STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-0618

)

MARILYN MCFADDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final formal hearing before the undersigned duly designated hearing officer of the Division of Administrative Hearings in Sarasota, Florida on April 29, 1986.

APPEARANCES

For Petitioner: Anthony N. DeLuccia, Jr., Esquire

District Eight Legal Counsel Department of Health and

Rehabilitative Services

12381 Cleveland Avenue, Suite 22 Post Office Box 06085

Fort Myers, Florida 33906

For Respondent: Marilyn McFadden, pro se

1674 University Parkway

Box 307

Sarasota, Florida 33588

ISSUE

May Petitioner terminate vocational rehabilitation services to Respondent, specifically, vocational rehabilitation benefits under Chapter 10, F.A.C., for a two year program to become a newspaper writer?

HEARING AND PROCEDURE

At hearing, Petitioner presented the oral testimony of Kay Nelson and had admitted two exhibits. Respondent testified on

her own behalf and presented the oral testimony of Tom Hawkins. Respondent had no exhibits admitted in evidence.

Petitioner filed transcript of the formal hearing but has filed no proposed findings of fact and conclusions of law.

Respondent timely filed, within the extended time limits stipulated by the parties, a five page letter with various exhibits attached. Leave was not sought by motion for the submission of these after-filed exhibits and they have not been considered. A ruling in compliance with Section 120.59(2), Florida Statutes is contained within the CONCLUSIONS OF LAW portion of this recommended order.

FINDINGS OF FACT

1. Respondent, Marilyn McFadden, is an adult Caucasian female with a history of marital, familial, and emotional problems. Her past work history is unskilled and non-specific except for assisting a former husband who was a pentecostal preacher and evangelist and for working in her own creative jewelry business.

   
   

2. In 1983, Respondent was referred by the federal Social Security Administration to Petitioner State of Florida, Department of Health and Rehabilitative Services vocational rehabilitation unit (DHRS), in Sarasota, Florida. On March 14, 1983, Respondent made application for vocational rehabilitation services and funds.1

3. An extensive "work-up" was prepared by Kay Nelson, a DHRS employee who was a vocational rehabilitation counselor at the time. In the course of this "work-up," medical advisors to Petitioner verified to the satisfaction of Ms. Nelson that Respondent had sufficient physical disability or physical vocational handicap in her neck, shoulders, and upper back2 to qualify for DHRS vocational rehabilitation client services on the basis of a physical handicap and that Respondent would require preparation or re-training for semi-sedentary work on the basis of her past limited work history and present physical disability/handicap. At that time, Respondent did not confide in Ms. Nelson or the psychological evaluator that she had undergone prior psychiatric treatment with regard to her first divorce. Therefore, Ms. Nelson's initial assessment of Respondent's eligibility for vocational rehabilitation services did not take into account that Respondent might qualify for benefits due to a mental or emotional disability. Likewise, it did not take into consideration that her psychological makeup might present a barrier to successful vocational rehabilitation or future employability. Indeed, Ms. Nelson's assessment concluded that Respondent was then psychologically fit to embark on a two year

   college course so as to enter the occupational grouping of "Newswriter 131.267-214."

   
   

4. In order to achieve the goal of rendering Respondent employable, Respondent on her own behalf and Kay Nelson on behalf of DHRS entered into a written individualized written client services program set out in a three page document-dated July 12, 1983. (P-1) Before entering into the written program, Respondent and Nelson orally agreed that the services set forth in the written program had a reasonable expectation of getting Respondent back to work.

   
   

5. In addition to counseling, guidance, assistance with placement, and other services to help Respondent achieve employability, the written program specifically provided for Respondent to pursue a Mass Communications "Journalism) AA [Associate of Arts] degree at Manatee Junior College by completing 60 semester hours at 517.00 per hour for a total of

   $1,020.00.

