 1280 Demitassee Avenue

Merritt Island, Florida 32952

Samuel Patterson Stafford, Esquire Assistant District Counsel Department of HRS

400 West Robinson Street Suite 912

Orlando, Florida 32801

Docket for Case No: 81-002645

Orders for Case No: 81-002645