   
   

6. In the "Counseling and Guidance Goals" portion of the written program it states as goals,

   
   

   "1. To encourage Marilyn's participation in New Option Program.

   1. To assist her to see her strong point-- positives.

   2. To assist her to view things as a whole and not dwell on detail."

      
      

7. Elsewhere in the program the parties agreed, in pertinent part, to "Counselling & Guidance provided by V. R. Counselor, Double Your Opportunity Program at MJC,3 & Displaced Homemaker Programs. N/C to V.R."4 and "Placement Services provided by V.R. 9 Counselor, V.R. Placement Specialist, F.S.E.S.; and M.J.C. n/c to V.R." These services had the extensive objective of emotional support, teaching assertiveness, guiding course selection and vocational choices, and preparing Respondent for return to employment including resume preparation, job interview techniques, and proper vocational attitudes.

   
   

8. In the "Statement of Client Agreement and Participation" portion of the written program it is spelled out that:

   
   

   "I, Marilyn J. McFadden; will cooperate in all phases of my

   Vocational Rehabilitation. I will attend all classes regularly and give my best effort in all classwork. I understand that in order for V.R. to continue at MJC, I must maintain

   a 2.0 GPA, keeping my counselor advised monthly of my progress at MJC in training and any expected changes in my V.R. plan.

   
   

   Prior to the end of each term, I will provide my counselor a written list of my expected course grades, initialed by the respective professors, as well as a listing of classes and books for the next term.

   
   

   I also understand that I am expected each term to contact the financial aid office and apply for any financial aid that it is determined I may be eligible to receive. Any scholarships or grant moneys I receive in addition to my PELL Grant are to be reimbursed to V.R. unless my counselor deems otherwise. I will be expected to assume financial responsibility for all my medical, therapy, and maintenance expenses.

   
   

   If personal or financial needs arise that would create undue hardship on my completing this training program I-am to advise my counselor prior to initiating any program changes. Any plans to continue on with a Baccalaureate degree in my ma]or field will not be considered until I have completed my two year degree and then will be dependent upon my successful completion of this training, my final G.P.A., and if my counselor and I agree that this prescribed course of action is in my best vocational interest.

   
   

   I understand that at the present time there is no financial obligation on the part of V.R. to fund me in a 4 year training program nor is my counselor or V.R. recommending such a program. Any major changes to my program such as change in vocational goal or additional training will require a supplemental plan.

   
   

   At the completion of my training program, I understand that I will be expected to work closely with those placement resources listed in my plan, keep scheduled job interviews, seek employment myself, and when appropriate

   employment is offered to me, return to work. "Emphasis supplied)

   
   

   Respondent signed and dated this program agreement. (P-1)

   
   

9. From August 1983 until January 1984, DHRS provided Respondent with money for some tuition costs until she received a Pell education grant, provided her with funds for books, transportation, and child care for her daughter, and provided her with on-going guidance and counselling. During this period, Respondent fully complied with the signed, written program.

   
   

10. Respondent took some remedial courses in math and English. It is not clear whether these courses were strictly remedial or are basic to an AA degree which may be used as the basis of a 4 year Baccalaureate degree, but these courses were apparently necessary to allow Respondent to remain in other courses required to qualify for an "AA" toward achieving "newswriter" employment. There is therefore insufficient evidence to support a finding that Respondent deliberately took unauthorized courses at Manatee Junior College during this period or during subsequent grading periods.

    
    

11. On January 18, 1984, Ms. Nelson counselled with Respondent and concluded Respondent had severe emotional problems. Except for her formal job title, little information was provided concerning Ms. Nelson. No evidence of education, training or experience of Ms. Nelson was offered as a predicate for her reaching this conclusion, and indeed, Ms. Nelson personally testified that she was "not a doctor". However, upon Ms. Nelson's testimony concerning her direct, personal observations of Respondent on that date and shortly thereafter that Respondent was behaving erratically and talking incoherently and upon Respondent's reference to this period as "the breakdown," it is found that for an unspecified period of time in early 1984 Respondent was unable to comply with the written vocational rehabilitation program due to severe emotional problems. Ms. Nelson and a person named Jeanne Hinton transported Respondent to a psychiatric hospital and attempted to have her commit herself voluntarily. When Ms. McFadden refused to commit herself voluntarily, Ms. Nelson and others appeared in some type of legal proceeding in an attempt to involuntarily commit Respondent for psychiatric care. Inevitably, these incidents resulted in considerable animosity and distrust on Ms. McFadden's part toward Ms. Nelson and toward DHRS. There is no evidence that Ms. McFadden is currently under any court or Division of Administrative Hearing Order of incompetency or involuntary commitment.5

12. Nonetheless, based on hearsay and her own observations, Ms. Nelson, as counsellor in charge of Ms. McFadden's vocational rehabilitation benefits, determined that Ms. McFadden was ineligible for vocational rehabilitation benefits under the existing program. In large part, Ms. Nelson's decision was based upon Ms. McFadden's expressed belief that God would heal her without counselling by DHRS or a psychologist and Ms. McFadden's refusal of counselling by Ms. Nelson or any other human being.

    Ms Nelson appears to have concluded that such reliance on God is evidence of emotional instability.

    
    

13. Ms. Nelson closed Respondent McFadden's file and terminated her vocational rehabilitation benefits upon grounds Respondent was "ineligible." Ms. Nelson is emphatic that the determination of ineligibility is that of the vocational counsellor and as that counsellor, she does consider Respondent ineligible because of what Ms. Nelson perceives as Respondent's emotional problems interfering with Respondent's ability to complete the agreed program and interfering with Respondent's employability. Ms. Nelson elected not to close the file upon grounds-the Respondent was "uncooperative."

    
    

14. Respondent denies any type of mental handicap requiring remediation as of the date of formal hearing. She maintains that although she first signed the contract program which DHRS has now terminated, she thereafter decided unilaterally that her acceptance of the benefits provided thereunder was dishonest within her personal moral code because she had no intention of becoming a newswriter; that she did not intend to ever accept employment in such a field but intended to "piggyback" a four year Baccalaureate degree in journalism and possibly a Master's degree on top of the "AA" degree if she successfully completed the "AA" degree. At hearing, Respondent initially refused to comply with the terms of the program and then offered to comply with the requirements of the program as far as achieving the "AA" degree but refused to progress toward employability as a newswriter and indicated she would still reject counselling.

1. The mutual hostility, mutual mistrust, and lack of respect for each other's point of view of Ms. Nelson and Respondent McFadden was an observable situation clearly evident throughout the entire hearing.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1) Florida Statutes.

3. Petitioner submitted no post-hearing proposals. The post-hearing proposals of Respondent constitute several pages of rambling, disjointed, immaterial, and largely irrelevant opinions, descriptions, and narratives of her political and religious philosophies. The paragraphs and sentences are unnumbered and do not refer specifically to any exhibit admitted in evidence. They do not refer specifically to any page of the transcript and in part differ markedly from her testimony under oath. It strains reason to consider this submission as constituting proposed findings of fact. Nothing therein is necessary to a resolution of the issue at bar and all matters contained therein are subordinate to the foregoing findings of fact. By no stretch of the imagination can it be said that proposed conclusions of law are contained in her submission. The documents attached were not offered at hearing and were therefore not admitted. No leave by order has permitted after-filing of these documents and any argument thereon within the Respondent's post-hearing proposals are therefore outside the record and accordingly neither the documents not the argument thereon, if it may be called that, have been considered. This paragraph constitutes the specific ruling contemplated by Section 120,59(2) Florida Statutes.

4. The Department of Health and Rehabilitative Services has authority to administer the Vocational Rehabilitation Program of the State of Florida and to make determinations regarding the eligibility of those who apply for vocational rehabilitation services. The Vocational Rehabilitation Program is governed by federal guidelines contained in 34 CFR Section 361.31(b)(1) and (2), which provides as follows:

   
   

   (b) Basic conditions. The State plan must assure that eligibility is based only upon:

   
   

   (l) The presence of a physical or mental disability which for the individual constitutes or results in a substantial handicap to employment: and

   
   

   (2) A reasonable expectation that vocational rehabilitation services may benefit the individual in terms of employability.

   
   

5. These federal guidelines are implemented through Section 413.30 Florida Statutes, which provides as follows:

   
   

   413.30 Eligibility for vocational rehabilitation-

   1. Vocational rehabilitation services may be provided to any disabled individual:

      1. Whose vocational rehabilitation, the Department of Health and Rehabilitative Services determines after full investigation, can be satisfactorily achieved or

      2. Who is eligible therefor under the terms of an agreement with another state or with the Federal Government.

   2. Eligibility when used in relation to an individual's qualification for vocational rehabilitation services, refers to a certification that:

      1. A physical or mental disability is present

      2. A substantial handicap to employment exists and

      3. Vocational rehabilitation services may reasonably be expected to render the individual fit to engage in a gainful occupation.6

6. The procedure or standards for termination of benefits to those previously found to be eligible for vocational rehabilitation are not clearly spelled-out by Florida statute, but Rule lOG-1.16 F.A.C. establishes the standard to be applied in making a determination of ineligibility.

   
   

   lOG-1.16 Termination or Revision of Individualized Written Rehabilitation Program for a Client. The individualized written program will be revised or terminated with full consultation and participation of the client when it becomes evident that:

   1. The client undergoing extended evaluation of rehabilitation potential is determined not to be eligible

   2. The client's vocational rehabilitation has been accomplished:

   3. Vocational rehabilitation services cannot be completed

   4. The client's needs have changed or

   5. The client has refused services or is unavailable for services. (Emphasis supplied)

      
      

7. The standard set forth at 34 CFR Section 361.35(c) is that an individual must be established to be ineligible upon the basis of clear evidence.

8. There is clear evidence that Respondent at one time had a physical disability resulting in a substantial handicap to employment which was remediable for employability purposes by a specific vocational rehabilitation program. However, in approximately January 1984 the program and the reasonable expectation that its vocational rehabilitation services might benefit Respondent in terms of employability was interrupted by Respondent's emotional problems. There is not clear evidence by way of reputable or competent expert evidence that those emotional problems continue as of the date of the de novo Section 120.57(1) evidentiary hearing or that if they continue to exist they are an impediment to completion of the program or an impediment to eventual employability as a newswriter, the goal of McFadden's individualized client program. There is, however, clear evidence that the client's needs have changed and that the client has refused services under the existing program.

   
   

9. In concluding that the Respondent has refused the program, several observations are in order. The program is made up of integral parts that are inter-related and designed to work together to maximize the Respondent's potential for employability within the target time period. At hearing, Respondent first answered that she would not cooperate with all of the college portion of the program and then that she would. This vacillation renders her final assurance less than credible. Even assigning the most favorable interpretation possible to this testimony, that she will attend the college courses and maintain her grades etc., but that she will not cooperate by participating in any form of counselling nor in searching for newswriter employment now or upon completion of the AA degree, it is clear that Respondent has rejected such integral parts of the program as to render it useless for purposes of benefitting her employability.

   
   

10. Under the circumstances, it is not difficult to appreciate that, regardless of any emotional, religious or moral conflicts, Respondent is reluctant to trust Ms. Nelson sufficiently to receive counselling of any kind from Ms. Nelson. Indeed, there is nothing in the record to suggest that Ms. Nelson has any training to provide psychotherapy. However, Respondent has refused every form of counselling from every source including vocational counselling by Ms. Nelson or any of the other sources listed in the client services program with the intent of bringing Respondent's employment expectations within the realm of reality. Requiring Respondent to participate in practical employment counselling to help her actually secure employment and get off public resource funding is not unreasonable. The program mutually devised made clear at the outset that DHRS was not binding itself to support Respondent for a 4 year Baccalaureate program except upon qualification for a supplemental program under specified conditions. Moreover, although DHRS has left

    open the option of Respondent continuing with a Baccalaureate degree in the major field of journalism dependent upon specifics covered within the client services program, Respondent's blanket refusal of counselling results in her refusing to consider, through experts in the field, the possibility of whether that additional goal is in her best vocational interest and in her refusing to explore and acquire even the rudimentary skills of successful job hunting which is an obvious prerequisite to employability. This series of refusals by Respondent results in a refusal to fulfill the entire program.

    
    

11. Because Respondent has now determined to only pursue the goal of a 4-year Baccalaureate degree without interruptions, she feels going to counselling or pretending she will seek to qualify as a newswriter constitutes taking money under false pretenses, a practice which her religious beliefs prohibit. She is entitled to her opinion. She is entitled to exercise her religious freedom of choice and expression in this manner. Contrary to Ms. Nelson's apparent belief, for Respondent to exercise this freedom of choice does not necessarily render her mentally handicapped. On the other hand, Respondent is not entitled to accept or reject the agreed client services program piecemeal, thereby rendering a planned rehabilitation scheme ineffective. She is not entitled to take public monies for a program of her unilateral choice with no reasonable prognosis of self support within the target program and time period.

RECOMMENDATION

That the Department of Health and Rehabilitative Services enter a final order affirming the administrative termination of the vocational rehabilitation benefits entered into by the July 12, 1983 written client services program.

DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida.

ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.

ENDNOTES

1/ Respondent made a second application in July, 1985. That application is still pending and is in no way considered within this recommended order.

2/ Apparently, there is no dispute that the Respondent's physical handicap remains unaltered as of date of hearing.

3/ MJC translates as "Manatee Junior College."

4/ N/C to V.R. translates as "no cost to vocational rehabilitation unit."

5/ There is also no evidence of record that Ms. Nelson has any legal, law enforcement, mental health, or medical background and no documentary evidence was offered to corroborate Ms. Nelson's testimony that Respondent had been "Baker-acted," that some unnamed sheriff had reported erratic behavior by Respondent and that Ms. Hinton had observed Respondent behave erratically on the MJC campus in January, 1984, or that since that date there have been reports from Drs. Hoorer and Slocum concerning whether or not Respondent's mental state in January 1984 constituted an impediment to her eventual employability. Neither Ms. Hinton, the sheriff, nor either of the doctors named by Ms. Nelson was called to testify and Ms. Nelson's testimony in this regard remains uncorroborated hearsay and of no probative value whatsoever in these proceedings.

6/ The definition of "gainful employment" as used in the Florida statute would appear to be more narrow than the definition of "employability" contained in 34 CFR Section 361.1 which definition states:

"Employability" refers to a determination that the provision of vocational rehabilitation services is likely to enable an individual to enter or retain employment, consistent with his capacities and abilities in the competitive labor market the practice of a profession self-employment homemaking farm or family work (including work for which payment is in kind rather than in cash) sheltered employment: homebound employment or other gainful work.

However, by Section 413.25 F.S., Florida accepts the entire federal Act.

COPIES FURNISHED:

Anthony N. DeLuccia, Jr., Esquire District Eight Legal Counsel

Department of Health and Rehabilitative Services

12381 Cleveland Avenue, Suite 22 Post Office Box 06085

Ft. Myers, Florida 33906

Marilyn McFadden, pro se 1674 University Parkway

Box 307

Sarasota, Florida 33588

William Page, Jr., Secretary 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steven W. Huss General Counsel

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 85-000618

Orders for Case No: 85-000618